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Can unincorporated treaty obligations be part of English law?

Research output: Contribution to journalArticle

Original languageEnglish
Pages (from-to)571-591
Number of pages21
JournalPublic Law
Volume2017
Early online date1 Oct 2017
DateAccepted/In press - 22 Mar 2017
DateE-pub ahead of print - 1 Oct 2017
DatePublished (current) - 1 Oct 2017

Abstract

This essay argues against the widely held article of faith of English constitutional law according to which an international treaty obligation is not a part of English law unless it has been incorporated through an Act of Parliament. On the evidence of authorities such as The Parlement Belge, Porter v Freudenberg, and Imperial Japanese Government, it is concluded that under English constitutional law treaty rights have indeed been allowed to override the common law in certain situations where the traditional article of faith would, were it entirely valid, not have allowed such an application. There is argument that, contrary to what is widely argued in the literature, the test is not simply one of incorporation of non-incorporation. The correct test is instead this—does the treaty obligation effect a change of the law that infringes the existing legal rights of the subject? If it does not, then the court can hold that the treaty right may override the law of the land. The essay argues that this test is attractive in that it coheres with the core of the principle of the separation of powers, which operates as a primary protection of individual liberty.

    Research areas

  • Unincorporated treaties, dualism, English law, separation of powers, human rights

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    Rights statement: This is the author accepted manuscript (AAM). The final published version (version of record) is available via Sweet & Maxwell. Please refer to any applicable terms of use of the publisher.

    Accepted author manuscript, 407 KB, PDF-document

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