The Oxford Handbook of Comparative Foreign Relations Law

Cover
The Oxford Handbook of COMPARATIVE FOREIGN RELATIONS LAW
Copyright
Dedication
Preface
Note to Readers
Contents
Notes on the Contributors
Part I: COMPARATIVE FOREIGN RELATIONS LAWAS A FIELD
	Chapter 1: What is Foreign Relations Law?
		I. Foreign relations law and international law
		II. Foreign relations law as a "Field"
		III. Foreign affairs exceptionalism
		IV. Conclusion
	Chapter 2: Five conceptions of the function of foreign relations law
		I. The Exclusion of foreign relations from domestic law
		II. The domestic reception of international law
		III. Foreign relations law as constitutional law
		IV. The diplomatic function of foreign relations law
		V. The Allocative function of foreign relations law
		VI. Application in class engaging jus cogens norms
		VII. Conclusion
	Chapter 3: Foreign relations law: comparison as invention
		I. Introduction
		II. Invention—where to start?
		III. Anxieties
			Displacing International Law
			Discounting International Law
			Distorting International Law
		IV. Opportunities
	Chapter 4: Comparative foreign relations law: A national constitutions perspective
		I. Comparative constitutional law and foreign relations law
		II. A national constitutions lens on foreign relations law: what do they say?
			International Signaling Function
			Treaty-Making
			War-Making
			Diffusion and Borrowing
			Customary International Law
			Additional Trends
			Variations in Foreign Relations Law
		III. The possibility of substitutes, complements, and duplicates
		IV. Conclusion
	Chapter 5: A Comparative foreign relations law agenda: opportunities and challenges
		I. Qualitative and Quantitative works
		II. Underrepresented states
		III. Domestic political and institutional context
			Executive Control
				Government Role in Negotiating and Concluding Treaties
				Government Approval of Treaties
				Chief Executive’s Role in Negotiating and Concluding Treaties
				Chief Executive’s Approval of Treaties
			Legislative Control
				Legislative Approval of Treaties
			Legal Status of International Law in the Domestic Legal Order
				Treaties as Law
				Treaties’ Relative Legal Status
				Customary International Law as Law
				Customary International Law Relative Legal Status
		IV. The influence of geopolitics
		V. A cautionary note: approaching international law through domestic law
		VI. Conclusion
	Chapter 6: The constitutional allocation of executive and legislative power over foreign relations: A sur vey
		I. Design choices and relative institutional competence
		II. General foreign affairs powers
			Power to Represent the State Internationally
			Power over Reception, Recognition, and Appointment of Ambassadors
		III. Treaties
			Legislative Participation
			Sole Executive Agreements
			Negotiation of Treaties
			Treaty Reservations
			Implementation of Treaties
			Treaty Withdrawal
		IV. War powers
			Legislative Authorization
			Mutual Defense Treaties and Multilateral Organizations
		V. Conclusion
	Chapter 7: Executive power in foreign affairs: The case for inventing a mexcian foreign relations law
		I. Introduction
		II. Foreign policy and the constitution: from an executive unbound to a tense relationship
			Executive Authority in Foreign Relations
			Constitutional Principles on Foreign Policy
			Evolutionary Approach to the Constitutional Principles?
		III. Domestic treaty law and informal international lawmaking
			Role of the Senate in Treaty-Making
			Inter-Institutional Agreements and Informal Arrangements
		IV. Conclusion
Part II: MAKING TREATIES AND OTHER INTERNATIONAL AGREEMENTS
	Chapter 8: Separation of powers, treaty-making, and treaty withdrawal: A Global Survey
		I. Legislative: Power and the democratization of treaty-making
		II. Executive power and the emergence of workarounds
		III. Treaty withdrawal and the separation of powers
		IV. Judicial involvement in treaty-making
		V. Conclusion
	Chapter 9: International agreements and U.S. foreign relations law: Complexity in Action
		I. Practice and treaties
		II. Practice and other types of international agreements
		III. International agreements and presidential power
		IV. The Role of comparativism
		V. Conclusion
	Chapter 10: International treaties and the german constitution
		I. Treaty-making power
			External Representation
			Treaties That Require Approval by the Parliament
		II. The process of making treaties and executive agreements
		III. The Status of treaties in domestic law
		IV. Treaty interpretation
		V. Comparative aspects and Conclusions
	Chapter 11: The current practice of making and applying international agreements in japan
		I. Introduction
		II. Process for concluding treaties and other international agreements
			Responsibility for Managing Foreign Affairs
			Examination by the Cabinet Legislation Bureau
			Cabinet Decision for Signing a Treaty
			Signing Authority
			Treaty Approval Process in the Diet
			Cabinet Decision on Requesting the Diet Approval for Treaties
			Prior Explanation to Ruling and Opposition Parties
			Diet Approval Process
			In Case of Different Decisions by the Two Legislative Houses
			Application of the Thirty-Day Rule
			Report to the Diet on Administrative Arrangements
		III. Domestic legal effect of treaties and other international agreements
			Bills for Implementation
		IV. Conclusion
	Chapter 12: Spanish foreign relations law and the process for making treaties and other international agreements
		I. Is there Spanidh foreign relations law?
		II. Treaties and the Spanish Constitution
		III. Regulating other international agreements
		IV. The Role of the autonomous communities in the treaty process
		V. Conclusion
	Chapter 13: Incorporation and implemention of treaties in south korea
		I. South Korea's monistic approach to incorporating treaties
		II. Hierarcy of treaties in the domestic legal system
		III. Issues relating to south Korea's monistic approach
			Increasing Instances of Implementing Legislation
			Self-Executing vs. Non-Self-Executing Treaties
			Private-Party Claims under Treaties
		IV. Recent court cases
			Monism in the Constitutional Structure
			Ambiguities Involving Disposal of Individual Claims
		V. New challenges in treaty conclusion and imnplementation
			Dissecting and Spreading of Treaty Obligations
			FTA Implementation Act and Increasing Legislative Intervention
		VI. Conclusion
	Chapter 14: Making treaties and other international agreements: The European Union
		I. Sources of EU law on treaty-making
		II. The Constitutional background
			Conferral of Powers
			Institutional Framework
		III. Process of treaty negotiation
		IV. Signature, provisional application, and conclusion of treaties
		V. Conclusion
Part III: FEDERALISM AND FOREIGN AFFAIRS
	Chapter 15: Foreign affairs federalism in the United States
		I. The founding conception and the slow death of dual federalism
		II. The states in foreign affairs
		III. National limits on the states in foreign affairs
		IV. Federalism-based limits on national foreign policy
		V. Conclusion: Looking forward
	Chapter 16: Federalism and foreign affairs in canada
		I. Confederation and acquisition of statehood
			Colonial Period and Section 132 of theConstitution Act, 1967
			Treaty-Making Power and Government Practice
			Treaty Implementation and the Labour Conventions Case
		II. Constitutional reform and quiet revolution
			Failed Attempts to Revisit the Labour Conventions Case
			The Gérin-Lajoie Doctrine and Provincial Treaty-Making
			Provincial Paradiplomacy and Participation in International Organizations or Conferences
		III. Globalization and free trade
			Institutionalization of Federal-Provincial Cooperation in Foreign Affairs
			Parliamentary Control over Treaty-Making
			Toward Consultation with Aboriginal Peoples on Foreign Affairs
		IV. Conclusion
	Chapter 17: Foreign affairs federalism in Switzerland
		I. Basic principles of swiss federalism felevant to foreign affairs
		II. Indirect foreign affairs federalism: The role of cantons in foreign affoiars based on the general constitutional framework
			The Role of Federalism as a Result of the “Normalization of Foreign Affairs” in General
			The Role of Federalism via the Treaty-Making Power and Popular Referenda on Treaties
			The Role of Federalism via the General Principle of Cantonal Execution of Federal Law, Including International Treaties
		III. Autonomous foreign affairs federalism: The limited international personality of cantons
		IV. Direct foreign affairs federalism: The specific rights and obligations of cantons in the conduct of swiss foreign affairs
		V. Concluding observations from a practical and comparative perspective
	Chapter 18: Federalism and foreign affairs in india
		I. The central government's authority over foreign affairs
		II. Subnational engagements in foreign affairs
			Special Constitutional Status for Certain States
			Role of the Individual State Leaders
			Coalition Dynamics
			Role of the Border States
			Defense-Related Mandates
		III. Bubnational engagement in foreign trade
			External Financing
			Institutional Mechanisms
			Trade and Border States
		IV. Conclusion
	Chapter 19: Foreign affairs federalism in the european union
		I. Introduction
		II. The union's enumerated foreign affairs powers
			The Doctrine of Implied External Powers
			The Union’s Express Foreign Affairs Competences
			Voting in the Council: The Political Safeguards of Federalism
		III. Dual federalism: Originally and subsequently exclusive powers
			Originally Exclusive External Powers: The CommonCommercial Policy
			Subsequently Exclusive Powers: Dual Federalism on the Move
		IV. Cooperative federalism: Sharing power between the union and the states
			Mixed Agreements: An International and Political Safeguard
			The Duty of Cooperation: An Internal and Judicial Safeguard
		V. Conclusion
Part IV: ENGAGING WITH, AND DISENGAGING FROM, INTERNATIONAL INSTITUTIONS
	Chapter 20: Treaty exit and intrabranch conflict at the interface of international and domestic law
		I. Treaty exit rules in international and domestic law
		II. A typology of treaty exit conflicts in intrernational and domestic law
			Treaty Exits Valid under International and Domestic law
			Treaty Exits Valid under International Law But Invalid under Domestic Law
			Treaty Exits Valid under Domestic Law But Invalid under International Law
			Treaty Exits Invalid under International and Domestic Law
		III. Intrabranch conflict over treaty exit
			Legislatively Compelled Exit
			Judicially Compelled Exit
		IV. The Mismatch between domestic and international treaty procedures and their consequences.
		V. Conclusion
	Chapter 21: Constitutionalism and internationalism: U.S. Participation in international institutions
		I. The Political economy of international institutions: A two-level game
		II. U.S. Participation in international instututions
			Multilateral Military Operations
			International Regulatory Cooperation
			Trade and Investment
			Dispute Resolution
		III. U.S. Foreign Relations Law and international institutions
			Joint Military Operations
			Regulation
			Trade and Investment
			Dispute Resolution
		IV. Conclusion
	Chapter 22: Engagement and disengagement with international institutions: The U.K. perspective
		I. Introduction
		II. Initial Engagement
			Dualism: Treaties, Parliamentary Authorization, and National Law
			Dualism: Treaties, Parliamentary Authorization, and International Law
			The Limits of Dualism: Treaties, Transnational Organization, and Globalization
		III. Continuing engagement
			Statutory Constraints
			Common Law Constitutional Constraints
			Autochthonous Constraints
		IV. Disengagement
		V. Conclusion
	Chapter 23: International integration and its counter-limits: A german constitutional perspective
		I. Engaging with international institutions under german constitutional law
			The Concept of “Open Statehood”
			Sovereignty and International Integration
			Article () Basic Law—From Delegation to Integration
			International and European Integration: From Unity via Divergence to Convergence?
			Constitutional Competence and Separation of Powers
			Procedural Limits
		II. Disengaging from international institutions
			Disengaging as Executive Privilege—Between Competence and Practice
			Disengaging through the Legislature
			Constitutional Democracy and International Responsibility
			Human Rights and Disengagement: A Special Case?
			The Case of Exit from the European Union
			Disengaging through the Judiciary (“Counter-Limits”)
			Effectiveness of Human Rights Protection—“Solange”
			Domestic Control of the Limits of International Jurisdiction—Ultra Vires
			Intrinsic Limits of International Legal Integration—Constitutional Identity
		III. Conclusion
	Chapter 24: State Engagement with treaties: Interactions between international and domestic law
		I. The allocations of treaty-making power
			Domestic Allocation of Treaty-Making Powers
			International Allocation of Treaty-Making Power
			Special Cases
		II. The Allocation of treaty exit power
			Domestic Allocation of Treaty Exit Powers
			Procedural Limitations
			Substantive Limitations
			International Allocation of Treaty Exit Powers
			Special Cases
		III. Conclusion
	Chapter 25: Regional organizations' relations with international institutions: The EU and ASEAN compared
		I. Main Concepts and focus
		II. Internal rules and a global mandate
		III. Engaging with and within international institutions
			Concluding International Agreements with International Organizations
			Becoming a Member of an International Organization and Founding New Ones
			Taking Part in Internal Decision-Making and Dispute Settlement
		IV. Disengaging from international institutions
			Acts Contrary to Engagement
			Constraining the Member States
			“Brexit”: Disengage to Re-engage?
		V. Conclusion
Part V. DOMESTIC APPLICATION OF INTERNATIONAL LAW
	Chapter 26: Treaty self-execution as "foreign" foreign relations law
		I. Self-Execution through a comparative lens
			The U.S. Doctrine
			Self-Execution around the Globe
			Constitutional Non-Self-Execution
			Nonconstitutional Non-Self-Execution
		II. Self-execution as "foreign" foreign relations law
			Identification—What Constitutes FFRL?
			Causation—Why Do States Import Self-Execution?
			Evolution—How Does FFRL Evolve over Time?
		III. Conclusion
	Chapter 27: The domestic application of international law in british courts
		I. Use of international law in british courts
		II. British law as a dualist system
		III. Treaties
		IV. Customary international law
		V. Other foreign affairs cases
		VI. Conclusion
	Chapter 28: The Domestic application of international law in canada
		I. Areas of engagement
		II. The reception of treaties by implementation
		III. The reception of custom by incorporation
		IV. The presumption of conformity with international law
		V. The presumption of minimum protection
		VI. Judicial notice of international law
		VII. Deference and nonjusticiability
		VIII. Use of nonbinding international materials
		IX. Postscript: Khadr (No. 2)
	Chapter 29: International law in israeli courts
		I. The formal doctrine
		II. The law applied in the territories
			Customary International Law in the Territories
			After 2000—Justice Barak and the Application of the Fourth Geneva Convention
			A New Approach—Retreat?
		III. Applying international law within israel
			Cases Involving the Arab-Israeli Conflict
			Human Rights in “Domestic” Cases
		IV. Conclusion
	Chapter 30: International law in japanese courts
		I. Constitutional review of international law
		II. Judicial application of international law
			Right of Action Based on International Law
			Judicial Review of Statutory Law Based on International Law
		III. Consistent interpretation of international law and domestic law
			Interpretation of Statutory Law Consistent with International Law
			Interpretation of Constitutional Law Consistent with International Law
		IV. Reliance on persuasive authority in constitutional interpretation
		V. Conclusion
	Chapter 31: International law in chinese courts
		I. Introduction
		II. Major factors affecting the application of international law in chinese courts
		III. Methods and structure for the application of international law in chinese courts
			Methods
			Structure
		IV. Application of international law in chinese courts in the chinese context of foreign relations law: A case study
		V. Conclusion
	Chapter 32: Domestic application of international law in latin america
		I. Application of international law in latin america: Domestic factors
			Open Clauses in Latin American Constitutions
			Domestic Courts and the “Constitutionality Block”
			Around the “Block”
		II. Aopplication of international law inlatin america: International factors
			Domestic Conventionality Control
			International Conventionality Control
		III. Growing resistance?
		IV. Conclusion
	Chapter 33: Foreign relations law in the constitutions and courts of commonwealth african countries
		I. Introduction
		II. The relationship between international law and the constitutions of commonwealth african states
			Internationalist Values in National Constitutions
			Governance System and Allocation of Foreign Relations Authority
			Treaty-Making in the Constitutions of Commonwealth Africa
			Implementation of Treaties in Domestic Law
			Status of International Law in the Hierarchy of Domestic Law
			Treatment of Customary International Law and General Principles
		III. Commonwealth african national courts and foreign relations law
		IV. Conclusion
	Chapter 34: The application of international law by the court of justice of the european union
		I. Introduction
		II. Constitutional review of treaties
			Ex Ante Constitutional Review
			Ex Post Constitutional Review
			Reviewing Member State Treaties
		III. Enforcing treaties
			Automatic Incorporation of EU Agreements
			Non-EU Agreements and the Functional Succession Doctrine
			Judicially Applying Treaties: Rights, Direct Effect, and Consistent Interpretation
			Questions of Hierarchy
			Judicial Enforcement of Treaties Prior to 
			Judicial Enforcement of Treaties Since 
		IV. Customary international law
		V. Conclusion
Part VI: IMMUNITY, COMITY, AND RELATED ISSUES
	Chapter 35: International immunities in U.S. law
		I. Sovereign (state) immunity
			Scope of Application
			Exceptions to Immunity
			Waiver of Immunity
			Commercial Activity
			Taking of Property in Violation of International Law
			Noncommercial Torts
			Arbitration Agreements and Awards
			State-Sponsored Terrorism
			JASTA
			Art Exhibitions
			Enforcement of Judgments
			Postjudgment Discovery
		II. Immunity of foreign officials
			Diplomatic and Consular Immunity
			Heads of State and Government
			Foreign Official Immunity
		III. International organizations
			International Organizations Immunities Act
			United Nations
			Other International Organizations
		IV. Assessment
	Chapter 36: International immunities in english law
		I. State immunity
			Scope of Application and Definition of the State Separate Entity
			Constituent Units
			Central Banks
			Individuals
			Indirect Impleading of the State
			Exceptions to Immunity
			Waiver
			Commercial Transactions
			Employment Contracts
			Arbitration
			Immunity from Enforcement
		II. Immunity of foreign officials
			Diplomatic Immunity
			Heads of State
			Immunity of State Officials and Individuals Acting on Behalf of the State
		III. Immunity of international organizations
		IV. Assessment
	Chapter 37: South african law on immunities
		I. Domestic status of inernational law in south africa
		II. Immunity of foreign states
			General Immunity from Jurisdiction
			Waiver of Immunity
			When Immunity Does Not Apply
		III. Diplomatic immunity
		IV. Regional organizations
			The African Union (AU)
			The Southern African Development Community (SADC)
			Domestic Enforcement of the SADC Tribunal’s Judgments
		V. Conclusion
	Chapter 38: Jurisdictional immunities, constitutional values, and system closures
		I. The ICJ judgment in germany v. italy and its impact
		II. The Italian constitutional court judgement no. 238
		III. System closures
		IV. Multiple legal orders coordinating doctrines
		V. The significance and function of system closures
	Chapter 39: International comity in comparative perspective
		I. The United States
		II. Continental Europe
		III. What does comity add?
		IV. Conclusion
	Chapter 40: Crown and foreign acts of state before british courts: Rahmatullah, Belhaj, and the separation of powers
		I. Rahamatullah and crown act od state
		II. Belhaj and foreign act of state
		III. Analysis
			Internal Coherence: Clarifying the Operation of the Act of State Doctrines
			External Coherence: Rooting the Act of State Doctrines in Constitutional Principle
		IV. Conclusion
Part VII: THE USE OF MILITARY FORCE
	Chapter 41: Techniques for regulating military force
		I. Substantive standards
		II. Allocation of decisionmaking authority
			Allocation Based on the Nature of the Operation
			Allocation Based on the Duration of the Operation
			Allocation of Ancillary Authorities
		III. Oversight and review
			Legislative Oversight
			Judicial Oversight
			Diffuse Oversight
		IV. Reflections on comparative war powers work
	Chapter 42: U.S. war powers and the potential benefits of comparativism
		I. Constitutional text and pre-world war II history
		II. Post-world war II History
		III. The war powers resolution
		IV. Congressional and judicial checks on presidential war-making
		V. Example: Syria in 2013 and in 2017-2018
		VI. Potential benefits of comparativism
		VII. Conclusion
	Chapter 43: The use of military forces by the united kingdom:  The evolution of accountability
		I. Emergence of a constitutional convention of parliamentary approval
			Vote on the Iraq War
			Emergence of a Constitutional Convention
			Vote against Using Force against Syria in 
		II. Threshold and scope of a parliamentary approval requirement
			The Threshold Criterion
			Scope of the Convention
				Duration of Approval
				Collective Security and Integrated Multilateral Units
				Embedding of Armed Forces
			The Emergency Exception
				Drones
				Special Forces
		III. Comparative assessment
			Emergence of the Approval Requirement and Constitutional Justification
			Defining the Threshold and Scope of the Approval Requirement
			Role of the Courts
		IV. Conclusion
	Chapter 44: Military operations abroad under the german basic law
		I. Constitutional and statutory framework
			Constitutional Court’s Seminal 1994 Judgment
			Parliamentary Participation Act of 2005
			2008 AWACS II Judgment
			Pegasus Judgment of 2015 on Rescue Operations
		II. Alignment between constitutional and international law on the use of force
			“Collective Security” under Article 24(2) GG
			“Defense” under Article 87a GG
		III. Judicial review of deployment decisions
			Organstreit Proceedings
			Overstepping the Mandate of the Bundestag
			No Overall Constitutional Control
			The Logic and Review of “Excess”
		IV. Conclusion
	Chapter 45: Using military force and engaging in collective security: The case of france
		I. Domestic rules applicable to the use of force abroad
			The Decision to Resort to Force: The Province of the Executive Branch
			The Decision to Use Force: The Supremacy of the President
			The Absence of Any Judicial Control
		II. France's legal position as regards the permissible use of force under international law
		III. Conclusion
	Chapter 46: Discussions in japan to use military force or participate in multinational peacekeeping operations
		I. Article 9 of the constitution and the self-defense forces act
		II. Collective self-defense
		III. Participation in multinational peacekeeping operations
			Multinational Forces
			UN Peacekeeping Operations
		IV. Conclusion
Index