Treaty Self-Execution as 'Foreign' Foreign Relations Law?
Forthcoming in The Oxford Handbook of Comparative Foreign Relations Law (Curtis A. Bradley ed.)
20 Pages Posted: 9 Aug 2018 Last revised: 12 Sep 2018
Date Written: July 12, 2018
This contribution to the Oxford Handbook on Comparative Foreign Relations Law considers how a state’s approach to foreign relations problems may have an external origin, or what we call “foreign” Foreign Relations Law (FFRL). Using the distinction between self-executing and non-self-executing treaties as a case study, we find close parallels between manifestations of this distinction in various states and how it evolved in the United States, where the distinction was first articulated. The chapter explores whether these parallels reflect the distinction’s transplantation from one legal system to another or the organic development of similar doctrines to address similar problems within the states involved. The chapter then addresses the utility of differentiating the exogenous/endogenous origins of particular foreign relations doctrines. We argue that consideration of a doctrine’s exogenous origins raises questions that can deepen and develop the nascent field of comparative foreign relations law. Why do states accept (or reject) FFRL? How does FFRL enter a state’s system? Who is doing the transporting? What happens to FFRL in its new site(s) – i.e., how static or dynamic does the concept prove in different settings? Further research on such questions may, in turn, set the table for more normative questions such as when states should seek (or resist) the importation of foreign relations law.
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