The Oxford Handbook of Comparative Foreign Relations Law最新文献_第3页

Foreign Affairs Federalism in the European Union 欧盟的联邦制

The Oxford Handbook of Comparative Foreign Relations Law Pub Date : 2019-06-26 DOI: 10.1093/OXFORDHB/9780190653330.013.19

R. Schütze

{"title":"Foreign Affairs Federalism in the European Union","authors":"R. Schütze","doi":"10.1093/OXFORDHB/9780190653330.013.19","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.19","url":null,"abstract":"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.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"46 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":"126066668","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}

引用次数: 2

South African Law on Immunities 《南非豁免法》

The Oxford Handbook of Comparative Foreign Relations Law Pub Date : 2019-06-26 DOI: 10.1093/oxfordhb/9780190653330.013.37

H. Strydom

引用次数: 0

Using Military Force and Engaging in Collective Security 使用军事力量和实行集体安全

The Oxford Handbook of Comparative Foreign Relations Law Pub Date : 2019-06-26 DOI: 10.1093/OXFORDHB/9780190653330.013.45

Mathias Forteau

{"title":"Using Military Force and Engaging in Collective Security","authors":"Mathias Forteau","doi":"10.1093/OXFORDHB/9780190653330.013.45","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.45","url":null,"abstract":"This chapter addresses France’s foreign relations law in relation to the use of force. It presents both domestic rules (in particular constitutional rules) that are applicable in France to the use of force abroad and France’s legal position as regards the permissible use of force under international law. As a permanent member of the United Nations (UN) Security Council, as a nuclear-weapon state, as a military power involved in many UN or other collective peacekeeping or antiterrorism operations, and as a state specially affected by international terrorism, France is particularly interested in the identification and development of international rules related to the use of force and collective security and has developed over time domestic rules governing activities of its military forces abroad as well as some doctrine on the use of force in the international sphere. As the chapter shows in particular, the decision to use force or to participate in collective security is, as a matter of principle, a decision that has to be taken in France by the executive branch. This being said, the Parliament has recently been granted some powers on the use of force, which vary depending on the nature of the operations concerned. On the other hand, there is no judicial control of the decision to use force. Besides, there is still no clear doctrine as regards the circumstances in which French authorities consider that the use of force can be resorted to under international law.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"80 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":"116306178","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}

引用次数: 0

International Agreements and U.S. Foreign Relations Law 国际协定和美国对外关系法

The Oxford Handbook of Comparative Foreign Relations Law Pub Date : 2019-06-26 DOI: 10.1093/OXFORDHB/9780190653330.013.9

J. Galbraith

{"title":"International Agreements and U.S. Foreign Relations Law","authors":"J. Galbraith","doi":"10.1093/OXFORDHB/9780190653330.013.9","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.9","url":null,"abstract":"Over its constitutional history, the United States has developed multiple ways of joining, implementing, and terminating treaties and other international commitments. This chapter provides an overview of the law governing these pathways and considers the extent to which comparative law has influenced them or could do so in the future. Focusing in particular on the making of international commitments, the chapter describes how, over time, the United States came to develop alternatives to the process set out in the U.S. Constitution’s Treaty Clause, which requires the approval of two-thirds of the Senate. These alternatives arose partly from reasons of administrative efficiency and partly from presidential interest in making important international commitments in situations where two-thirds of the Senate would be unobtainable. These alternatives have had the effect of considerably increasing the president’s constitutional power to make international commitments. Nonetheless, considerable constraints remain on presidential power in this context, with some of these constraints stemming from constitutional law and others from statutory, administrative, and international law. With respect to comparative law, the chapter observes that U.S. practice historically has been largely but not entirely self-contained. Looking ahead, comparative practice is unlikely to affect U.S. constitutional law with respect to international agreements, but it might hold insights for legislative or administrative reforms.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"90 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":"128383026","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}

引用次数: 0

The Domestic Application of International Law in British Courts 国际法在英国法院的国内适用

The Oxford Handbook of Comparative Foreign Relations Law Pub Date : 2019-06-26 DOI: 10.1093/OXFORDHB/9780190653330.013.27

Shaheed Fatima

{"title":"The Domestic Application of International Law in British Courts","authors":"Shaheed Fatima","doi":"10.1093/OXFORDHB/9780190653330.013.27","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.27","url":null,"abstract":"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.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"21 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":"132910108","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}

引用次数: 0

International Integration and its counter-Limits 国际一体化及其反限制

The Oxford Handbook of Comparative Foreign Relations Law Pub Date : 2019-06-26 DOI: 10.1093/OXFORDHB/9780190653330.013.23

Andreas L. Paulus, Jan-Henrik Hinselmann

{"title":"International Integration and its counter-Limits","authors":"Andreas L. Paulus, Jan-Henrik Hinselmann","doi":"10.1093/OXFORDHB/9780190653330.013.23","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.23","url":null,"abstract":"This chapter analyzes the German Basic Law as the epitome of Open Statehood. The constitutional openness for international integration rests on distinct provisions on supranational engagement going beyond regular treaty law. Thereby, the Basic Law seeks to overcome the supposed dichotomies between state sovereignty and international integration and between national democracy and international legality. Further, the Basic Law distinguishes European from classical international integration. In both instances, the German Bundestag increasingly claims the status as coequal branch. Parliament also has the power to unilaterally modify the domestic effect of treaties, albeit within constitutional limits. Yet, disengagement comes at the price of incurring international responsibility. In line with the principle of mutual respect, the Federal Constitutional Court has developed three doctrinal devices, so-called counter-limits, to integration, to accommodate the diverse multilayered decision-making processes of multilevel governance systems, namely, the effective protection of human rights Solange, constitutional control of ultra vires acts, and the absolute protection of constitutional identity. In this way, the constitutional judiciary buttresses the concept of Open Statehood by reconciling at times diverging interests of national democracy and international integration.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"184 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":"115492486","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}

引用次数: 0

International Immunities in U.S. Law 美国法律中的国际豁免

The Oxford Handbook of Comparative Foreign Relations Law Pub Date : 2019-06-26 DOI: 10.1093/oxfordhb/9780190653330.013.35

D. P. Stewart

{"title":"International Immunities in U.S. Law","authors":"D. P. Stewart","doi":"10.1093/oxfordhb/9780190653330.013.35","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190653330.013.35","url":null,"abstract":"This chapter describes domestic U.S. law governing the immunities of foreign states and governments, foreign heads of state and governments, diplomatic and consular officials, other official visitors, and international organizations from the jurisdiction of U.S. courts. A major focus is the Foreign Sovereign Immunities Act of 1976, which provides specific exceptions to immunity for a foreign state’s commercial activities, noncommercial torts, arbitral agreements and awards, expropriations of foreign property, and acts of state-sponsored terrorism (among others). As the chapter notes, these statutory exceptions have been the subject of extensive judicial interpretation. Similarly, the immunities of foreign officials (including accredited diplomats and consular officers, heads of state and government, and visiting officials of lesser rank) have evolved over time. The chapter also addresses the immunities of international organizations and their officers and employees located in the United States, as well as the representatives of member states to those organizations. As an aspect of foreign relations law, these issues frequently assume significant political as well as legal importance. Moreover, while they are common to many legal systems, national laws often differ in their specific approaches; accordingly, the chapter notes several areas of comparative interest. The chapter concludes with a brief assessment of future developments in U.S. law.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"61 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":"130220806","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}

引用次数: 0

Jurisdictional Immunities, Constitutional Values, and System Closures 司法豁免、宪法价值与制度封闭

The Oxford Handbook of Comparative Foreign Relations Law Pub Date : 2019-06-26 DOI: 10.1093/OXFORDHB/9780190653330.013.38

A. Bianchi

引用次数: 0

The Domestic Application of International Law in Canada 国际法在加拿大的国内适用

The Oxford Handbook of Comparative Foreign Relations Law Pub Date : 2019-06-26 DOI: 10.1093/OXFORDHB/9780190653330.013.28

Gib van Ert

{"title":"The Domestic Application of International Law in Canada","authors":"Gib van Ert","doi":"10.1093/OXFORDHB/9780190653330.013.28","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.28","url":null,"abstract":"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.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"3 2 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":"116765611","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}

引用次数: 2

A Comparative Foreign Relations Law Agenda 比较外交关系法议程

The Oxford Handbook of Comparative Foreign Relations Law Pub Date : 2019-06-26 DOI: 10.1093/OXFORDHB/9780190653330.013.5

Oona A. Hathaway

{"title":"A Comparative Foreign Relations Law Agenda","authors":"Oona A. Hathaway","doi":"10.1093/OXFORDHB/9780190653330.013.5","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190653330.013.5","url":null,"abstract":"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.","PeriodicalId":237106,"journal":{"name":"The Oxford Handbook of Comparative Foreign Relations Law","volume":"69 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":"121350546","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}

引用次数: 0