Public international law and municipal law

Customary international law

Construction 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.

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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