The Doctrine of Incorporation Revisited
79 British Year Book of International Law 7–85 (2008)
59 Pages Posted: 3 Dec 2019 Last revised: 14 Dec 2019
Date Written: 2008
Abstract
What has come to be known as the doctrine of incorporation is taken to state that customary international law is automatically part of the law of England and Wales, without the need for legislative intervention. On this view, rules of customary international law are ipso facto rules of common law. The article subjects this understanding of the doctrine to scrutiny in the light of an analytical account of the case-law. It argues on this basis that the doctrine of incorporation is more accurately understood as a doctrine of judicial transformation or judicial adoption, in accordance with which customary international law is a source, and not as such a part, of the common law. To the extent that rules of customary international law are made a part of the common law, it is through the subtly modifying agency of an English court. The model is one not of immanence or inexorable necessity but of discerning judicial lawmaking informed by the structural amenability of the international rule to domestic application and by possibly countervailing constitutional and common-law principle.
JEL Classification: K33
Suggested Citation: Suggested Citation