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4 Justiciability

From: Foreign Affairs in English Courts

F. A. Mann

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 04 July 2022

Foreign relations law — Recognition of states — State succession — Prerogative — Non-justiciability — Treaties, application

An issue is justiciable if it is capable of being tried according to law. In so far as foreign relations in England are concerned, this means that justiciability is lacking only where issues come within the exclusive province of the Executive and its prerogative. In assessing the English law and practice relating to the problem of justiciability it is important to realise that there are numerous cases which, if there were no practice relating to the executive certificate, would clearly be non-justiciable, that, in other words, they become justiciable by virtue of that practice. Problems of non-justiciability in foreign affairs can arise only in a few connections. These include non-interference with the conduct of foreign policy, enforcing treaty rights by a party against a party, enforcing treaty rights against a Crown servant, and enforcing claims by a third party beneficiary against the Crown.

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