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date: 08 May 2021

Abstract and Keywords

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.

Keywords: foreign relations law, international law, act of state, United Kingdom, Commonwealth, diplomatic, allocative, private international law, jus cogens, peremptory norms

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