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

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