The Court as Gatekeeper: Customary International Law in English Courts
| Published date | 01 May 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00647.x |
| Date | 01 May 2007 |
| Author | Patrick Capps |
CASES
The Court as Gatekeeper: Customary International Law in
English Courts
Patric k Cap ps
n
There aretwo well knownrules of law which areapplied by English courts when
one of the parties seeks to rely upon standards found in public international law.
Regarding customary international law, Brownlie suggests that this is the rule:
‘customary rules are to be considered part of the law of the land and enforced as
such with the quali¢cation that they are incorporated only so far as is not incon-
sistent with Acts of Parliament orprior judicial decisionof ¢nal authority.’
1
How-
ever, ‘treaties are only part of English law if an enabling Act of Parliament has
been passed.’
2
Rather than being automatically incorporated like custom, treaty
law must be transformed by the legislature if English courts are to be able to apply
it.
3
The status of these rules has always been ambiguous, with authorityquestion-
ing theirvalidity. Forexample,in the Franconia Case ^ which was, accord ing toThe
Time s,‘one of the greatest ever argued on a point of law. . .’
4
^ Cockburn CJ (at
least for Holdsworth and Westlake) stated that customary international law can-
not become part of English law except through a legislative act.
5
Three yearslater
n
School of Law, Universityof Bristol. An earlier version of this paper was presented at the Scottish
Centre for International Law at the Univers ityof Edinburgh. I would like tothan k ColinWarbrick,
Nick Grief, Julian Rivers, Kate Grady, Bharat Malkani, Oliver Quick and Malcolm Evans for their
comments on an earlier draft of this paper.The usual caveat applies.
1 I. Brown lie, Principles ofPublic InternationalLaw (Oxford: OxfordUniversity Press, 6th ed, 20 03)41.
2ibid 45.
3 In an recent and extremely useful work on this area, Shaheed Fatima chooses to drop this well-
known distinction and replace it with the umbrella term of incorporation (See S. Fatima, Using
InternationalLaw in Domestic Courts(Oxford: Hart Publishing,20 05)55.For her, the term incorpora-
tion is justi¢ed ¢rstly because it ¢ts with the terminologyus ed in the case-lawand seco ndbecause
‘it is simply convenient shorthand for denoting the formalised reception of international law i nto
domestic law.’While the ¢rst reason is undoubtedly true it has been cons idered bysome judges and
academics to oversimplify somecrucial co nceptualdisti nctions (See M. Hunt, UsingHuman Rights
807 where Lord Ho¡mann considers that the terminology of ‘incorporation’ as applied to the
ECHR is a ‘misleading metaphor’). Furthermore, the second reason seems to presuppose some
form of dualism to be the case in the se nse that public international law has to be somehow
‘received’ by a relevant English law-making body.This, a priori, excludes certain monist views.
4TheTimes15 November1876. Quoted from G. Marston,‘The Centenary of the Franconia Case ^
The Prosecution of Ferdinand Keyn’(1976) 92 LQR 93.
5RvKeyn (Ferdinand) (The Franconia) (1876^77) LR 2 Ex D 63. This is the interpretation of Cock-
burn CJ’s judgment in this case taken by Holdsworth. See W. Holdsworth, A History of English
Law (London: Sweet and Maxwell,1964) 28^29. It is also taken by C. Picciotto, The Relation of
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(3)MLR 458^483
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