- a general principle of British constitutional law that in the case of a conflict statute prevails over

treaty;

• a rule of construction that where domestic legislation is passed to give effect to a

treaty there is a presumption that Parliament intended to fulfil its international

obligations.

A State has exclusive competence to decide how it intends to give effect to a treaty in its

domestic law. In the UK, a treaty may be transformed into municipal law either by direct or

indirect enactment.

• In direct enactment a treaty is normally set out as a schedule to a short enacting act

and therefore the text of the treaty is not altered. The Act itself only provides that the

treaty shall have the force of law.

• Indirect enactment entails that a draftsman uses his own words to create an act which

in effect (but not in the exact words of the treaty) sets out the provisions and

requirements of the treaty. As a result, the relevant provisions of the treaty are

translated into the legislative language of domestic law. In so doing a statute may

refer to particular terms in a treaty.

International treaties

1. The doctrine of transformation applies in that where a change in domestic law is

necessary to give effect to terms of a treaty, such a treaty is only part of English law if

enabling legislation, primary or secondary, has been passed – usually an Act of

Parliament (the Parlement Belge Case). Further, enactment of enabling legislation is

required in order to give effect to sanctions imposed by the UNSC under Chapter VII

of the UN Charter.

It is to be noted that in some dualist common law countries, but not in the UK,

municipal courts have given mandatory domestic effect to unimplemented treaties

which would normally have required enabling legislation to have this effect. The

case law suggests that attentiveness to and sensitivity to fundamental human rights

values embodied in relevant ratified, but not yet incorporated treaties, provides the
main justification for giving them binding domestic effect. As to the legal basis

on which these treaties may, prior to enabling legislation, produce mandatory effect

in domestic law, this is highly debated (the Baker v Canada Case; the Thomas v

Baptiste Case and the Attorney General of Barbados v Joseph and Boyce Case).

2. Interpretation of international treaties. Rules on interpretation differ depending

upon whether:

• a treaty has been enacted by means of domestic legislation. In such a case:

when a provision of a statute is clear it cannot be used to override the

plain words of a statute, even if those plain words are inconsistent with a

treaty (The Ellerman Lines v Murray);

when provisions of a statute are unclear or ambiguous, English courts

may not go so far as to abandon traditional methods of statutory interpretation

but nevertheless are allowed to adopt a broad interpretation

outlined in Fothergill v Monarch Airlines;

• a treaty has not been enacted but there is a statute which intends to give effect

to that treaty or some of its provisions. In such a case:

when a provision of the statute is clear and unambiguous and requires

no interpretation, the court shall follow the statute, even if this conflicts

with the treaty provisions (The Ellerman Lines v Murray Case);

when provision of the statute are unclear and capable of more than one

meaning, a court may have recourse to the treaty as an aid to interpretation

in order to select the meaning which conforms to the treaty. This is

based on the presumption that Parliament cannot have intended to legislate

contrary to international law (the Salomon v Commissioners of Customs

and Excise Case);

• a treaty has not been enacted but there is a statute which concerns subject

matters dealt with by a treaty without having any intention to give effect to

that treaty. In such a case:

when a provision of a statute is clear and unambiguous it prevails over

a provision of a treaty (R v Secretary of State for the Home Department,

ex p Brind );

when provisions of the statute are unclear and ambiguous, the court will

attempt to interpret it in accordance with the presumption that Parliament

intends to fulfil the UK’s international obligations (Derbyshire CC v

Times Newspapers).

It is to be noted that s 3 of the 1998 HRA requires UK courts to read and give effect

to all UK legislation, including international treaties which have been given effect

in UK municipal law through enabling legislation, so far as it is possible in a

way compatible with the rights laid down in the ECHR. The case law shows

that although UK courts are not allowed to cross the line from interpretation

to legislation they can go quite far under s 3(1) (Cases of A v R and Ghaidan v

Godin-Mendoza).