1990

HL

International Tin Council Case (J.H. Rayner (Mincing Lane) Ltd v Department of Trade and Industry) [1990] 2 AC 418

The ITC was founded by treaty (ITA6, sixth International Tin Agreement). ITC operated in the UK pursuant to a headquarters agreement (another treaty) although neither treaty was incorporated in the national law of the UK. The ITC was recognised under English law by Order 1972, which endowed it with legal character and status and legal capacities of corporate body, it also granted immunities, which did not extent to enforcement of arbitration awards. The creditors obtained an award against ITC, and tried to enforce it. Creditors against the ITC brought the case, claimants argued that the treaty ITA6 provided them with a right of action against the States parties directly, rather than ITC (the ITC was insolvent) since they were jointly and severally liable in the enforcement of award, House of Lords rejected such argument. [national v international, separate spheres] [Sovereignty of Parliament] [Compare to Trendtex (1977)] Resolution Lord Templeman: A treaty is a contract between the government of two or more sovereign states …a treaty to which Her Majesty’s Government is a party does not alter the laws of the UK. A treaty may be incorporated into and alter the laws of the UK by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the UK by statute, the courts of the UK have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual Lord Oliver: municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of IL… transaction of independent states between each other are governed by other laws than those which municipal courts administer…

The royal prerogative to make treaties does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties are not self-executing. A treaty is not part of English Law unless and until it has been incorporated into the law by legislation… When a treaty has been incorporated into English law by Act of legislature, its terms become subject to the interpretative jurisdiction of the court in the same way as any other Act of legislature. Which states have become parties to a treaty and when and what terms of the treaty are questions of fact. The legal results which flow from it in IL, whether between the parties inter se or between the parties or any of them and outsiders are non justiciable by municipal courts It is for those who assert the rule (a rule of IL) to demonstrate it, it is certainly not for a domestic tribunal in effect to legislate a rule into existence for the purpose of domestic law and on the basis of material that is wholly indeterminate Any Claim of the ITC against the member states for indemnity must ultimately rest upon ITA6, this is an issue non justiciable by your Lordships. [this resolution is based in a clear distinction between IL and English Law, what ever happens in IL does not affect English Law without an Act, the I personality of an I organisation does not exist in English Law] {Maclaine Watson v Department of Trade and Industry (Court of Appeal, [1989] Ch 72), a connected litigation dealt with the matter by the EEC (European Union) in Court of Appeals, claiming immunity in UK in respect with the dealings to the International Tin Council. The EEC was ultimately unsuccessful. Kerr: there can be no doubt that the EEC has legal personality in international law. No doubt the EEC would also be recognised as a legal entity under the laws of non-member states. There is equally no doubt that the EEC exercises powers and functions which are analogous to those of sovereign states. In particular it has the jus missionis (permanent delegations on non-member states), jus tractatus (power to conclude treaties with sovereign states), the EEC enjoys certain sovereign powers to the extent to which these have been ceded to it by its members under the various EEC treaties. EEC differs from sovereign states in that it has no sovereignty over territory as such and no nationals or citizens}