7.4 LIMITATIONS ON THE APPLICATION OF THE DOCTRINE

7.4.1 Statute and ‘stare decisis’.

It is to be readily stipulated that, whilst the doctrine of adoption has been approved so as to enable the English common law to adopt settled customary international law, “to its fullest extent”; never the less this is not authority, for the different contention, that such adoption can be unconditional or as it were ‘wholesale’. Far from it, and in conformity with the fluid dynamics analysis on the interaction of laws offered at the outset of this section, such adoption is highly conditional, in that it is subject to several important limitations and restrictions.

Amongst these the adopted law, as indeed is naturally true of all common law rules and principles, must bow to the superior provisions of statute law, so that if Parliament provides either explicitly or implicitly that the state of the law on some subject shall be such, then no matter how out of accord or contrary to international law, be that customary or conventional, that may be, then so be it , see typically the words of Lord Dunedin in Mortensen v. Peters:

“ In this Court we have nothing to do with the question of whether the legislature has or has not done what foreign powers may consider a usurpation in a question with them. Neither are we a tribunal siting to decide whether an Act of the legislature is ultra vires as in contravention of generally acknowledged principles of international law. For us an Act of Parliament duly passed by the Lords and Commons and assented to by the King, is supreme, and we are bound to give effect to its terms.”

Mortensen v. Peters (1960) 14 SLT 227 @ 230 per Lord Dunedin.

As I have stated already elsewhere, the political currency or legitimacy of an “Assistance for American Aggression (Enablement) Act”, is a legislative and political subject well beyond the scope of this case, it being sufficient to stipulate that no such statutory provision, either so candidly expressed or otherwise implied, exists - thus far. However, it is sufficient for present purposes to borrow from the words of the Court of the King’s Bench in the seminal matter of Entick v. Carrington , “if the Legislature be of that opinion they will make it lawful.”

Equally, it is generally suggested that adopted law cannot be out of harmony with established domestic principles of the common law, settled by prior judicial decisions of final authority, in application of the doctrine of ‘stare decisis’ (see for example Chung Chi Cheung v. The King [1939] AC 160 (PC) @ 169). This, however, must now be qualified by the ratio of the decision in Trendtex Trading v. The Bank of Nigeria (1977) (see above s.7.1.3) so that the adoption of a contemporary rule of customary law will not be prevented by reference to previous domestic case law authority on what was the rule of international law even were they to differ.

7.4.2 Evidence of the view of the Executive, as to certain international ‘facts’, is conclusive.

After some initial hesitation in the field, by the mid 19th. Century, it became the well established practice, as a rule of evidence, that such matters as the status of a defendant entitling him to claim a diplomatic immunity or privilege, or in relation to the status of a foreign state, for example whether in amity or enmity with the Crown, were matters of fact in respects of which the evidence of the appropriate or duly authorised officer of the executive would be admitted and taken as being conclusive of the fact.

See for example : Taylor v. Barclay (1828) 7. II Sim.213 @220 per Lord Shadwell L.-C.

The effect of the Foreign Office Certificate, as it is usually termed, is to substitute the view of the British government for an independent judicial determination on the facts of a claim to be entitled to the particular status involved. See now:

“ ... the settled practice of the Court is to take judicial notice of the status of any foreign Government, and for that purpose, in any case of uncertainty, to seek information from a Secretary of State ; and the information so received is conclusive. “

Duff Development Co., Ltd. v. Kelantan [1924] AC 797 (headnote).

Doubtless, there are aspects about the factual matrix relevant to the present cause of action about which a future court of trial might conceivably seek such an executive view. For example it is just conceivable that such a court might wish to be satisfied that the Government of Iraq, under President Hussein, as of the date on the informations, was the internationally recognised government de jure for that nation state. Such a question for instance about the “legitimacy” of the ‘Taleban regime’ in Kabul last year, at the time of the military action there, would doubtless have been answered in the negative. I find it inconceivable, however, that any such doubts could realistically be said to exist in relation to the Government of Iraq, and were a certificate, suggesting such, to be signed by the Second Accused Person (to wit the Foreign Secretary), then doubtless issues of compliance with certain rules of natural justice could also conceivably arise. However, as at present, this is all needlessly speculative, there being no dispute as to the existence of any relevant issue of fact, diplomatic, international or otherwise, which formed any part of the grounds for the decisions of the Defendants to the present action and which is the subject of my current claim.

Finally, the application of this rule of evidence, reaches also to cover issues not strictly of a diplomatic or foreign relations character, but also includes issues of fact of a broader character, such as for example the question of what is needed or required, in the public interest, in “the defence of the realm” or in “the interests of national security”, to use the usual expressions. The issue was definitively addressed in the opinion of Lord Parker of Waddington in the Privy Council, in the mater of The Zamora [1916]. The case concerned the rules to be administered and observed by a “Prize Court” when requested by the Crown to surrender up a foreign ship seized in ‘prize’ during the course of hostilities. He observed as follows:

“ With regard to the first of these limitations, their Lordships are of the opinion that the judge ought, as a rule, to treat the statement on oath of the proper officer of the Crown to the effect that the vessel or goods which it is desired to requisition are urgently required for use in connection with the defence of the Realm, the prosecution of the war, or other matters involving the national security, as conclusive of the fact. .... Those who are responsible for national security must be sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public. “

The Zamora [1916] 2 AC 77(PC) @ p.106 per Lord Parker of Waddington

However, all of these restrictions, in the rules of evidence, being willingly conceded, since the prosecution sought by the present Claimant will not even seek to touch upon the political wisdom, military effectiveness or administrative propriety of the exercise of the Crown’s unfettered prerogative discretion in the interest of national security, I need not examine further the issue of the general conclusiveness of the Crown’s evidence, as to the requisite policies and dispositions needed to defend this country. It is not alleged by me that in order to prove the attack on the State of Iraq unlawful, at any future trial of the case, I must and can establish that it was politically, diplomatically and/or militarily or otherwise unnecessary, in the interests of national security or for the defence of the realm or otherwise.

Even if I should be of such a political, moral etc. belief, such a position surely forms no part of the case for prosecuting. Equally, and by the same logic, if it be that such an assertion by the accused persons were indeed to be made, in order to explain their actions, then so be it. That amounts to nothing less than a complete confession of their crime; for such political, diplomatic or military imperatives, whether valid or not, are no defence, excuse or justification for the commission of the crime alleged. Once again I cannot resist citing the Court of the King’s Bench in the notorious matter of Entick -v- Carrington (see elsewhere) “ It is said that it is better for the Government and the public to seize the libel before it is published ; if the Legislature be of that opinion they will make it lawful”.

7.4.3 The rule of international customary law must be well settled and arguably there should also be evidence of assent by the Crown

In 1876 the German ship “the Franconia” whilst steaming through the English Channel off Dover, and as a result of the negligence of its Captain, collided with a British ship “the Strathclyde” inside the 3 mile limit and thus inside British territorial waters, sometimes described at the time as “the littoral sea”. The British ship sank and a passenger was drowned. The German Captain, Herr Keyn, was indicted for manslaughter at the Central Criminal Court, and following his conviction for that offence, the question for the opinion of the Court for Crown Cases Reserved was whether the Old Bailey, as successor in law to the jurisdiction of the Admiral, had jurisdiction to try the case. In a Court of 13 it was decided, by a majority of one, that there was no jurisdiction to try the case, the main ground for this opinion being that no English statute conferred jurisdiction to try offences committed by foreigners whilst on board foreign ships, whether within or outside of territorial waters. The majority of the judges were singularly preoccupied with heads of jurisdiction in English municipal law alone.

However, Cockburn CJ, in his long and often quoted judgement, concludes that the littoral sea beyond low water is not a part of British territory according to English law, and after considering that position, he then goes on to seek any relevant rule of international law on the subject. Assuming that the law of nations provides otherwise he seeks evidence of a specific British assent to that rule of international law, in the form of treaty or other express concurrence of the Government, or by implication from established usage. On the subject of specific evidence of assent by the Government he is in general exercised by the then vagueness and differing views, as he sees it, of jurists on the precise point involved, namely the exercise of criminal jurisdiction as a corollary of the territorial status of the littoral sea (see @p.203). On this point his views seem at odds with the contrary view expressed by Brett JA and Grove J.

The decision in R. v. Keyn was much criticised even at the time and caused some not inconsiderable consternation. It led very shortly, thereafter, to the enactment of the Territorial Waters Jurisdiction Act, 1878. Some of this consternation can be gleaned from the judgement of Mr Moore is his opinion in the Permanent Court of International Justice in the case of the

“ss Lotus” (already quoted above @ s.7.2.2.). He recalled that:

“ The sense of surprise and indeed apprehension, with which the judgement was received by the bar and the public, was expressed by Lord Cairns, then holding the high office of Lord Chancellor, who, in presenting in the House of Lords the Bill, by the enactment of which, under the title of the “Terriorial Waters Jurisdiction Act, 1878” , the law as previously understood was re-established, declared that, ... “ it would have been fortunate for the vindication of the law” if the fact had been brought to the attention of the Court that by warrant published in 1848, under the Customs Regulations Act of that year, the limits of the Port of Dover were declared to extend three miles out to sea, thus covering the waters in which the Strathclyde was sunk. ...Indeed, on a careful study of the case, it is difficult to avoid the conclusion that the vote of the majority was in no small measure determined by a powerful, but composite and somewhat torrential opinion of eighty pages delivered by Sir Alexander Cockburn, then Chief Justice of the King’s Bench, the disturbing effects of which it was necessary to remove in order that the majestic stream of the common law, united with international law, might resume its even and accustomed flow. This was done by the Act of (1878) which declared that the “rightful jurisdiction” of her Majesty not only extended but had “always extended” over her coastal waters, and thus made British criminal law applicable to all offences committed on the open sea within a marine league of the coast measured from the low-water mark.”

“ss. Lotus” PCIJ Series A No.9 (1927) @ p.75 per Mr Moore

But that aside, Lord Cockburn’s judgement has lead to a school of thought which calls for there to be evidence of a specific assent by the Government, before the courts of this country should be willing to accede to the adoption of a rule of customary international law by the common law. Lord Finlay in his opinion in the same case, and on the same topic, ie the decision in “the Franconia”, observed as follows:

“ I do not think it correct to say that [R v. Keyn] raised only a question of English law. As the ships involved were of different nationalities, the decision depended on the principles of international law. International law, wherever applicable, is considered a part of the law of England, and our judges must apply it accordingly. It seems to me that it is not right to treat R.v.Keyn as if it had been a decision merely on a question of English municipal law. The judges cannot have overlooked the fact that they were dealing with vessels of different nationalities and the decision must have proceeded on the law applicable to such a case. The decision, of course, proceeded upon the view which those English judges took of the international law on the point, but it was international law which they had to apply.”

(my emphasis added)

“ss. Lotus” PCIJ Series A No.9 (1927) @ p.54 per Lord Finlay

In his leading work “Principles of Public International Law”, Professor Ian Brownlie QC, on this specific issue says as follows:

“ The elements of ‘transformation’ in the judgement of Cockburn CJ., are entirely compatible with the doctrine of incorporation [adoption] if it is seen that he was concerned with the proof of the rules of international law ; if the evidence is inconclusive and the issue affects the liberty of persons, then assent by the legislature of the forum is needed to supplement the evidence. Yet as a general condition he does not require express assent or a functional transformation by Act of Parliament. In cases of first impression the courts are ready to apply international law without looking for evidence of ‘assent’.”

“Principles of Public International Law”, (4th.edn.) 1990 @ pp.45-46

I respectfully submit that the most persuasive judgement on this particular subject was that as offered by a successor in office to Lord Cockburn CJ., namely Lord Alverstone CJ., as already cited above in relation to his decision in the seminal case of West Rand Central Gold Mining v. Rex (1905) (see above @ s.7.1.3.). That Lord Chief Justice offers the following observation, which in its turn was specifically later cited with approval by the opinion of the Judicial Committee of the Privy Council in the case of Molvan v. The Attorney-General for Palestine [1948] AC 351 (PC) @ p.369, as follows:

“ The appellant cannot succeed in this plea unless he invokes a doctrine which is, in the words of Lord Alverstone C.J. .. “one really accepted as binding between nations”. It must be shown by satisfactory evidence, that learned judge adds, “either that the particular proposition put forward has been recognised and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized State would repudiate it. The mere opinion of jurists, however eminent or learned, that it ought to be so recognised, are not in themselves sufficient. They must have received the express sanction of international agreement, or gradually have grown to be a part of international law by their frequent practical recognition in dealings between various nations.”

West Rand Central Gold Mining Co. Ltd. v. Rex [1905] 2 KB 391 @ 407 per Lord Alverstone CJ

as cited with approval in Molvan v. The Attorney-General for Palestine [1948] AC 351 (PC) @ p.369,

This Claimant is now happy to offer “in evidence”, as it were, the following history of the active involvement and participation of the government of this country in the evolution and development of the, by now well established and settled definition of, the offence of the commission of a “crime against peace”, under customary international criminal law, vis.:

(1) The active participation in the preparation, signing and ratification of the Treaty of Paris (1928) the so-called Kellogg-Briand Pact (see above @ s. 5.4.4)

(2) The same conduct as regards the Charter of the United Nations, 1945, at the San Francisco Conference, esp. as regards the provisions of Art.2 thereof (see above @ s.5.4.1)

(3) The same conduct as regards the 4-Powers (London) Agreement (1945) setting out the Charter for the establishment of the Military Tribunal for the Trial of Major German War Crimes at Nuremberg (see Background Document RLM 001).

(4) The active participation on behalf of the Government in the prosecution of those Major German War Criminals by Sir Hartley Shawcross, the Attorney-General and others (see above esp. @ s.6.1)

(5) The participation in the judgement of the Tribunal on behalf of the Government by the President thereof, namely Lord Justice Geoffrey Lawrence, and of the subsequent active participation in the lawful execution of ten of the defendants convicted by that Tribunal.

(6) The vote of the UK Government in the General Assembly of the United Nations in 1946 to affirm the principles of international law as recognised by the Charter and in the Judgement of the Nuremberg Tribunal (see again Background Document RLM 001)

(7) The vote of the UK Government in the General Assembly of the United Nations in 1970 in favour of Resolution 2625 (XIX) on the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (see above @ s.5.4.2)

(8) The vote of the UK Government in the General Assembly of the United Nations in 1974 in favour of Resolution 3314 (XXII) on the Definition of the Crime of Aggression (see above @ 5.3.2)

(9) The active participation of lawyers and jurists on behalf of the Government in the proceedings of the International Law Commission’s formulation and adoption of a Draft Code of Crimes Against the Security and Peace of Mankind 1996 (see Background Document RLM 002).

It is not suggested that this list is in any way exhaustive

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