Rights Under International

Conventions – Can Individuals

Enforce Them Through

National Courts?

Introduction

1 This statement made by that renowned Jurist and Judge at the turn of this century is aptly applicable in the realm of international law even today. Though international law has undergone a sea change with regard to its scope and content, the rights of individuals flowing from international law rules, particularly those springing from international conventions, still remain ghosts elusive to the grasp’ of individuals. Many international conventions or treaties have been devised for the benefit of individuals and are designed to confer rights on them. However, the enforcement of these rights by individuals remains a perplexing issue which Courts in many jurisdictions are still grappling with. Though the focus of this article is on the invocation of international conventions and the rights arising therefrom by individuals, in as much as many an international convention enshrines and effectuates certain well established norms of customary international law, reference has been made where necessary, to the application of customary international law rules as well. As the subject matter necessarily involves the discussion of issues pertaining to the nature and scope of international law, its relationship and relevance to individuals, and the status it enjoys in the domestic legal order of nations, it is imperative to refer, briefly, to some of the rudimentary principles of international law at the out set.

The status of individuals in international law

The term International Law in its etymological sense denotes the law regulating the relations between nations. Traditionally it was deemed to apply solely an exclusively to sovereign States which were the only subjects of international law. On the other hand, individuals were not deemed as subjects of international law.2 They were considered as objects of international Law. However, over the years, the classical nature and functions of international

law have undergone tremendous changes and its perimeters have expanded so as to encompass a multitude of fields within its scope. This horizontal expansion of international law has also resulted in its vertical extension to a plethora of modern entities other than states as “subjects” of international law. Thus, many International organizations, such as the U.N, I.L.O, and the World Bank have gained recognition as subjects of international law. Similarly there is a growing convergence of opinion among international jurists that even individuals can be considered as subjects of international law in a limited sense as certain rules of international law, particularly those embodied in many international conventions have been designed to benefit and deemed to apply to individuals.3

However, such opinions not withstanding, strong judicial dicta expressed and expounded by judges of high judicial eminence in common law jurisdictions, have continued to deny to individuals recognition as subjects of international law. The following pronouncement of Lord Denning epitomises the approach of the Courts to this issue. His Lordship proclaimed ‘A ‘rule of international law is only a rule between two states. It is not a rule between an individual and a State’ – (Thakar v. Secretary of State for the Home Office (1974) QB 684).4

Apart from this divergence of opinion on the status of individuals, the effective enforcement of their international law rights is seriously inhibited by the inability of the individual to have access to international judicial tribunals. Institutions such as the International Court of Justice (ICJ) do not confer on individuals, the right to invoke their jurisdiction. It is in this context that national courts as fora for the enforcement by individuals of rights conferred by international conventions becomes pivotal. However, the possibility of invoking international law or conventions before a national court depends, to a large extent, on the status accorded to international law and conventions within the internal legal order of the state concerned.

Constitutional provisions regarding the internal status of International Law

In some countries the respective constitutions embody elaborate and extensive provisions regarding the status of international law and conventions or treaties. For example, in the United States, Article VI (2) of the United States Constitution5 provides that treaties, together with the Constitution and the laws of the United States, shall be the supreme law of the land. Further, the United States law distinguishes self-executing treaties from non-self-executing treaties. A treaty is said to be ‘self-executing’ when it states expressly or impliedly that it will become operative directly and immediately upon ratification. It does not require any further legislative act to become part of the domestic law. On the contrary a treaty will be considered as ‘non-self-executing’ if the terms of the treaty indicate that some independent act of domestic legislation is required to make it operative in the national legal order. Only self-executing treaties enjoy the higher status conferred on them by the Constitution and considered to be superior to all state laws and all other federal laws.6

Unlike the U.S Constitution which accords to international treaties a status equal to the Constitution, the recently adopted Constitution of South Africa7 contains provisions [Art. 231(3) & 231(4)] which proclaims that an Act of Parliament could override any contrary rights or obligations under international agreements entered into before its commencement and that the rules of customary international law binding the Republic of South Africa would form part of domestic law unless they were inconsistent with the Constitution or with an Act of Parliament. At the other end of the spectrum, in the Netherlands, Articles 93 and 94 of the Constitution8 recognise the supremacy of international treaties in no uncertain terms. According to these provisions, treaties have priority over national laws both enacted prior to as well as after the treaties and above all even over the provisions of the Constitution itself.

A few Constitutions adopt a mixed approach to the status of international law and treaties. For instance in France, Article 55 of the French Constitution states that “Treaties or agreements duly ratified or approved shall upon their publication, have an authority superior to that of (domestic) legislation, subject for each separate agreement or treaty, to reciprocal application by the other party”.9 Similarly in Germany, Article 25 of the Basic Law of the Federal Republic of Germany10 provides that the general rules of public international law form part of federal law and have a rank higher than the normal

The position of international law under the Sri Lankan Constitution

Article 27( 15) of the Constitution of the Democratic Socialist Republic of Sri Lanka postulates that the state shall endeavour to foster respect for international law and treaty obligations in dealings among nations. However, this article does not indicate the extent to which* international law is applicable within Sri Lanka. In the absence of any specific provision in the Constitution regarding the status accorded to international law and treaties the jurisprudence of the English Courts provide valuable guidelines in this regard.

English Law

It is proposed to examine the English Law rules regarding the status of international law under the heads of: –

a) Customary international law: and

b) International treaties or Conventions.

Customary International law

Until recently the English courts took the view that the rules of customary international law are not to be considered as part of English law except in so far as they have been already adapted and made part of English law by the decisions of judges or Acts of Parliament. This doctrine known as the doctrine of transformation was judicially recognised by Cockburn, C.J. in R v. Reyn (1876) 2 EXD 63 at 202 & 203. This position was clearly postulated by Lord Atkin in Chung Chi Chaung v. R (1938) 4 All ER 786 at 790. He said, “It must be always remembered that so far, at any rate as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our domestic law.”

According to this doctrine, even in the event of a clear change in the international law rules in a particular field, the courts were not entitled to apply these new rules, unless they have been adopted in domestic law by an Act of Parliament or decisions of courts.

This unsatisfactory state of affairs was highlighted in the case of Trendtex Trading Corporation v. Central Bank of Nigeria 1(1977) 1 All ER 881. In this case, the Central Bank of Nigeria was sued by a Company in England for damages arising out of a commercial transaction. The Bank took up the position that it was performing governmental functions and as such was immune from suit under the international la doctrine of sovereign immunity. Though the rules of international law relating to the doctrine of sovereign immunity have changed so as to exclude commercial transactions from the operation of this doctrine, this had not been adopted in England by the decisions of courts or by an Act of Parliament.

So it was contented on behalf of the bank that the court should apply the doctrine of sovereign immunity as propounded by the English courts in the past. Lord Denning rejected this argument and held that as the international law rules in this area have changed, the courts can take cognisance of the changed rules without any act of transformation by previous decisions of the English courts or an Act of Parliament. He quoted what Galileo said of the earth and said that like the earth, international law also ‘does move. This judgement which was a remarkable departure from a long line of cases, for the first time laid down that the rules of international law are incorporated into English law automatically without any specific act of transformation.

He further held that the doctrine of stare decisis had no application to the rules of international law and that if the court is satisfied that the rule of international law on a subject has changed from what it was earlier, it can give effect to that change and apply the change in English law, without waiting for the House of Lords to do it. The resulting position is that now customary rules of international law can be applied by courts automatically without their adoption by an Act of Parliament or previous decisions. The only restriction placed by the court is that the rule so applied should not conflict with an Act of Parliament.

International treaties

It is one of the cardinal tenets of English law that an International Treaty has no status in the internal legal order, unless it is adopted into English law by an Act of Parliament. This principle was articulated by Lord Atkin in no uncertain terms in Attorney General of Canada v. Attorney General of Ontario (1937 AC 326 at 347). He said that within the British Empire there is a well established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action”.

As a result of this position, the courts had postulated certain rules to be observed when they were called upon to deal with international treaties.

1. The courts will not take cognisance of an international treaty unless it has been adopted by an Act of Parliament.

For many years the courts in England had consistently followed this rule and resolutely refused to take cognisance of international treaties, which had not been incorporated, into a statute.

It was reaffirmed by Lord Denning in the case of Blackburn v. Attorney General [(1971) 1 WLR 1087. In this case the Plaintiff sought to rely on the provisions of the E.E.C. Treaty, which at that time had not been incorporated into a statute. Lord Denning proclaimed that, “it is elementary that the courts take no notice of treaties as such. We take no notice of treaties until they are embodied in laws enacted in Parliament.”

2. Even in the case of a treaty which had been adopted into English Law by way of a statute, in the event of any ambiguity in the language of the statute, the treaty on which the statute was based cannot be used as an aid to interpretation unless the treaty had been expressly referred to in the statute or it had been incorporated by a Schedule to the statute. (Vide the Judgement of the House of Lords in Ellerman Lames Ltd. v. Murray

{(1931) AC 126).

3. When construing a treaty which had been incorporated into English Law, the courts are not at liberty to have recourse to the preparatory documents (Travaux Preparatoires) Vide Porter v. Freudenburg (1915) 1 KB 876).

4. The meaning of an unincorporated treaty cannot be construed by courts under any circumstances.

5. An unincorporated treaty will not serve as a foundation for a cause of action for individuals.

These rules, which were applied by the English Courts whenever international treaties were relied upon by parties before them, have been relaxed to a considerable extent in the recent past. There is a growing tendency to recognise and apply international treaties on the part of courts, as reflected in some of the recent cases. Nevertheless, these cases also show the well-defined limits, which the courts have drawn, in applying international treaties in domestic law.

The effect of the incorporating statute making no express reference to the treaty.

This question came up for consideration in the case of Saloman v. Commissioner of Customs and Excise (1966) 3 All ER 871. In this case the language of a statute which incorporated an international convention (The Brussels Convention on Valuation of Goods) was ambiguous. It was argued that the Convention cannot be used as an aid to interpretation as the statute did not expressly refer to the Convention. Lord Diplock held that if the terms of legislation are not clear, the treaty on which it is based becomes relevant, and that the court is empowered to consult the treaty for the purpose of resolving the ambiguity, even in the absence of any express reference to the treaty in the statute itself In this case the court applied the presumption that the Parliament intends to act according to England’s international obligations and construed the legislation in accordance with the terms of the treaty.

Unincorporated treaties

In Pan-Am v. Department of Trade (1976 1 LLR 257) an international treaty (the Bermuda Agreement in the field of Civil Aviation) was invoked before the Court of Appeal. This Agreement had not been incorporated by legislation and therefore it was contented that the Court cannot have regard to this treaty. However, Lord Scarman rejected this contention and applied the presumption that Parliament does not intend to act in breach of international law. By applying this presumption he adopted the course that was consistent with the treaty in arriving at his decision. It is pertinent to note that in this case the Court had recourse to a treaty, which was not made part of the English law by way of statutory incorporation. In the same case significantly, Lord Denning who earlier expressed the view, that “We take no notice of treaties” (Blackburn v. Attorney General- supra) was prepared not only to “take notice” but also interpret the treaty

at considerable length in order to ascertain the meaning of certain terms.

Human Rights Cases

The most significant contribution by courts in giving effect to international conventions has been in the field of Human Rights. In a number of decisions involving rights of immigrants, the courts had relied on the European Convention on human Rights and Fundamental Freedoms to construe the meaning of the English Immigration Act, though this Convention was not part of English Law as it had not been adopted by Parliament. (Vide Ahamed v. Inner London Education Authority ( (1078) 1 AER 574) 12 and R v. Secretary of States for Home Affairs Exparte Bajan Singh [(1975) 2 ALL ER 1081]. These decisions are of great importance as the court was prepared to construe the English Act in accordance with an unincorporated convention, which was not meant to be applicable to citizens from non-European countries. In both cases, the parties who invoked the provisions of the European Convention were immigrants from Asian countries.

In a land mark decision [R v. Secretary of State for Home Department Exparte Phanse Fkar (1975) 2 All ER 497 at 511 ] Lord Scarman exhorted that it is now the duty of all the courts in interpreting and applying the law to have regard to the European Convention of Human Rights. He went further and stressed that this duty is also cast on public authorities administering the law. Thus the Court was not only prepared to have recourse to a treaty which was not part of the English law but went to the extent of declaring that it was the duty of the courts and public authorities to have regard to the Convention in applying and administering the law.

The parameters set by the Courts

What are the limits within which the Courts are prepared to apply an unincorporated international treaty? The case of Malone v. Commissioner of Police (1979 2 All ER 620) seems to provide a classic illustration of the limits which the courts have drawn in relying on international treaties. In this case the plaintiff claimed that his telephone was tapped by the Police without his knowledge or consent and sought a declaration that it was a breach of his rights of property, privacy and confidentiality in respect of telephone conversations on his telephone. He contended, inter alia, that Article 8 of the European Convention for the protection of Human Rights and Fundamental Freedoms conferred on him a direct right to have his private and family life, his home and his correspondence respected, or at least it was a guide to the interpretation and application of English law. Megary J held that the court could not use the Convention as a guide to interpretation and application of English law as there was no legislation before the court requiring interpretation in conformity with the Convention and in the absence of legislation the court was unable to lay down new rules of law.

He further held that Article 8 of the Convention did not confer a direct right on the Plaintiff to obtain the declaration sought by him as the Convention was a treaty and not part of the law of England. This judgement demonstrates that though the courts are willing to have recourse to international treaties whenever there is ambiguity in a statute, they are not prepared to do so when the decision did not involve the interpretation of a statute. Another principle, which was reaffirmed in this case, was that the courts were not prepared to recognise any rights directly arising from the treaty to individuals. In the recent case of British Airways v. Laker Airways [(1983) 3 All ER P 375] the Court of Appeal in no uncertain terms reiterated this principle. Sir John Donaldson M.R. said “as a matter of law treaties can give rise to no private rights under English law. They are Agreements between states and they can only be honoured or breached by the states”. These principles were once again re-affirmed by the House of Lords in the case of R v. Secretary for the Home Department ex-parte Brind 1991 2 WLR 588.

Developments in other jurisdictions

The same attitude adopted by the English Courts towards the enforcement of convention rights by individuals is generally reflected in other commonwealth jurisdictions. Vide Tasmania Wilderness Society v. Eraser (1982) 153 CLR 270 at 274

In a related development in New Zealand, the applicant who entered into New Zealand from Western Samoa was granted a temporary permit under the Immigration Act 1987. His application for a residence permit was declined and a removal warrant was issued against him. He unsuccessfully appealed to the Minister for an injunction order prohibiting his removal on humanitarian grounds. When the removal warrant was challenged in the New Zealand Court of Appeal (which is the country’s highest appellate tribunal) it was argued that his circumstances had changed as he had married and had a daughter, reliance was placed on the International Covenant on Civil and Political Rights 1966 and the Optional Protocol and the Convention on the Rights of the Child 1989. The Court of Appeal of New Zealand extended the stay against the removal warrant. The Court also adjourned the appeal to enable the applicant to make an application in the light of his current circumstances so as to enable ministerial and departmental reconsideration in relation to the situation of the applicant’s child. In making the said orders, the Court said that in the light of the provisions of the International Covenant on Civil and Political Rights 1966, Article 23(1) and 24(1) guaranteeing the right to protection of the family and Article 24(3) the right of every child to acquire a nationality and Article 9(1) and 4 of the Convention on the

Rights of the Child 1989, the issue was whether the Minister and the department should have regard to the international obligations concerning the child and the family, in considering whether to enforce the removal order. Having thus characterised the issue, the Court held that it was the duty of the judiciary to interpret and apply national constitutions, ordinary legislation and the common law in the light of the universality of human rights. The Court declared further “New Zealand was a party to the Optional protocol and consequently the United Nations Human Rights Committee was, in a sense, part of the country’s judicial structure in that individuals subject to New Zealand jurisdiction have direct rights of recourse to it. Therefore, even if a domestic statute gave discretionary powers in general terms and did not mention international human rights norms or obligations, the executive was not free to ignore them” – {Tavita v. Minister for Immigration and Another -Court of Appeal of New Zealand 17th December 1993 CA 266/93 (CA)}.13

Convention as a source of Legitimate Expectation

The Australian case of Minister for Immigration and Ethnic Affairs v. Teoh (1995) 69 A.L.J.R 423 signifies a high water mark in the enforcement of convention rights by individuals, where it was recognised for the first time in a commonwealth jurisdiction that an individual was entitled to the protection of an international convention though the same has not been incorporated by Statute. In this case, the Appellant Teoh entered Australia from Malaysia on a temporary entry permit and two months later he got married there. Three children were born of the marriage and Teoh then applied for permanent residence in Australia. While the application was pending, he was convicted of serious drug related offences and was sentenced to six years imprisonment. Subsequently, his application for permanent residence was declined on the ground that he failed to satisfy the good character requirement (which was set out in a departmental policy manual). Teoh sought administrative review of the decision adducing evidence of the great hardship his deportation would have on his wife and young family. The immigration review panel noted that Teoh’s family faced ‘a very bleak and difficult future’ but found the compassionate grounds did not out weigh the policy against serious criminal offending. Teoh’s deportation was ordered (to take effect after completion of his sentence). Judicial review was sought unsuccessfully before the Federal Court, but Teoh succeed on appeal to the full Court of the Federal Court and again in the High Court of Australia. In a landmark judgment which heralded a novel and dynamic approach to the effect of unincorporated international treaties in domestic law, Mason C.J, Deane and Toohey J.J held that Australia’s ratification of the convention created a legitimate expectation in Teoh and his children that any decision relating to residence or deportation would be made in accordance with the principle in Article 3(1) of the convention, namely, to treat the best interests of the children as a primary consideration. Significantly, neither Teoh nor his family relied on or even

knew of the terms of the convention. Indeed, the convention was raised for the first time only in argument before the full Court. Hence, it was contended on behalf of the Minister that there could not have been any legitimate expectation on the part of the applicant who even did not know the existence of the convention. The Court rejected this argument and said that the source of the expectation and its legitimacy or reasonableness was found in the act of ratification. Mason C.J and Deane J said ratification of the convention was ” a positive statement by the Executive … to the world and to the Australian people that … it will act in accordance with the convention” -(at page 432). Similarly, Toohey J held the assumption of international obligations by ratification created the expectation, describing ratification as “a solemn undertaking to the world at large” – (at page 438). It was held to be irrelevant that Teoh did not know of the existence of the convention, it was enough that the expectation was reasonable in that it was adequately supported (Mason C.J and Deane J) or reasonably engendered (Toohey J).

Conclusions

The reluctance on the part of the Courts, particularly in England, to enforce individual rights flowing from international law and international conventions, is a serious impediment to the effective enforcement of international laws rules. The only fora where an individual can enforce his rights conferred by international law are the domestic Courts of his state. Therefore, a positive approach adopted by national Courts towards international law would facilitate the enforcement of individual rights thereunder. Otherwise, the new status granted to the individual as a “subject” of international law will be illusory and the rights conferred on him will remain ‘elusive ghosts’.

The trends shown by Courts, particularly in some commonwealth jurisdictions, mark the heralding of a new era in the development of international law, where the national courts could serve as vehicles for the effective enforcement of international law rights. From a position of extreme dualism, where the courts said “we take no notice of treaties”, they have moved towards a more realistic position and have gone to the extent of proclaiming that it is the duty of the courts and public authorities to have regard to international conventions in applying and administering the law.

It is in this context that the lead set by the High Court of Australia in Teoh’s case comes as a shining example to be emulated. The characterisation by the Court of the act of ratification as a solemn promise by the Executive to the world at large that it would act in accordance with the Convention, and the recognition that such a promise would give rise to legitimate expectation, are laudable judicial innovations. 14 Of course one cannot be oblivious to good policy reasons which underpin the orthodox view that ratified treaties do not become part of the law unless incorporated by Statute. Doctrines such as separation of powers, and the distribution of legislative competence in federations like Canada and Australia do present practical difficulties in giving direct effect to international conventions. But, should these policy considerations be permitted to be used as a convenient cover for states to escape liability? If states could after ratifying international treaties and thereby undertaking solemn obligations, flout them with impunity, then the act of ratification becomes merely platitudinous and ineffectual.

In this context, some recent decisions of the European Court of justice. (E.C.J.) which is the judicial organ of the European Community, invested with supra national jurisdiction, becomes relevant. The E.C.J. has consistently upheld the supremacy of international treaties concluded by the European Community with other states or international organisations and enforced the rights of individuals thereunder – (Kuperberg 1982 E.C.R. P 664). The Court of Just ice has evolved the concept of “Direct Effect” of treaties in order to enforce individual rights. The only preconditions insisted by the E.CJ. for enforcement of individual rights, are that the provision of the treaty relied upon must not be vague and that it must have been intended to confer rights on individuals.

In times to come, this dynamism shown by the E.CJ. in the protection of individual rights under international treaties, may influence the English courts, as the English courts are bound by the decisions of the E.C.J. in matters connected with the European Community. This in turn may inspire Courts following the English law approach, to recognise and enforce individual rights under international law and conventions in the not too distant future.

Footnotes

1. Henkin International Law Cases and Materials – 2nd edition

– West Publishing Co. (1987) page 1055.

2. Oppenheim – International Law 2nd edition page 460.

Louterparch – The Subject of the Law of Nations 63 L.Q.R 438 and 64 L.Q.R 97,

. Jessup – Modem Law of Nations (Chapter 2).

3. Friedman – The Changing Structure of International Law –

page 234.

4. 1974 (QB) 684.

5. Article VI (2) of the Constitution of the United States of

America proclaims that “This Constitution and the Laws of the United States which shall be made under the authority of the United States, shall be the supreme law of the land and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary not withstanding”.

6. Hudec, Robert E “The Legal Status of GATT in the Domestic

Law of the United States”, (Kluwer), (1986) page 188.

7. Constitution of South Africa (1993). In the case of Azanian

Peoples’ Organization (AZAPO) and others v. President of the Republic of South Africa and others (1997) 4 LRC CC, The Constitutional Court of South Africa declined to strike an Act of Parliament on the ground that though it was inconsistent with the Geneva Convention, the said Statute was nevertheless authorised under Section 231 (3) of the Constitution.

8. Article 93 of the Constitution of the Netherlands provides

that the provisions of treaties and of resolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published. Article 94 states that Statutory regulations in force within the Kingdom shall not be applicable if such applications is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions. See the contribution of Schermers, Henry, G., in The Effect of Treaties in Domestic Law (Sweet and Maxwell) (1981), pp 112- 113.

9. Article 55 of the French Constitution of 1958. However, the

requirement of reciprocal application has caused some practical problems. See Weiss, Fried, “Self- Executing Treaties arid Directly Applicable EEC Law in French Courts, in : Legal Issues of European integration, (Kluwer ) (1979) page 62.

10. Article 25 of the Constitution* of the Federal Republic of Germany provides that the general rules of public international law are an integral part of Federal law, They shall take precedence over the laws and shall directly create rights and duties for the inhabitants of the Federal territory.

11. For example, Article 10 of the Constitution of of ltaly proclaims that Italy’s Legal system conforms with the generally recognised principles of international law.

12. In this case, a school teacher who was a Muslim, was denied leave to attend a mosque at regular intervals during school hours. He challenged this decision on the basis of Section 30 of the Education Act, which provided that ‘no person shall be disqualified (as a teacher) by reason of his religious opinion. It was contended on behalf of the Respondent that the section should be read as limited to attending worship in school. Lord Scarman rejected this argument and held that this is unacceptable against the background of the European Convention, which discountenanced discrimination on the ground of religion.

13. 1994 Commonwealth Law Bulletin Vol 20 Page 93.

14. This could be compared with the observations made by Lord Goff in A.G v. Guardian Newspapers (No2) (1990) 1 A.C 109 at 293. In this case, Lord Goff sought to apply the equitable doctrine of breach of confidence and held that the law should be construed in accordance with the obligations of
the Crown under the treaty,