Enemy at the court: Carl Schmitt's theory of friend-enemy relations and UK courts' (non)use of international law in domestic litigation

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Abstract

International law has been viewed part of English law since 18th century, and UK courts regularly deal with complex international legal issues. Hardly any national legal system allows absolutely all international legal rules to have effect at the national level. Nevertheless, a phenomenon encountered in UK courts' jurisprudence at times involves a degree of manipulation of international legal standards (or attempts directed at that) seemingly at least motivated by imperatives of UK Government's relations with governments of some of its ally or partner States. Many decades ago, and in a rather different context, Carl Schmitt designed a theory of friend-enemy politics meant to expose the pure substance of political process. From the analysis of the relevant practice of UK courts, it is clear that at least a tendency exists that applicable standards of international law are interpreted and applied inconsistently when doing so benefits interests of friendly foreign governments.
Original languageEnglish
Pages (from-to)231-250
Number of pages20
JournalArchiv des Völkerrechts
Volume59
Issue number3
DOIs
Publication statusPublished - 9 Nov 2021

Keywords

  • total and unbounded politics
  • international law litigation
  • State immunity
  • doctrine of interpretation
  • political realismCarl Schmitt

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