International and foreign sources of law in England : Treaties :
Nowadays, a legal system cannot be studied as if it existed in a closed space. This is a reason why we study international sources that may be applied in England by English courts. These sources are increase as it is the case in French law.
Causes:
- English Law – English legal system
- Lawyers in the english legal system : Solicitors and Barristers
- The independence of the judiciary in England and Wales
- Lord Chancellor, lord Chief Justice (authorities of the judicial system)
- Supreme court and Court of appeal
- High Court : Chancery and Queen’s Bench Division
- Lower courts : Magistrate’s courts, Crown court, county court
- Foreign Law in the English Courts : conflict of laws rule
- How does the European court of Human Rights affect the UK?
- Application of european law by English courts
- A factual element:
Persons are traveling. This implies that courts in England may apply a law which isn’t its own law but the law of a foreign state if it seems appropriate to do. French courts as English courts don’t necessary apply their own law.
Conflict of law rules:
To apply a foreign law courts will apply specific rules. This factual element corresponds also to a legal element states tend to conclude treaties which don’t only affect the states relationships but which also concerned private entities, citizens etc. More and more treaties concern the private relationships of citizens crossing borders.
This is the legal reaction of the factual element.
It seems relevant when we study English legal system also to examine such sources.
I) Treaties:
A treaty is an international convention concluded between countries, states. We may speak about bilateral conventions when there are 2 states.
A) Conclusion and ratification of treaties:
Who concludes treaties?
This is the government who has the responsibility for concluding treaties and more specifically this is the secretary of states for foreign and Common-Law affairs (ministère des affaires étrangères). The signature is the responsibility of the government and before2010 the Parliament ratified the treaties. Now it’s the government who decides to ratify and they didn’t need the authorization of the parliament.
Who ratifies treaties?
– Government
– Since the Constitution Reform and Governance Act 2010: new statutory role for Parliament in ratifying treaties. Under this act the government must lay treaties subject to ratification, before parliament for 21 sitting days before it can ratify them. Parliament must authorize ratification.Now the HL or HC may object the ratification and it may block ratification definitely. The treaty may never be ratified.
B) Application of treaties in England:
It doesn’t work in the same way as in France. Unlike many countries when England signs treaties, they don’t automatically become part of domestic law.Citizens cannot rely on them in proceedings brought in courts.
Then, why does UK sign the treaty if no citizens can invoke them before courts?
Even if it’s not possible for citizens to invoke, there is still an international obligation undertaken by the UK to incorporate the treaty provisions in its own legal system. When a treaty is ratified, when the UK took the legal international obligation then it has an obligation to incorporate these provisions into his own legal system. This is what recalls in international law dualism as opposed to monism.
English system is a dualist system. International legal system may not enter into the English legal system. For states which follow the monism then the international law may enter into the French legal system and don’t need to be incorporated in order to be apply by French courts.
When the UK signed and then ratified the Hague Convention on the civil aspects of international child abductions. The provision has been incorporated into the Family Law Act of 1996.
They are 2 treaties which don’t need to be incorporated to be applicable. 2 exceptions:
– European Treaties.
– Treaties on functioning of EU.