Role of Judiciary In International Conventions_part-3

In his judgment at p. 988 Geoffrey Lane L.J. said:

"It is perfectly true that the Convention was ratified by this country . . . nevertheless, the Convention, not having been enacted by Parliament as a statute, it does not have the effect of law in this country; whatever persuasive force it may have in resolving ambiguities it certainly cannot have the effect of overriding the plain provisions of the Act of 1971 and the rules made thereunder."

This decision was followed in Fernandes v. Secretary of State for the Home Department[1] - another case where Article 8 of the Convention was relied upon and where the Court of Appeal held that the Secretary of State in exercising his statutory powers was not obliged to take into account the provisions of the Convention, it not being part of the law of this country. The Convention is a treaty and may be resorted to in order to help resolve some uncertainty or ambiguity in municipal law. These decisions were most recently followed by the Court of Appeal in Chundawadra v. Immigration Appeal Tribunal [2]. As was recently stated by LORD OLIVER of Aylmerton in J.H. Rayner Ltd. v. Dept. of Trade (The "International Tin Council Case")[3]:

"Treaties, as it is sometimes expressed, are not self- executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as
a source of rights and obligations, it is irrelevant.”

In India ,taking the international treaties and protocols it has been held that “If the plant installed is one which gives a satisfactory treatment of the trade effluent, rebate could be given under Section 7 of the Cess Act so long as the treatment of the effluent is effective from the point of view of the Pollution Act. The Court was also of the view that the question involved is not a mere interpretation of a section of a statute but has larger overtones with a direct nexus to the life and health of the people. A reference to a treaty, protocol or convention is permissible while interpreting laws which have a link or background with such document. The Court surveyed recent international action in the area of environmental protection, including the 1972 United Nations Conference on the Human Environment, and national measures to develop environmental legislation and said that these had a direct connection with the enactment of the comprehensive Pollution Act, which the Court could not disregard.” Here the court was considering the application of the provisions of Water (Prevention and Control of Pollution) Act 1978.
Cess Act, 1977 and had cited the case of Wood v. Waud [4] However, in the context of European arrest warrant Act, 2003,it has been held ”Where a provision of an Act of the Oireachtas conflicts directly with a provision of a Framework Decision, this Court must give preference to the former. To do otherwise would, to cite the language of the Court of Justice in Pupino, be contra legem[5].

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[1] Fernandes v. Secretary of State for the Home Department [1981] Imm. A.R. 1

[2] Chundawadra v. Immigration Appeal Tribunal [1988] Imm. A.R. 161

[3] J.H. Rayner Ltd. v. Dept. of Trade (The "International Tin Council Case") [1990] 2 A.C. 418 at 500

[4] (1849)3 Exch. 748 Derby and Derbyshire Angling Association Ltd. v. British Celanese Ltd. (1953) 1 Ch. 149 p.191. AIR 1986 S 49 in AIR 1986 KERALA 256

[5] Dundon -v- The Governor of Cloverhill Prison [2005] IESC 83 (19 December 2005)
URL: http://www.bailii.org/ie/cases/IESC/2005/S83.html
Cite as: [2006] 1 IR 518, [2005] IESC 83, [2006] 1 ILRM 321[per JUSTICE FENNELLY]