Report No. 62

1B.6. Rule of construction in U.S.A.-

The necessity for reading legislation in the light of the limitations imposed by the doctrine of international jurisdiction has been appreciated in the United States of America also for a very long time. In 1818, Chief Justice M arshallem phasised1that general words in a statute 'must not only be limited to cases within the jurisdiction of the State, but also to those objects to which the legislature intended to apply them.' This rule, which merely illustrates the more basic principle that an enactment 'ought never to be construed to violate the law of nations if any other possible construction remains'2 has, since then, been often re-affirmed3, and is not open to doubt.

1. United States v. Palmer, (1818) 3 Wheat 610 (631).

2. The Charming Betsy, (1804) 2 Cranch 64 (118).

3. Lauritzen v. Larsen, (1953) 345 US 571.

1B.6A. Competence not denied position on the continent.-

The above discussion is not intended to deny the competence of the U.K. Parliament, as a matter of English Constitutional law, to pass legislation having extra-territorial effect. There are common law dicta1 in earlier cases to the effect that legislation cannot change a rule of international law. These appear to proceed upon the theory that International law is the law of nature applied to international relations, and hence is of superior authority to positive law. "To that extent, Lord Mansfield's view may be the last echo in England of Coke's doctrine in Pound Common Law and Legislation, (1907-1908), 21 Harvard Law Review 383 (394)," The view which has prevailed2 is that the courts are to prevent interference of legislation with international law by interpretation; that, to avoid a conflict between international law and a statute, the courts will resort, if need be, to strained and forced construction. But, if the conflict is unavoidable, the statute prevails.

On the Continent, where different views of the relation of courts to legislation obtain, it is significant that instead of discussing the duty of interpreting statutes so as to accord with international law, (as do English and American authors), text-writers consider the duty of states to change their laws so as to bring them into harmony with the just demands of other states3. Nevertheless, the general rule in Anglo American Law is that the legislature is presumed not to have acted so as to lay down extra-territorial application.

1. See discussion in Pound Common Law and Legislation, (1907-1908), 21 Harvard LR 383 (394).

2. Cf. Evatt J. in Trustees etc. Co. v. Federal Commissioner of Taxation, (1933) 49 CLR 235 (239).

3. Pound Common Law and Legislation, (1907-1908), 21 Harvard Law Review 383, 384.