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19 results

  • 16 - The Dynamic and Sometimes Uneasy Relationship Between Foreign Relations Law and International Law

  • from Final Reflections
  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp 343-354
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  • Summary

    The present volume contributes to the emerging field of comparative foreign relations law by focusing on how foreign relations law interacts with international law, a topic that has been underexplored in the literature. This concluding chapter reflects on the relationship between these two bodies of law, drawing on examples from this volume and also from The Oxford Handbook of Comparative Foreign Relations Law. It begins by offering a working definition of foreign relations law that is both analytically distinct from international law and useful for comparative analysis. It then explains how foreign relations law and international law have important and often under-appreciated effects on each other, sometimes in ways that are constructive and mutually reinforcing, but at other times in ways that produce potential conflict.

  • Copyright page

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp iv-iv
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  • Preface

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp xi-xii
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  • Table of Cases

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp xiii-xxiv
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  • Final Reflections

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp 341-372
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  • Part III - Powers and Processes

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp 213-340
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  • 1 - Introduction

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp 1-20
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  • Summary

    Like an interface, foreign relations law addresses multiple and diverse questions about how the ‘domestic’ relates to the ‘international’ sphere. This introductory chapter unfolds the idea of bridges and boundaries between foreign relations law and public international law and develops the guiding questions of the volume. It also reflects on missed encounters between the two fields and introduces the core concepts and the approach of the book. Finally, it exposes the overall structure of the book and summarizes the contents of individual chapters.

  • Abbreviations

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp xxv-xxviii
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  • Part II - Sovereignty and Cooperation

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp 159-212
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  • Contents

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp v-vii
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  • Index

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp 373-388
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  • Contributors

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp viii-x
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  • Part I - Identities and Interaction

  • Edited by Helmut Philipp Aust, Freie Universität Berlin, Thomas Kleinlein, Friedrich-Schiller-Universität, Jena, Germany
  • Book:
    Encounters between Foreign Relations Law and International Law
    Published online:
    20 May 2021
    Print publication:
    03 June 2021, pp 21-158
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Encounters between Foreign Relations Law and International Law
  • Bridges and Boundaries
  • Edited by Helmut Philipp Aust, Thomas Kleinlein
  • Published online:
    20 May 2021
    Print publication:
    03 June 2021
  • Foreign relations law and public international law are two closely related academic fields that tend to speak past each other. As this innovative volume shows, the two are closely interrelated and depend on each other for their mutual construction and identity. A better understanding of this relationship is of vital importance for upholding important constitutional values like democracy, the rule of law and the protection of human rights, while enabling states to engage in meaningful forms of international cooperation. The book takes a close look at the encounters between the two fields and offers perspectives for a constructive engagement between the two. Collectively, the contributions argue that the delimitation between the two fields occurs in a hybrid zone of interaction which requires both bridges and boundaries: bridges for the construction of the relationship between the two fields, and boundaries for preserving key normative expectations of both domestic and international law. This title is also available as Open Access on Cambridge Core.

  • Judicial Lawmaking by Judicial Restraint? The Potential of Balancing in International Economic Law

  • Thomas Kleinlein
  • Journal:
    German Law Journal / Volume 12 / Issue 5 / 01 May 2011
    Published online by Cambridge University Press:
    06 March 2019, pp. 1141-1174
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  • In the framework of this project, both the WTO dispute settlement system and international investment tribunals are portrayed as core actors in judicial lawmaking. By weaving international trade law and investment law on the roughly timbered looms of imperfect treaty law, they have proven to be successful creators of the fabrics of a world trade order and of investment protection standards, respectively. Such effective lawmaking, on the part of particular “regimes,” has the potential to increase the fragmentation of international law. Consequently, international judicial institutions are not only spotted as originators of fragmentation, but—as interpreters of international law—also as addressees of strategies in response presented in the 2006 Report of the ILC Study Group on Fragmentation. It is the Study Group's comforting message that a considerable part of the difficulties arising from the diversification and expansion of international law can be overcome by recourse to a “coherent legal-professional technique.” The Fragmentation Report highlights that conflict resolution and interpretation cannot be distinguished: “[w]hether there is a conflict and what can be done with prima facie conflicts depends on the way the relevant rules are interpreted.” According to the Report, coherence can be established by interpreting legal norms with due regard to their normative environment.

  • 10 - Constructive Consensus and Domestic Democracy

  • from Part II - Appraising European Consensus
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 210-235

  • Summary

    This chapter analyses the legitimacy dimension of the European Court of Human Rights’ (ECtHR’s) consensus method. It pays particular attention to cases in which consensus established by a progressive Court is rather ‘constructive’. The argument relies on two models of legitimation developed by legal scholars specifically for the democratic legitimation of international and domestic courts, a ‘formal model’ and a ‘control model’. These models also provide an explanation for significant patterns identified in the ECtHR’s case law. In a number of cases, in which European consensus plays a decisive role in the Court’s reasoning, the ECtHR also refers to procedural criteria in order to determine the range of the margin of appreciation. The chapter argues that European consensus and a procedural approach to the margin of appreciation complement each other. A combined legitimation strategy, comprising European consensus and a procedural approach to the margin of appreciation opens up spaces for democratic contestation and deliberation. However, shaping its partners in a constitutional dialogue in order to increase its own legitimacy is certainly a bold move by the Court, and not without practical and normative problems.

  • THE PROCEDURAL APPROACH OF THE EUROPEAN COURT OF HUMAN RIGHTS: BETWEEN SUBSIDIARITY AND DYNAMIC EVOLUTION

  • Thomas Kleinlein
  • Journal:
    International & Comparative Law Quarterly / Volume 68 / Issue 1 / January 2019
    Published online by Cambridge University Press:
    28 January 2019, pp. 91-110
    Print publication:
    January 2019
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  • This article explores how a procedural approach in the case law of the ECtHR combines subsidiarity and progressive development of international obligations. Rather than constituting a simple retreat from substantive commitments, it renders the obligations of Conventions States more flexible and has the potential to enhance the democratic legitimacy of the Court's rulings. This article first sets out various aspects of proceduralization in international human rights law. This is followed by a discussion of how procedural approaches are linked to subsidiarity. In the case law of the ECtHR, procedural approaches facilitate dynamic evolution, both in the practice of Convention States (analytic or bottom-up approach) or by the Court itself (constructive or top-down approach). This interaction of the procedural approach and arguments based on European Consensus allows the ECtHR and domestic institutions to fulfil their ‘shared responsibility’ for the effective protection of human rights in Europe.