Reconceptualising Executive Power to Denounce Treaties in the Twenty-First Century

47(3) Monash University Law Review (Forthcoming)

21 Pages Posted: 26 Sep 2021

See all articles by Daniel Goldsworthy

Daniel Goldsworthy

Deakin Law School; Melbourne Law School

Michael Longo

Australian Catholic University (ACU)

Date Written: June 28, 2021

Abstract

This article explores the conceptual basis of treaty denunciation in Australia, and whether this power is the executive’s unfettered prerogative. In light of uncertain jurisprudence on the conceptual origins of the categories of non-statutory executive power in Australia, the authors countenance the possibility of reconceptualising treaty ratification and denunciation as inhering in multiple aspects of non-statutory executive power under s 61 of the Commonwealth Constitution; that is, in both the prerogative power and the nationhood power. The paper then considers practical consequences that may follow this conclusion, such as constitutional limitations to treaty withdrawal under certain circumstances.

Keywords: Australian Constitutional Law, Treaty Denunciation, Treaty Withdrawal, Executive Power, Prerogative Power, Nationhood Power

Suggested Citation

Goldsworthy, Daniel and Longo, Michael, Reconceptualising Executive Power to Denounce Treaties in the Twenty-First Century (June 28, 2021). 47(3) Monash University Law Review (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3910884 or http://dx.doi.org/10.2139/ssrn.3910884

Daniel Goldsworthy (Contact Author)

Deakin Law School ( email )

75 Pigdons Road
Victoria, Victoria 3216
Australia

Melbourne Law School ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

Michael Longo

Australian Catholic University (ACU) ( email )

Level 20, Tenison Woods House, 8-20 Napier St
North Sidney, NSW 2060
Australia

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