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

KFG Working Paper Series, No. 30, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?” April, 2019

35 Pages Posted: 11 May 2019

See all articles by Campbell A McLachlan

Campbell A McLachlan

Victoria University of Wellington - Faculty of Law; New Zealand Law Foundation

Date Written: April 2019

Abstract

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.

Suggested Citation

McLachlan, Campbell A, The Double-facing Foreign Relations Function of the Executive and Its Self-enforcing Obligation to Comply with International Law (April 2019). KFG Working Paper Series, No. 30, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?” April, 2019. Available at SSRN: https://ssrn.com/abstract=3370848

Campbell A McLachlan (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

New Zealand Law Foundation ( email )

New Zealand

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