Public international law and municipal lawCustomary international lawConstruction of statutes

Mortensen v. Peters(1906) 14 Scots LTR 227 (High Court of Justiciary, Scotland)

As a rule of statutory construction, the legislature is presumed to make law in a manner consistent with customary international law. However, in accordance with the principle of parliamentary sovereignty, the clear language of a statute must be given effect even although the statute may operate in a manner inconsistent with customary international law.

Background

The defendant (appellant), Emmanuel Mortensen, a Danish citizen, was the master of the Norwegian steam trawler “Niobe”. In the sheriff court at Dornoch, Scotland, the defendant was convicted under the Herring Fishery (Scotland) Act 1889 (UK) of the offence of otter trawling in a prohibited part of the Moray Firth (an inlet of the North Sea on the north east coast of Scotland) at a place more than three miles seaward from the low water mark.

On appeal, the question of law was whether the defendant was subject to the jurisdiction of the sheriff court on account of the fact that the offence was committed on the high seas according to customary international law.

Disposition

As a matter of statutory construction, the offence committed by the defendant was at a place to which the Herring Fishery (Scotland) Act 1889 (UK) applied. Accordingly, the defendant was subject to the jurisdiction of the sheriff court and had properly been convicted. In the present case, the presumption that the legislature intended to make law in a manner consistent with customary international law had to give way to the clear language of the statute.

Judgment extract

LORD DUNEDIN (Lord Justice-General). … I apprehend that the question is one of construction and of construction only. In this court we have nothing to do with the question of whether the legislature has, or has not done, what foreign powers may consider usurpation in a question with them. … For us an act of parliament duly passed by lords and commons and assented to by the king, is supreme, and we are bound to give effect to its terms. …

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LORD KYLLACHY. … [I]t may probably be conceded that there is always a certain presumption against the legislature of a country asserting or assuming the existence of a territorial jurisdiction going clearly beyond limits established by the common consent of nations - that is to say, by international law. … I think that is acknowledged. But then it is only a presumption; and, as such, it must always give way to the language used if it is clear… .

Now it must, I think, be conceded that the language of the enactment here in question is fairly express - express, that is to say, to the effect of making an unlimited and unqualified prohibition, applying to the whole area [of the Moray Firth] specified, and affecting everybody - whether British subjects or foreigners. …

Appeal dismissed

Aftermath

In a note to the above case, Harris, Cases and Materials on International Law, 7th edn, 2010 observed (at p 75):

Shortly after Mortensen v. Peters, a number of other successful prosecutions of Norwegian masters of foreign ships occurred. In some cases the convicted men went to prison rather than pay a fine. They were released, however, after protests by Norway. In March 1907, a Foreign Office spokesman stated in the House of Commons: “The Act of parliament as interpreted by the High Court of Justiciary is in conflict with international law.” (Hansard, HC, Vol 170, col 472 (March 4, 1907))

Polites v. The Commonwealth (1945) 70 CLR 60

The reasoning of the High Court of Justiciary, Scotland in Mortensen v. Peters (above) was followed by the High Court of Australia in Polites v. The Commonwealth.

Polites concerned the construction of the National Security Act 1939 (Com) and the National Security (Aliens Service) Regulations made under that Act. By way of background, in 1940, immediately after the fall of France to invading German forces and in circumstances of national emergency in Australia, the Commonwealth parliament amended the National Security Act 1939 (Com) to authorise the making of regulations calling-up aliens resident in Australia for service in the Australian armed forces. Mr Speros Polites, a Greek national aged 29 resident in Australia, challenged the validity of the Regulations. Mr Polites contended that the Regulations should not be construed in a manner inconsistent with the rule of customary international law that, during armed conflict, a state may not require resident aliens to serve in its armed forces. Although the High Court of Australia acknowledged the existence of this rule of customary international law, the Court held that parliament, in amending the National Security Act 1939 (Com), clearly had intended resident aliens liable to be called-up for service in the Australian armed forces and that the Regulations prevailed over customary international law even although this carried “the risk of international complications” (Latham CJ at p 69) including “the obvious risk of the Commonwealth having no ground of objection if Australians who happen to be in foreign countries are conscripted for military service there.” (Latham CJ at p 73)

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In reaching this conclusion, the High Court of Australia accepted as “well established by many authorities” (Latham CJ at p 68), that there is a general rule of construction that, unless the contrary intention is clear, it is presumed parliament did not intend to violate customary international law. Dixon J (at p 77) stated this general rule as follows:

It is a rule of construction that, unless a contrary intention appear, general words occurring in a statute are to be read subject to the established rules of international law and not as intended to apply to persons or subjects which, according to those rules, a national law of the kind in question ought not to include.

However, as Latham CJ observed (at p 69): “[A]ll the authorities in English law also recognize that courts are bound by the statute law of their country, even if that law should violate a rule of international law… . It must be held that legislation otherwise within the power of the Commonwealth Parliament does not become invalid because it conflicts with a rule of international law, though every effort should be made to construe Commonwealth statutes so as to avoid breaches of international law and of international comity.”

The bottom line in Polites: the National Security (Aliens Service) Regulations were valid and Mr Polites was liable to be called-up for service in the Australian armed forces.

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