The Oxford Handbook of Comparative Foreign Relations Law最新文献

{"title":"Executive Power in Foreign Affairs","authors":"Alejandro Rodiles","doi":"10.1093/OXFORDHB/9780190653330.013.7","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.7","url":null,"abstract":"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.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121894813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Engagement and Disengagement with International Institutions","authors":"P. Craig","doi":"10.1093/OXFORDHB/9780190653330.013.22","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.22","url":null,"abstract":"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.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122154178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"State Engagement with Treaties","authors":"Hannah Woolaver","doi":"10.1093/OXFORDHB/9780190653330.013.24","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.24","url":null,"abstract":"This chapter explores the interaction between domestic and international law in relation to the state’s engagement with treaties. Treaty engagements are important mechanisms through which states conduct their foreign relations. The domestic allocation of responsibility for the making and unmaking of treaties is therefore a significant question of the constitutional separation of powers in the realm of foreign relations law. Treaties are also international legal instruments, facilitating the development of international law and international institutions. The domestic and international law of treaties therefore both concurrently regulate the state’s power to join and leave treaties. This chapter examines the relationship between these two bodies of law in this regard, setting out developments in domestic jurisdictions establishing constitutional limits on the executive’s power to enter and exit treaties, and addresses the possible impact of these constitutional developments in the international law of treaties.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128353515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Federalism and Foreign Affairs in India","authors":"Anamika Asthana, Happymoon Jacob","doi":"10.1093/OXFORDHB/9780190653330.013.18","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.18","url":null,"abstract":"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.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123728925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Techniques for Regulating Military Force","authors":"Monica Hakimi","doi":"10.1093/OXFORDHB/9780190653330.013.41","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.41","url":null,"abstract":"This chapter draws on the five chapters that follow—each of which describes the war powers in a single country—to identify and analyze some of the techniques for regulating this area of foreign affairs and then to reflect on the value of comparative research on it. Three basic techniques are: (1) to establish substantive standards on when the government may or may not use force, (2) to divide among different branches of government the authority to deploy the country’s armed forces, and (3) to subject such decisions to oversight or review. There is considerable variation, both across countries and over time within particular countries, in how and with what effect each technique is used. Given that variation, comparative war powers research might be of limited relevance to national officials who make use of force decisions or to analysts who seek to explain them. Rather, the principal benefit of such research might be to bring into stark relief each country’s own national ethos—to shed light on how it defines itself and conceives of its relationship with the rest of the world","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115777585","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Decisions in Japan to use Military Force or Participate in Multinational Peacekeeping Operations","authors":"Tadashi Mori","doi":"10.1093/OXFORDHB/9780190653330.013.46","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.46","url":null,"abstract":"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.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114562704","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Foreign Affairs Federalism in Switzerland","authors":"R. Portmann","doi":"10.1093/OXFORDHB/9780190653330.013.17","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.17","url":null,"abstract":"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.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122237014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International law in Japanese Courts","authors":"Hiromichi Matsuda","doi":"10.1093/OXFORDHB/9780190653330.013.30","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.30","url":null,"abstract":"This chapter examines international law in Japanese courts in the context of separation of powers, treaty-making procedure, and transnational judicial dialogue under the Japanese Constitution. It analyzes international law in Japanese courts in the following four categories: (1) constitutional review of international law; (2) judicial application of international law; (3) consistent interpretation of statutory and constitutional law with international law; and (4) reliance on persuasive authority in constitutional interpretation. Although Japanese courts are reluctant to use international law as binding law, the Supreme Court of Japan recently began actively referring to foreign and international sources as persuasive authorities. Because of the practice of “implementing-legislation-perfectionism” and the relative lack of democratic legitimacy of international law, Japanese courts will probably continue to take a restrictive approach toward applying binding international norms. In contrast, the Supreme Court of Japan is expressing a positive attitude toward transnational dialogue. Japanese courts will probably expand and enhance transnational judicial dialogue in and out of the courtroom. This chapter concludes that Japanese courts have the potential to be one of the interesting benchmarks for whether any existing “global community of courts” can really be global and universal.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116633652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Immunities in English Law","authors":"P. Webb","doi":"10.1093/OXFORDHB/9780190653330.013.36","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.36","url":null,"abstract":"This chapter sets out the approach of the courts of England and Wales (English courts) to the immunities of states, foreign officials, and international organizations. It discusses similarities with and differences from other jurisdictions, with a focus on the United States as the other key influence in the development of the restrictive doctrine of state immunity. The United Kingdom has engaged in incremental development of the law on immunity as compared to the more sui generis developments in the North America and the activist approach driven by domestic constitutional norms or universal jurisdiction legislation in continental Europe. The United Kingdom State Immunity Act, underpinned by four decades of interpretation and practice, can be said to represent a middle ground in the evolving landscape of immunity.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"520 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134432142","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Incorporation and Implementation of Treaties in South Korea","authors":"Jaemin Lee","doi":"10.1093/OXFORDHB/9780190653330.013.13","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.13","url":null,"abstract":"This chapter explains South Korea’s approach to incorporating and implementing treaties within its domestic legal system. The chapter begins by explaining the hierarchy of the legal system in Korea with specific reference to where treaties stand in the system. Treaties duly concluded automatically become part of the domestic law under the monistic approach adopted by the Korean Constitution. More specifically, the prevailing view in Korea is that treaties ratified with the consent of the National Assembly are deemed to have the same legal status as acts or statutes. Simplified treaties without ratification proceedings, hence without legislative consent, are considered to have the status of presidential decrees or enforcement decrees under acts or statutes. Due to the increasing interaction between treaties and municipal law, recent South Korean court cases attempt to clarify other outstanding legal issues, such as the distinction between self-executing and non-self-executing treaties, and the scope of individual persons’ claims under treaties. It is expected that more challenges will be raised in the executive branch and the legislature as well as the judiciary as domestic stakeholders are increasingly affected by a myriad of treaties, in particular free trade agreements and international investment agreements. Having realized the direct impact from treaties, domestic interest groups are now keen to provide their observations and views during negotiations and to scrutinize the implementing legislation of the government after the conclusion. Thus, while the constitutional framework of treaty conclusion has remained largely the same since 1948, the domestic legal and political landscapes for treaty negotiation, conclusion, and implementation are undergoing significant changes.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"586 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123136229","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}