Rethinking Justiciability of Government Acts in International Relations: A Necessary Evolution for Fundamental Rights Protection
Download
Read an extract
Themes
International law, government acts, non-justiciability, justiciability, European Court of Human Rights, international relations, administrative jurisdictions, fundamental rights, Council of State, detachable act, Government act, administrative judge, international conventions, political context, judicial control, human rights, repatriation, Syria, European Convention on Human Rights, administrative acts, international cooperation, State liability, faultless liability, Mutual Central Reinsurance, Gisti ruling, Tamazount jurisprudence, legislative recourse, jurisdictional competence, collective freedoms, public freedoms, international matters, normative set, common language, diplomatic acts, political interest, exceptional character, judicial protection, administrative law, human rights protection, international dimension, fundamental freedoms.
Reader
Abstract
Extract
of 5
Abstract
Discover the evolving landscape of government acts in international relations and their justiciability. Learn how the European Court of Human Rights' recent rulings are shaping the accountability of government decisions. Understand the implications of non-justiciability on fundamental rights and freedoms. Explore the need for administrative jurisdictions to examine government acts related to international relations, ensuring protection for citizens' rights. Stay informed about the latest developments in this critical area of international law and human rights.
Extract
[...] Thus, the decision not to publish a treaty (CE - November - De Maglaive) or to refuse to submit a dispute to the International Court of Justice (CE - June - Gény). This category is therefore determined by the administrative judge and not all acts related to international relations are necessarily Government acts, which requires finding the basis of this non-justiciability. The fragile justifications of this non-justiciability Since the abandonment of the political motive for the non-justiciability of Government acts in 1875, the Government act has become the cornerstone of multiple doctrinal debates regarding its non-justiciability. [...]
[...] In addition, the existence of an international law dispute could justify the lack of jurisdiction of the Council of State and administrative courts. For other doctrine authors, the specific non-justiciability of Government acts relating to international relations is explained by the fact that this matter is by nature foreign to the administrative judge. This non-justiciability of Government acts relating to international relations is consolidated by the Krikorian decision of the Court of Conflicts. This decision constitutionalizes the theory of Government acts and protects the theory of their non-justiciability. [...]
[...] Finally, the non-justiciability of Government acts related to international relations was condemned by the European Court of Human Rights in a ruling of September regarding repatriation, leading to a necessary reversal of jurisprudence and an evolution of the non-justiciability of Government acts in international matters. The legal reversals in favor of justiciability Several jurisprudential developments have allowed for the relativization of the non-justiciability of the Government act. Administrative jurisprudence has gradually reduced the category of Government acts that are not susceptible to judicial review with the theory of the detachable act. [...]
[...] In conclusion, an evolution is necessary on the justiciability of government acts related to international relations so that the Council of State can fully fulfill its role as protector of the public and collective freedoms of litigants. This evolution must pass through a decision of the European Court of Human Rights whose Tamazount jurisprudence has only consecrated the existence of the unjusticiability of government acts and the justiciability of certain acts within the framework of the theory of detachable act, this decision having put a brake on the progress on the justiciability of these acts. [...]
[...] The non-justiciability of Government acts related to the international field poses a recurring problem with regard to the right to recourse. This right to judicial recourse is guaranteed by Articles 6 and 13 of the European Convention on Human Rights and has been recognized by the Council of State as a fundamental right in a ruling of December Dupin. Also, not being able to challenge Government acts with an international dimension can mean leaving certain decisions that infringe on other fundamental rights guaranteed by the European Convention on Human Rights, such as in the case of repatriations from Syria. [...]
