International law, Sixth edition
particularly human rights, is involved
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International Law MALCOLM N. SHAW
particularly human rights, is involved 313 and may not feel constrained from investigating, in a dispute involving private rights, the legal validity of an act done by a citizen purporting to act on behalf of the sovereign or sovereign state. 314 It is clear that the courts will regard as non-justiciable policy decisions by the government concerning relationships with friendly foreign states, on the basis that foreign policy is pre-eminently an area for the government and not the courts. 315 In particular, a number of cases have laid down the proposition that decisions taken by the executive in its dealings with foreign states regarding the protection of British citizens abroad are non-justiciable. 316 309 [2002] UKHL 19, para. 29. See also Oppenheim’s International Law, pp. 371 ff. 310 [2002] UKHL 19, para. 114. 311 Ibid., paras. 138–40. 312 Ibid., para. 148. See also Lord Scott, ibid., para. 192. 313 See e.g. Abbasi v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ. 1598, paras. 57 and 66 (per Lord Phillips MR); 126 ILR, pp. 710 and 713. 314 See e.g. Dubai Bank v. Galadari, The Times, 14 July 1990. 315 See Ex parte Everett [1989] 1 QB 811; 84 ILR, p. 713; Ex parte Ferhut Butt 116 ILR, pp. 607, 620–1, and Foday Saybana Sankoh 119 ILR, pp. 389, 396. See further above, p. 180. 316 See e.g. Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374, 411 (per Lord Diplock); Ex parte Pirbhai 107 ILR, pp. 462, 479; Ex parte Ferhut Butt 116 ILR, pp. 607, 615 and 622 and R (Suresh and Manickavasagam) v. Secretary of State for the Home Department [2001] EWHC Admin 1028, para. 19; 123 ILR, p. 598. 188 i n t e r nat i o na l l aw This approach, however, is subject to some qualification. 317 This con- cerns in particular the evolving law of judicial review 318 both with re- gard to its scope concerning the executive and in terms of ‘legitimate expectation’, 319 or a reasonable expectation that a regular practice will continue. Where diplomatic protection of a national abroad is concerned, the Court of Appeal has noted that ‘The Secretary of State must be free to give full weight to foreign policy considerations, which are not justi- ciable. However, this does not mean the whole process is immune from judicial scrutiny. The citizen’s legitimate expectation is that his request will be “considered”, and that in that consideration all relevant factors will be thrown into the balance.’ 320 Taylor LJ referred, for example, in ex parte Everett to the ‘normal expectation of every citizen’ that, if he were subjected abroad to a violation of a fundamental right, the British gov- ernment would not simply wash their hands of the matter and abandon him to his fate. 321 The Court in Abbasi concluded that judicial review would lie where the Foreign and Commonwealth Office, contrary to its stated policy, refused even to consider whether to make diplomatic rep- resentations on behalf of a subject whose fundamental rights were being violated. However, beyond this, no general proposition could be stated, being dependent upon the precise circumstances. In particular, there was no enforceable duty to protect the citizen, only a discretion. 322 In Al-Rawi v. Secretary of State for Foreign and Commonwealth Affairs, the Court of Appeal denied that any such legitimate expectation as to the exercise of discretion would extend to the position of non-nationals. 323 The approach in Abbasi was approved in Kaunda v. The President of Download 7.77 Mb. Do'stlaringiz bilan baham: |
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