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  4. Foreign Relations: What should the UK courts be doing and can International Law help them do it




Foreign Relations: What should the UK courts be doing and can International Law help them do it




Speaker: Professor Colin Warbrick - Honorary Professor at Birmingham University Law School

Series: International Law and Affairs Group (ILAG) research seminar series 2014

Professor Colin WarbrickThe UK has conducted its foreign relations through the Executive, exercising effectively legally untrammeled powers under the prerogative. Where any criticism of the exercise of the power is based on policy differences with the Government - should troops be sent to fight in this foreign war? Should HMG recognize entity X as a State? - it is understandable that the political ramifications of the decisions should be left to Parliament rather than assumed by the courts. But these decisions may implicate considerations of international law. The courts have not shown much inclination to hold the Executive to account against the rules of international law, even though its decisions can have significant effects on the rights and interests of individuals. The orthodoxy is that the State must speak with "one voice" in matters of foreign affairs, that the efficacy of the State's foreign policy would be prejudiced if other organs of government were entitled to take different positions from the Executive. Accountability in the ordinary public law sense is not appropriate.

The argument here is that this claim is not tenable. A rule of law state should not exempt areas of public power from legal scrutiny, certainly not as a matter of principle, nor are there absolute obstacles to the courts assuming a wider role rooted in considerations of non-justiciability. The paper does not range over the whole spectrum of foreign affairs but looks at a narrow and technical matter - the certification power, the power of the Executive to certify to a court, exclusively and conclusively, facts which are said to be in the special knowledge of the Government. The original powers rested in the prerogative but some have been replaced by statutory equivalents and added to by Parliamentary action. The reviewability of these powers, whatever their source, has not been conceded by Government nor asserted by the Courts. The position here is that it ought to be and that there are some materials on which to put together a claim that this is what UK constitutional law requires. I look in detail at the way the certification power was used with respect to establishing the status of the National Transitional Council as the Government of Libya and suggest that there was room for a different approach than the one the court took when it was confronted with the certificate issued by the Government

About the speaker

Described as a paragon of public international law, Professor Warbrick has acted as a consultant to the Council of Europe, the OSCE on human rights and criminal co-operation matters and a specialist adviser to the Select Committee on the Constitution of the House of Lords. He is an expert in public international law, particularly statehood and the relationship between international law and domestic law; human rights, especially the European Convention on Human Rights; and international criminal law. He is a co-author of Harris, O'Boyle and Warbrick, "The Law of the European Convention on Human Rights" and a co-editor of "The United Nations and the Principles of International Law" and of "Towards an International Legal Community: the Sovereignty of States and the Sovereignty of International Law".

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When & where

5.00pm - 7.00pmTuesday 4th February 2014

AG07 College Building City, University of London St John Street London EC1V 4PB United Kingdom

Contact Details

Peter Aggar

Research Support Services Manager

Research and Enterprise

City, University of London
Northampton Square
United Kingdom
+44 (0)20 7040 8246

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