The Issue Of Justiciability Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

The English Constitution adopts the principle of Monism [1] to the status of IL in legal proceedings before the English national courts. There are two theories under this principle. First, the incorporation approach is that the Customary International Law (CIL) can automatically become part of NL and incorporated into the English law without any intervention by the Parliament. Second, the transformation approach is that treaties are needed to transform before operate in English Court and does not automatically become part of the NL. [2] The theories are treated differently under the principle of English constitution with significant reasons: One of the reasons was Parliamentary sovereignty; the Parliament remains the supreme position in the law making process in UK that the law cannot be changed without the intervention of the parliament. Another reason was, Separation of powers in UK with the contribution of the exercise of power to the function of executive, judicial and legislative in order to regulate as a state.

Lord Mansfield had recognised that CIL is part of English law in 1764 which was followed by Lord Talbot who also agrees that the law of nations is a part of the extent of English law [3] . In the case of Chung Chi Cheung [4] as stated by Lord Atkin: " international law has no validity save in so far as its principles are accepted and adopted by our domestic law." [5] The court acknowledged the incorporation approach can be enforced when it was not inconsistent with the English court or the Statute. There was ambiguity related to the status of CIL in English law that even when the CIL is part of the English law, it must give way to the confliction of the decision made by the English Court or the Statute. The issue of ambiguity was settled in the case of Central Bank of Nigeria [6] . In this case the appellant cannot rely on the defence of state immunity as it cannot be an "alter ego" of the state. The general principle stated by Lord Denning was that when there is a conflict between CIL and judicial decision of English Court, the English Court will prevails unless CIL had evolved in the immunity from the legal proceedings to the English Court. The reason was that State was only allowed to claim immunity from government's act but not from commercial act.

There are some limitations exists in adopting the incorporation approach, which was illustrated in the case of R v Jones [7] followed with a general principle that the CIL will not automatically become part of the English law when the case was involved with criminal offence. The court did not apply the incorporate theory followed with two reasons. First, concerning with the legal limits in order to charged the defendants with criminal offence under Criminal law. Second, the proposition of nullum crime sine lege did not respond to the problem whether the defence of crime of aggression should be treated in a broad or narrow interpretation. For instance, if the Court had adopted a broad scope which included the conduct of crime could be a defence under IL, the defendant could easily avoid liability under criminal law. This exception had become a filter as maintaining a narrow approach of doctrine of nullum crime sine lege [8] . In this case, Lord Bingham recognised the crime of aggression was not a crime under English law and therefore the defendants cannot use the crime of aggression to avoid the conduct of criminal damage of what they made to get away from CIL. The reasons that the crime of aggression was not a crime under English law were; first, the Parliamentary Sovereignty, only Parliament have the power to create new offence; second, the process of law review by the courts to the foreign affairs would possibly taken into account that the crime of aggression would incorporate with the NL slowly and silently. Adopting the incorporate approach in this case might be correct because the crime of aggression is a very serious offence and the approach could make the offenders get sufficient legal punishment. However, CIL introduced a new offence into English law where the new offence has not been developed in the current law which is a disadvantage without any sufficient legal debate in the parliament before the enforcement into the national courts. This approach could also imply a big impact to the domestic law because it could amend or alter the exercise of criminal law without any intervention of the parliament. Nevertheless, their Lordships indicated that the parliament were willing not to choose the incorporation approach into the English law, and reflected a democratic principle. Lord Bingham and Lord Hoffman has also recognised that Parliament is always be the sovereignty to determine the conduct of crime involved in the state.

The process of incorporating CIL into English law has been regarded as a correct approach in the past because it is considered as part of English law that there is no new offence which could easily apply it to and it would be part of civilised world [9] . However, Lauterpacht criticized Blackstone's wording that whether the IL had given an actual expression to the English law and whether these rules could present a rational principle accurately and irrefutable regardless to the background of the country.

The incorporation approach allows the CIL automatically incorporate into the English Law, yet it also implies risks into the English constitution and pose a threat to the UK Parliamentary Sovereignty. First, the CIL could automatically incorporate into English law without any intervention of the Parliament to analysis the rule of CIL before handled by the national courts. Without any participation of legal debate and domestic legal order for new law application, this would lead to a very ambiguous political gestures. Second, the incorporation approach implies a very uncertain, ambiguous formation and incorporate into English law without transparent for determinacy of the negotiation of the law because the approach was not open in public for legal discussion, it makes the CIL automatically incorporation whenever it is necessary. Third, there are many forms of state practice that could get access to the CIL and the problems will raise immediately. For instances, the barriers of different languages, the difference of opinio juris and state practice which these are the issues that were extremely difficult to avoid. As this approach incorporate, it will superseded the position of the Parliament and become a part of domestic law, it is different to present that this approach had accurately represented the exercise of the legal power of the English court.

Roger O'Keefe gave concern on the individuals whether the incorporation have give a fair warning that CIL is part of English law [10] . Moreover, Philip Sales and Joanne Clement did not support the incorporation approach and suggested to put restriction to it, because there is a risk of inconsistent between the domestic law and international law that cannot be easily prevented regarded to the elimination of the political process by the parliament.

Another issue has raise is the issue of justiciability which brought into attention in the case of Al Rawi [11] that justiciability could limit the practical use of CIL. The defendant would not want to put more weight on to diplomatic protection when there is a involvement of Human Rights, the exercise of diplomatic protection comes within the exercise of Royal Prerogative and the Court will not review the exercise of Royal Prerogative power. But it requires permission to call for a judicial review to apply and then the court will consider the merits of the case. The court said even it is non-justiciability issue, the court will force to exercise their power with a independent judgement as it is "legal and ethical muscle of human rights".

Treaties can become part of English law when they are transformed into the national law, it was illustrated in the case of Maclaine Watson [12] . Because the treaties is exercised by the Royal Prerogative that it cannot be challenged in national courts, and that the Royal Prerogative does not have the power to amend the domestic law. And therefore, the treaties need to be transformed in order to enforce it under the English law. Nevertheless, the treaties will have an authority for enforcement when the Parliament legislated in breach of treaty; this was illustrated in the case of Ex p. Brind [13] and meant that UK could remain at a international level for any breach of treaties even when the national law is ambiguous for interpretation.

Recently, a concern has raised was that when a case was involved with breach of Human Rights whether it could be an exception to orthodox principle of Parliament Sovereignty of indirect effect and the issue of non-justiciability. Lord Steyn had commented in the case of McKerr [14] raised question to concern about the dualist approach to the issue human rights treaties. [15] And he had emphasised that the ratification of Human Rights Treaties could not cause any harm to the power by the executive. Alan Brudner [16] criticised this transformation approach that it cannot represent the will of individual and he was more favour to the incorporation approach that inherent with a wide practice that allows to incorporate directly into domestic law without authorisation by the Parliament. Bharat Malkani [17] had supported Alan Bharat's arguments but noted that Lord Steyn's suggestions is problematic that it is inaccurate to describe the parliamentary sovereignty in 1688 as it can mainly focused on the limitation of the exercising power of the executive. He argued that the Parliamentary Sovereignty did not give concern on the will of the individuals in the society and that was limited to the democratic principle of individual's freedom.

Although there are many criticisms with this approach, Philip Sales and Joanne Clement took an opposite analysed the approach. First, the transformation approach could be a good developer for statutory interpretation, as they indicated that "the requirement of ambiguity" is necessary for the presumption of application in the legislation. Second, the transformation approach where applies to the treaties to constitute in the English court was more able to solve the uncertainties with the common law. This approach aid the structure of UK legislation because UK does not have a written constitution, and it improves the ambiguous legislation with the principle of Parliamentary Sovereignty. Treaties are providing a guidance to the common law which shows the development of it. Third, when a treaty is ratified by the executive, it could create legitimate expectation. The legitimate expectation deemed to be a advantage for decision-makers with the exercise of discretionary power, this is because the Parliament would always ensure the flexibility in the system for decision-making in order to adjust on every unseen circumstance of the case and widen the scope for evaluation of the law.

However, this approach was being criticised that the common law should not rely on the treaties that while handling the a complex area and it is necessary to strike the balance that the UK legislature should take over the development of domestic law.

In conclusion, the incorporation approach cannot accurately reflect the practice of the English court because this approach had substituted the position of the Acts of Parliament which gives analyse and discussion to the coming new law. Their Lordships had showed that parliament were willing not to choose the reception of CIL into the English Law. On the other hand, the transformation approach can reflect the practice of the English Court accurately because the Parliament will reflect the treaties into the exercise of the court in order to incorporate into the national court. However, it is arguable that the transformation approach cannot reflect the will from individuals.