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This essay offers a working definition of “foreign relations law,” describes its various sources, and distinguishes it from international law. It also provides some comparative illustrations of this law and notes some reasons for both commonalities and differences in this law across national jurisdictions. Finally, it discusses the growing emergence of foreign relations law as a field of study outside the United States.
EU external relations law is a doubly peculiar field of scholarship that has attracted significant scholarly attention over the last several decades. It is both part of EU law—considered a “new legal order” distinct from international law—and it is concerned with the European Union as a global actor, a “strange animal” in that the EU is neither a state nor a classical international organization.
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.
This essay draws upon the perspectives, concepts, and tools developed in the literature on global constitutionalism as support for “normalizing” foreign relations law—that is, presumptively subjecting foreign relations actions to the constitutional and other legal standards that apply to domestic actions.
Curtis Bradley has observed that, apart from in the United States, foreign relations law generally has not been treated as a separate academic field, but that this situation is starting to change. This observation can also find evidence in China. In March 2016, I hosted a conference on “Chinese Foreign Relations Law: A New Agenda” at Xiamen University School of Law, where I am a faculty member. This is the first conference engaging with this field in China. Also in 2016, a Chinese professor of private international law published the first article discussing Chinese foreign relations law in a general way, the main argument of which is that foreign relations law should be a component of the “rule of law” in China.