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The International Law Standard in the Statutes of Australia and the United Kingdom

Published online by Cambridge University Press:  27 February 2017

James Crawford
James Crawford*
Affiliation:
University of Adelaide
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Extract

In a series of articles in this Journal, Professor Robert Wilson drew attention to the incorporation of references to international law in United States statutes, a technique designed to allow recourse to international law by the courts in interpreting and implementing those statutes, and, consequently, to help ensure conformity between international and U.S. law. The purpose of this article is to survey the references, direct and indirect, to international law in the 20th-century statutes of two Commonwealth countries in order to see to what extent similar techniques have been adopted. The choice of the United Kingdom and the Commonwealth of Australia as the subjects of this survey is no doubt somewhat arbitrary (although passing reference will be made to the legislation of Canada and New Zealand). But the United Kingdom, a semi-unitary state whose involvement in international relations has been substantial throughout the century, and the Commonwealth of Australia, a federal polity with substantial legislative power over foreign affairs and defense -whose international role has changed markedly since 1901, do provide useful examples of states with constitutional and legislative continuity since 1901, and (as will be seen) considerable legislative involvement in this field.

Type
Research Article
Information
American Journal of International Law , Volume 73 , Issue 4 , October 1979 , pp. 628 - 646
Copyright
Copyright © American Society of International Law 1979

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References

1 45 AJIL 732 (1951); 47 AJIL 669 (1953); 69 AJIL 848 (1975).

2 Commonwealth of Australia Const., 1900-1977, §51 (vi), (xxix).

3 U.S. Const., art. II , §2, cl. 2; and see Evans, , The self-executing treaty in contemporary American practice , in Evans et al., De Lege Pactorum. Essays in Honor of R. R. Wilson 3 (1970)Google Scholar.

4 McNair, A. D., The Law of Treaties 78-110 (1961)Google Scholar, for the principle and suggested exceptions.

5 Compare Jacomy-Millete, A., Treaty Law in Canada 364-415 (1975)Google Scholar, listing 239 acts for the period 1907-1972. The New Zealand Parliament has been less prolific: 131 acts for the period 1901-1977.

6 Two-thirds of all relevant British acts (176/264) and almost four-fifths of all Australian acts (219/281) were passed since 1945. This large increase is due in part to the increase in legislation generally, but more to the great increase in international transactions. Thus, there were approximately 58 public general acts passed each year in die United Kingdom from 1901-1945 (Australia: 47), 3.4% of which were of international concern as here defined (Australia: 2.9%). From 1946-1978 that number increased slightly for the United Kingdom (average c. 62 p.a.) and very considerably for Australia (c. 117 p.a.), but in both cases the percentage of “international legislation” also increased (UK: 8.5%; Australia: 5.7%).

7 E.g., the earlier industrial property legislation. But for a striking recent example of industrial property legislation almost exclusively concerned with implementing treaty provisions, see the Patent Act, 1977 (UK).

8 Compare Keith, , New Zealand Treaty Practice: The Executive and the Legislature , 1 New Zealand U.L. Rev. 272, 285, 289 (1964)Google Scholar.

9 Sc, Anglo-French Treaty (Defence of France) Act, 1919; Nauru Island Agreement Act, 1920; Straits Settlements and Johore Territorial Waters (Agreement) Act, 1928; Anglo-Venezuelan Treaty (Island of Patos) Act, 1942. There are at least 41 Australian acts of this kind.

10 Such as the implementation of a large number of treaties in a single act (e.g., International Finance Agreements Act, 1961 (NZ)) or by delegated legislation.

11 Supra, note 6.

12 Compared, e.g., with Kavass, I. & Blake, M., United States Legislation on Foreign Relations and International Commerce (3 vols., 1977)Google Scholar.

13 [1960] Gr. Brit. TS No. 47 (Cmnd. 1128).

14 11 ILM 309 (1972). Compare Crimes (Biological Weapons) Act, 1976 (Cth.); the convention is referred to in §§2(2), 3, 7, & 8 ( 3 ) , and scheduled in full.

15 [1977] Gr. Brit. TS No. 20 (Cmnd. 6727).

16 Which seem to be more common in UK than in Australian practice. One reason for the fairly consistent practice of reference to treaties in Australian implementing legislation is that in many cases the constitutional validity of the act will depend on the foreign affairs power (§51 (xxix)), which in turn requires a reasonable relation between act and treaty (R. v. Burgess, ex parte Henry, [1936] 55 C.L.R. 608), as well as, it seems, some “legitimate” international element or purpose. Clearly, the latter requirement is more likely to be satisfied if the act on its face appears intended to implement a specified treaty. But the Australian practice is followed even in cases where the validity of the act is not solely dependent on §51 (xxix).

17 E.g., The Escherscheim, [1976] 1 All E.R. 920 (H.L.) (Brussels Convention, 1952); Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation, [1978] 1 All E.R. 434 (H.L.) (on the 1970 Hague Convention).

18 In both cases the courts may apply presumptions of conformity with the treaty or consistency with international law, but those are interpretative rules of common law rather than rules applied by virtue of the particular act.

19 For contrast, see Wilson, 45 AJIL 732 (1951).

20 Taking due account, no doubt, of the executive view, but not, in general, bound to do so: Bio Tinto Zinc Corporation v. Westinghouse Electric Corporation, [1978] 1 All E.B. 434, citing The Fagernes, [1927] P. 311.

21 Compare §2(6). Note the clear implication that fishing within the zone is not “a purpose recognized by international law.” Section 2(2) was previously enacted as §6(1) of the Sea Fisheries Act, 1968 (UK).

22 Compare Pianka v. R., [1977] 3 W.L.R. 859 (P.C.).

23 Inserted by Fisheries Amendment Act, 1978 (Cth.), §3. For an earlier equivalent, see Fisheries Act, 1967 (Cth.), §4. See Chen Yin Ten v. Little, [1976] 11 Australian L.R. 353 (W.A. Sup. Ct.); Li Chia Hsing v. Rankin, [1979] 23 Australian L.R. 151 (H. Ct.); and for discussion of the baselines marking the internal waters of the states (not necessarily the same thing): A. Raptis & Son (Regd.) v. State of South Australia, [1977] 51 A.L.J.R. 637; O’Connell, , Bays, historic waters and the implications of A. Raptis ix Son v. South Australia , 52 Australian L.J. 64 (1978)Google Scholar.

24 Jurisdiction is restricted to war crimes committed against residents or former residents of Australia (§7) or British or allied subjects (§12), during wars in which the Crown has been engaged since September 2, 1939 (§3). Compare also Armed Forces Discipline Act, 1971 (NZ), §23, making it an offense if any person, having been captured by the enemy, “(ii) aids the enemy in any other manner whatsoever unless the act is authorized or required by international law or usage.” Another New Zealand statute punishes “piracy by the law of nations”: Crimes Act, 1961 (NZ), §§92, 95-97.

25 Section 1(5) is in substantially the same terms as Art. 1 (1) (b) of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, of Dec. 14, 1973; UN Doc. A/RES/3166 (XXVIII). The equivalent Canadian provision has virtually identical wording: Criminal Law Amendment Act, 1975 (Can.), §2. The Crimes (Internationally Protected Persons) Act, 1976 (Cth.), achieves the same result by incorporating by reference the convention definitions: §3(3); but compare §17.

26 United Kingdom: Carriage of Goods by Sea Act, 1924 (Hague Rules); Carriage by Air Act, 1932 (Warsaw Convention); Carriage by Air Act, 1961 (Warsaw Convention as amended at The Hague); Carriage by Air (Supplementary Provisions) Act, 1962 (Guadalajara Protocol); Carriage of Goods by Road Act, 1965 (CMR Convention); Carriage of Goods by Sea Act, 1971 (Hague Rules as amended at Brussels); Carriage by Railway Act, 1972 (Additional Convention . . . concerning Carriage by Rail); Carriage of Passengers by Road Act, 1974 (Convention on the Contract for International Carriage . . . by Road). But compare International Carriage of Perishable Foodstuffs Act, 1976. Only the amended Hague Rules and the amended Warsaw Convention have been implemented by Australian legislation: Sea-Carriage of Goods Act, 1924-1973; Civil Aviation (Carriers’ Liability) Act, 1959-1973.

27 Income Tax (International Agreements) Act, 1953-1977 (Cth.), giving the force of law to the 13 scheduled bilateral agreements. For recent UK equivalents, see Finance Act, 1973, §42; Finance (No. 2) Act, 1975, §65.

28 In addition to the acts mentioned in notes 26 and 27 supra, there have been, since 1964, 5 such acts in the United Kingdom and 10 in Australia.

29 The need for caution here is demonstrated by recent division and diversity in the House of Lords over the proper principles of interpretation of such acts: James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd., [1978] A.C. 141.

30 Art. II is the only article thus scheduled. Compare Treaties of Washington Act, 1922 (UK), §4; Treaties of Washington Act, 1922 (Cth.), §7.

31 Compare note 25 supra. The qualification “whether or not the Convention has entered into force” is a strange one. The meaning of a term surely does not change when it enters into, or ceases to be in, force.

32 Defence Act (No. 2), 1951 (Cth.), §35A(1) (“A native force raised in a Territory of the Commonwealth governed by the Commonwealth under a Trusteeship Agreement shall not be required to render service other than such service as is permitted under Article 84 of the Charter of the United Nations”); Naval Defence Act, 1952 (Cth.), §24A. Compare Papua and New Guinea Act, 1949 (Cth.), §71(2).

33 Civil Aviation Act, 1946 (UK), §23(4) (“Nothing in this section shall restrict the right of any person . . . to provide transport for passengers or goods in accordance with the terms of any agreement for the time being in force between His Majesty’s government in the United Kingdom and the government of that country”). For an earlier instance, see the statute 59 Geo. 3, c. 38, §12 (1819).

34 And compare subsection (4) for further qualification. Other recent examples of interdependent enactment are: Crimes (Internationally Protected Persons) Act, 1976 (Cth.); Crimes (Protection of Aircraft) Act, 1973 (Cth.); Nauru (High Court Appeals) Act, 1976 (Cth.); Nuclear Safeguards and Electricity (Finance) Act, 1978 (UK).

35 See Fawcett, J. E. S., The British Commonwealth in International Law, ch. 2 (1963)Google Scholar; Macdonald, , The Relationship between International Law and Domestic Law in Canada , in Canadian Perspectives on International Law and Organization 88-136 (Macdonald, Morris, & Johnston, eds., 1974)Google Scholar, and works there cited. The most recent English discussion is in Trendtex Trading Corporation v. Central Bank of Nigeria, [1977] Q.B. 529 (C.A.). Compare the comments of Goff J. in 1° Congreso del Partido, [1978] 1 Q.B. 500, 518.

36 Barbuit’s Case in Chancery, [1737] Cases T. Talbot 281, 25 E.R. 777, per Talbot L.C.; Triquet v. Bath, [1764] 3 Burr. 1478, 1480, 97 E.R. 936, 937, per Lord Mansfield C.J. Compare Adair, , The Law of Nations and the Common Law of England. A Study of 7 Anne Cap. 12 , 2 Camb. Hist. J. 290, 296 (1927)Google Scholar.

37 And compare Diplomatic Immunities (Conferences with Commonwealth Countries and Republic of Ireland) Act, 1961 (UK), §1(1).

38 Compare Whaling Act, 1960 (Cth.), §10(5); Territorial Sea and Exclusive Economic Zone Act, 1977 (NZ), §9(4).

39 Compare §12 (Continental Shelf).

40 See also Whaling Act, 1960 (Cth.), §12(3); Finance Act, 1978 (UK), §6(5) (but compare the subjective formula in §6(1)); Customs Act, 1966 (NZ), §130(3).

41 Infra at pp. 638-39.

42 Antarctic Treaty Act, 1960 (Cth.), §4(4).

43 Great Barrier Reef Marine Park Act, 1975 (Cth.), §65(2).

44 Historic Shipwrecks Act, 1976 (Cth.), §28.

45 To similar effect, Marine Pollution Act, 1974 (NZ), §25.

46 A statute might, of course, prevent the executive from exercising some international law power: e.g., Laker Airways Ltd. v. Department of Trade, [1977] 2 W.L.R. 234 (C.A.), and see the express provision to this effect, European Assembly Elections Act, 1978 (UK), §6.

47 Where the power is particularly strictly confined, the situation may be hardly distinguishable from that discussed above, text at notes 38–41.

48 Compare §§9(3), 10(3).

49 To similar effect, Telecommunications Act, 1975 (Cth.), §6(4).

50 Compare Treaty of Waitangi Act, 1975 (NZ), which also refers to the “principles of the Treaty.”

51 For a recent account of the rule, see Bolewski, , Les certificats gouvemementaux relatifs á l’application du droit international public par le juge interne (étude de la jurisprudence anglaise) , 77 Rev. Gen. Droit Int’l Pub. 672-750 (1973)Google Scholar.

52 And compare Arbitration (International Investment Disputes) Act, 1966 (UK), §5.

53 Compare Vienna Convention on Diplomatic Relations, 1961, Art. 22(2), 500 UNTS 95.

54 For a recent discussion of the jurisdictional issue, see Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation, [1978] 1 All E.R. 434 (H.L.). An English equivalent to the Australian act is the Shipping Contracts and Commercial Documents Act, 1964 (UK); see infra, note 62.

55 Compare Former Enemy Aliens (Disabilities Removal) Act, 1925 (UK), §2; Merchant Shipping Act, 1948 (UK), §10(1) and (2).

58 This compares with the earlier practice, whereby the duration of an act was made to depend directly on the duration of the treaty; e.g., 41 Geo. 3, c. 95, §14 (1801); 51 Geo. 3, c. 47, §12 (1811); 56 Geo. 3, c. 15, §6 (1816); 59 Geo. 3, 54, §12 (1819). When an earlier act along the same lines expired with the termination of the treaty, it had to be revived by fresh legislation: 45 Geo. 3, c. 35 (1805); 46 Geo. 3, c. 16 (1806); 47 Geo. 3, sess. 2, c. 2 (1807); 48 Geo. 3, c. 6 (1808).

57 An apparently clear case where a distinction is drawn between conclusive certification of issues of fact and the court’s decision on legal (including international legal) issues arising from those facts is §1(5) of the Internationally Protected Persons Act, 1978 (UK) (“if in any proceedings a question arises as to whether a person is or was a protected person, a certificate issued by . . . the Secretary of State and stating any fact relating to the question shall be conclusive evidence of that fact”). The definition of “protected person” in §l(5)(b) refers, as we have seen, to issues of international law: supra note 25. The Canadian and Australian acts have identical provisions.

58 To similar effect, §46. See also State Immunity Act, 1978 (UK), §21; Adoption (Scotland) Act, 1978 (UK), §65(1).

59 Merchant Shipping (Load Lines) Act, 1967 (UK), §2(1); see [1967] British, Practice in International Law 154.

60 See also Carriage of Passengers by Road Act, 1974 (UK), §7, giving power in subjective terms to resolve by Order in Council conflicts appearing to exist between carriage of goods conventions.

61 Supra, note 16. But no distinction is drawn between regulations that could only be supported under §51 (xxix) of the Constitution and those that could be made under other federal powers: e.g., International Finance Corporation Act, 1955 (Cth.), §6.

62 Supra, note 54. And see [1964] British Practice in International Law 147-57.

63 Compare §1 (carriage of goods and passengers by sea).

64 See also Continental Shelf (Living Natural Resources) Act, 1968 (Cth.), §7.

65 Customs Duties (Dumping and Subsidies) Amendment Act, 1968 (UK), §2 (inter alia, repealing the proviso to §1(1) of the 1957 act). For other examples, see Irish Free State (Special Duties) Act, 1932 (UK); Emergency Laws (Repeal) Act, 1959 (UK), §4(2); Customs Tariff (Dumping and Subsidies) Act, 1961 (Cth.), §13; Sea-Fish (Conservation) Act, 1967 (UK), §8(4); Merchant Shipping Act, 1974 (UK), §14(1); Civil Aviation Act, 1978 (UK), §8(4)(b); State Immunity Act, 1978 (UK), §15(1); Finance Act, 1978 (UK), §6(1).

66 Supra, text to note 53.

67 See also Geneva Conventions Act, 1911 (UK).

68 Compare Diplomatic Privileges (Extension) Act, 1944 (UK) (title).

69 In a few cases, strange or even incorrect terminology is adopted: e.g., the reference that a convention is “rendered void” by the coming into force of a new convention on the same subject matter (Carriage by Railway Act, 1972 (UK), §9(2)), and the use of the term “ceded” in the Foreign Compensation Act, 1969 (UK), §4(1).

70 Southern Rhodesia Act, 1965 (UK), §1.

71 National Security Act, 1946 (Cth.). As a matter of international law, this assertion was probably wrong even in 1946; see J. Crawford, the Creation of States in International Law 274-75 (1979).

72 Petroleum (Submerged Lands) Act, 1967 (Cth.). The reference to international law has disappeared in the Seas and Submerged Lands Act, 1973 (Cth.), preamble, para. 3.

73 Sections 8-9.

74 Fishwick v. Cleland, [1961] 106 C.L.R. 186.

75 Compare Burma Independence Act, 1947 (UK), §1(3); Zambia Independence Act, 1964 (UK), §8.

76 Supra, notes 26-28, 34.

77 Compare Art. 3 of the UN Convention on the Carriage of Goods by Sea, 1978 (the “Hamburg Rules”): “In the interpretation and application of the provisions of this Convention regard shall be had to its international character and to the need to promote uniformity.” UN Doc. A/CONF.89/13, Ann. 1 (1978); reprinted in 17 ILM 608 (1978).