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The Double-facing Foreign Relations Function of the Executive and Its Self-enforcing Obligation to Comply with International Law

  • How does the international Rule of Law apply to constrain the conduct of the Executive within a constitutional State that adopts a dualist approach to the reception of international law? This paper argues that, so far from being inconsistent with the concept of the Rule of Law, the Executive within a dualist constitution has a self-enforcing obligation to abide by the obligations of the State under international law. This is not dependent on Parliament’s incorporation of treaty obligations into domestic law. It is the correlative consequence of the allocation to the Executive of the power to conduct foreign relations. The paper develops this argument in response to recent debate in the United Kingdom on whether Ministers have an obligation to comply with international law–a reference that the Government removed from the Ministerial Code. It shows that such an obligation is consistent with both four centuries of the practice of the British State and with principle.

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Author:Campbell McLachlan
Parent Title (English):KFG Working Paper Series
Series (Serial Number):KFG Working Paper Series (30)
Document Type:Working Paper
Date of first Publication:2019/05/11
Year of Completion:2019
Publishing Institution:Universität Potsdam
Release Date:2019/05/17
Source:First publication of the paper: SSRN
Organizational units:Extern / Berlin Potsdam Research Group "The International Rule of Law - Rise or Decline?"
Dewey Decimal Classification:3 Sozialwissenschaften / 34 Recht
Peer Review:Nicht referiert
Licence (German):License LogoKeine Nutzungslizenz vergeben - es gilt das deutsche Urheberrecht