England, King’s Bench, 1905

1905 2 KB 391

Sweeney, Oliver and Leech, 2^nd Ed., pp 4-7

The West Rand Central Gold Mining Company is presenting a petition for its seized property of land and gold. The Government of the Transvaal Republic had seized the property, under unknown circumstances, from the company prior to a war commencing in 1899 between the Britain and the Republic. The war resulted in Britain defeating the Republic in 1900, whereby Britain annexed all its territories and declared that the Government of the Republic ceased to exist. The West Rand company claims that Britain became entitled to the Republic’s property and now must return the seized property to them.

Is Britain responsible for the obligations the Republic had prior to its annexation?

Is international law part of British law?

Should the rights and obligations that were binding on the Republic be protected and can they be enforced by British courts?

The conquering state, Britain, is not responsible or bound to fulfil any obligations of the conquered state, the Transvaal Republic.

International law is in fact part of British law provided that the law does not contradict current British law.

The petition is found to be ultra vires, or not in the jurisdiction of British municipal courts. The possession of the property remains with the British.

The court states that the basis of customary international law rests first on evidence of usage obtained from the consensus of states and also the acts of states throughout history. They note that often there is no consensus on particular issues and one must then turn to the writings of learned writers on international law. Using Grotius, the court finds that the conquering state has the power to declare what obligations it will or will not be responsible for. Furthermore, it is found to be only the opinion of learned writers that the conquering state must make this decision at the time of annexation. The court found no reason or custom for a conquering state that remains silent on issues of annexation to acquire all existing contracts and obligations of the conquered state. The notion that the conquering state must satisfy the debts of the conquered state is also found to be only the ethical views of writers and thus not evidence of international law.

International law is defined as international agreements sanctioned by states or frequent international practice of states. Opinions of writers are not considered to be evidence of international law when they express Lex Ferenda, what they wish the law to be. Only Lex Lata, writings on what the actual law is, can be considered as evidence of international law. International law, as described in this context, is indeed binding on Britain and part of British law, providing it does not conflict with current statutes of British law.

History since 1793 shows that matters to be dealt with by treaties or state acts are not in the jurisdiction of the municipal courts of Britain. The British courts can therefore not decide whether the rights and obligations binding on the Republic should be protected, resulting in the possession of the property remaining with the British.