The incorporation of custom

AuthorGib van Ert
6 he incorporation of
e common law looks on customary international law as a facet of itself.
e authority of custom in domestic l aw is the authority of the common
law of which it forms part. As common law may bar an action, so too may
custom. As common law may be abolished by statute, custom shares this
vulnerabil ity. In the celebrated Lotu s case, Judge Moore referred to t he
“majestic stream of the common law, united with international law.” e
Lotus case () PCI J (Ser. A) No.  at , Judge Moore (an Americ an judge); see
also simil ar comments by the English judge, Lord Fin lay, at . ere is ample
authority for the pro position that customa ry internationa l law forms part of
the common law: for example, Si r William Black stone, Commentaries on the Laws
of England, vol.  (Chica go: University of Chicago P ress: ) at : “the law of
nations . . . is here adopte d in it’s [sic] full extent by the com mon law”; Heathf‌ield
v. Chilton ()  Burr.  at ,  ER  at  [Heathf‌ield], Lord Mans f‌ield:
the law of nations i s “part of the common law of Engl and”; Novello v. Toogood
()  B & C  at ,  ER   at , [Novello], Abbot CJ: “the common
law, of which the law of n ations must be deemed a part ”; Duke of Brunswick v. e
King of Hanover ()  B eav.  at ,  ER  at  [Duke of Brunswick], Lord
Langdal e MR: “the law of nations . . . when a scertained, is to b e deemed part of
the common law of England ”; Emperor of Austria v. Day and Kossuth ( )  Gif‌f.
 at ,  ER  at  [Emperor of A ustria], Sir John Stuar t VC: “the law of
nations is part of the com mon law of England”; Saint John v. Fraser-Brace Over-
seas [] SCR  at  [Fraser-Brace], Rand J: to insist on precede nt “would be
a virtu al repudiation of the conce pt of inherent adaptabil ity which has ma in-
tained the life of t he common law”; I˚ Congreso del Partido []  AC  at 
(HL) [Congreso], Lord W ilberforce: on state immunity, in the absence of st atute,
“the law in question is the common l aw”; Re Regina and Palacios ()  OR
(d)  at  (CA) [Palacios], Blair JA: c ustomary rule “recog nized as form-
ing part of the c ommon law in two th-cent ury cases”; Re Canada Labou r Code
[]  SCR  at  [Re Canada Labour Co de], La Forest J: describing the r ise of
restrictive st ate immunity in customar y international law, “e common law
6 • The incorporation of c ustom 183
stream’s source is England, in whose jurisprudence the doctrine of incor-
poration was f‌irst enunciated. In Canada the stream’s course may change
to suit this countr y’s dif‌ferent landscape. But on incor poration the com-
mon law of Can ada has not diverte d; it continues to assert it s unity with
customary international law. In Fraser-Brace, Rand J eloquently stated
the Canadia n position as follows:
It is obvious that the life of every state is, under the swift tran sform-
ations of these days, becoming deeply impl icated with that of t he
others in a de facto society of nations. If i n  Lord Mansf‌ield, as in
Heathf‌ield v. Chilton . . . coul d say, “e law of nations will be ca rried
as far in England, a s any where,” in this country, in the th centur y,
in the presence of the United Nations and the multiplicity of impacts
with whic h technical de velopments have entwine d the entire globe,
we cannot say anyt hing less.
More recent Supreme Court of Can ada decisions have not always been
as clear in af‌f‌irming the incorporation doctrine. Taken as a whole, how-
ever, the Canadian author ities strongly support it.
responded by developing a new t heory of restrictive immun ity”; Littrel v. United
States of America (No ) []  W LR  at  (Eng CA), Rose LJ: “ in the absence
of statutory enact ment, it is the common law including the incor porated rules
of customary i nternational law, which identif‌ies a nd def‌ines the extent of sover-
eign immun ity”; Holland v. Lampen-Wolfe []  WLR  at  (HL), Lord
Millett: r ules of customary inter national law of state immunity g iven ef‌fect in
UK by statute and common law; R . v. Bow Street Magistrate, Ex parte Pinochet (No
) []  AC  at  (HL), Lord Millett: “Custom ary internationa l law is part
of the common law.” For an opposing v iew, see R. O’Keefe, “Cust omary Inter-
national Cr imes in English Cour ts” ()  Brit YB Int ’l L , argui ng that
custom forms par t of domestic (English) law as disti nct from (English) common
law and that th is explains w hy the Court of Appeal i n Trendtex Trading v. Bank of
Nigeria []  QB  (CA) [Tre ndt ex] wa s free to adopt a newly emerged r ule of
custom unconstra ined by previous decisions. See a lso R. v. Jones [] UKHL
 [Jones], in which the Hous e of Lords consistently desc ribed custom as par t of
domestic law rather tha n common law. Yet the weight of authority is that cus-
tom is incorporated not simply into domest ic law in general, but into common
law specif‌ica lly. Certainly incorpor ated customs resemble common law rules,
for they are incorporated by t he judiciary and are in t hat sense judge-made law
subject to bein g displaced by statutor y rules. Note that Qu ebec’s civil law trad-
ition is no impediment to incorp oration there, for common law rules of a public
nature (which questions of publ ic international law surely a re) apply in Quebec:
Prud’ homme v. Prud’ homme []  SCR , espec ially at para. .
Fraser-Bra ce, ibid. at –.
     184
While incorporation in general is established in Canadian law, there
remain questions about its application to particul ar instances. e f‌irst
question concern s the i nteraction of the common law and custom in
cases where establ ished common law r ules conf‌l ict with evolving or
established customary norms. A second question is how the common
law engages customary norm s of a permissive, rather than mand atory,
nature. i rdly, there is some uncertainty about the operation of per-
emptory norms of internationa l law, or jus cogens, in domestic law.
e principle of res pect for internationa l law is given its freest
reign in this area of the reception system. e incorporation doctrine
invites courts not only to adjudicate consistently with international
law but to adopt international c ustom as the rules upon which their
adjudication i s based. For the reception system so wholly to embrace
custom by means of the common law is not only in keeping with the
principle of respect for international law but is also consistent with the
principle of self-government. For the common law is always susceptible
to abolition or curtailment by statute. erefore, to perm it custom to
be incorporated by the common law is to subject custom to the exercise
of sel f-government through legislative action. Here is an instance of
the reception system bala ncing its principles: respect for international
law is made the common law’s default position but subject to re jection
or amendment in the name of self- government.
. e incorporation doctrine
(a) In English law
e applicability of customary international law in the domestic sphere
was established by leading Eng lish jurists of t he eighteenth century.
In the earliest case, Buvot v. Barbuit (), Lord Talbot is said to have
declared that “t he law of nations, to its full extent, w as part of the law
of En gla nd.” Nearly thir ty years later, in Tr i qu et v. B ath (), L ord
Mansf‌ield CJ (who appeared as counsel before Lord Talbot in Buvot)
af‌f‌irmed and rel ied upon Lord Talbot’s dictum. Ap pearing as counsel
before Lord Man sf‌ield was Willi am Blac kstone, who declared in his
Commentaries () that “the law of nations . . . is here adopted in it’s
() Cas. T. Talb. ,  ER .
()  Burr.  at  –,  ER  at –.

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