Can Unincorporated Treaty Obligations Be Part of English Law?

Abstract

This essay argues against the widely held article of faith of English constitutional law according to which an international treaty obligation is not a part of English law unless it has been incorporated through an Act of Parliament. On the evidence of authorities such as The Parlement Belge, Porter v. Freudenberg, and Imperial Japanese Government, it is concluded that under English constitutional law treaty rights have indeed been allowed to override the common law in certain situations where the traditional article of faith would, were it entirely valid, not have allowed such an application. There is argument that, contrary to what is widely argued in the literature, the test is not simply one of incorporation of non-incorporation. The correct test is instead this—does the treaty obligation effect a change of the law that infringes the existing legal rights of the subject? If it does not, then the court can hold that the treaty right may override the law of the land. The essay argues that this test is attractive in that it coheres with the core of the principle of the separation of powers, which operates as a primary protection of individual liberty.

Keywords: Unincorporated treaties, English law, dualism, separation of powers, human rights