El Sector Hidrocarburos: El caso del Lote

Despite the fact that national laws are greatly influenced by international policies, national courts cannot implement international law directly. Enforcing it within the UK is also not always possi- ble.

It is only when the UK Parliament validates international agreements under the basic principle of ‘Parliamentary Sovereignty’ that international laws can be incorporated within the UK’s national laws. However, it is customary international law and treaty obligations which controlthe relation- ship between UK law and international law.

In 1899 the House of Lords, while addressing the ‘Cook v Sprigg’ case, determined that with re- gard to treaties, municipal courts do not have the authority and the expertise to arbitrate and rein- force rights originating from transactions which occur in international transactions entered into between independent and sovereign countries. Almost 100 years later, the International Tin Council Case verified this ruling in 1990291. According to the court’s ruling, a treaty can be ne- gotiated, concluded, construed, observed, breached, repudiated or terminated by the Government. Judges hold no authority in terms of either granting specific performance of a treaty or in award- ing charges to an independent state against their breaching a particular treaty. Likewise, judges have no power to create new laws or misconstrue legislation for the purpose of enforcing a trea- ty. UK legislation cannot be modified solely on the terms of international law (Lord Templeton). It is the Royal Prerogative which has the sole authority to decide and conclude treaties with other independent countries. It is not possible to challenge the validity of treaties within municipal law.292_{However, it is improbable that the courts will eliminate any particular field of law from} their control. Lord Oliver states that there is no corollary attached to this proposition with regards to the fact that a treaty can never be viewed or construed by the court. In cases where English law includes a specific treaty through acts of the legislature, the terms and conditions of this trea- ty are subject to the court’s interpretive jurisdiction similar to any other act of the legislature. The Fothergill v Monarch Airlines Ltd293 case specifies that in a situation when a law is ratified

291_{J H Raynor (Mincing Lane) v Department of Trade and Industry [1990] 2AC, p418} 292_{Blackburn v Attorney-General [1971] 1 WLR 1037.}

293_{{1981} AC 251.}

106

only to provoke obligations of the UK under a treaty, it is necessary to give due consideration to the terms and conditions of the treaty. Also, if it is required, it should be construed to clarify any uncertainty or obscurity with regards to the statute’s meaning or scope. Like any other subject, it should be considered that concluding an international treaty along with its conditions is also a factual matter. Within a matter of fact, the treaty can be regarded in consideration of a particular issue that originates, which would automatically appear as an obvious consideration. However, it is imperative to emphasize on the objective which can certainly be evidential, for which such a reference is made under legitimate means.

As previously explained, the Royal Prerogative authorizes treaties. Decisions are integrated by Parliament within national law to give courts the power to enforce them. In order to prevent leg- islative uncertainties, unincorporated treaties are also examined by the courts. Unincorporated treaties are also referred to the courts when the requirement is to construe national law in accord- ance with international law. This means that international laws are given due consideration when national courts interpret the terms of the treaty. Furthermore, the principle of ‘incorporation’ has been taken up by common law in the UK with respect to conventional international law. This inherently makes international law a part of national law, with no requirement of legislative or judicial pronouncement.294

While addressing the case of Triquet v Bath 295in 1746, it was clearly stated by Lord Mansfield that it is the practice of different states along with the authority of writers which combine to form the law of nations. In the West Rand Central Gold Mining Co. v The King296case, Lord Alver- stone CJ asserted that the mutual consensus of civilized states will also receive the UK’s concur- rence and whatever has been agreed on a mutual basis along with other sovereign nations is commonly known as international law. This law needs to be recognized, approved and applied by the municipal tribunals within the country involved.

The UK courts apply conventional international law as a component of the common law in situa- tions where the pertaining customary international law is clear. However, unambiguous legisla- tion can override this since common law includes customary international law. It would however

294_{Park.(2002)An Oscar for the Environment Professorial Lecture, Southampton Solent University} 295_{(1746) 3 Burr 1478; 97 ER 936, Court of Kings Bench.}

296_{[1905] 2KB 391, Kings Bench Division.}

107

be a bold step by the government to finalize a treaty based on international law and then establish unambiguous legislation.

Active involvement under various regional and multilateral programmes has led towards the change of the UK law in terms of both policy and practice. Although the impact of international law is restricted, the UK law has altered to allow modifications in environmental legislation. The primary legislation has, however, not been changed even after the endorsement of the OSPAR Convention. Nevertheless, there is still room to allow for legislative consequences according to international agreements under which the UK is currently a member.297