Public international law and municipal law
The Parlement Belge
(1879) 4 PD 129 (Probate, Divorce and Admiralty Division)
A treaty to which Australia is a party creates no legally enforceable rights or obligations in municipal law in the absence of enabling or implementing legislation.
SIR ROBERT PHILLIMORE. … [144] In February 1878, the owners of the steamtug Daring served a writ on board the steamship Parlement Belge against the owners of that vessel and her freight, in which they claimed the sum of £3500 for damage, arising out of a collision which occurred between that vessel and the steam-tug
Daring on 14 February 1878, off Dover [in Dover Bay]. ...
[145] [I]t is in substance contended that this steamship Parlement Belge is not amenable to the process of this Court, first, on the ground that she is the property of the King of the Belgians, and at the time of collision was controlled and employed by him. Secondly, that her Majesty the Queen, by a [postal] convention [in 1876] with the King of the Belgians, has placed this packet-boat in the category of a public ship of war. …
[146] [T]he plaintiffs in this suit have a statutable right of action against the
Parlement Belge , unless that vessel be of that privileged class which is not amenable to a court of law. …
[147] The Parlement Belge is a packet [a ship that carries mail, passengers and goods regularly on a fixed route] conveying certain mails and carrying a considerable commerce, officered … by Belgian officers and flying the Belgian pennon [flag]. ...
[149] Upon the whole, I am of opinion that neither upon principle, precedent, nor analogy of general international law, should I be warranted in considering the
Parlement Belge as belonging to that category of public vessels which are exempt from process of law and all private claims.
I now approach the consideration of the second question. …
It is admitted that this convention [the 1876 postal treaty] has not been confirmed by any statute; but it has been contended on the part of the Crown both that it was competent to her Majesty to make this convention, and also to put its provisions into operation without the confirmation of them by parliament. The plaintiffs admit the former, but deny the latter of these propositions.
The power of the Crown to make treaties with foreign states is indisputable. …
[150] [Sir William] Blackstone [18 th
century English jurist] must have known very well that there were a class of treaties the provisions of which were inoperative without the confirmation of the legislature; while there were others which operated
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2 without such confirmation. The strongest instance of the latter, perhaps, which could be cited is the Declaration of Paris in 1856, by which the Crown in the exercise of its prerogative deprived this country of belligerent rights, which very high authorities in the state and in the law had considered to be of vital importance to it. But this declaration did not affect the private rights of the subject; and the question before me is whether this [1876] treaty does affect private rights, and therefore required the sanction of the legislature. ...
[154] If the Crown had power without the authority of parliament by this treaty to order that the Parlement Belge should be entitled to all the privileges of a ship of war, then the warrant, which is prayed for against her as a wrongdoer on account of the collision, cannot issue, and the right of the subject, but for this order unquestionable, to recover damages for the injuries done to him by her [the Belgian ship] is extinguished.
This is a use of the treaty-making prerogative of the Crown which I believe to be without precedent, and in principle contrary to the laws of the constitution. Let me consider to what consequences it leads. If the Crown without the authority of parliament, may by process of diplomacy shelter a foreigner from the [155] action of one of her Majesty’s subjects who has suffered injury at his hands, I do not see why it might not also give a like privilege of immunity to a number of foreign merchant vessels or to a number of foreign individuals. The law of this country has indeed incorporated those portions of international law which give immunity and privileges to foreign ships of war and foreign ambassadors; but I do not think that it has therefore given the Crown authority to clothe with this immunity foreign vessels, which are really not vessels of war, or foreign persons, who are not really ambassadors.
Let me say one word more in conclusion. Mr Bowen [junior Crown counsel], in his very able speech, dwelt forcibly upon the wrong which would be done to this packet if, being invited to enter ports of this country with the privileges of a ship of war, she should find them denied to her. I acknowledge the hardship, but the remedy, in my opinion, is not to be found in depriving the British subject without his consent, direct or implied, of his right of action against a wrongdoer, but by the agency of diplomacy, and proper measures of compensation and arrangement, between the
Governments of Great Britain and Belgium. I must allow the warrant of arrest to issue. ...
Order accordingly
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3
Notes
1.
The English Court of Appeal allowed an appeal from Sir Robert Phillimore’s judgment on the ground that the Parlement Belge , as foreign state-owned property, was immune from English jurisdiction under common law principles even although the ship may have been used for trading purposes: The
Parlement Belge (1880) 5 PD 197. The court found it unnecessary to hear any argument on the correctness of Sir Robert Phillimore’s decision on the effect in English law of the 1876 postal treaty between Belgium and the United
Kingdom.
2.
In Littrell v USA (No 2) [1994] 4 All ER 203, Hoffmann LJ made the following observation (at pp 214-215):
The terms of a treaty cannot confer immunity upon anyone in an English municipal court unless they have been incorporated in an Act of Parliament.
Thus in The Parlement Belge (1879) 4 PD 129 Sir Robert Phillimore decided that if a mail vessel belonging to the King of the Belgians was not immune from arrest as sovereign property at common law, such immunity could not be conferred by a treaty on mail carriage concluded between Belgium and the
United Kingdom. The Court of Appeal found it unnecessary to decide this question because it considered that immunity existed at common law (see
(1880) 5 PD 197). But no doubt has ever been cast on Sir Robert Phillimore’s decision [on the treaty point].
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