Index
acte contraire doctrine, 58
African Commission of Human and Peoples Rights,
African Union, 230
Angola
natural resurces as property of state, 73
Berne Convention, 58
Blackstone, William, 25
Bolivia, 73
Bosnia and Herzegovina (BiH), 9, 19,
Dayton Peace Agreement as constitutional framework, 19, 274, 275
complexity of state organisation, 276
Constitution interpreted as treaty under VCLT, 278
criticisms of,
ECHR directly applicable,
international law, and,
Office of the High Representative,
Presidency, 277,
separation of powers,
veto power over all essential decision-making, 277
foreign relations law,
BiH Constitution, and,
field of scholarship as,
Foreign Policy Strategy,
General Guidelines,
Kosovo,
foreign relations law, role of the Parliamentary Assembly in, 282,
controlling role,
prior approval for cancellation or withdrawal from treaties, 292
prior approval for ratification of treaties,
role of permanent Committees,
general constitutional and legal framework,
BiH and international law,
internal organisation of BiH,
shortcomings of current system,
Brazil
mixed economy constitutional democracy, 74
public monopoly for petroleum exploration/exploitation, 73
Brexit,
appeals to national liberation, 85
challenges to United Kingdom’s attempt to withdraw, 55
exercise of independent sovereignty, the people, and, 364
fight for sovereignty, as, 362
parliamentary approval required for treaty withdrawal, 250
parliamentary involvement in Brexit negotiations, 148
the people determining engagement with world, 358
withdrawal from European Court of Justice jurisdiction, 361
Chile
Augusto Pinochet, 61
dominance of transnational companies in,
nationalizations,
constitutional amendment, 72
President Salvador Allende
corporations as supranational force, 71
manifesto of peripheral perspective, speech as,
nationalizations,
postcolonial peripheral perspective, 63
sovereignty,
China
business and human rights treaty, supporting, 82
corporations, non-liberal conceptions of,
economic aggression/expansion,
emerging power, as, 76
foreign relations law
academic study of, ,
Chinese environmental diplomacy,
congruent basic legal principles of Chinese/international environmental law,
debates on,
environmental law and policy,
no field recognized as such, 317
silence of Chinese law on foreign relations,
underdeveloped nature of,
global environmental governance, 19,
administrative organs involved in external environmental relations,
allocation of China’s public powers in,
allocation of powers in cooperation with global environmental institutions,
allocation of powers on conclusion/approval of international treaties,
approval of agreements by State Council, 332
approval of treaties by Standing Committee of National People’s Congress,
common but differentiated responsibilities as guiding principle,
Global Environmental Facility, cooperation with,
international environmental treaties, legal status of,
international law, traditional perspectives on,
South-South Cooperation Fund, building, 334
legal status of international environmental treaties,
direct application, treaty implementation by,
execution by administrative measure, treaty implementation by, 337
place of environmental agreements in Chinese law,
transformation through legislation, treaty implementation and,
civil law, 107, 142, 146, 345
deference to executive, 97
rejection of doctrines of judicial abdication, 142
role of foreign states in domestic courts, 97
colonization/colonialism
British colonialism, 106
colonial hierarchies in privatized property relationships, 70
Commonwealth and colonialism,
property rights, sovereignty and, 70
transnational corporations, and, 70
common law, 87, 90, 106, 107, 142, 345
countries preferring Roman law, 90
deference to executive, 97
embedded common law and colonial continuity,
foreign affairs exceptionalism, influence of, 143
imposition of,
role of foreign states in domestic courts, 97
Commonwealth
colonialism, and,
overlooking legal history,
foreign relations law of,
comparative foreign relations law,
changing context-peripheral echoes in centre,
epistemic structure of liberal foreign relations law,
liberal foreign relations law from centre,
agency and legal subjectivity,
particular ideas defining perspective, 65
shaped by specific contexts, 65
sovereignty, understanding of,
peripheral perspectives on contemporary trends,
business and human rights,
hybrid foreign relations and state-owned enterprises,
rebalancing sovereignty and property in foreign investment law,
postcolonial perspective from periphery
agency and legal subjectivity,
Allende’s 1972 speech as manifesto of,
epistemic structures,
experience of statehood after decolonization, 69
public ownership of natural resources,
regional integration,
sovereignty, understanding of, 70
taking global comparisons seriously,
foreign relations law embedded in different varieties of constitutionalism, 63
liberal perspectives from centre, influence of,
two perspectives on foreign relations law,
liberal foreign relations law from centre,
postcolonial perspective from periphery,
Conseil Constitutionnel jurisprudence on limitations of sovereignty, 17,
constitutionality review of international treaties before ratification,
critical assessment of Conseil Constitutionnel’s decisions,
arguments built on case by case basis, 177
no guidance which treaties will be compatible,
droit des relations internationales and foreign relations law,
international engagements not compatible with French Constitution,
CETA case,
clauses running counter to Constitution,
essential conditions for exercise of national sovereignty,
essential conditions for exercise of national sovereignty jeopardized, , 171
habilitation clauses,
imposition of conditions,
jeopardizing rights and freedoms in Constitution,
Statute of International Criminal Court case,
Treaty establishing a Constitution for Europe case,
Treaty of Amsterdam case, 171
Treaty of Lisbon case, 172
Treaty on European Union (Maastricht I)case,
Treaty on Stability, Coordination and Governance case, 173
limitations of sovereignty doctrine and its criticisms,
Convention on the Elimination of Discrimination Against Women, 32
Convention on the Rights of Disabled People, 32
Convention on the Rights of the Child, 32
decolonization
continued economic dependence, 69
integration and disintegration of states in course of, 4
peripheral statehood, 69
political independence, achieving, 70
postcolonial law ‘modernized’ in image of Western law, 70
sovereignty over natural resources, 68
developing countries
binding treaty on business and human rights, seeking, 82
China financial support for 2030 Sustainable Development Goals, 334
common but differentiated responsibilities as guiding principle in environmental governance,
promoting economic democracy in, 84
domestic courts, 152
control of executive and legislative in foreign affairs,
extraterritorial regulators, as, 83
greater role in controlling executive in foreign affairs, 18
implementation of international law, 7
judicial reach over foreign relations, expansion of,
judicial review, foreign relations and. See judicial review, foreign relations and global administrative law
justiciability principles limiting capacity, 56
legal value of corporate human rights standards in litigation,
recognising parliamentary rights to participate in treaty withdrawal,
role in extraterritorial protection of human rights against corporate misconduct,
sovereign immunity in US federal courts, 81
domestic law, 2, 6
asserting authority of domestic legal orders vis-à-vis ‘the international’,
competence to conclude treaties, violation of, 2
democratic legitimacy, need for, 5
foreign relations law, and,
granting international law domestic rank and effect, 3
human rights-conferring aspects of, 47
implementation of international law,
importance of domestic procedures,
international legal instruments, effects of, 5
internationally wrongful state acts, 2
not justifying non-compliance with international obligations, 2
regulating competence to consent to treaties, 49
European Court of Human Rights, 128
property rights of state-owned enterprises, 81
quality of domestic decision-making influencing substantive review, 3
rights of corporations, 75
European Union
agency and legal subjectivity,
autonomy of European Union legal order, 172
Charter of Fundamental Rights of the European Union, 171
foreign relations law of supra-national entities, 28
fundamental rights,
international law, and, 153
legal personality, 172
Paris Agreement on Climate Change, 37
referendums on treaty arrangements, 149
rescue policies for Eurozone crisis, 44
executive authority in entering and exiting treaties,
international law regarding executive power as sufficient, 47
foreign investment, 66, 82
constitutional rights of foreign state-owned corporations, 81
domestic effect of international investment law and arbitral awards in host countries, 79
international investment arbitration, 4
investor-state disputes,
jurisdiction and enforcement of arbitral awards,
legal relations between foreign investors and host state,
rebalancing sovereignty and property in foreign investment law,
role of home states in extraterritorial protection of human rights against corporate misconduct,
sovereign immunity, and, 81
sovereign wealth funds, 80
foreign legal policy,
consequences for international law,
decision-making, international law and, 122
foreign legal policy shaping international law,
violations of international law,
elements in determining,
existing in relation to broader national interest,
operating at interface of the domestic and international,
primacy of,
role and function of,
foreign relations
exclusion from judicial scrutiny,
hybrid foreign relations and state-owned enterprises,
foreign relations law
concord of Western peoples, as,
Commonwealth, foreign relations law of,
overlooking legal history,
dimensions of encounters,
domestic foreign relations law, 47
embedded in different varieties of constitutionalism, 63
emergence of,
foreign affairs exceptionalism, 6
global administrative law as analytical approach to,
hybridity as effect of,
manifestation of exceptionalism, as, 6
nature and meaning of, , , 24
scholarly study of,
scope, sources and functions, struggles with,
foreign relations law and international law, 2, ,
close linkages between, 29
concurrent existence of, 4
emergence of foreign relations law and relationship to international law,
foreign relations law’s effects on international law,
guiding questions,
international law’s effects on foreign relations law,
missed encounters,
proceduralization of interface of international and domestic law,
foreign relations law as a bargaining tool,
between real risks and bargaining tool,
conditions for,
emergence of foreign relations law and relationship to international law,
impact of foreign relations law on treaty negotiations,
Obama administration and non-bindingness of climate mitigation commitments,
veto powers in treaty-making, 24
foreign relations law, nature of,
France
Constitution, 162, 300
amendments to, 165
International Criminal Court, and,
international treaties, and,
sovereignty,
monism, 109
primacy of international law, 109
referendums, 166
Supreme Courts, 162
Friendly Relations Declaration
human rights and fundamental freedoms, 368
Germany
constitution and international legal order, relationship between, 27
courts
controlling executive and legislative in foreign affairs,
rejecting doctrines of judicial abdication, 142
US armed drone missions, , , , 155
legislature supporting foreign policy approach of government, 44
participation in EU, executive decision-making and, 250
referendums, 149
state immunity, 13
Global Compact on Safe, Orderly and Regular Migration, 11
Harvard Research, 49
human rights
Beijing Declaration, 362
business, and,
Colombia, 74
domestic law, and, 47
European Union respect for fundamental rights,
Friendly Relations Declaration, 368
indigenous peoples, 75
Latin America, 74
migration, 11
promoting implementation by domestic parliaments, 3
hybridity
effect of foreign relations law, as,
hybrid character of foreign relations law, 24
hybrid foreign relations and state-owned enterprises,
hybridity of international and domestic law created by foreign relations law,
immunity
India
Constitution, 86, 88, 89
Article 51 and international law,
directive principles,
independence, 94
uti possidetis,
exclusion of foreign relations from judicial scrutiny,
Sikkim case,
Supreme Court and UN Charter,
executive, powers of,
foreign relations law,
concord of Western peoples, as,
Constitution and uti possidetis,
foreign relations, exclusion from judicial scrutiny of,
principles, policy and law of Supreme Court,
Goa, , 102
independence, 94
international law in Indian legal system, 23
judicial review,
executive actions, of, 98
Parliament, powers of,
Sikkim, 87,
sovereignty remaining an important principle, 98
Supreme Court, 23
Constitutional superiority, 87
dissenting judgments and opinions, 91
embedded common law and colonial continuity,
extradition of aliens,
international law, ,
political questions doctrine,
role and authority, 95
UN Charter,
uti possidetis,
treaty-making
role of executive, 44
individuals
consequences of international legal instruments for, 5
protection of individual rights, international law and, 6
subjects of international law, as, 10
informal instruments, 5,
informal instruments/law,
compliance-monitoring, 204
importance of informal instrument as criterion for democratic legitimacy,
informal international law superseding formal international law,
informal law-making complicating relationship between sovereignty and international cooperation, 181
‘legislative’ informal instruments, 205
nature of, 205
participants, nature of,
process, nature of, 209
rejection of,
states as just one actor, 208
transnational corporations, and, 200
treaties, and, 209
International Court of Justice, 348
heads of state to be presumed competent, 52
India, and,
state immunity, 13
International Criminal Court, 128, 234
discontent of some African states with, 125
French Constitution, and,
United States, and, 351
international environmental law
Montreal Protocol on Substances that Deplete the Ozone Layer, 337
no harm principle, 3
Vienna Convention for the Protection of the Ozone Layer, 337
international institutions and organizations, 3
far reaching implications of, 5
new states, and, 70
paying increasing attention to domestic procedures,
secondary law creating, 5
subjects of international law, as, 10
International Labor Organization
restricting withdrawal from treaties, 58
international law
armed drone missions, , , , 155
domestic constitutional principles, and, 6
European Union law, and, 172
expansion of,
far-reaching implications of, 5
international law as law,
nature and meaning of, 2,
new actors in, 181
populism, and,
privatization, 18
self-defence,
sources of, 5
states as main players in, 180
subjects of,
use of force
role of international law in domestic parliamentary discourse,
state decisions on use of force, implications for international law of,
international law and domestic law,
distinction between as doctrinal remnant, 5
distinction rooted in laws of treaties and state responsibility, 2
foreign relations law as bridge builder between, 29
foreign relations law as site of encounter, 4
hybridity of international and domestic law created by foreign relations law,
international law not deferring to domestic law, 47
proceduralization of interface between, , 14
role of domestic law, 8
states’ implementation of international legal obligations,
judicial review, foreign relations and global administrative law,
administrativisation of jurisdiction and juridification of foreign relations, ,
bringing together foreign relations law and global administrative law,
global administrative law as analytical approach to foreign relations law,
legal standards used on the merits,
standing,
struggles of foreign relations law with scope, sources, and functions,
taxonomy of global administrative law of foreign relations,
interaction norms,
review norms,
Lacharrière, Guy Ladreit de
background and experience,
La politique juridique extérieure,
assessment of,
consequences for international law,
elements in determining foreign legal policy,
foreign legal policy existing in relation to broader national interest,
foreign legal policy operating at interface of the domestic and international,
nature of,
primacy of foreign legal policy,
role and function of foreign policy law,
strength of analysis of,
Montreux Document, 209
national parliaments
authorisation of treaty-making,
earlier information about imminent foreign policy decisions, 18
implementation of secondary law, and, 5
parliamentary participation in foreign affairs, 14
state decisions on use force, implications for international law of,
use of force
role of international law in domestic parliamentary discourse,
use of force, involvement in decisions on,
no harm principle, 3
non-governmental organisations (NGOs), 181
Poland
authoritarianism, movement towards,
Constitution, 252
Constitution of 1997,
duality, 254
executive powers,
international law and separation of powers, and,
small Constitution of 1992,
Council of Ministers
predominance in foreign affairs,
separation of powers, President and,
division of competences in foreign relations law, 19,
Constitution, international law and separation of powers,
foreign relations, executive powers in,
Parliament’s activities in foreign relations,
executive powers in foreign relations,
Constitution of 1997 and rationally modified parliamentarianism,
constitutional conflict over Poland’s representation in European Council,
constitutional role of President in foreign affairs,
overlapping competences and duty to cooperate,
predominance of Council of Ministers in foreign affairs,
role of President in practice,
small Constitution of 1992 and separation of powers President/Council of Ministers,
Parliament’s activities in foreign relations,
control over Council of Ministers and Foreign Affairs Committee,
declaration of state of war, conclusion of peace and ratification of treaties,
EU affairs,
President
constitutional role in foreign affairs,
role in practice,
separation of powers, Council of Ministers, and,
referendums, 270
Portugal
India, and, , 102
postcolonialism
national liberation, 85
postcolonial constitutions allowing for nationalization of assets, 72
self-determination, 372
hyperglobalization, and, 359
India, Sikkim and, 102
International Covenants, in, 371
newly decolonized states, and, 119
peremptory norm in international law, as, 358
principle of international law, as,
UN Charter,
separation of powers, 10, 15, 65, 66, 83, 216
BiH,
distinctive feature of modern constitutionalism, as, 131
encompassing pushs and pulls, 83
foreign affairs, in, 23
withdrawal from treaties, 58
soft law, 5, 11, 352
demands for hard participatory rights for,
development of soft participatory rights for,
transnational corporations, soft law code of conduct for, 82
South Africa, 18,
Constitution, 149
Bill of Rights, 218
deliberative constitution, 217
foreign relations, 216
international law, and, 27
foreign relations, executive discretion in, ,
Democratic Alliance cases,
Kaunda granting very wide margin of discretion, 218
SADC Tribunal case,
Grace Mugabe case, 215,
legislature supporting foreign policy approach of government, 44
Mbeki administration, 219
Ramaphosa administration, 238
Von Abo cases,
sovereignty, 15, 65, 70
colonization, and, 70
concluding treaties as exercise of, 167
Conseil Constitutionnel jurisprudence. See Conseil Constitutionnel jurisprudence on limitations of sovereignty
economic self-determination, and, 70
economic sovereignty, 71
hybrid foreign relations and state-owned enterprises,
international tribunals, and, 361
liberal foreign relations law, in,
natural resources
foreign relations law, and,
UN Declaration on Permanent Sovereignty over Natural Resources, 68
parliamentary, 148
popular sovereignty, 66
populism and popular sovereignty, , 358
primacy of, 112
rebalancing sovereignty and property in foreign investment law,
self-determination, and, 181
state consent, 66
treaties, and, 17
war powers, 243
whether indivisible,
state responsibility, law of, 2
state-owned enterprises
constitutional rights of, 81
globalization of Chinese state-owned enterprises, 80
hybrid foreign relations, and,
property rights of, 81
sovereign immunity invoked by Chinese state-owned enterprises, 81
states
agreeing flexible non-binding instruments, 11
heads of state to be presumed competent, 52
impact of domestic politics on international negotiations,
international community (of states), as part of, 8
main players in international law, as, 180
not opting for binding international agreements, 11
regulatory autonomy, 5
role in extraterritorial protection of human rights against corporate misconduc,
state consent, 66
state immunity, 13
Switzerland
allocation of powers for treaty-making, democratisation and,
concept of parallelism in Switzerland,
far-reaching democratic participatory rights,
reaction to legalisation of world politics,
strong treaty focus,
Constitution, 183,
foreign policy, ,
horizontal separation of powers,
optional referendums,
parliamentary approval for specific treaties, 191,
vertical separation of powers,
democratic participation in international law-making, 18,
allocation of powers for treaty-making,democratisation and,
foreign relations, towards normalisation of,
informal international law-making,
foreign relations law,
allocation of powers on foreign policy,
nature of,
substantive guidance for conduct of foreign policy,
towards normalisaton of foreign relations,
whether exists,
informal international law-making,
challenges in building new bridges,
demands for hard participatory rights for soft law,
development of soft participatory rights for soft law,
informal international law superseding formal international law,
referendums, 194, 203, 207
granted if predefined criteria are met, 207
mandatory referendums, 192,
optional referendums, , ,
Supreme Court, 184
transboundary movements and effects
industrial sites, 3
transnational corporations, 63, 77
actors in international legal system, as, 10
changing attitudes towards, 63
collective participation rights, allowing, 84
colonization, and, 70
economic and political dominance of,
human rights, and,
indigenous peoples, and, 73
informal instruments, creating, 200
international law-making, and, 181
internationalizing corporate obligations, failure of, 82
nationalization of assets of, 72
quasi-sovereign status, human rights obligations and,
role of home states in extraterritorial protection of human rights against corporate misconduct,
soft-law code of conduct, 82
strong executive needed to confront, 71
UN Commission on Transnational Corporations, 82
Trans-Pacific-Partnership, 78
treaties, 180
Conseil Constitutionnel, role of. See Conseil Constitutionnel jurisprudence on limitations of sovereignty
domestic law regulating competence to consent to, 49
exercise of sovereignty, as, 167
foreign relations law, treaties dependent on, 46
full powers doctrine, 53
impact of foreign relations law on treaty negotiations,
informal agreements concluded by signature, 48
new actors excluded from formal international law-making, 11
notification of consent, 49
proliferation in,
ratification,
executive authority as incident of sovereignty, 48
legislative approval of treaties,
unilateral acts doctrine,
significant reduction in number of treaties,
source of international law, as, 5
sovereignty, and, 17
states as main actors in treaty-making, 208
veto powers in treaty-making, 24
violations,
widening scope of treaty-making, 48
withdrawal,
parliamentary rights to participate,
UN Security Council, 11, 248
Al-Qaeda, resolutions on, 153
military intervention
authorization as supplementary source of authority, 352
decreasing role in deciding on,
military intervention not authorised, 311
Suez crisis, 308
targeted sanctions, 5
use of force, failure to act in, 307
unilateral acts,
creating treaty obligations through, 351
international law being developed at domestic level, 316
unilateral acts doctrine
full powers doctrine for treaties, and, 53
use of force, 316
United Kingdom,
big tech companies, concerns about, 76
forum non conveniens doctrine,
proportionality,
referendums, 364
Supreme Court,
procedural requirements on foreign relations issue, 148
use of force, 19
failure of Security Council triggering domestication of decision-making, 307
implications for international law,
major military action requiring explicit parliamentary approval,
proportionality and necessity, , 316
role of international law in domestic parliamentary discourse,
role of MPs, ,
Suez crisis, 308
War Powers Convention, birth of,
who has power,
United States
American Law Institute, 26, 369
Restatement (Second) of Foreign Relations Law of the United States, 27
armed drone missions, , , , 155
China, 80
concerns about,
Huawei, 76
state-owned enterprises invoking sovereign immunity in US federal courts, 81
Constitution, 23, 25, 86, 346
absence of process-based requirements, 245
commerce, 242
international agreements,
treaty-making under,
uses of force, 241
foreign affairs, 6
foreign relations law, 109, 346
Byrd-Hagel Resolution, 38
constraining treaty-making, 24
development of, 26
distinguishing types of agreements,
history of, 7
manifestation of exceptionalism, as, 6
originating in United States, 61
human rights treaties, endorsing, 32
International Court of Justice, and, 348
International Criminal Court, and, 351
proportionality, 145
reasonableness, 151
sole executive agreements, , 39
Supreme Court, 23, 251
international agreements, 33
narrowing scope of act of state doctrine,
rejection of Chevron approach in foreign relations matters, 143
withdrawal from treaties, 41
use of force, 299
war on terror, 145
United States foreign relations law, checks on Presidential power in, 18,
erosion of scope-based constitutional checks on President’s foreign relations powers,
causes of rise in President’s powers, 243
President’s vast swathe of foreign affairs powers,
scope-based limits,
meaning of scope-based and process-based, 240
rise of process-based checks on Presidential power,
Presidential power in age of process-based checks, 242,
process-based checks grounded in interface with international law, 6,
process-based checks grounded in U.S. domestic law and practice,
scope of Presidential power,
scope, process, and comparative practice,
Vienna Convention on the Law of Treaties (VCLT), 47
Art 46, 29, 58
defect in state’s consent to be bound, 54
limited to internal law provisions on competence, 56
never successfully pleaded, 30
possibility of invalidity of international agreement, 2
security of treaty obligations, 57
Dayton Peace Agreement, 278
domestic law not justifying non-compliance with international obligations, 2
establishing international law constraint on foreign relations law,
international agreements, manifest violation of domestic provision and, 2
subsequent practice, , 229
successive treaties, rules on, 229
treaties applying throughout entire territory of parties, 353
unilateral acts, creating treaty obligations through, 351
withdrawal from treaties, ,
notice periods, 54
Open access