Treaty Exit and Intra-Branch Conflict at the Interface of International and Domestic Law

Oxford Handbook of Comparative Foreign Relations Law, Forthcoming

Duke Law School Public Law & Legal Theory Series 2018-12

18 Pages Posted: 10 Jan 2018 Last revised: 27 Jun 2018

See all articles by Laurence Helfer

Laurence Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Date Written: June 27, 2018

Abstract

This chapter, forthcoming in the Oxford Handbook of Comparative Foreign Relations Law, considers two important and unresolved issues raised by unilateral withdrawal from or denunciation of treaties. The first issue concerns whether treaty obligations end in both international and domestic law after a state leaves a treaty. Exit often produces the same effects in both legal systems, but some withdrawals bifurcate a treaty’s status, ending its obligations in domestic law but continuing to bind the state internationally, or vice versa. The second issue concerns denunciations initiated by different branches of government. The decision to withdraw from a treaty is usually carried out by the executive acting unilaterally. Less well known, but potentially more fraught from a foreign relations perspective, are instances in which the impetus for exit originates with legislators or judges.

Conflicts involving both dimensions of treaty exit stem from a common source – the different domestic and international rules governing how states enter into and leave treaties and the divergent policies that underlie those rules. The chapter develops a typology to categorize these conflicts, drawing upon examples of actual and potential treaty denunciations in several countries as well as actions by the executive, legislature, and judiciary that make such withdrawals more likely.

Keywords: international law, domestic law, treaties, treaty withdrawal, treaty denunciation, foreign relations law, exit

JEL Classification: K33

Suggested Citation

Helfer, Laurence, Treaty Exit and Intra-Branch Conflict at the Interface of International and Domestic Law (June 27, 2018). Oxford Handbook of Comparative Foreign Relations Law, Forthcoming; Duke Law School Public Law & Legal Theory Series 2018-12. Available at SSRN: https://ssrn.com/abstract=3099466

Laurence Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

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