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Constitutions and Foreign Relations Law: The Dynamics of Substitutes and Complements

  • Tom Ginsburg (a1)
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National constitutions are central to the field of foreign relations law, which is defined by Curtis Bradley in his essay as “the domestic law of each nation that governs how that nation interacts with the rest of the world.” In this contribution to the symposium, I wish to explore the relation between foreign relations law and national constitutions, arguing that a “foreign relations lens” helps elucidate an underappreciated core purpose of these foundational texts. Next, I want to show how the shifting boundaries of constitutions serve to allocate lawmaking authority, emphasizing the substitution between international and domestic norms. Finally, I offer a comparative constitutional perspective on foreign relations law, laying out an agenda for future work in the area.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Curtis A. Bradley, Foreign Relations Law as a Field of Study, 111 AJIL Unbound 344 (2017).

2 Dorothy Carrington, The Corsican Constitution of Pasquale Paoli (1755–1769), 88 English Hist. Rev. 481, 485–86 (1973).

3 The Federalist No. 75 (Alexander Hamilton).

4 1791 Konstytucja preamble (Pol.).

5 Data on file with author from Comparative Constitutions Project.

6 Tom Ginsburg et al., Writing Rights (forthcoming 2018).

8 Laurence Helfer, Exiting Treaties, 91 Va. L. Rev. 1579 (2005).

9 Data on file with author from Comparative Constitutions Project.

10 See, e.g., Bundes-Verfassungsgesetz [B-VG] [Constitution] BGBl No. 1/1930, as last amended by Bundesverfassungsgesetz [BVG] BGBl No. 138/2017, art. 9.1 (Austria) (“The generally recognized rules of international law are regarded as integral parts of Federal law.”).

11 Data on file with author from Comparative Constitutions Project.

12 See, e.g., 2010 Constituição da República de Angola [Constitution], art. 12. (“The Republic of Angola shall respect and implement the principles of the United Nations Charter and the Charter of the Organisation of African Unity.”) and art. 26 (“Constitutional and legal precepts relating to fundamental rights must be interpreted and incorporated in accordance with the Universal Declaration of the Rights of Man, the African Charter on the Rights of Man and Peoples and international treaties on the subject ratified by the Republic of Angola.”).

13 Tom Ginsburg, Chaining the Dogs of War: Comparative Data, 15 Chi. J. Int'l L. 139 (2014).

14 Id.

15 50 U.S.C. 1541–48 (1973).

16 Ginsburg, supra note 13, at 151.

17 2011 Constitution art. 101 (S. Sudan).

18 Tom Ginsburg, War and Constitutional Design (manuscript) (suggesting that the answer is yes).

19 Eli Salzberger & Stefan Voigt, Choosing Not to Choose: When Politicians Choose to Delegate Powers, 55 Kyklos 281 (2002).

20 Missouri v. Holland, 252 U.S. 416 (1920).

21 Daniel Abebe & Aziz Z. Huq, Foreign Affairs Federalism: A Revisionist Approach, 66 Vand. L. Rev. 723 (2013); Michael J. Glennon & Robert D. Sloane, Foreign Affairs Federalism: The Myth of National Exclusivity (2016).

22 Rachel Brewster, The Domestic Origins of International Agreements, 44 Va. J. Int'l L. 501 (2004).

24 Pierre-Hugues Verdier & Mila Versteeg, International Law in National Legal Systems: An Empirical Investigation, 109 AJIL 514 (2015).

An expanded version of this essay will be published as a chapter in the forthcoming The Oxford Handbook of Comparative Foreign Relations Law.

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AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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