Commercial and Estates Co. of Egypt
v.
Board of Trade
[1925] 1 KB 271, 295; 2 AD, p. 423.
144
i n t e r nat i o na l l aw
found it they will treat it as incorporated into the domestic law, so far as it
is not inconsistent with rules enacted by statutes or finally declared by their
tribunals.
It goes without saying, of course, that any alleged rule of customary
law must be proved to be a valid rule of international law, and not merely
an unsupported proposition.
One effect of the doctrines as enunciated by the courts in practice is
that international law is not treated as a foreign law but in an evidential
manner as part of the law of the land. This means that whereas any rule
of foreign law has to be proved as a fact by evidence, as occurs with other
facts, the courts take judicial notice of any rule of international law and
may refer, for example, to textbooks rather than require the presence and
testimony of expert opinion.
62
In ascertaining the existence and nature of any particular rule, the
courts may have recourse to a wider range of authoritative material than
would normally be the case, such as ‘international treaties and conven-
tions, authoritative textbooks, practice and judicial decisions’ of the courts
of other countries.
63
The case of
Trendtex Trading Corporation
v.
Central Bank of Nigeria
raised anew many of these issues. The case concerned a claim for sovereign
or state immunity by the Central Bank of Nigeria.
64
In
Trendtex
all three
judges of the Court of Appeal accepted the incorporation doctrine as
the correct one. Lord Denning, reversing his opinion in an earlier case,
65
stressed that otherwise the courts could not recognise changes in the
norms of international law.
66
Stephenson LJ emphasised in an important
statement that:
it is the nature of international law and the specific problems of ascertaining
it which create the difficulty in the way of adopting or incorporating or
recognising as already incorporated a new rule of international law.
67
62
Lord Advocate’s Reference No. 1 of 2000
, 2001, SLT 507, 512–13.
63
Per Lord MacMillan,
The Cristina
[1938] AC 485, 497; 9 AD, p. 250. See
Re Piracy Jure
Gentium
[1934] AC 586, 588; 7 AD, p. 213, and Stephenson LJ,
Trendtex Trading Corporation
v.
Central Bank of Nigeria
[1977] 2 WLR 356, 379; 64 ILR, pp. 111, 135. But see also
Lauterpacht, ‘Is International Law a Part?’, p. 87, note m.
64
[1977] 2 WLR 356; 64 ILR, p. 111. See further below, chapter 13.
65
R
v.
Secretary of State for the Home Department, ex parte Thakrar
[1974] 2 WLR 593, 597;
59 ILR, p. 450.
66
[1977] 2 WLR 356, 365; 64 ILR, pp. 111, 128. See also Shaw LJ,
ibid.
, 386 and Stephenson
LJ,
ibid.
, 378–81.
67
[1977] 2 WLR 356, 379.
i n t e r nat i o na l l aw a n d m u n i c i pa l l aw
145
The issue of
stare decisis
, or precedent, and customary international law
was also discussed in this case. It had previously been accepted that the
doctrine of
stare decisis
would apply in cases involving customary interna-
tional law principles as in all other cases before the courts, irrespective of
any changes in the meantime in such law.
68
This approach was reaffirmed
in
Thai-Europe Tapioca Service Ltd
v.
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