CPL Seminar: The Principle of the Separation of Powers and Foreign Relations Law

Speaker: Eirik Bjorge, Shaw Foundation Junior Research Fellow, Jesus College, Oxford
Location: Moot Court Room

In the interface between international and municipal law, foreign relations law allocates power and jurisdiction between the three organs of government. This allocation happens, in the United Kingdom, as a function of the constitutional principle of the separation of powers. Traditionally, foreign relations were thought to be a domain in which the Crown enjoyed a free rein, and where conversely little regard was had for the safeguarding of the rights of the individual. The argument of this article, however, is that the allocative separation of powers has at its core the diffusion of constitutional functions with a view ultimately to protecting the liberty of the individual. The article subjects to analysis three strands of case law from the UK courts: the case law on the act of state doctrine; the domestic courts’ application, in certain particular situations, of the European Convention on Human Rights under the Human Rights Act; and the question of whether unincorporated conventions can be a part of the law of the land. On the basis of this analysis, the article concludes that even in a field of law that was, traditionally, extremely averse to judicial protection of the liberty of the individual in the teeth of executive action the principle of the separation of powers operates ultimately to protect liberty.

Faculty Members and Visitors, PhD students and LLM Public Law students are welcome.

For more information contact Mark Elliott (mce1000@cam.ac.uk)