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REVIEW OF EXECUTIVE ACTION ABROAD: THE UK SUPREME COURT IN THE INTERNATIONAL LEGAL ORDER

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Peer-reviewed

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Article

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Abstract

jats:titleAbstract</jats:title>jats:pIn January 2017, the UK Supreme Court handed down landmark judgments in three cases arising out of the UK government's conduct abroad. In jats:italicSerdar Mohammed v Ministry of Defence</jats:italic>, the Court considered whether detention in non-international armed conflicts was compatible with the right of liberty in Article 5 of the European Convention on Human Rights. The second case, jats:italicBelhaj v Straw</jats:italic>, involved an examination of the nature and scope of the foreign act of State doctrine, and its applicability as a defence to tort claims arising out of the alleged complicity of the UK Government in human rights abuses abroad. Finally, jats:italicRahmatullah v Ministry of Defence</jats:italic> saw the Court examining the nature and scope of the Crown act of State doctrine, and its use as a defence to tort claims alleging unlawful detention and maltreatment. All three cases raise important doctrinal issues and have significant consequences for government accountability and access to a judicial remedy. At the heart of each decision is the relationship between international law and English law, including the ways in which international norms influence the development of English law and public policy, and how different interpretations of domestic law affect how judges resolve questions of international law. These cases also see the judges grapple with the role of the English court in the UK constitutional and international legal orders.</jats:p>

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Keywords

Crown act of State, detention, foreign act of State, human rights, international law and English law, non-international armed conflict, public international law

Journal Title

International and Comparative Law Quarterly

Conference Name

Journal ISSN

0020-5893
1471-6895

Volume Title

68

Publisher

Cambridge University Press (CUP)