International law, Sixth edition
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International Law MALCOLM N. SHAW
the Republic of South Africa by the Constitutional Court of South Africa,
317 See Lord Phillips MR in Abbasi v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ. 1598, paras. 80 ff; 126 ILR, p. 718. 318 See e.g. S. A. De Smith, H. Woolf and J. Jowell, Judicial Review, 5th edn, London, 1998, pp. 419 ff. 319 See Secretary of State for the Foreign and Commonwealth Office v. The Queen (on the application of Bancoult) [2007] EWCA Civ 498, paras. 72 ff. 320 Per Lord Phillips MR in Abassi v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ. 1598, para. 99. 321 [1989] 1 QB 811, paras. 96–8. 322 [2002] EWCA Civ 1598, paras. 104–7. The court concluded that this discretion was a very wide one but there was no reason why the decision or inaction of the Foreign Office should not be reviewable if it can be shown that the same is irrational or contrary to legitimate expectation. However, the court could not enter into the forbidden areas, including decisions affecting foreign policy, ibid., para. 106(iii). See also R v. Director of the Serious Fraud Office and BAE Systems [2008] EWHC 714 (Admin), para. 56. 323 [2006] EWCA Civ 1279, para. 89. i n t e r nat i o na l l aw a n d m u n i c i pa l l aw 189 which noted that ‘A decision as to whether, and if so, what protection should be given, is an aspect of foreign policy which is essentially the function of the executive.’ 324 This did not mean that the South African courts had no jurisdiction to deal with issues concerned with diplomatic protection. Since the exercise of all public power was subject to constitu- tional control, this would also apply to an allegation that the government has failed to respond appropriately to a request for diplomatic protection. If, for instance, the decision were to be irrational or made in bad faith, the court could intervene to require the government to deal with the matter properly. 325 Australian courts also have emphasised the importance of separation of powers and the need for courts to exercise considerable caution with regard to foreign policy, expressly citing the Buttes case. 326 The question of justiciability was one for the federal judicial branch. 327 It has been noted, for example, that any question of a dispute as to the assessment made by the executive and legislative branches of government of the ‘terrorist threat’ to the safety of the public would not be justiciable, but that this situation would change upon the adoption of relevant legislation. 328 The US courts have similarly recognised the existence of areas of non- justiciability for sensitive political reasons. This is usually referred to as the political question doctrine and operates to prevent the courts from considering issues of political delicacy in the field of foreign affairs. 329 In 324 CCT 23/04, [2004] ZACC 5, para. 77 (per Chief Justice Chaskalson). See also Swissborough Diamond Mines v. South Africa, Supreme Court, Transvaal Provincial Division, 1997, 132 ILR, p. 454, and the decision of the German Federal Constitutional Court in Hess, where it was held that ‘the Federal Government enjoys wide discretion in deciding the question of whether and in what manner to grant protection against foreign States’, BVerfGE 55, 349; 90 ILR 386, 395. 325 CCT 23/04, [2004] ZACC 5, paras. 78–80. 326 See the decision of the High Court of Australia in Thorpe v. Commonwealth of Australia Download 7.77 Mb. Do'stlaringiz bilan baham: |
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