This chapter assesses three key strands in the case law of the Court of Justice of the European Union concerning a central dimension of foreign relations law, namely, the application of international law. The first section focuses on how the Court has reviewed the compatibility of EU-concluded treaties or envisaged treaties with the European Union’s constitutional text and also the review of treaties concluded by the member states. Judicial review powers in relation to treaties have increasingly been included in constitutional texts, but the European Union is distinctive in that its Court of Justice has regularly been called upon to exercise this form of jurisdiction, thus offering potentially valuable foreign relations law insights for constitutional design and practice in other constitutional systems. The second section focuses on the judicial enforcement of treaties and identifies a spate of recent rulings where more international law friendly outcomes would have been possible. A briefer third section focuses on the application of customary international law and highlights in particular the high threshold set for judicial review vis-à-vis such norms. The recent judicial developments identified in each of the respective three sections of this chapter have increasingly been deployed to challenge the traditionally dominant narrative in EU law scholarship of a Court of Justice that adopts a markedly international law friendly approach.
This chapter considers how comparative foreign relations law might draw on the comparative study of national constitutions, an increasingly large and vital field, and sets out an agenda for future work in the area. It provides some basic data from a comparative examination of formal constitutional provisions relevant to foreign relations. In doing so, it argues that a “foreign relations lens” helps elucidate an underappreciated core purpose of these foundational texts. That is, one of the central functions of national constitutions is to structure international relations. The chapter next turns to normative considerations, showing how the shifting boundaries of constitutional design with regard to foreign relations serve to allocate lawmaking authority. There is a potential for complementarity between international and domestic regulation of some problems, but also the potential that international and domestic norms serve as substitutes for each other. An optimal constitutional design of foreign relations law would take these considerations into account.
Oona A. Hathaway
International law is the product not only of a political and legal process that takes place between states but also of processes that take place within them. Accordingly, examining domestic institutions that states use to create international law is essential to our understanding of international law. And yet to date there has been remarkably little cross-national work examining the role of domestic politics and law in the creation of treaties and other international law. This chapter aims to contribute to an emerging conversation about how best to carry out a more comprehensive examination of differences between states in the law governing their engagement in the world around them. It maps out five areas that offer opportunities and challenges for the study of comparative foreign relations law: first, the choice of methodology, whether quantitative or qualitative. Second, the underrepresentation of certain states in existing foreign relations scholarship. Third, the domestic political and institutional structures that shape the interplay between the legislative, executive, and judicial functions within states. Fourth, the role of geopolitics. Fifth, the chapter sounds a cautionary note about approaching international law through domestic law. The challenge for scholars the world over will be to fill out this agenda and then begin to tackle it.
Jenny S. Martinez
This chapter explores the allocation of authority between executive and legislative branch officials with respect to three areas: general foreign relations powers such as reception of ambassadors and recognition of foreign governments; treaty negotiation, ratification, and implementation; and war powers. Overall, it appears that most modern constitutions contemplate the sharing of foreign relations authority between the executive and legislative branches, with the precise boundaries of power more often determined by practicalities, politics, and particular circumstances than abstract theories. In particular, constitutional design choices are often influenced by the history and political context of a particular country and region, and provide a lens into what a given society views as important, dangerous, or problematic. The variations in design choices refute the notion that most foreign relations powers are inherently “executive” or “legislative” in nature, and instead highlight the ways in which design choices are embedded in broader social and political contexts.
Paul B. Stephan
This chapter describes and analyzes the law governing U.S. practice with respect to joining and working in international institutions. It explores the domestic and international politics that shape these actions through the framework of a two-level game. The chapter applies this framework to multilateral military operations, international regulatory cooperation, trade and investment, and international dispute resolution. U.S. foreign relations law allows the executive branch considerable flexibility as to joining an international cooperation project, but also imposes barriers to the implementation of decisions of international institutions within domestic law. Litigants who seek to invoke the actions of international institutions as the basis for governing law in domestic lawsuits typically must link those actions to a domestic enactment, certain narrow exceptions aside.
Crown and Foreign acts of State Before British Courts: Rahmatullah, Belhaj, and the Separation of Powers
Eirik Bjorge and Cameron Miles
The Supreme Court of the United Kingdom undertook in Rahmatullah v. Ministry of Defence and Belhaj v. Straw to demarcate the relationship between the judiciary and the executive with respect to Crown and foreign act of state. This chapter aims to unpack Rahmatullah and Belhaj for the reader and further to use these decisions to enquire into the constitutional underpinnings of the British act of state doctrines—particularly as they pertain to the separation of powers. The chapter concludes that there exists a general uncertainty regarding the scope of the doctrines, and a lack of jurisprudential development with respect to their constitutional underpinnings. But it is undeniable that progress, however minor, has been made in these decisions. The scene has been set in Rahmatullah and Belhaj for further developments—even if litigants will still need to refer to the earlier case law in order to get the full picture.
This chapter describes the treaty-making practice in Japan, with a focus on explaining the mechanism for striking the balance between democratic control and effective management of foreign affairs. The chapter first outlines the structure of Japan’s Constitution regarding the responsibility for managing foreign affairs and the authority for concluding treaties and other international agreements. The chapter further introduces the process of concluding treaties step by step—from examination by the Cabinet Legislation Bureau to the Diet approval. The “Ohira Principles,” elaborated by Foreign Minister Masayoshi Ohira in 1974, specified three categories of treaties for the Diet approval. The chapter points out that the formula was extremely well crafted, although it has been challenged by the growing need for effective management over a wide range of issues in foreign affairs. In the course of discussion, the chapter takes up examples such as an Exchange of Notes of ODA projects, the 1997 “Guidelines for Japan-U.S. Defense Cooperation,” the Guam International Agreement, and the Japan-U.S. SOFA and Supplementary Agreement on the Environment, the Japan-U.S. ACSA. The chapter also describes how the current Diet approval process proceeds, by referring to existing practices such as the “thirty-day rule” and bundling of multiple treaties, and then briefly covers the domestic legal effect of treaties, including bills for implementing treaties as well as “self-executing” treaties. The chapter concludes that the Japanese treaty-making practice will continue to face a question of how to strike the right balance between producing necessary treaties and other international agreements in a timely manner while also maintaining a sufficient level of democratic control by the Diet.
This chapter describes the law in Japan governing the country’s use of military force and participation in multinational peacekeeping operations. Although Article 9 of Japan’s post–World War II constitution seems to disallow the development of armed forces, the country has long maintained limited armed forces for purposes of self-defense. According to the Japanese government’s traditional constitutional interpretation, these forces can only be used when necessary to repel an armed attack on Japan. Under this interpretation, Japan can use armed force only for individual self-defense, not for collective self-defense or collective security. In addition, although Japanese law since the 1990s has allowed for some participation of Japanese forces in multinational peacekeeping operations, this allowance has been very limited. In 2015, however, Japan enacted two important statutes that broaden the government’s ability to use the country’s armed forces. One statute allows the country for the first time to exercise a right of collective self-defense, although the legislation only permits Japan to exercise this right for the purpose of ensuring its survival and protecting its people in situations that are called “existential crisis situations.” The other statute broadens the ability of Japanese forces to engage in various support activities in multinational peacekeeping operations. Because of Article 9 of the Constitution, however, Japan’s ability to use its military is still substantially more limited than for many other countries.
Democracy has oscillated between individualist, collectivist, and organicist notions since the revolutionary era. Similarly, throughout history, democratic movements have agonized over what the power of the people should mean and how it could be exercised democratically. Today, models prevail that transform the fictive will of the people by elective procedures into regimes of (limited) majority rule based on the representational transmission of power, some representative regimes are complemented by forms of direct popular participation. And, consequently, the various narratives of democracy mirror until today the theoretical and practical-institutional attempts to limit majority rule in order to lend some credibility to the idea and ideology that minorities may become majority and vice versa — an interplay that qualifies democracy as legitimate popular self-rule. This article discusses the varieties of constitutional democracy and the dangers posed by democracy.
This chapter considers the use and application of international law in British courts. Consideration is given to developments that have led to the increasing use of such law and to the fact that compliance with international law is now a central part of evaluating the lawfulness of executive actions. The chapter explains that the primary underpinning of the dualist British system is the constitutional principle of Parliamentary sovereignty and the corollary that an exercise of the royal, executive, prerogative does not enable ministers to change the law, unless such a power is expressly conferred by statute. It explains that although this constitutional framework is clear as a matter of principle, the application of it, in discrete cases, gives rise to continuing debate. The chapter describes the use of treaties that are formally incorporated into domestic law (incorporated treaties), those that are not so incorporated (unincorporated treaties), and customary international law. Consideration is given to the way in which British courts approach treaty interpretation and the canons of interpretation that are deployed in relation to unincorporated treated (the presumption of compatibility and the principle of legality). The chapter notes that there are other cases that may raise issues of international law, such as where a British court is invited to adjudicate on the lawfulness of a foreign state’s conduct. It concludes that British courts have a flexible and open approach to the possibility of using and applying international law obligations and standards, especially in the context of assessing the lawfulness of executive action, subject to the important caveat that it must be constitutionally permissible and institutionally appropriate.
Gib van Ert
This chapter describes how public international legal norms are received into Canadian domestic law. The rules governing international law’s reception in Canada originate in British constitutionalism and English common law. But the Supreme Court of Canada has developed this tradition by insisting that international law is part of the context in which Canada’s domestic laws are enacted. This has led to a notable openness to internationally informed legal arguments and a strong commitment to the interpretive presumption that domestic law conforms with the state’s international obligations. While treaties still require legislative implementation to take direct effect in domestic law, they can have indirect interpretive effects even without legislation. Customary international law does not require legislation; it is automatically incorporated by the common law. Even Canada’s leading constitutional instrument, the Charter of Rights and Freedoms, seems now to be interpreted according to a presumption that it at least meets the minimum requirements of international human rights law. Traditional judicial avoidance techniques such as the act of state and political question doctrines are notably absent in Canadian reception jurisprudence. Courts still find ways to disregard international law in particular cases, but the trajectory is toward using it.
This chapter explores the deep interaction of Latin American constitutions with international law, and international human rights law in particular, as a contribution to the emerging field of “comparative foreign affairs law.” The chapter begins by describing how open constitutional clauses and the case law of domestic courts facilitate such a deep integration of domestic and international law in the region. It then explores the international factors that explain the interaction, focusing on the doctrine of “control of conventionality,” developed by the case law of the Inter-American Court of Human Rights. The tide in the region, though, might be changing, and the chapter describes some of the incipient resistance that the deep integration of international law in domestic systems seems to be inspiring. The chapter concludes by considering the potential, and limits, of a “foreign relations law” field from the perspective of Latin America.
This chapter analyzes engagement and disengagement with international institutions from the perspective of U.K. law. The first part of the chapter considers the relevant legal rules that pertain to engagement by the United Kingdom in international institutions. It is divided into three sections. The first section is directed toward dualism as understood in U.K. constitutional law, whereby an international treaty cannot take effect in national law unless it has been transformed or adopted into domestic law, thereby preventing the executive from undertaking obligations without the imprimatur of the U.K. legislature. The second section explains the U.K. constitutional rules designed to prevent the executive from ratifying an international treaty, and hence committing the United Kingdom at the international level, before Parliament has had the opportunity to consider the treaty. This area is interesting, since it reveals a shift from practice, to a convention, and then to a statutory obligation. The third part investigates the limits of dualism, connoting in this respect that the doctrinal rules explicated here apply to formal treaties, but do not cover all global regulatory rules, which can impact, de jure or de facto, on the United Kingdom. The focus in the second section of the chapter shifts to the constitutional constraints that limit the national applicability of a treaty regime that the United Kingdom has ratified. Parliament may impose constraints on delegation, which condition the legal reception in U.K. law of changes made by an international organization. There are, in addition, constitutional constraints fashioned by the courts, which can affect the acceptance of rules or decisions made by an international organization, to which the United Kingdom is a party, within the U.K. legal order, more especially where U.K. courts feel that such a rule of decision can impact adversely on U.K. constitutional identity. These judicially created constraints can be interpretive or substantive. The final part of the chapter is concerned with disengagement from international institutions. The relevant legal precepts are, to a certain degree, symmetrical with those that govern initial engagement. The basic starting point is that the executive, acting pursuant to prerogative power, negotiates withdrawal or disengagement from an international organization, and Parliament then enacts or repeals the requisite legislation to make this a legal reality in national law. Matters can, however, be more complex, as exemplified by the litigation concerning the United Kingdom’s exit from the European Union.
In Mexico, there is no legal field known as “foreign relations law.” The legal rules and principles that regulate how the country relates to the outside world have been studied as a subfield of international law, known as “the relationship between the international and national legal orders.” This subfield has produced one stream of writings dealing with the prerogatives of the executive in the conduct of foreign policy, and a different one, on treaty-making and the role of treaties within the internal norm hierarchy. Although each approach portrays important aspects of the relationship between national law and international law, this chapter argues that both fail to comprehend that the legal principles and rules on foreign affairs operate at the interstices of these legal orders. In surveying the literature on executive power in external affairs as well as the scholarship on domestic treaty law, the chapter shows that the former has emerged within diplomatic elites, which are concerned with freeing the executive from the constraints related to the principles on foreign policy established in Mexico’s constitution. It also argues that the latter has been either too formalistic or too much focused on global constitutionalism, thus proving unable to capture the new and mainly informal means of executive action in international law. This chapter concludes by making the case for inventing a Mexican foreign relations law that brings both approaches together and is attentive to persistent and novel problems that emerge from the executive’s external actions.
This chapter studies the interplay between federalism and foreign relations law in Canada. As the chapter notes, since Confederation and despite lengthy constitutional talks and the coming of the age of globalization, foreign affairs federalism in Canada remains characterized by the absence of written constitutional rules, the lack of institutionalization, and the important role of government practice in filling that void. Despite past controversies over the Labour Conventions case, the provincial power to implement treaties did not cause any serious foreign relations difficulties, and Canada was able to play an active role as a middle power on the international stage. Nevertheless, the current political and legal framework is such that problems can arise from time to time in the conduct of foreign affairs, if international obligations are incurred without substantial provincial support. Prior consultations with provinces are crucial, and the formulation of treaty reservations may be necessary in some cases. The insufficient political will to better institutionalize cooperation between Ottawa and the provinces in the conduct of foreign affairs continues to be surprising, especially in the light of positive sectoral or ad hoc initiatives. The positive role that provincial paradiplomacy may play in expanding the global influence of Canada could also be better embraced. The emerging obligation to consult with Aboriginal peoples stands in stark contrast with the lack of institutionalization of federal-provincial cooperation on foreign affairs.
Anamika Asthana and Happymoon Jacob
This chapter locates India’s foreign affairs within the federal structure of the country’s constitution. As a formal matter, India’s constitution strongly favors the central government’s authority, especially in matters of foreign policy and defense. India’s foreign policymaking processes, however, do not strictly correspond either to a unitary or a federal model and often are responsive to contextual dynamics. As the chapter explains, the central government has over time pursued a pragmatic approach in dealing with subnational engagement in the country’s foreign policymaking, without bringing about substantive and formal structural changes either in the constitution or the front-line institutions dedicated to foreign policy decision-making. Such pragmatism has been prominently evident in the area of international trade, especially since the onset of economic liberalization. Moreover, despite the constitutional preeminence of the central government in matters of foreign policy and defense, state entities in the era of coalition politics have successfully deployed extraconstitutional means, mostly through bargaining and pressure tactics, to influence the central government’s foreign policy processes. Federalization of foreign policymaking therefore, though limited, is an ongoing process in India’s vibrant polity.
The comparative study of foreign relations law must first grapple with a conundrum: outside the United States, the field enjoys no wide currency or commonly accepted scope, yet the set of problems with which it is concerned arise at an interface with which all states must engage: between international law and national constitutional law. This chapter argues that the essential point of departure for effective comparative analysis is to adopt a functional approach, identifying what functions foreign relations law performs. In doing so, it identifies five different conceptions of the function of foreign relations law that shape the way in which jurists have approached the field. These conceptions are: (1) exclusionary: to separate the international from the national, taking the exercise of foreign relations out of the purview of national law; (2) internationalist: to mediate the inward reception of international law into the domestic legal system; (3) constitutional: to distribute the exercise of the foreign relations law between the organs of government; (4) diplomatic: to facilitate the diplomatic relations of the state with other states; and (5) allocative: to allocate jurisdiction and applicable law in matters concerning the exercise or enforcement of the public power of states. The chapter critically assesses the persuasive power and the potential shortcomings of each of these conceptions. Using the example of domestic cases engaging peremptory norms, it shows how the allocative approach helps to give a better explanation of when and why domestic courts intervene to enforce or apply such rules.
This chapter describes the role of federalism in Swiss foreign affairs. This role is threefold. First, the Cantons have a role through their general powers in policymaking in the Swiss constitutional system. Second, the Swiss Constitution expressly preserves a residual treaty-making capacity and autonomous foreign policy competence for the Cantons. Third, the Cantons have specific participation rights in the definition of Swiss foreign policy. In all these different roles, the principle of federalism in Swiss foreign affairs is closely connected to other main constitutional principles, especially to aspects of direct democracy and the popular referenda that are a major characteristic of the Swiss polity. Though idiosyncratic as a product of particular historical developments, it is worthwhile to compare Swiss federalism in foreign affairs to other federal systems. From such a comparative perspective, the chapter draws three interrelated conclusions. The first conclusion is that the inclusion of federalist principles into foreign affairs depends on foreign affairs being a formalized process on the international level through the conclusion of international agreements and work inside formal international organizations. The second conclusion is that the idiosyncratic Swiss aspect of specific participation rights of Cantons in foreign affairs may be one possible model in order to counterbalance developments such as increasing informal international decision- and lawmaking processes. The third conclusion is that there has to be a balance between the rights of the component parts in foreign affairs decisions by the federal government and their obligations to implement international obligations that result from these decisions.
The European Union was born as an international organization. The 1957 Treaty of Rome formed part of international law, although the European Court of Justice was eager to emphasize that the Union constitutes “a new legal order” of international law. With time, this new legal order has indeed evolved into a true “federation of States.” Yet how would the foreign affairs powers of this new supranational entity be divided? Would the European Union gradually replace the member states, or would it preserve their distinct and diverse foreign affairs voices? In the past sixty years, the Union has indeed significantly sharpened its foreign affairs powers. While still based on the idea that it has no plenary power, the Union’s external competences have expanded dramatically, and today it is hard to identify a nucleus of exclusive foreign affairs powers reserved for the member states. And in contrast to a classic international law perspective, the Union’s member states only enjoy limited treaty-making powers under European law. Their foreign affairs powers are limited by the exclusive powers of the Union, and they may be preempted through European legislation. There are, however, moments when both the Union and its states enjoy overlapping foreign affairs powers. For these situations, the Union legal order has devised a number of cooperative mechanisms to safeguard a degree of “unity” in the external actions of the Union. Mixed agreements constitute an international mechanism that brings the Union and the member states to the same negotiating table. The second constitutional device is internal to the Union legal order: the duty of cooperation.
Ernest A. Young
Although the American Founders intended to centralize power over foreign affairs in the national government, the modern reality is considerably more complex. To be sure, the national government dominates the core of foreign affairs: the conduct of foreign policy toward other nations. Yet even here, states and municipalities intrude from time to time. More broadly, state and local governments remain important players in areas such as immigration and commercial regulation that have important international dimensions. Federalism constrains—legally and especially politically—the international agreements that the national government can enter into, and central authorities remain dependent on state and local officials to implement many important international commitments. Internal and external forces have combined to make a multilayered approach to foreign affairs inevitable in the United States. Internal forces include the constitutional structure itself, which stops short of giving exclusive foreign affairs powers to the national government and reserves important authority to the states, as well as the more contemporary impact of polarization in American political life. On the external side, globalization has blurred the very distinction between foreign and domestic affairs, and international law’s increasing preoccupation with nations’ treatment of their own citizens has rendered many traditional areas of state governance subjects of international concern.