Judicial Reaffirmation of the Doctrine of Adoption
| Author | Andrew Drzemczewski |
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01528.x |
| Date | 01 March 1979 |
| Published date | 01 March 1979 |
212
THE
MODERN
LAW REVIEW
[Voll.
42
JUDICIAL
REAFFIRMATION
OF
THB
DOCTRINE
OF
ADOPTION
ENGLISH
courts have on numerous occasions held that customary
international law is incorporated into and forms part of the law of
the land.
In
the case of apparent conflict or inconsistency between
an Act of Parliament and a rule of international law-whether con-
tractual or customary-the statute is in every case of overriding
effect, although there exists a rebuttable presumption that neither
Parliament nor the Crown intended to violate international law.
Consequently, where possible, statutes and domestic law generally
must be interpreted
so
as not to conflict with any relevant rules of
international law.' And what
if
customary international law has
changed; are the court bound by their former opinions through
stare decisis?
Can earlier decisions be limited or distinguished in that
they had been decided
on
the basis
of
rules of international law as
understood in England at that particular time?
If
such a change is
clearly illustrated, should the English courts be prepared to ack-
nowledge and apply them?
In
Trendtex Trading Corporation Ltd.
v.
Central Bank
of
Lord Denning
M.R.
had this to say on the subject:
"
[
W
1
hat
is
the place
of
international law in our English law?
One school of thought holds to the doctrine of incorporation.
It says that the rules of international law are incorporated into
English law automatically and considered to be part of English
law unless they are in conflict with an Act of Parliament. The
other school of thought holds to the doctrine of transformation.
It
says that the rules
of
international law are not to be considered
as part of English law except in
so
far as they have been already
adopted and made part
of
our law by the decisions of the
judges, or by Act of Parliament, or long established custom.
The difference is vital when you are faced with
8
change in the
rules of international law. Under the doctrine of incorporation,
when the rules of international law change, our English law
changes with them. But, under the doctrine
of
transformation,
the English law does not change. It is bound by precedent. It is
bound to those rules of international law which have been
accepted and adopted in the past. It cannot develop as inter-
national law develops.
. . .
Which
is
correct?
As between these two schools of thought,
I
now believe that the doctrine of incorporation is correct.
.
.
.
Seeing that the rules of international law have changed-and
do change-and that the courts have given effect
to
the changes
without any Act of Parliament, it follows to my mind inexorably
that the rules of international law, as existing from time to time,
do form part of our English law. It follows, too, that a decision
of this court, as to what was the ruling
of
international law
50
or
60
years ago, is not binding in this court today. International
law knows no rule of
stare decisis.
If
this court today is satisfied
1
Halsbury's
Laws
o/
England
(1977,
4th
ed.),
Vol.
18.
pp.
718,
719.
1
[1977]
1
All
E.R.
881.
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