Showing papers in "Modern Law Review in 2007"
TL;DR: In this article, the authors argue that if nations are "imagined communities" and so are regimes, then neither regimes nor states have a fixed nature or self-evident objectives, and that the task for international lawyers is not to learn new managerial vocabularies but to use the language of international law to articulate the politics of critical universalism.
Abstract: Public international law hovers between cosmopolitan ethos and technical specialization. Recently, it has differentiated into functional regimes such as ‘trade law’, ‘human rights law’, ‘environmental law’ and so on that seek to ‘manage’ global problems efficiently and empower new interests and forms of expertise. Neither of the principal legal responses to regime-formation – constitutionalism and pluralism – is adequate, however. The emergence of regimes resembles the rise of nation States in the late nineteenth century. But if nations are ‘imagined communities’, so are regimes. Reducing international law to a mechanism to advance functional objectives is vulnerable to the criticisms raised against thinking about it as an instrument for state policy: neither regimes nor states have a fixed nature or self-evident objectives. They are the stories we tell about them. The task for international lawyers is not to learn new managerial vocabularies but to use the language of international law to articulate the politics of critical universalism.
267 citations
TL;DR: The authors argue that the use of the powers against black people is disproportionate and that this is an indication of unlawful racial discrimination, and that their continued use is unjustified and should be curtailed.
Abstract: Eight years after the Lawrence Inquiry, the question of police powers to stop and search people in public places remains at the forefront of debate about police community relations. Police are empowered to stop and search citizens under a wide range of legislative acts and the power is employed daily across Britain. Far from laying the debate to rest, the Lawrence Inquiry prompted new research studies and fresh theories to explain the official statistics. We argue that the statistics show that the use of the powers against black people is disproportionate and that this is an indication of unlawful racial discrimination. If stop and search powers cannot be effectively regulated – and it seems that they cannot – then their continued use is unjustified and should be curtailed.
249 citations
TL;DR: The authors investigates the extent to which the extraterritorial activities of transnational corporations (TNCs) that violate international human rights law can give rise to home state responsibility, and shows that home states of TNCs have obligations under international law in certain situations to regulate the EHR activities of corporate nationals or the latter's foreign subsidiaries and can incur international responsibility where they fail to do so.
Abstract: States routinely provide support and assistance to their corporate nationals in their global trade and investment ventures. While states may not intend to allow corporate nationals to violate human rights in their extraterritorial operations, by their actions or omissions, states may facilitate, or otherwise contribute to, a situation in which such violations by a corporation occur. This article investigates the extent to which the extraterritorial activities of transnational corporations (TNCs) that violate international human rights law can give rise to home state responsibility. The analysis shows that home states of TNCs have obligations under international law in certain situations to regulate the extraterritorial activities of corporate nationals or the latter's foreign subsidiaries and can incur international responsibility where they fail to do so.
130 citations
TL;DR: The Racial and Religious Hatred Act 2006 has a frenetic history as discussed by the authors, which is the culmination of six attempts in Parliament in the last twelve years to make incitement to religious hatred unlawful.
Abstract: The Racial and Religious Hatred Act 2006 has a frenetic history. It is the culmination of six attempts in Parliament in the last twelve years to make incitement to religious hatred unlawful.1 Each attempt has met with intense criticism. But now that the legislation is here, what may it achieve?
42 citations
TL;DR: The non-justiciability doctrine has a relatively narrow scope in administrative and tort law, but it has nearly disappeared under human rights law as discussed by the authors, where courts have chosen mostly to eschew the nonjusticability doctrine in favour of more flexibly applied notions of judicial deference.
Abstract: A perennial problem in public law is how courts ought to deal with legal challenges to the allocation of public resources. This article explains and renders more coherent the varied approaches of English courts to the justiciability of resource allocation disputes in administrative and tort law. It draws a distinction between ‘discretionary allocative decision-making’ and ‘allocative impact.’ The non-justiciability doctrine in R v Cambridge Health Authority, ex p B is concerned with the former only. By contrast, allocative impact is a justiciable matter, but can still ultimately defeat a claim. This distinction, however, does not guide judicial approaches under the Human Rights Act 1998, where courts have chosen mostly to eschew the non-justiciability doctrine in favour of more flexibly applied notions of judicial deference. Thus while the non-justiciability doctrine has a relatively narrow scope in administrative and tort law, it has nearly disappeared under human rights law.
37 citations
TL;DR: The authors assesses the adequacy of these responses, focusing on the so-called "trade and" debate or "trade linkage" debate in international trade law and propose an alternative mode of scholarship to augment the current literature in the 'trade and' debate.
Abstract: Since the creation of the World Trade Organisation, the international trading system has lived through a decade of sustained and vocal public criticism. International trade lawyers have made significant efforts to engage, evaluate and respond to these critiques. This article assesses the adequacy of these responses, focusing on the so-called 'trade and' debate – or 'trade linkage' debate – in international trade law. While this debate has produced valuable insights, it tends to legitimate and reproduce precisely those aspects of the trade regime which it purports to contest. Drawing on the insights of economic history, an alternative mode of scholarship is proposed – at once historical, critical, constructivist and institutionalist – to augment the current literature in the 'trade and' debate. Concrete lines of enquiry are proposed which, if followed, would help international trade lawyers to respond more productively and with greater legitimacy to contemporary public critiques of the international trading order.
36 citations
TL;DR: The Gambling Commission as discussed by the authors has been established to take primary responsibility for ensuring that three licensing objectives are promoted: the prevention of crime and disorder, the conduct of gambling in a fair and openway and the protection of children and the vulnerable.
Abstract: The Act marks a fundamental shift from legislative to market control of gambling While plans for Las Vegas style casinos and internet gambling sites in Britain have suffered setbacks, restrictions on the availability, advertising and stimulation of demand for gambling, enshrined in the Gaming Act 1968, have been abandoned In their place, a new regulatory body, the Gambling Commission, has been established to take primary responsibility for ensuring that three licensing objectives are promotedThese objectives are the prevention of crime and disorder, the conduct of gambling in a fair and openway and the protection of children and the vulnerableThe Commission has been given strong and wide ranging powers to regulate gambling, but can the safeguards proposed meet the challenge presented by a gambling industry released from restraints?
32 citations
TL;DR: In this article, the authors examined and analysed the Terrorism Act 2006 and the Immigration, Asylum and Nationality Act 2006 with reference to the policy choices in regard to counter-terrorism strategy, to the weighting of rights against policy, and to choices between rights, including the treatment of absolute rights.
Abstract: Following the bombings in London of July 2005, the Prime Minister, Tony Blair warned that ‘the rules of the game are changing’. The proposed changes have primarily related to foreign suspects of terrorism and engage rules relating to asylum, deportation and nationality. The Terrorism Act 2006 and the Immigration, Asylum and Nationality Act 2006, which give effect to the proposals, are examined and analysed with reference to the policy choices in regard to counter-terrorism strategy, to the weighting of rights against policy, and to choices between rights, including the treatment of absolute rights.
29 citations
TL;DR: In this article, the authors argue that effective prosecution of domestic violence means that the State as a less patriarchal ceteris paribus, which constitutes the state as less patriarchal society.
Abstract: This article examines domestic violence criminal prosecutions and addresses what ‘effective’ prosecutorial action means in such cases. The argument elaborates on a point recently articulated by the UN Special Rapporteur on Violence against Women, which links effective prosecution of violence against women to the creation of a less patriarchal society. The article concludes that ‘effective’ prosecution of domestic violence means prosecution which constitutes the State as less patriarchal ceteris paribus.
28 citations
TL;DR: The propensity of accident victims in England and Wales to claim compensation through the tort system has generally increased since the 1970s as discussed by the authors, however, it has remained relatively stable since 2000, if not since 1997/1998.
Abstract: The propensity of accident victims in England and Wales to claim compensation through the tort system has generally increased since the 1970s. Contrary to popular belief, however, it has remained relatively stable since 2000, if not since 1997/1998. The upward trend in claims abated, therefore, when no-win no-fee advertising achieved prominence. Whether this long-term increase in our propensity to claim supports the notion that a compensation culture has developed is largely a matter of interpretation. Our understanding of recent trends in our propensity to claim has clearly, however, been distorted through the media. This distorted legal consciousness may not only have affected our views of the tort system but may also have influenced our readiness to use it and thereby contributed to the stabilisation of accident claims in recent years.
27 citations
TL;DR: In this article, a number of new forms of actionable damage which appear either to have received recognition by the courts in recent years, or to be close to receiving such recognition are discussed.
Abstract: Although damage is an essential component of negligence liability, important extensions of the categories of actionable damage occur with little or no analysis or even acknowledgement of the fact. In this article, consideration is given to a number of new forms of actionable damage which appear either to have received recognition by the courts in recent years, or to be close to receiving such recognition. The article is divided into three core sections, dealing with negligent imprisonment, wrongful conception and educational negligence. The principal conclusions are that redress for negligent imprisonment is best achieved through recognition of imprisonment as actionable damage in negligence; that an unwanted pregnancy is a form of personal injury, albeit an unusual one; that the conventional sum award in wrongful conception cases is best analysed as compensation for a diminution in the parents' autonomy; and that while untreated learning disorders are now treated by the courts as a form of personal injury, in the absence of such a disorder educational under-development ought not to be recognised as actionable damage in its own right.
TL;DR: In this paper, the authors proposed ways to protect the Treasury and promote the wellbeing of children by adopting different policy settings that ensure the resident parent has an incentive to bargain for the level of child support required by the new formula, and also suggested a co-ordinated approach across government to the provision of support services for parents who do not live together.
Abstract: After years of problems with the Child Support Scheme in Britain, the Government has decided to attempt reform again, less than four years after a previous major change was implemented in 2003. The author evaluates these reform proposals, drawing upon his experience in leading a recent major review of child support policy in Australia. While many of the reform measures offer a sensible way forward for child support policy, Britain risks going backwards in terms of community acceptance of the child support obligation. The Government needs to consider the likely impact of its policy settings on private agreements about child support. Ways are proposed both to protect the Treasury and to promote the wellbeing of children by adopting different policy settings that ensure the resident parent has an incentive to bargain for the level of child support required by the new formula. The new formula itself is evaluated in the light of the international research on the costs of children. Ways are also suggested for developing a co-ordinated approach across government to the provision of support services for parents who do not live together.
TL;DR: The authors examines two contrasting proposals for the reform of criminal appeals: the government's recent proposal that the guilty should no longer have their convictions quashed on technicalities; and calls by campaigners for the Court of Appeal to consider innocence rather than the safety of the conviction, together with their associated attempts to establish Innocence Projects in the UK.
Abstract: This article examines two contrasting proposals for the reform of criminal appeals: the government�s recent proposal that the guilty should no longer have their convictions quashed on �technicalities�; and calls by campaigners for the Court of Appeal to consider innocence rather than the �safety of the conviction,� together with their associated attempts to establish Innocence Projects in the UK. Despite the rhetorical power of �innocence� as a campaigning tool, it is contended that to import such a standard into the legal system would be retrogressive and counter-productive, both as a safeguard against wrongful convictions and in protecting the integrity of the system. In order to be meaningful, due process protections must apply to all. The government�s proposals attack this principle directly; innocence campaigners risk unwittingly assisting their endeavours.
TL;DR: In this article, the authors argue for consistency in criminal law and the need for "rational reconstruction" of the law where necessary to achieve this, focusing Parliament's failure to respect the need of consistency by passing a statutory definition of consent in the Sexual Offences Act 2003 which appears to apply only to sexual offences.
Abstract: This article argues for consistency in criminal law and the need for ‘rational reconstruction’ of the law where necessary to achieve this. It focuses Parliament's failure to respect the need for consistency by passing a statutory definition of consent in the Sexual Offences Act 2003 which appears to apply only to sexual offences. As a result, the law on consent risks being a patchwork of statute and ad hoc case law, without any overarching principle to deal with new situations and different offences. The consequent lack of certainty, accessibility, predictability and fairness is compared to the standards of the European Convention on Human Rights. The statutory definition of consent in the context of the sexual offences is assessed critically as a model which could be used in offences against the person and property offences. The article concludes that until Parliament responds to the need for certainty and consistency by legislating on consent, there can be no rational reconstruction of consent under the Sexual Offences Act 2003.
TL;DR: The authors examined the constitutional scholarship of John Griffith and revealed a more complex and pessimistic thinker than the standard image of a Benthamite radical would allow, and examined the cogency of Griffith's vision, particularly his thesis that rights discourse corrupts law and politics.
Abstract: This article examines the constitutional scholarship of John Griffith. Centring on Griffith's seminal article ‘The Political Constitution’, the analysis reveals a more complex and pessimistic thinker than the standard image of Benthamite radical would allow. The article then examines the cogency of Griffith's vision – particularly his thesis that rights discourse ‘corrupts’ law and politics – against recent developments. It concludes by reflecting on Griffith's radical debunking style.
TL;DR: In this article, an opt-out regime with brakes is proposed, taking into account both the requirement for proportionality under the Civil Procedure Rules, and the invaluable lessons provided by the established Commonwealth statutory class actions regimes.
Abstract: This article contends that the absence of an opt-out class action remains a yawning gap within English civil procedure. Various recent reform proposals have favoured opt-in procedural vehicles as the way forward. However, key features of these proposals – an opt-in approach and the use of a representative claimant – are subject to considerable reservations in jurisprudence from both England and elsewhere. Following a critique of these features, the article proposes that an ‘opt-out regime with brakes’ should be introduced, taking into account both the requirement for proportionality under the Civil Procedure Rules, and the invaluable lessons provided by the established Commonwealth statutory class actions regimes.
TL;DR: The third report of the Product Liability Directive as mentioned in this paper assesses the present state of product liability in Europe and notes that despite the maximal harmonisation character of the Directive there is a risk of divergence between Member States on key issues including the core concept of defectiveness.
Abstract: The paper uses the opportunity afforded by the European Commission's Third Report of the Product Liability Directive to assess the present state of product liability in Europe. It notes that despite the maximal harmonisation character of the Directive there is a risk of divergence between Member States on key issues including the core concept of defectiveness. The Commission seems at times confused (for example, as regards the relationship between defect and fault liability) and more often complacent about the risks of divergence; but this sits uneasily with the espousal of maximal harmonisation. Ultimately there may be a need for a rethinking of product liability to ensure greater clarity as regards the underlying rationale supporting strict liability. This seems unlikely to materialise in the near future and so at the very least the Commission should act to clarify some core concepts that are proving difficult to interpret for the courts.
TL;DR: In this paper, the authors argue that tax is potentially an important determinant of ownership patterns in large companies, and they focus on historical developments in Britain, where an outsider/arm's-length system of corporate governance took shape during the twentieth century and became fully entrenched by the end of the 1970s.
Abstract: While generally the impact tax has on patterns of corporate ownership and control has received little attention in the relevant academic literature, this paper argues that tax is potentially an important determinant of ownership patterns in large companies. The paper focuses on historical developments in Britain, where an ‘outsider/arm's-length’ system of corporate governance took shape during the twentieth century and became fully entrenched by the end of the 1970s. Taxes imposed on corporate profits, taxation of managerial and investment income and inheritance taxes help to explain why during this period blockholders sought to exit and why there was sufficient demand for shares among investors to permit ownership to separate from control.
TL;DR: In this article, the authors define the legitimate reach of individuals' institutional obligations in the light of their right to freedom of religion, and the most divisive settings for this question involve exclusions from certain jobs and schools.
Abstract: How should one define the legitimate reach of individuals' institutional obligations in the light of their right to freedom of religion? The most divisive settings for this question involve exclusions from certain jobs and schools. At the same time, some fundamental issues of ethics and law lie in the background. One of the most central concerns choice. On one approach, if there are other sources of work or education that do not make the same demands on the objector then she should choose between conforming and taking up that alternative. On another approach, even if there are such alternatives, people should not be confronted with such a dilemma: they should be entitled to stay in their preferred institution, which must make its best effort to accommodate them. The conflict between these two views arises from underlying differences concerning the nature of free choice itself; about the obligations borne by institutions in civil society; and about basic rights. The connections between these notions are investigated, and a way through the disagreement is suggested.
TL;DR: In this article, the authors focus on the asymmetric consequences of devolution which derive specifically from the jurisdictional or "legal system" differences across the United Kingdom, and argue that the devolution of legal system competence carries with it problems quite different from those associated with other powers.
Abstract: The devolution of legislative and executive powers to the different parts of the United Kingdom has meant that, because of the asymmetric arrangements made, there has been an increase in policy divergence from one part to another. Some of this has been intended, some unintended. With reference, in particular, to Scotland and Wales this article focuses on the asymmetric consequences of devolution which derive specifically from the jurisdictional or ‘legal system’ differences across the United Kingdom. These affect the conditions under which law-making powers may be devolved, the ‘management’ of devolution and the rights enjoyed by citizens. It is argued that the devolution of ‘legal system’ competence carries with it problems quite different from those associated with the devolution of other powers.
TL;DR: In this paper, the legal grounds for a custodial remand and the extent to which individual rights guaranteed under the European Convention are adequately protected are examined for women in remand, and it is argued that women are particularly disadvantaged by the laws governing bail and their practical application in the criminal justice system.
Abstract: Concern about the increasing population of women in prison has tended to focus on the sentencing of female offenders. It is often overlooked that about one in five women held in custody is there on remand, awaiting trial or sentence, and that most of them will not receive a prison sentence at the end of the process. This article examines the legal grounds for a custodial remand and explores the extent to which individual rights guaranteed under the European Convention are adequately protected. It is argued that women are particularly disadvantaged by the laws governing bail and by their practical application in the criminal justice system; and that the pre-trial detention of so many women routinely violates the spirit of the Convention by allowing questionable claims to social utility to prevail over the right to liberty and to a fair trial.
TL;DR: In this paper, the authors explore the opposing constitutional assumptions in Germany that underlie two interpretations of what in Anglo-Saxon countries is known as constitutional law: Staatsrecht and Verfassungsrecht.
Abstract: The relationship between the national and the European legal orders is affected by the way it is theorised by the national constitutional traditions. This article will explore the opposing constitutional assumptions in Germany that underlie two interpretations of what in Anglo-Saxon countries is known as constitutional law: Staatsrecht and Verfassungsrecht. The two contending visions are generated from different conceptions of the European Union and, especially, the state. The origins of the German constitutional traditions will be historically reconstructed. Although Staatsrecht has historically offered the dominant interpretation of public law, Verfassungsrecht has 'de-mystified' the state. To continue to offer a coherent interpretation Staatsrecht need not abandon the state as its central concept, but will need to re-examine the content of the concept in light of modern forms of constitutionalism and European integration.
TL;DR: The concept of manifest madness as mentioned in this paper provides a theoretical frame for understanding the way in which insanity is proved for the purposes of the criminal law, which can serve as a theoretical framework for understanding how knowledge about insanity is structured in the criminal courtroom.
Abstract: This article introduces a new concept which can serve as a theoretical frame for understanding the way in which insanity is proved for the purposes of the criminal law. With reference to George Fletcher's concept of ‘manifest criminality’, it introduces the concept of ‘manifest madness’. This concept constructs madness (a shorthand for the types of mental abnormality known to the criminal law as insanity) in criminal law as evident to lay observers, and its meanings, which are derived from collective knowledge of it, as encoded in the defendant's acts. Through an historical analysis of the way in which insanity has been proved in criminal law, the article argues that ‘manifest madness’ is useful for understanding how knowledge about insanity is structured in the criminal courtroom. The concept of ‘manifest madness’ provides a frame that incorporates evidentiary and procedural features of the insanity defence that have resisted systematic theoretical analysis.
TL;DR: In this article, the treatment of non-professional suretyship agreements across the EU in the context provided by Commission initiatives aimed firstly at creating a single market in financial services and secondly at improving the coherence of European private law is analyzed.
Abstract: This article analyses the treatment of non-professional suretyship agreements across the EU in the context provided by Commission initiatives aimed firstly at creating a single market in financial services and secondly at improving the coherence of European private law. Predictably, given their polycontextual function, we are confronted with starkly divergent national approaches towards such agreements: a `Tower of Babel' rather than a `common core'. The article proceeds to consider how we may see elements of commonality arising through the tension between the differing national approaches - seen in terms of a Unitary Network. In the course of this analysis the treble paradox of surety protection is described. The article finishes with a prediction of the relevance of a dual-track strategy in this field: involving measures of sector-specific, vertical harmonisation, and a programme of common-law style, non-legislative harmonisation through judicial convergence.
TL;DR: In this article, it is argued that some acts can be subjective and yet factual and stand as causes to effects, and that clarification of the concept of appropriation can help to resolve misperceived problems.
Abstract: The English law of theft is confusing and problematic in principle. Since the introduction of the Theft Act 1968 there has been inconsistency in the interpretation of appropriation as court and commentators have grappled with the intuition that appropriation must entail some subjective element and cannot be purely objective. Although subjectivity is traditionally associated with culpability rather than with conduct, it is argued that some acts can be subjective and yet factual and stand as causes to effects. Appropriation is such an act, its necessary and sufficient condition being a mindset, here termed proprietary subjectivity, on the part of the actor. It is argued that clarification of the concept of appropriation can help to resolve misperceived problems. Such clarification will also reveal other problems in the law of theft. Some tentative comments de lege ferenda are made suggesting how these problems can be addressed.
TL;DR: The 5-4 decision in Gonzales v Carhart as discussed by the authors suggests an emerging, if fragile conservative majority on the Court and validates the anti-abortion movement's strategy of pushing for step-by-step restrictions on abortion while working to change the composition of the Supreme Court.
Abstract: In Gonzales v Carhart' the United States Supreme Court upheld the constitutionality of the Partial-Birth Abortion Ban Act of 2003-a federal statute criminalising a medical procedure known colloquially as partial-birth abortion, but referred to by physicians as intact dilation and extraction ('D&X').2 The decision's significance is threefold. First, Gonzales shatters a decade-long stalemate on abortion regulation. Not only is the decision the first to uphold a ban on a specific abortion procedure, but it also represents the first time that the Court has approved an abortion restriction that fails to provide an exception for the health of the pregnant woman. In this, the decision is a significant retreat from the protection of a woman's reproductive choice afforded by Roe v Wade,3 Planned Parenthood v Casey4 and Stenberg v Carhart.5 Second, the emphasis Gonzales places on the claim that women suffer from mental health problems after abortion, and why it is thus necessary to protect women, represents an important victory for those who have sought to reposition the anti-abortion movement as protectors, rather than critics, of women. At the same time, by appearing to suggest that a woman is best protected by reducing her reproductive choice, the decision points to a troubling 'neo-paternalism' in the regulation of abortion. Finally, the 5-4 decision in Gonzales suggests an emerging, if fragile conservative majority on the Court and, in this, validates the anti-abortion movement's strategy of 'pushing for step-by-step restrictions on abortion while working to change the composition of the Supreme Court'.6 This note interweaves these three themes to explain why Gonzales may be portentous not just with respect to the future direction of abortion regulation, but also the future direction of the Court itself.
TL;DR: In this article, the authors propose an interpretation of the Cape litigation as a fusion of the rival theories of Professor Thomas Jackson and Professor Donald Korobkin, who stand at the opposite ends of the debate over the proper normative content of English law.
Abstract: Schemes of arrangement under section 425 of the Companies Act 1985 have been criticised by Professor Goode as being 'complex and cumbersome." Other prominent academics have also noted that this complexity may have led to a poor uptake of section 425 schemes in the reorganisation of distressed companies.2 But the latest case in the asbestos litigation concerning Cape plc has demonstrated how well schemes of arrangement under section 425 may be integrated within an emerging philosophy of corporate rescue in English law.3 Although not currently insolvent, Cape plc was faced with a present and future liability of enormous and unknowable proportions from the claims of employees exposed to asbestos dust. Under the proposed scheme, a subsidiary, Cape Claims Services Ltd (CCS), would be created for the purposes of meeting the claims. The asbestos claims would in future be enforceable against CCS only. CCS would be funded by an initial payment of £40 million from Cape plc, and would receive continued funding from the parent company. This arrangement was necessitated by the 'great uncertainty as to the likely cost of future claims.'4 The scheme would be subject to revision, in order to take account of the expanding liabilities, and to calculate the future amount of funding required from Cape to meet those claims.5 In this way, Cape could meet current asbestos liabilities and hope to trade out of future difficulties. A crucial question before the court in In re Cape plc was whether the court could approve such an arrangement, which allowed the continued revision or variation of provisions affecting creditors bound by the scheme.6 Although a number of challenges were made, the court could see no prohibition of the orders sought by Cape plc, and accordingly approved the scheme. This comment proposes an interpretation of the Cape litigation as a fusion of the rival theories of Professor Thomas Jackson and Professor Donald Korobkin, who stand at the opposite ends of the debate over the proper normative content of
TL;DR: Brownlie as discussed by the authors suggests that the rule of "customary rules are to be considered part of the law of the land and enforced as such with the qualification that they are incorporated only so far as is not inconsistent with Acts of Parliament or prior judicial decision of final authority".
Abstract: There are two well known rules of law which are applied 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 qualification that they are incorporated only so far as is not inconsistent with Acts of Parliament or prior judicial decision of final authority." However, '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