What is Foreign Relations Law?

This draft first chapter of The Oxford Handbook of Comparative Foreign Relations Law considers what is potentially encompassed by the term “foreign relations law,” and what it might mean to think about it as a distinct field of law that can be compared and contrasted across national jurisdictions. The chapter begins by outlining some differences between foreign relations law and international law. It then describes the development of foreign relations law as a field of study within the United States and considers why, at least until recently, it has not been treated as a field in most other countries. Finally, the chapter highlights a central question for foreign relations law, which is the extent to which it (or at least some parts or elements of it) should be treated differently than other types of domestic law — a debate referred to in the United States as one over “foreign affairs exceptionalism.

Treaty Exit and Intra-Branch Conflict at the Interface of International and Domestic Law

This chapter, forthcoming in the Oxford Handbook of Comparative Foreign Relations Law, considers two important and unresolved issues raised by unilateral withdrawal from or denunciation of treaties. The first issue concerns whether treaty obligations end in both international and domestic law after a state leaves a treaty. Exit often produces the same effects in both legal systems, but some withdrawals bifurcate a treaty’s status, ending its obligations in domestic law but continuing to bind the state internationally, or vice versa. The second issue concerns denunciations initiated by different branches of government. The decision to withdraw from a treaty is usually carried out by the executive acting unilaterally. Less well known, but potentially more fraught from a foreign relations perspective, are instances in which the impetus for exit originates with legislators or judges. Conflicts involving both dimensions of treaty exit stem from a common source – the different domestic and international rules governing how states enter into and leave treaties and the divergent policies that underlie those rules. The chapter develops a typology to categorize these conflicts, drawing upon examples of actual and potential treaty denunciations in several countries as well as actions by the executive, legislature, and judiciary that make such withdrawals more likel

Treaty Self-Execution as “Foreign” Foreign Relations Law?

This contribution to the Oxford Handbook on Comparative Foreign Relations considers how a state’s approach to foreign relations problems may have an external origin, or what we call “foreign” Foreign Relations Law (FFRL). Using the distinction between self-executing and non-self-executing treaties as a case study, we find close parallels between manifestations of this distinction in various states and how it evolved in the United States, where the distinction was first articulated. The chapter explores whether these parallels reflect the distinction’s transplantation from one legal system to another or the organic development of similar doctrines to address similar problems within the states involved. The chapter then addresses the utility of differentiating the exogenous/endogenous origins of particular foreign relations doctrines. We argue that consideration of a doctrine’s exogenous origins raises questions that can deepen and develop the nascent field of comparative foreign relations law. Why do states accept (or reject) FFRL? How does FFRL enter a state’s system? Who is doing the transporting? What happens to FFRL in its new site(s) – i.e., how static or dynamic does the concept prove in different settings? Further research on such questions may, in turn, set the table for more normative questions such as when states should seek (or resist) the importation of foreign relations law

EU Foreign Relations Law as a Field of Scholarship

EU external relations law is a doubly peculiar field of scholarship that has attracted significant scholarly attention over the last several decades. It is both part of EU law—considered a "new legal order" distinct from international law—and it is concerned with the European Union as a global actor, a "strange animal" in that the EU is neither a state nor a classical international organization. This essay argues that in the emerging field of comparative foreign relations law, the law of EU external relations will be both a supporting pillar and important driver: A pillar, because, next to U.S. foreign relations law, it is one of the most vibrant scholarly discourses on the subject; and a driver, because it continues to be a fascinating comparator for national—especially federal—systems of foreign relations law that questions many of the assumptions underlying nation-based concepts and blurs the lines between national and international law.Global Challenges (FGGA

Bridges and Boundaries

Foreign relations law and public international law are two closely related academic fields that tend to speak past each other. As this innovative volume shows, the two are closely interrelated and depend on each other for their mutual construction and identity. A better understanding of this relationship is of vital importance for upholding important constitutional values like democracy, the rule of law and the protection of human rights, while enabling states to engage in meaningful forms of international cooperation. The book takes a close look at the encounters between the two fields and offers perspectives for a constructive engagement between the two. Collectively, the contributions argue that the delimitation between the two fields occurs in a hybrid zone of interaction which requires both bridges and boundaries: bridges for the construction of the relationship between the two fields, and boundaries for preserving key normative expectations of both domestic and international law

The double-facing foreign relations function of the executive and its self-enforcing obligation to comply with international law

How does the international Rule of Law apply to constrain the conduct of the Executive within a constitutional State that adopts a dualist approach to the reception of international law? This paper argues that, so far from being inconsistent with the concept of the Rule of Law, the Executive within a dualist constitution has a self-enforcing obligation to abide by the obligations of the State under international law. This is not dependent on Parliament’s incorporation of treaty obligations into domestic law. It is the correlative consequence of the allocation to the Executive of the power to conduct foreign relations. The paper develops this argument in response to recent debate in the United Kingdom on whether Ministers have an obligation to comply with international law–a reference that the Government removed from the Ministerial Code. It shows that such an obligation is consistent with both four centuries of the practice of the British State and with principle

Encounters between Foreign Relations Law and International Law

This book offers fresh perspectives on the encounters between foreign relations law and public international law. These can occur in a hybrid zone of interaction which requires both bridges and boundaries. A timely book with crucial relevance for scholars, students and practitioners in both foreign relations law and international law

Democratic Participation in International Law-Making in Switzerland After the 'Age of Treaties'

Foreign relations law is not (yet) treated as a discrete field of law in Switzerland, but it exists as a matter of fact. One of its core functions is the allocation of powers for international law-making. Progressively bolstered in the 1990s as a reaction to internationalisation, the Swiss legal framework on democratic participation in international law-making is unique in terms of the actors involved, the phases during which participation is possible, and the intensity and effects it features. Yet the framework is not without its limitations as it is geared towards just one source of international law - treaties. The 'age of treaties', however, seems to have run its course and formal law-making is increasingly superseded by informal law-making. This Chapter discusses the efforts undertaken in Switzerland to associate Parliament more closely in the making of 'soft law' and demonstrates that building bridges between the international and domestic spheres is far more complex in the context of informal law than it is for treaties