I Introduction

To perceive foreign relations law as a self-standing academic subfield, perspective or theme which enlightens our understanding of the linkages between national and international law is a rather novel phenomenon.Footnote ¹ In most jurisdictions an academic tradition of foreign relations law as a separate field or theme does not exist. Issues of foreign relations law such as the separation of powers in foreign affairs or the integration of international law into the domestic order are often either discussed in treatises of constitutional or international law, or in both. For instance, not only the Oxford Handbook of the Indian Constitution contains a chapter on the case law of the Indian Supreme Court dealing with the status of international law in the Indian legal systemFootnote ² but also the edited volume Comparative International Law includes a contribution addressing how the Indian Supreme Court integrates human rights law into the domestic order.Footnote ³ Moreover, if, like in the United States, a foreign relations law tradition exists, the norms of the US Constitution and the case law of the Supreme Court which relate to foreign affairs are often taught and analyzed by scholars who teach and write on international and domestic (constitutional) law.Footnote ⁴ As the editors of this volume rightly emphasize, foreign relations law thus concerns the relationship between domestic (constitutional) law and international law. The hybrid character of foreign relations law invites us to ponder about the repercussions of domestic (constitutional) law for international law and vice versa.Footnote ⁵

This contribution attempts to shed some light onto the issue of the place of foreign relations law and the bridges and boundaries it builds between constitutional and international law. It starts by studying the emergence of foreign relations law in various jurisdictions and its relationship to domestic (constitutional) law and international law. It argues that foreign relations law is best understood as a subfield or theme of domestic (constitutional) law with close linkages to international law.

But seeing the locus of foreign relations law in the domestic is only the starting point for a broader engagement with its effects on international law and vice versa. In general, the separation of foreign relations law from international law should not make us blind for studying the interlinkages and impacts of the respective fields on each other. For instance, the study of the informal and contextual influence of foreign relations law on international treaty-making seems to be worthwhile.

Therefore, this contribution analyzes one aspect of the informal use of foreign relations law in relation to international law: it discusses the possibility to rely on domestic foreign relations law as a bargaining tool in international negotiations to persuade the other negotiating parties of one’s own perspective. Domestic foreign relations law might shape the negotiation process and limit possible outcomes if one actor successfully flags a certain negotiating outcome as leading to nonparticipation because of domestic veto powers. If the historic role of veto powers in treaty-making makes the threat of nonparticipation credible, the other negotiating parties might be tempted to give in and sign onto the other side’s negotiating goal.

In particular, I study the evolution of the bargaining position of the United States in relation to the Paris Agreement on climate change and its connection to US foreign relations law. In the debate about the Paris Agreement, the Obama administration highlighted that the domestic constitutional rules on treaty-making call for negotiating a treaty with nonbinding provisions on climate change mitigation. Notably, the US delegation successfully stopped the adoption of a pre-negotiated final document containing language which sounded like binding commitments on climate mitigation by pointing to its foreign relations law. As I demonstrate, US foreign relations law indeed places considerable constraints on executive treaty-making without involvement of the Senate or Congress. The history of the discussions on the United Nations Framework Convention on Climate Change and the Kyoto Protocol shows that various actors regarded Senate involvement for treaties concerning climate change mitigation as obligatory.Footnote ⁶ However, it is also important to be aware of the ambivalence of the foreign relations law on the matter and the restraint of US courts to judicialize foreign affairs. Arguably, the Obama administration did not exhaust interpretations of its foreign relations law allowing more binding-sounding language on climate mitigation because the negotiating team itself was not eager to commit to binding language.Footnote ⁷ US negotiators also favored nonbinding commitments on climate mitigation for developed countries because they intended to prevent a scheme differentiating between developed and developing countries.Footnote ⁸ In this sense, US foreign relations law became the bargaining tool which limited the space of potential negotiating outcomes on the international plane and allowed the Obama administration to achieve the result it wanted. Even though foreign relations law can unfold this power only under very specific circumstances, the example demonstrates the potential effects of domestic constitutional design for the international legal structure.

II The Emergence of Foreign Relations Law and its Relationship to International Law

The design of the constitutional rules addressing foreign affairs has always been an important issue during the constitution-making processes in constitutional democracies. Building on enlightenment philosophers like John Locke,Footnote ⁹ the founding fathers of the US Constitution debated how to allocate the competences between the branches of government in foreign affairs and the role of international treaty and customary law in the domestic legal order.Footnote ¹⁰ In the British public law tradition, William Blackstone and Albert Venn Dicey contributed to an understanding of foreign affairs law as an area of executive dominance and discretion by highlighting the powers of the Crown.Footnote ¹¹ Also, in the constitution-making processes of the nineteenth century, the emerging constitutional democracies opted for different models concerning the allocation of the foreign affairs power.Footnote ¹²

The legal sciences, however, did not start to become systematically interested in issues of foreign relations law until the early twentieth century. In the United States, Quincy Wright’s 1922 study on The Control of American Foreign Relations set the tone for the US debate on the constitutional implications for foreign affairs.Footnote ¹³ His discussion of the enforcement of international law in domestic courts and the powers of the President and Congress on international treaty-making and implementation, is still today regarded as an important predecessor of the contemporary debate in the United States.Footnote ¹⁴ One year later, Ernst Wolgast published his in-depth analysis of the ‘Foreign Power’ (Auswärtige Gewalt) of the German Reich addressing similar issues for the Weimar constitutional system.Footnote ¹⁵

After the Second World War, the topic continued to stay relevant in particular in the US debate. During the 1940s, the increasing international engagement of the United States led to the emergence of congressional-executive agreements in constitutional practice causing a scholarly boom on the topic.Footnote ¹⁶ The term ‘foreign relations law’ developed to distinguish a separate field of study from international law and constitutional law stricto sensu analyzing the separation of powers in foreign affairs, the integration of international law in the US legal system and the international law applicable to the United States.Footnote ¹⁷ In 1965, the American Law Institute published the Restatement (Second) of Foreign Relations Law of the United States with a focus on these topics and thus contributed to the successful establishment of the theme as a disparate scholarly field.Footnote ¹⁸ Around thirty years later, the scholarly consensus on issues of foreign affairs which had been enshrined in the 1987 Restatement (Third) of Foreign Relations Law of the United States with Louis Henkin as Chief Rapporteur was put into question.Footnote ¹⁹ Some scholars challenged assumptions about the internationalization of the US legal system and triggered a flood of positive and hostile reactions in scholarship.Footnote ²⁰

In other constitutional democracies, the relationship between the constitution and the international legal order has also been a popular topic of academic debates. For instance, in 1954, Western German public law professors debated the division of competences between parliament and the executive in foreign affairs as well as between the federal and state level shaping the constitutional practice of the young German Federal Republic for years to come.Footnote ²¹ Moreover, Klaus Vogel’s 1964 programmatic essay on the internationalization of German constitutional law became a common reference point for future generations of scholars.Footnote ²² The recent establishment of Staatsrecht III as a distinct class of the constitutional law curriculum then triggered a substantial increase in publications on the topic.Footnote ²³ In South Africa, the constitution-making in the 1990s spurred a debate about the relationship of the post-apartheid Constitution with international law.Footnote ²⁴ The theme is frequently taken up in reaction to international law-friendly judgments of South African courts.Footnote ²⁵ Also, the foreign relations law of supranational entities like the European Union now receives academic attention.Footnote ²⁶ Even though the understanding that foreign relations law is a separate field in the legal sciences is rather the exception than the rule in constitutional democracies, scholarly attention has clearly been growing.

Furthermore, a recent comparative turn sparked the interest in foreign relations law in various jurisdictions. In 2011, Campbell McLachlan’s study of foreign relations law in various Commonwealth states became a key building block for the scholarly field or theme.Footnote ²⁷ Also, the various chapters on manifold jurisdiction in the 2019 Oxford Handbook on Comparative Foreign Relations Law illustrate the rising scholarly interest.Footnote ²⁸

The maturation of foreign relations law as a disparate scholarly field or theme is accompanied by debates about its definition, place and function. In particular, various authors address the tricky relationship of foreign relations law to constitutional law and international law. The editor of the Oxford Handbook, Curtis Bradley, defines foreign relations law as ‘the domestic law of each nation that governs how that nation interacts with the rest of the world’.Footnote ²⁹ For him, the theme encompasses the allocation of authority on the vertical and horizontal level of a state and the role of international law before domestic courts, but not ‘“pure” questions’ of international law.Footnote ³⁰ Similarly, in the Max Planck Encyclopedia of Comparative Constitutional Law, Helmut Aust regards the separation of powers in foreign affairs, the rights of the individual when foreign relations are affected and the relationship between foreign affairs and democracy as key themes of foreign affairs law in the constitutional state.Footnote ³¹ Thomas Giegerich stresses in his contribution for the Max Planck Encyclopedia of Public International Law that ‘[a]lthough the foreign relations law forms that part of internal law which is most closely interlinked with international law, it remains internal law’. For him, ‘there is not one worldwide foreign relations law but there are many, however, that share certain common principles’.Footnote ³² Moreover, when foreign relations law is distinguished from related subfields like comparative international law, its domestic dimension is emphasized. As Anthea Roberts, Paul Stephan, Pierre-Hugues Verdier and Mila Versteeg stress, comparative foreign relations law examines ‘the rules, institutions, and practices in different states with respect to how that state conducts relations with foreign states and other actors’, whereas comparative international law assesses the different national and regional approaches to and applications of international law.Footnote ³³

Despite the grounding in domestic (constitutional) law, foreign relations law scholars are well aware of the links to international law. For some, international law is even part of foreign affairs law. In the US tradition, treatises of foreign relations law often contain chapters on the international legal rules relevant for the United States. According to Restatement the Third, foreign relations law draws its sources both from international law as applicable to the relevant state and national law, in particular constitutional law, governing that state’s foreign relations.Footnote ³⁴ Therefore, Louis Henkin situates the subject of foreign affairs law as a scholarly endeavor ‘somewhere between the constitutional lawyer and the international lawyer’.Footnote ³⁵ Similarly, Campbell McLachlan emphasizes that foreign relations law sits at the ‘interface of international and municipal law’ allocating jurisdiction between domestic or international courts and determining the division of competences between the three branches.Footnote ³⁶

The connections between international law and foreign relations law are manifold indeed, even if one assumes that foreign relations law is a subfield of domestic (constitutional) law in the respective jurisdictions and separate from international law. Doctrinal conjunctions as in article 46 VCLTFootnote ³⁷ and as in the opening clauses of many constitutions (for instance article 51 c of the Indian Constitution; section 39 (1b) of the South African Constitution) are evidence for the close interlinkages. In some sense, foreign relations law is the bridge builder between domestic law and international law.

III Foreign Relations Law As a Bargaining Tool?

Besides these doctrinal interconnections, an indirect and informal nexus between foreign relations law and international law exists. For instance, the domestic rules on treaty-making may shape how certain states negotiate international treaties and may have a substantial impact on the substantive content of a treaty. These contextual and informal linkages between foreign relations law and international law become evident when foreign relations law is used as a bargaining tool in international negotiations.

Theoretically, the possible usage of foreign relations law as a bargaining tool has been alluded to already at the end of the 1980s. The political scientist Robert Putnam is well-known for his two-level game theory in which he assesses the impact of domestic politics on international negotiations.Footnote ³⁸ On the basis of a study of G7 summits, Putnam demonstrates how domestic interest groups affect the positions of the respective national governments in negotiations on the international level.Footnote ³⁹ In passing, Putnam suggests a promising negotiating strategy which links domestic politics with the international negotiations. A delegation should try to convince the other negotiating parties that its suggested draft will certainly be ratified in its own national legal system while a draft more favorable to the opponent will fail in the domestic ratification procedure.Footnote ⁴⁰ Putnam thus theoretically preconceives how foreign relations law could be used as a bargaining tool in international relations. A government should point to the risk of a potential veto from a domestic actor on an agreement which is in the general interest of all negotiating partners. If the government can make a credible claim that its domestic laws enable an actor to block the ratification and that the domestic actor is skeptical of the treaty arrangement, the other negotiating parties interested in collective participation in the treaty regime might accept the government’s suggested draft as the only possible compromise.

Empirically, the impact of foreign relations law on international treaty negotiations is however not obvious. Because article 46 VCLT has never been successfully pleaded before an international court,Footnote ⁴¹ the domestic constitutional design does not seem to have major relevance for the legality of a treaty on the international level. Moreover, even if one assumes that negotiating partners are concerned about the prospects of ratification by the respective opposite side, it is hard to assess the credibility of the argument about foreign relations law. Competing accounts about the exact contours of a domestic foreign relations law in a particular country make the assessment of limits for domestic ratification rather challenging.Footnote ⁴² Also, one has to touch unstable ground by making assumptions about future actions in the domestic ratification processes and envisaging a certain behavior by parliamentary veto players.

Nonetheless, this contribution argues that there exists some evidence that Putnam’s envisioned strategy played a role in the context of the Paris climate change negotiations. The Obama administration successfully talked other states into adopting the US negotiating position on nonbinding commitments for climate change mitigation by pointing to its foreign relations law and potential veto players in the domestic context. Given the history of the UNFCCC and Kyoto negotiations, the Obama administration’s argument about the necessity of senatorial involvement for subscribing to binding mitigation commitments was credible. However, this contribution also points to the ambivalences of US foreign relations law and highlights the reluctance of the US courts to weigh into foreign affairs. Against this background, the Obama administration arguably opted for a risk averse strategy when it comes to the nonbinding legal character of climate mitigation commitments because this was in line with another US negotiating goal to prevent a scheme which differentiates between developed and developing countries.

IV Conclusion

This contribution demonstrates that under specific circumstances, domestic foreign relations law might have a substantial impact on international negotiations by narrowing the space for achievable outcomes.

In the international discussions on the Paris Agreement, the US treaty-making procedure and potential veto players on the domestic level were the elephant in the room. Because the negotiating partners of the US feared that they would not get the United States on board if the Senate or Congress were involved in the domestic decision-making process, they accepted the Obama administration’s insistence on nonbinding commitments for climate change mitigation. This does not mean that the Obama administration tricked its negotiating partners when referring to domestic constraints as an argument for replacing the ‘shall’ in article 4 (4) of the Paris Agreement with the ‘should’. Given the history of nonratification of international climate treaties in the United States and the debate about binding commitments in the context of the UNFCCC, the necessity of congressional involvement for an agreement containing binding targets and timetables is plausible. Also, the risk of nonratification by the Senate and Congress was credible because of the Republican majorities in the parliamentary bodies.

However, it is important to point to the ambiguity of US foreign relations law on the matter and the reluctance of the US Supreme Court to judicialize foreign affairs. It seems not very likely that US courts would have decided on the treaty-making process in relation to the Paris Agreement even if the final version contained the ‘shall’ in article 4 (4). The Obama administration arguably opted for a risk-averse strategy when insisting on incorporating the ‘should’ in article 4 (4) of the Paris Agreement.

A potential reason for this strategy was that the Obama administration was interested in nonbinding commitments on climate change mitigation itself. Because the administration regarded equal treatment of developed and developing countries as a key negotiating goal, the US negotiators were not willing to accept a phrasing which distinguishes between a ‘shall’ for developed countries and a ‘should’ for developing countries. In this sense, foreign relations law provided a welcome argument as a bargaining tool to convince the negotiating partners to adopt the US position.

As this example shows, the potential use of foreign relations law as a bargaining tool is limited to very specific circumstances. It seems that a state can rely on its foreign relations law as a bargaining tool if two conditions are fulfilled. First, the participation of the state in a multilateral treaty is in the interest of all other potential treaty parties because the treaty enshrines a goal which can only be achieved in a cooperative spirit. Second, the state needs to credibly claim that a veto power in its domestic setting will prevent the ratification of the treaty if the treaty does not contain provisions with the preferred outcome for the state.

The first criterion is more likely to apply to powerful states than to weaker states. Other parties probably are more interested in having China, India and the US on board as partners in a multilateral treaty regime than other small states. This is particularly true when the treaty addresses an issue to which bigger states contribute more than others. For instance, the US seems to be in a beneficial negotiating position in the climate change context because the participation of the world’s second strongest emitter seems to be highly important for the success of the treaty’s objectives.

The second criterion limits the use of foreign relations law as a bargaining tool to actors with a certain reputation. Given that the US Senate is widely perceived as the ‘graveyard’ or ‘cold storage’ for international treaties, the US seems to be the most likely actor to apply this negotiating strategy. In contrast, most states lack a veto player as strong as the Senate with a long history of nonratification of international treaties which makes the claim of potential nonratification credible. For instance, in India the executive alone decides which treaties it will conclude without involving parliament. In parliamentary systems like South Africa or Germany, the legislature most of the time supports the foreign policy approach of the government and approves negotiated treaties without much debate. Thus, the National Assembly and Bundestag are highly unlikely to act as a veto power.

However, also other states might point to constitutional constraints when they push for enshrining a certain rule in a treaty. It is telling that in the context of debates about how to respond to the Eurozone crisis in 2012, the head of the International Monetary Fund, Christine Lagarde, threatened to leave the room if she would hear ‘Bundesverfassungsgericht’ one more time.Footnote ¹⁰⁵ Apparently, Lagarde dismissed the argument by sceptics of the European rescue policies that a potential judgment by the German Constitutional Court might constrain the space for decision-making. Even though this example does not refer to the negotiation strategy of a state in international treaty negotiations, it demonstrates that constitutional limits might well become an argument in supra- and international debates, also outside of the US context.

Be it as it may, the Trump administration’s actions in relation to the Paris Agreement are a far cry from using foreign relations law in international negotiations. The Trump administration signalled its intention to withdraw from the Paris Agreement in June 2017 and set in motion the year-long exiting process in November 2019.Footnote ¹⁰⁶ Instead of influencing international negotiations with reference to domestic constraints, the Trump administration counts on its oil- and coal-friendly ‘America First’ policy.

However, it is interesting to see that the debate about the contours of foreign relations law also had repercussions for the withdrawal decision. When President Donald Trump renounced the Paris Agreement, he referred to ‘serious legal and constitutional issues’ since ‘[f]oreign leaders in Europe, Asia, and across the world should not have more to say with respect to the U.S. economy than our own citizens and their elected representatives’ alluding to the noninvolvement of Congress.Footnote ¹⁰⁷ Even though every international treaty regime might, in the view of nationalists, introduce potential elements of influence of ‘foreign’ actors and raise ‘constitutional issues’, this might be particularly worrying if Congress has not been involved in the treaty-making in the first place. Moreover, the Obama administration’s decision not to involve Congress also influenced the withdrawal decision more indirectly. Trump’s decision to leave without involving Congress was hardly questioned on foreign relations law grounds. Since the Paris Agreement had been concluded as an executive agreement, most scholars agree that the executive alone could withdraw from the agreement.Footnote ¹⁰⁸ While US foreign relations law shaped the outcome of the Paris climate negotiations by limiting the space of potential outcomes, it did not constrain the executive decision-making process on the domestic level in the context of the withdrawal.

I Ratification

Treaty law long accorded conclusive significance to treaty ratification by executives as an incident of the sovereign power of monarchs – passed along, naturally, to those with full powers to act on the sovereign’s behalf.Footnote ⁹ This was challenged by two developments. First, beginning by the mid-nineteenth century, a practice emerged in which states adopted constitutional provisions that required legislative approval of treaties. That tendency continues largely unabated today; the subjects encompassed by such provisions have often been expanded, along with the widening scope of treaty-making generally, and there has even been an uptick in supermajority requirements.Footnote ¹⁰ Second, agreements became more varied and often more informal, resulting in many that arguably did not require approval by traditional, treaty-oriented mechanisms.Footnote ¹¹ The first development meant that ratification was transformed from a formal and infrequent act by which sovereigns confirmed, as a matter of obligation, that their representatives had been authorized to reach agreement, into a legislative referendum on the underlying merits of the agreement. But the second development meant that ratification might sometimes be dispensed with altogether, and agreements concluded based on signature alone.Footnote ¹²

The significance for the law of treaties was hotly contested, including as to whether the violation of a state’s constitutional requirement of legislative approval affected whether a nonconforming treaty nonetheless bound the state under international law. Most agreed that domestic law regulated competence to consent to treaties and (often distinctly) governed competence to notify that consent to other states. But the consequences when consent had been notified by a state official competent to that role – notwithstanding the absence of valid consent under domestic law – were unsettled, and occasioned a diverse range of views that flourished from the interwar period through the drafting of the VCLT.Footnote ¹³

At one end of the spectrum, some suggested that international law treated notification by a competent notifying official as conclusive, either as a matter of dogma or based on a state’s responsibility to make good the acts of its officials. At the other extreme, some regarded constitutional law as being conclusive as to both the domestic and international effectiveness of consent. In the middle were those who regarded constitutional deficiencies as potentially bearing on international efficacy, but varying as to when.Footnote ¹⁴ The Harvard Research study, after extensive canvassing of publicists, state practice and jurisprudence, decided – almost arbitrarily – to recommend codifying that ‘[a] State is not bound by a treaty made on its behalf by an organ or authority not competent under its law to conclude the treaty’, but that a nonbound state might then be responsible for the reasonable reliance of others on its prior representations.Footnote ¹⁵ Under this approach, international law deferred to foreign relations law, but ameliorated any adverse effect on other states through a liability rule.

The matter was revisited by the International Law Commission (ILC) in drafting the VCLT. Initially, the ILC’s view was similar to that of Harvard Research: for a treaty to be binding on a state, it had to be adopted ‘in accordance with its constitutional law and practice through an organ competent for that purpose’.Footnote ¹⁶ Then it reversed course. The ILC’s next proposal stressed state autonomy and self-help: states could always, if they chose, negotiate ratification terms that accommodated domestic processes, seek collateral arrangements, caveat their signatures, qualify full powers or improve disclosures to other states during negotiations.Footnote ¹⁷ If, despite these options, states behaved internationally in ways that were incompatible with their domestic constitutions, the proposal would be less forgiving. The draft precluded a state from invalidating its consent by invoking the violation of ‘a provision of its internal law regarding competence to conclude treaties’ unless that violation was ‘manifest’.Footnote ¹⁸ This was later enhanced, in Article 46 of the VCLT, to define what ‘manifest’ meant – signifying a violation that would be ‘objectively evident’ to any state acting normally and in good faith – and to require that the violation also concern ‘a rule of its internal law of fundamental importance’.Footnote ¹⁹

The ILC took commentary and practice to lean, slightly, in favor of its resolution, and noted support from governments. But its conclusion also had a normative underpinning. In its view, recent treaty-making procedures had ‘done all that can be reasonably demanded … in the way of taking account of each other’s constitutional requirements’. Moreover, in most cases, states invoking the failure to abide by constitutional requirements had other motives for attempting to escape their obligations, and indulging them would threaten the security of treaty obligations.Footnote ²⁰

The VCLT thus wound up contributing to an important divide. Treaty law ceded to each state ‘the determination of the organs and procedures by which its will to conclude treaties is formed’, concerning itself ‘exclusively with the external manifestations of this will on the international plane’ – meaning that the international-law determination of whether a state’s agent was competent to commit the state largely superseded, for international purposes, any other constitutional delicts. In principle, as the ILC explained, each government ‘had the necessary means of controlling the acts of its representative and of giving effect to any constitutional requirements’, and perhaps making any failings ‘the clear responsibility of the Government of the State concerned’ was more feasible. Any other approach, it suggested, ‘would certainly be regarded as an inadmissible interference’ in another state’s internal affairs, particularly those that followed more dualistic approaches to the relationship between international and domestic law.Footnote ²¹

This was not the only possible international rule, even by the ILC’s lights. And every approach the ILC considered, not just the one it ultimately adopted, allowed states to work around the default by developing treaty practices that respected both constitutional requirements and the conclusion of treaties.Footnote ²² Unsurprisingly, though, the default it adopted was urged by governments: in practical terms, the executive representatives of governments, who were also the rule’s beneficiaries. These representatives would retain primary authority over any workarounds that treaty negotiations might yield. More basically, the VCLT rule established an international-law constraint on foreign relations law. A state’s representatives, rather than the state as a whole, would be entrusted (absent extraordinary circumstances) with exclusive responsibility for determining whether a state had complied with its constitutional rules, irrespective of whether those rules vested them with such responsibility or purposefully divided domestic treaty-making authority. Even in the event of manifest violations, it would ordinarily fall to those same representatives to invoke any transgression – one made through themselves or other executive-branch agents – unless the domestic legislature or some third party developed standing to do so.

There was never any illusion that this would permit the vindication of constitutional norms, even those expressed by laws regarding competence to enter into treaties. There had already been well-known instances in which Luxembourg and Argentina had acceded to the League of Nations despite violations of provisions in their constitutions requiring parliamentary approval – though there was room for disagreement as to whether these violations had been ignored as merely domestic matters or whether tacit parliamentary approvals might be surmised from their funding of League participation.Footnote ²³ The ILC itself emphasized the exceptional nature of manifest violations, and even that other states had never acquiesced in attempts to invoke such violations.Footnote ²⁴

Subsequent assessments, and subsequent practice, only vindicate its assessment. The governments of major powers have rebuffed criticisms that they ignored the obligation to secure legislative assent, without any apparent effect on their international obligations.Footnote ²⁵ Most prominently, the International Court of Justice rejected Nigeria’s contention that a bilateral declaration with Cameroon was nonbinding because the Nigerian constitution at the time required approval of its Supreme Military Council; while the provision was of ‘fundamental importance’ under Article 46, it was not sufficiently ‘manifest’, including in part because heads of state could be presumed competent.Footnote ²⁶ A later judgment was to much the same effect, and made clear that – even though the Somali Parliament had rejected an agreement, making relatively prominent its potential authority under domestic law – that mattered little when the Prime Minister of Somalia failed to question its validity in later interactions on the international plane.Footnote ²⁷

It is possible that the rise in legislative authority at the national level might shape international expectations and make deviations sufficiently apparent to register as manifest, though the trend has yet to have any such effect; perhaps the nascent project on comparative foreign relations law will even assist by illuminating pertinent commonalities and differences.Footnote ²⁸ It is unlikely, in any case, that the basic rule will be reconsidered. If anything, parallel developments suggest similar biases toward the creation of international obligations and against means by which they might be subverted. The unilateral acts doctrine, per the ILC’s Guiding Principles of 2006, likewise indicates that while ‘[a] unilateral declaration binds the State internationally only if it is made by an authority vested with the power to do so’, necessarily ‘[b]y virtue of their functions, heads of State, heads of Government and ministers for foreign affairs are competent to formulate such declarations’.Footnote ²⁹

The emerging unilateral acts doctrine seems to be of a piece with the full powers doctrine for treaties and, more broadly, the executive capacity assumed for traditional sources of international law, insofar as it also encourages the stability of international commitments.Footnote ³⁰ Still, this assignment of responsibility – like treaties, to a limited class of officials, without regard to what a state’s foreign relations law provides – lacks the same compelling need to find an agreeable means of concluding a principal source of international law, and lacks any explicit exception for manifest violations. Interestingly, the Guiding Principles also inhibit the ‘arbitrary’ revocation of such commitments, with potential parallels for treaties.Footnote ³¹ Some governments were discontent with this exercise, but it seems to have been due primarily to the difficulty of establishing general principles – and, perhaps, the risk that they would be regarded as binding their states unintentionally – and not the risk of making international law by means that were inconsistent with domestic law.Footnote ³² The basic calculation is unsurprising. A sufficiently deliberate capacity would appeal to the political actors that may make use of it, executive officials, who might have less regard to the loss in authority suffered by others. If consulted, national legislatures might be more inclined to regard the emerging doctrine as creating a new rival to treaty-making by participative means.

II Withdrawal

International law’s attitude toward the domestic law regarding withdrawal from treaties is less concrete – but as a matter of inference, at least as indifferent. The VCLT allows a state to withdraw by consent or in conformity with a treaty’s terms, or if the parties so intended or treaty’s nature so implies.Footnote ³³ Additional provisions address notice and subsequent withdrawal for cause.Footnote ³⁴

The ILC, in drafting the VCLT, noted that withdrawal serves as a safeguard when a state’s consent to a treaty violates its constitutional principles.Footnote ³⁵ Accordingly, ‘a defect in [the state’s] consent to be bound’ – presumably, such as would satisfy Article 46 – is one of the grounds that may be invoked and notified to other states parties.Footnote ³⁶ But nothing addresses whether there might be any ‘manifest’ or other constitutional violation related to the act of withdrawal itself – that is, addressing whether a state’s invocation of some basis for withdrawal (or comparable act) might itself be impeached on the basis of a constitutional violation.Footnote ³⁷ The VCLT incorporates notice periods, at least as defaults, presumably for the benefit of other states parties,Footnote ³⁸ and allows the notifying state to withdraw such notice or instrument before it takes effect – including, one expects, on the basis of a constitutional violation.Footnote ³⁹ But the practical significance is elusive. The timing in which a state can change its mind is a serious constraint.Footnote ⁴⁰ In any event, the decision appears confided to the discretion of executive-branch officials, exactly as one might expect.Footnote ⁴¹ The result, as Hannah Woolaver has observed, is that ‘in contrast to international law powers to join treaties, the authority of the executive to withdraw the state from treaties in Article 67 of the VCLT is, prima facie, absolute in international law, unlimited by any checks that may exist in domestic law’.Footnote ⁴²

This withdrawal regime now faces challenges reminiscent of those once confronted by ratification. States are slowly retreating from the practice by which the executive is entitled to withdraw unilaterally from treaties, instead adopting new provisions that require parliamentary approval.Footnote ⁴³ During the same period, multilateral and even bilateral treaty-making has seen a pronounced slowdown,Footnote ⁴⁴ augmented (at least in the short term) by withdrawals and similar attempts at disengagement.Footnote ⁴⁵ The result is that formal constitutional revision has been accompanied by high-profile instances in which executive-led attempts at withdrawal, like the United Kingdom’s initial attempts to withdraw from the European Union and South Africa’s (initial?) attempt to withdraw from the International Criminal Court, were slowed by judicial decisions that recognized for the first time parliamentary rights to participate in exit from certain types of treaties.Footnote ⁴⁶

Despite the evolution of foreign relations law, there is no evident movement to develop international law. As with ratification, international law effectively regards executive determinations, in notifying a state’s will, as exhausting treaty law’s deference to domestic law, leaving any potential legislative role to be enforced solely through a state’s own legal processes. This has clear appeal, both internationally and domestically, in instances where national requirements are as yet uncertain. But where national requirements are well defined, it remains troublingly clear that foreign relations law is not self-enforcing. For a number of actual or potential withdrawals – including those by the United States, a frequent flyer of sorts – justiciability principles are likely to limit the capacity of courts.Footnote ⁴⁷ Even where courts are willing and ostensibly able, any domestic principle will be difficult to apply prior to a unilateral executive notice taking effect as a matter of international law.

The readiest solution would be to infer an analogous exemption for manifest violations in the withdrawal context to match that for ratification.Footnote ⁴⁸ However, that is difficult as a matter of treaty interpretation. Article 46 is plainly limited to ‘provisions of internal law regarding competence to conclude treaties’; that heads of government and comparable officials are elsewhere given authority to perform ‘any other act with respect to a treaty’ offers no textual basis for concluding that one of those acts, withdrawal, must also be constrained in the event of manifest violations.Footnote ⁴⁹ Indications in the travaux préparatoires are mixed or negative.Footnote ⁵⁰ That state practice did not support any such principle as a matter of customary international law – as Woolaver, a strong but judicious advocate for this interpretation, acknowledgesFootnote ⁵¹ – further undermines any basis for attributing such intention to the states agreeing to the VCLT, and the lack of supportive state practice since suggests that it would be unreasonable to find any grounding in subsequent treaty practice.

To be sure, teleological or policy arguments for comparable treatment are appealing, including that the security of treaty obligations – one of the objectives of Article 46, including in limiting its exception to manifest violations only – is arguably hindered by the lack of any exception for constitutional violations regarding withdrawal, since that permits too-easy disengagement.Footnote ⁵² Necessarily, too, the backstops are different: while withdrawal serves as a safeguard for uncorrected constitutional violations concerning ratification, re-ratification is needed to cure withdrawal in violation of domestic law, and that tends to be more cumbersome as a matter of domestic and international procedure. Finally, it may be possible to muster additional arguments for cross-applying Article 46 and its manifest violation standard. For example, one might argue that states appearing to have withdrawn might revoke a prior notification on the ground that the relevant instrument did not ‘take effect’ under Article 68 if it manifestly violated a constitutional requirement of legislative participation.Footnote ⁵³ No matter the precise basis, however, any such exemption would be doctrinally tenuous and narrow in its potential application.Footnote ⁵⁴ It remains extremely unlikely that this would change so long as the manifest violation standard serves as a catchall for redressing other, potentially unknown, constitutional violations as well.

What else might be engineered? If treaty law is to be progressively developed – or, with great difficulty, interpreted on the basis of Article 46 or otherwise – states and treaty depositories might adopt the assumption that a withdrawal must satisfy the same separation-of-powers procedures by which the state approved consent, as an international-law embodiment of the acte contraire doctrine. That is quite vulnerable as a general principle, given the actual discrepancy in many states between domestic laws regarding legislative approvals of ratification and withdrawal.Footnote ⁵⁵ But the severity of any such rule may also be tempered. A state might overcome any such assumption by explaining its contrary (or still indeterminate) domestic principle. And the consequence – if a discrepancy was observed and remained unexplained, but withdrawal could still be approved in reasonable time – might not be to render the initial attempt invalid, thereby sustaining the full-fledged obligation, but instead to establish in the interim an obligation simply to abide by the treaty’s object and purpose.Footnote ⁵⁶ Still less dramatically, governments declaring withdrawal might be required by depositories or other states simply to disclose their authority and its compatibility with constitutional requirements – which might at least have the effect of making sufficiently ‘manifest’ any violations of a requirement to secure legislative approval.

Other solutions involve bearing possible constitutional restraints in mind while negotiating withdrawal clauses in particular treaties. The easiest lift is to restrict any immediate effect of a notice or instrument of withdrawal – for example, by restricting when withdrawal may first be effectuated, as is typical for International Labor Organization agreements, and evidenced in the Berne Convention and the Paris AgreementFootnote ⁵⁷ – so as to permit legislative or judicial intervention in the case of a potentially unlawful, unilateral executive measure. More particularly, a treaty’s withdrawal clause might require the disclosure of authority mentioned above, following the precedent of clauses that obligate withdrawing states to accompany their notices with explanations.Footnote ⁵⁸

III Conclusion

Foreign relations lawyers looking beyond their jurisdictions will naturally focus on any directly comparable national systems, but they should also consider the impact of international law on their discipline. First, international law not only provides opportunities for domestic actors that may be in tension with domestic principles, but also establishes rules that constrain foreign relations law. Second, while those rules of international law intend to respect ratification developments, they also guarantee that (in most circumstances) only constitutional rules assigning authority to the executive to communicate state decisions regarding ratification or withdrawal will be respected. As a result, these international rules have not adequately taken into account developments in legislative authority. Third, none of this is inevitable. In developing a comparative approach to foreign relations law, experts should not overlook the degree to which the effectiveness of domestic norms require attention to internationally established conditions.

I Taking Global Comparison Seriously

Nine months before his death in a US-backed military coup, Chilean President Salvador Allende delivered an acclaimed speech to the UN General Assembly that must have been electrifying. As he concluded, the packed Assembly hall erupted into enthusiastic applause and shouts of ‘Viva Allende!’.Footnote ¹ Allende’s 1972 speech marked an important rallying cry in the Third World’s mobilization against a global economic order dominated by industrialized countries and Western multinational corporations.Footnote ² Defending the nationalization of US-owned copper and telecommunications firms, Allende declared that ‘[o]ur economy could no longer tolerate the state of subordination implied in the concentration of more than 80 per cent of its exports in the hands of a small group of large, foreign companies.’Footnote ³ He mounted a spirited attack against multinational corporations’ economic ‘aggression’ and ‘imperialist intervention’ into Chile’s political affairs. Conscious that he was expressing a grievance shared by many developing countries, Allende concluded: ‘We are witnessing a pitched battle between the great transnational corporations and sovereign States … In a word, the entire political structure of the world is being undermined.’Footnote ⁴ Allende’s apprehension was no leftist paranoia: in 1973, he was ousted and died in a coup that was supported by the CIA and US-corporate interests and ushered in Augusto Pinochet’s military dictatorship.Footnote ⁵ Beyond this extreme case, empirical research attests not only to the economic leverage of multinationals over many developing countries but also to the eminently political role transnational corporations have played in many Southern nations.Footnote ⁶

Allende’s speech is typically seen as a milestone towards a New International Economic Order in international law.Footnote ⁷ Beyond that, however, the Allende story also offers a different perspective on foreign relations law: one that is shaped by the postcolonial contexts and historical experiences of countries at the periphery of the global political economy. This perspective thus differs from conceptions of foreign relations law that developed in liberal democracies at the center of geopolitical gravity. If foreign relations law is to take global comparison seriously, it needs to take into account this peripheral perspective. Doing so not only pluralizes comparative foreign relations law and thus makes it more representative. It might also help us understand contemporary transformations of foreign relations law in Western liberal democracies, as these legal orders become less centric and more peripheral in a new multipolar geopolitical context.

Extant literature in foreign relations law is shaped by liberal perspectives from the center. As a field of study, foreign relations law is commonly thought to have originated in the peculiar context of the United States, shaped as much by its federal and presidential system as by its geopolitical centrality and dominance.Footnote ⁸ Most recent treatments of foreign relations law focus on one single legal order or compare a small number of ‘Western’ liberal democracies, typically the US, the UK, Germany or the European Union.Footnote ⁹ This state of affairs carries the risk, as Helmut Aust has put it, ‘to fall into the trap of a self-referential, liberal, and Western mindset which takes discussions in a few jurisdictions of the “Global North” as being representative of the broader global picture’.Footnote ¹⁰

This chapter does not address this problem by adding new legal material from the Global South to the existing comparative framework. Rather, the aim is to uncover and pluralize the theoretical assumptions and epistemic foundations of the existing comparative framework. This endeavor can draw on a longstanding critique of the epistemic limitations of traditional comparative law and on the emerging literature on a constitutionalism of the Global South.Footnote ¹¹ Two desiderata emerge from this literature, one methodological and one epistemic: methodologically, a global comparison requires not only a more representative case selection but also increased attention to the heterogenous historical, political-economic and legal-cultural contexts that shape the meaning and function of foreign relations law in both North and South.Footnote ¹² Foreign relations law is not simply a national reflection of universal international principles but remains deeply embedded in different varieties of constitutionalism, including non-liberal variants.Footnote ¹³ Epistemically, the challenge is thus to go beyond mere addition and to question, provincialize and pluralize the theoretical concepts and epistemic categories that prestructure the comparative inquiry.Footnote ¹⁴ Comparatists need to make explicit the underlying assumptions that define and structure foreign relations law as a field of study and to empirically test, rather than implicitly presuppose, their universal validity beyond Western liberal democracy.

This chapter pursues this approach in two steps. Section II contrasts two ideal-typical perspectives on foreign relations law, a liberal one from the center and a postcolonial one from the periphery. These perspectives differ in their approach to epistemic structure, normative functions and legal subjects of foreign relations law. These differences come into sharp relief in the legal treatment of transnational corporations, whose sociolegal reality questions categorical distinctions between international and national, political and economic, state and individual. For the purposes of this chapter, I take Salvador Allende’s speech to be illustrative of this particular peripheral perspective, which was however widely shared at the time by many Third World nations and whose legacy lives on in contemporary varieties of constitutionalism in the Global South. Section III goes further and argues that the peripheral perspective is not exclusive to an essentialized ‘South’ but has increasing resonance and heuristic value in the ‘North’, as it highlights contemporary transformations in liberal-democratic foreign relations law. Again, these transformations can be studied through the changing attitudes towards transnational corporations, which represent one possible avenue for future comparative research. Section IV concludes with some thoughts on the possibilities and limits of drawing lessons from historical and global comparisons.

II Two Perspectives on Foreign Relations Law: From Centre to Periphery

This following section develops and contrasts two perspectives on foreign relations law, the liberal one from the center (subsection A), and the postcolonial one from the periphery (subsection B). These should be prefaced with three caveats: firstly, they are ideal-typical perspectives that do not neatly map onto the actual law of any particular state, nor are they representative of the entire ‘Global North’ or ‘South’. Rather, the aim is to contrast different contexts, ideological formations and epistemic structures and to offer alternative ways of thinking about foreign relations law. Secondly, ideological and epistemic difference does not hamper ‘comparability’ but has heuristic value precisely in uncovering implicit assumptions and teaching us as much about the self than the other. Thirdly, contrasting the two perspectives does not, at this stage, imply a normative judgment on which is the ‘better’ view. Normatively speaking, the peripheral view does not require abandoning questions about, and a commitment to, democracy, separation of powers and individual rights typically asked in liberal foreign relations law; but it commands a pluralized and contextualized understanding of these concepts.

III Contemporary Trends: Is Foreign Relations Law Becoming More Peripheral?

The following section begins by sketching the changing context which gives the peripheral perspective increasing resonance across the North-South-divide (subsection A). Against this background, it seeks to illustrate the heuristic value of peripheral research perspectives, which shed light on three contemporary trends in foreign relations law (subsection B): the rebalancing of the relationship between property and sovereignty in investment law; the hybridization of foreign relations through state-owned enterprises; and attempts at limiting private corporate power, or quasi-sovereignty, in debates about business and human rights.

IV Conclusion

Peripheral legal ideas are not exclusive to an essentialized ‘Global South’ but are present in legal history, heterodox thinking and contemporary legal transformations across the North-South divide. In foreign relations law, peripheral ideas are often located at the margins of, or outside, a field of study defined by a liberal perspective from the center. A peripheral perspective brings these questions into sharper focus, and it offers different answers contingent on differing geopolitical positions and epistemic foundations. This raises the question of whether there are any lessons to be learned from experiences of the periphery for our normative evaluation of present-day challenges across the North-South divide.

That question must be denied if one assumes a view of history and time that follows a liberal narrative of progress and a singular conception of modernity: The West is ahead, everyone else is catching up. If one accepts, instead, the idea of multiple modernities and nonlinear historical evolution, one may see the history of Southern countries as an inspiration – and as a warning.Footnote ⁹⁰ One ironic aspect of the recent backlash against internationalism are the curious echoes of anticolonial nationalism in the language of populist nationalism – for instance, in Brexit proponents’ appeals to national liberation and to individual sacrifice as necessary for achieving this goal.Footnote ⁹¹ These echoes are reason enough to recall postcolonial critiques of ‘national liberation’, which left unresolved the question of who would govern the nation once liberated, and who would do the sacrificing. Franz Fanon warned of the pitfalls of ‘national consciousness’, seeing within the liberation movements a group of bourgeois leaders who ‘mobilize the people with slogans of independence, and for the rest leave it to future events’ and are committed only to a ‘mission [that] has nothing to do with transforming the nation; it consists, prosaically, of being the transmission line between the nation and capitalism’.Footnote ⁹²

I Introduction

Could an Indian judge, as the purveyor of the common law coming from England to India, too, identify a duty to apply Indian ‘foreign relations law’ (FRL), if any? Could the judge also assert that the questions of ‘foreign affairs’ arising before Indian courts ought to have Indian law answers? After acknowledging the presence of an established FRL in England, the British High Court in the Muffakham Jah case notably found for Pakistan ‘a foreign relations law’ but a ‘constitutional law’ for India.Footnote ² We will do well to remember that while Britain does not have a written constitution, United States has one of the world’s shortest written constitutions.Footnote ³ Contrarily, the Constitution of India is the postcolonial world’s most detailed text. Needless to say, the Constitution is a significant lens with which to identify the possibility, or not, of an FRL within the law of the land.

In what follows, Section II investigates the origins of FRL that appears to reinforce, in the words of the Commonwealthian D.P. O’Connell, the ‘essential unity of all European legal structures’ that is ‘founded on the moral concord of Western peoples’.Footnote ⁴ It concludes that the FRL scholars practice a convenient overlooking of the colonial history of the common law. Section III studies the significance Indian Constitution attaches to the international law of states and that of state and peoples and aliens. Since the Indian Constitution does not break free by design from common law, the Indian judges use the Constitution as well as common law to harmonise international law with Indian law. Section IV investigates how the Indian Supreme Court excludes foreign relations from judicial scrutiny. An outcome of this investigation is the fidelity of the Supreme Court to British case laws over the American precedents in its first two decades.Footnote ⁵ Section V discusses the Supreme Court’s reading of India’s postcolonial territory under the uti possidetis lens of international law. The study of uti possidetis for India is significant in that the Supreme Court has created a balance between a fractured reception of territory from the British and the postcolonial government’s reception of territory within the Constitution. Indeed, the President of India has from time to time sought the Court’s opinion on the executive’s power of exchange of territory and cession, like with regard to Pakistan, or the Court has examined the welcoming of new territories, like Sikkim, into the Union of India. Such questions from the executive have allowed the Indian Supreme Court to affirm its Constitutional superiority with deference to the competence of the executive in territorial matters while reading international law in harmony with, what I call, a ‘postcolonial common law’. Section VI concludes.

II FRL As the ‘Concord of Western Peoples’: The Commonwealth and Colonialism

III The Indian Supreme Court between Principles, Policy and the Law

Part 5, chapter 4 of the Indian Constitution talks about ‘the Union judiciary’. The Supreme Court of India currently comprises of a Chief Justice and thirty other judges appointed by the President of India.Footnote ²² Under article 143(1) the President has the powers to seek the opinion of the Court about ‘a question of law or fact’ which is of ‘public importance’. The Court ‘as it thinks fit, report[s] to the President its opinion’. Article 144 mandates that ‘All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court’. Very importantly, under article 145(5) of the Constitution:

The Indian Constitution in providing for the possibility of ‘delivering a dissenting judgment or opinion’ seeks to balance the majority rule principle of judicial decision-making with the constitutional mandate for judicial idiosyncrasy of separate and dissenting opinions. It bears reminding that this constitutional mandate for dissent has allowed the Indian judges to save India's democratic and secular fabric from the blades of the past and the present authoritarian governments.

IV Exclusion of Foreign Relations from Judicial Scrutiny

Foreign relations remain excluded from the purview of the Court thereby depositing it into the domain of ‘policy’ and, consequently, excommunicating it from the province of the law. The actual power of the executive and its primary competence in the field of international affairs suggest that sovereignty remains an important principle. Other common law jurisdictions would not be very different. Prime Minister Nehru, Thiruvengadam says, ‘was an ardent champion of judicial review and independence’ but at the same time he firmly ‘believed that it was Parliament and the government of the day which would have the final say on policy decisions’.Footnote ⁴⁷ And under ‘our jurisprudence’, Nariman reminds, ‘a law can be enacted by the Parliament or state legislature but generally it comes into effect only when brought into force by a notification of the Government’.Footnote ⁴⁸ Needless to add, foreign relations stand excluded from judicial scrutiny in India even as the executive could stall law-implementation on the technical ground of non-notification.

The only way ‘foreign relations’ as a policy could be brought within the pale of the law is by adjudging the extent of a possible judicial review of the executive actions. I discuss below, in subsection IV.A, the Court’s reading of the UN Charter. Finally, this section studies the ‘political thicket’ question examined by the Indian Supreme Court in the Sikkim case.

V The Indian Constitution and Uti Possidetis

The Indian Constitution doubtless gives the law that the Indian Supreme Court applies. The taking and giving of territory by India too is governed by the Constitution. Territory as defined in the Montevideo Convention is central to the existence of a modern state.Footnote ⁷⁰ Add to that the doctrine of uti possidetis that instructs former colonies to keep territories and honour boundaries they have received from their colonial masters. But the uti possidetis principle needed a reading by the postcolonial Supreme Court since the colonial masters had defeated in India – by slicing British India into two states – this principle. The new post-colonies bordering India, here Pakistan, went into a further break-up of its territories, creating new sovereign boundaries. This geopolitical situation led India to a constitutive (through the Indian Constitution) and a declaratory (by the executive) re-perfecting of its uti possidetis in the way discussed below.

VI Conclusion

The ‘decisions of the Privy Council’, as Fali Nariman reminds us, ‘are called “opinions” because they are in the form of advice to the English Monarch’ while the decisions of the House of Lords were known as ‘speeches’.Footnote ⁸³ Nehru had accepted Sir BN Rau’s formulae to stay within the Commonwealth as a ‘Republic’ without recognising the British Monarch’s moral, legal or political authority.Footnote ⁸⁴ Should the British ‘opinions’ to the Monarch and ‘speeches’ in the House of Lords pre-cast in common law become ‘applicable law’ in India after 1950? Purshottam Tricumdass, counsel in Mithibarwala, had suggested that the Indian Supreme Court ‘discard the theory of public international law that underlies the decisions of the Privy Council’ in favour of ‘the more rational, just and human doctrine’ of the ‘American decisions’. His ‘thesis’, in the words of Justice Ayyangar, ‘was that the doctrines evolved by the Privy Council were conditioned by Britain being an Imperialist and expansionist power at the date when they originated and were applied’ and that ‘these might have been suited to the regime of a colonial power’ alone.Footnote ⁸⁵

In exporting FRL, scholars from common law states seemingly exhibit a lack of sensitivity for the history of common law in British colonies. But for colonialism, common law surely could not have visited India or the other British colonies. The countries that did not suffer British colonialism chose the continental law without exception!Footnote ⁸⁶ In fact for Nariman ‘common law’ is not so much a ‘law’ as it is a ‘unique method of administering justice’ or, might I add, injustice. After centuries of the reception of the British common law, FRL as a new call to collapse public international law with domestic law appears an innocuous innovation only because, as noted before, the FRL scholars overlook the colonial history of common law that jurist Nariman as well as economic historians Acemoglu, Johnson and Robinson point at.

In order to ossify the native sovereignty, the nineteenth century British colonial scholars had argued for an imperial law that was neither international law nor domestic law. Sitting in a post-colony like India, transnational law and FRL appear twins divided by time. In the twenty-first century, FRL scholars argue for a composite ‘doctrine derived from public international law, private international law and municipal English law’.Footnote ⁸⁷ An uncritical growth of FRL happens solely because such an ‘Anglo-commonwealth’ FRL does not yet recognise law, common law or civil law, of the geographical South as worthy of export. India has gone on a borrowing binge for far too long and an FRL is least desirable in a legal environment of the one-sided traffic of precedents. The common law’s unwillingness for learning is not limited to her intellectual apathy for Britain’s ex-colonies but extends even to continental law for which O’Connell had exhorted ‘the essential unity of all European legal structures, a unity founded on the moral concord of Western peoples’.

But India has inherited a British ‘legal structure’ without ‘a unity founded on the moral concord of Western peoples’. FRL for India remains a moral platitude of the sort O’Connell talked about in relation to Europe and England. Besides being anthropologically challenged, FRL reverses normative decolonisation while claiming to offer a bigger basket of problem-solving.

Many foreign relations issues emerge because of India’s marriage to common law. The twenty-first century FRL then appears to uncritically mimic the two older common law projects; ‘imperial law’ of the nineteenth century Britain and ‘transnational law’ of the twentieth century post-war United States. We may wish to go by our written Constitution without needing, or having found, a ‘foreign affairs’ law. Shakespeare famously wrote ‘what’s in a name’. McLachlan and Bradley think otherwise; everything is in the name. The name is ‘foreign relations’ law. Not for India, however. Since 1950, it is constitutional law in New Delhi.

I The Primacy of Foreign Legal Policy

La politique juridique extérieure insisted on the centrality of the relationship between the state and its ‘exterior’, and argued for a voluntaristic and strategic legal foreign policy. In particular, it suggested, that if international law was international law it was because states had a ‘legal foreign policy’ – international law’s law-ness was not immanent or metaphysical but embedded in states’ defence of the national interest, opportunistic as it might be. In de Lacharrière’s view, foreign legal policy towards international law was not itself entirely or even particularly determined by domestic law, as much as by concern with the national interest.Footnote ¹⁴

His contribution to foreign relations law was therefore much less notable than his work on states’ politics of international law. If anything, he tended to see foreign policy lawyers as involved in strategising about international law itself, anticipating its changes, trying to soften contradictions between positions adopted by their state over time, and understanding how evolutions in international law might affect them. In other words, the crucible of foreign relations law lied in the encounter between the national interest and the particular proclivities of the international legal order, a space that was dominated neither entirely by international law (as some academic international lawyers might imprudently presuppose) nor the national interest (as realists were too quick to conclude).

According to one of La politique juridique extérieure’s most recognisable and paradoxical formulas: ‘before international law, there are national policies towards international law’,Footnote ¹⁵ this is reminiscent of the chicken-and-egg debate on the primacy of sovereignty or international law or of practice over opinio juris. But how can there be a politics of international law before international law itself? What Guy de Lacharrière rejected above all was a vision of the priority and primacy of international law, one in which law ‘serait reconnu comme étant d’une nature sacrée qui le voue au respect des gouvernements et le met au-dessus des manipulations politiques. Considéré sous l’angle d’une telle dévotion, il ne pourrait faire l’objet de politiques gouvernementales’.Footnote ¹⁶ This is what might be understood as the ‘immanent’ conception of international law, and it is of course quite widespread.Footnote ¹⁷ It would tend to view the idea of a ‘foreign legal policy’ as ‘sacrilegious’.Footnote ¹⁸ At the opposite extreme is a particular extreme form of the realist critique, one that would be so dismissive of international law as to find futile any notion that states have a policy towards it. As de Lacharrière puts it, ‘le droit ne mériterait pas l’honneur qu’on lui ferait en ayant une politique à son égard’.Footnote ¹⁹

Guy de Lacharrière doubted that either school reflected the practice of statecraft (as opposed, perhaps, to the scholarship of international lawyers) or was seriously entertained by those actually entrusted with safeguarding states’ foreign policy legal interests. Rather than each position being represented in its pure form, however, either might taint the foreign legal policy of given states at any given moment based on its interest. This is a striking notion: the idea that views about international law are themselves influenced by a sort of jeu de masques that leads states to adopt the views that they need under the guise of interpreting international law. Even the insistence on respect for international law, in that context, could be understood as a foreign policy option, associated with an a priori in favour of the status quo. By the same token, too blatant an instrumentalisation of the law would be self-defeating: even realists know that if they play the international law game, they need to play it at least half-heartedly, or expose the mediocrity of their arguments.Footnote ²⁰

At any rate, foreign legal policy did not exist in a void and was not autonomous; it existed at the discretion and in relation to a broader national interest. The power of states was an evident element in the determination of their foreign legal policy. All other things being equal, weak states were likely to consider that an international rule of law was more advantageous; by contrast, powerful states would have a great ability to resist or withstand a finding that they had violated international law.Footnote ²¹ Another factor was, quite simply, the psychology and even training of those deciding in any given country and whether they were convinced of the usefulness of international law or not (although de Lacharrière noted that Nixon was a lawyer and Eisenhower a military man).Footnote ²² This is not necessarily a rejection of ‘foreign relations law’, but in its conspicuous ignorance of domestic law, it is an implicit claim that runs throughout the book about a certain exceptionality of foreign policy when it comes to domestic law.

For Guy de Lacharrière, domestic factors were quite key in explaining national variations between states.Footnote ²³ The continuity of governments or something as trivial as the availability of archives were key in evaluating the risk of incoherence in foreign legal policy-making and dealing with it.Footnote ²⁴ Perhaps more importantly, the place of law within national legal institutions stood out as relevant. For some states, the rule of law was highly important, and this was bound to have an impact: a state that despises law domestically is unlikely to embrace it internationally, for example.Footnote ²⁵

The constitutional framework did matter of course but only indirectly and because of its potential to shape foreign legal policy. Although foreign policy in France was a prerogative of the president, treaties stood to be adopted by the Assemblée nationale and to become law as soon as ratified. For monist states, the exact content of a treaty mattered all the more given the lack of an opportunity to subsequently adapt it into domestic law. At the same time, the absence of common law style judicial review meant that it was unlikely that France’s treaty obligations would, having satisfied an a priori contrôle de constitutionnalité, be contested by domestic courts. This is, in turn, in contrast to common law states that are often wary of implementing their treaty obligations in domestic law lest the treaties be challenged before ordinary courts. However, de Lacharrière was well aware that in both monist and dualist countries the force of international law was not such that its violations were typically treated on a par with domestic law violations. If anything, violations of international law took importance because they were seen as also violations of domestic law.Footnote ²⁶

In short, the domestic element in foreign legal policy was not absent (for example, the book mentions the fact that new revolutionary governments sought to distance themselves from previous governments),Footnote ²⁷ but it was not particularly causal from a social scientific point of view. This may be because de Lacharrière understood, rightly as it turns out in most states, that aside from procedures of ratification, much of the legal national interest stood to be defended and even defined by the executive. Treaties were negotiated by diplomats; the decision to use force was made in the highest reaches of the state; the day-to-day conduct of relations with other states and international organisations was entirely in the hands of foreign ministries. If anything, it was the international environment that shaped the conduct of foreign legal policy, an environment that was significantly more political than legal. This was of course nowhere truer than in Fifth Republic France and de Lacharrière may have been guilty of universalising on the basis of what was in the end a fairly atypical constitutional environment. That evaluation would also stand to be relativised since the publication of La politique juridique extérieure, in an era marked by increasing efforts to coordinate foreign policy at the European level, parliamentary scrutiny and civil society monitoring.

Yet foreign legal policy was also not simply the translation of the national interest into an international law policy; rather, it was more broadly a governmental policy on international law. An example of such a policy, paradoxically, was that of states that had decided to oppose international law generally, whether newly independent or ideologically radical (the USSR, Iran, etc.).Footnote ²⁸ In such a case, foreign legal policy could touch upon even the most fundamental aspects of international law, including state succession or the formation of customary international law. In addition, states might have a sectoral foreign legal policy concerned with particular aspects of international law only. It seems Guy de Lacharrière had in mind mostly primary rules of international law, notably the law of economic relations (including nationalisations), the law of the sea or international humanitarian law. Although states wanting to transform international law might stand out, de Lacharrière insisted that states bent on maintaining the status quo had as much of a foreign legal policy as the revolutionaries – simply that it was less visible.Footnote ²⁹

For Guy de Lacharrière what was striking was that no one had thought of this before and indeed that La politique juridique extérieure was not the object of any particular study or, for that matter, a term of art. There were isolated exceptions of course, among which John Foster DullesFootnote ³⁰ and Stanley Hoffmann’s notion of legal strategy.Footnote ³¹ But the topic was not taught in universities. De Lacharrière did not designate who was responsible for this lack of interest, but at times it seems quite clear that the culprit was international law itself (‘une discipline abstraite’), understood as a system of constraints rather than the product of uncoordinated policies that take it seriously but are not reducible to it (‘la discipline concrète’).Footnote ³² To de Lacharrière, this would be the equivalent of teaching international relations only without teaching foreign policy, where the study of foreign policy has, in fact, preceded the study of international relations as its own discipline. It is almost as if the study of international law had it the wrong way round: studying the system, before it has even begun to understand its agents’ rationalities.

In trying to conceptualise the place of La politique juridique extérieure in relation to the paradigm of ‘foreign relations law’, then, the point might be that international law was much more significant to the conduct of foreign policy than domestic law, only not in the way that most international lawyers understood. International law was not important because it bound states, but because it provided executive branches with sophisticated opportunities to maximise the national interest, opportunities that they would be wise to understand and not ignore. Rather than an alternative to foreign relations law, La politique juridique extérieure is better understood as a complement to it or, even better, an inherent part of it and provides opportunities for dynamic reconceptualisation. Foreign legal policy includes both an attention to foreign relations law stricto sensu (domestic law) and to international law and, indeed, requires that one keeps an eye on how the gambits one makes on one level may ricochet on the other. Where foreign relations law as it is conventionally understood is at risk of reducing international lawmaking to a domestic entre soi, foreign legal policy could be understood as operating more on the interface of the domestic and the international.

II The Role and Function of Foreign Legal Policy

For Guy de Lacharrière the strength of having a foreign legal policy was that ‘elle tend à substituer un ensemble d’actions préméditées à des comportements qui, autrement, procéderaient de la spontanéité, du réflexe, de l’instinct’.Footnote ³³ Governments should not adopt positions merely on a reactive and knee-jerk basis; rather, they needed to organise themselves so as to maximise their interest over time by carefully strategising about their legal policy. However, the catch was that for de Lacharrière the national interest included a moral as well as material dimension, both on image grounds but also because, for example, even a bias in favour of the ‘règne du droit dans l’ensemble de la société internationale’ could turn out to be beneficial for a particular state from the point of view of its own, narrow national interest.Footnote ³⁴ Of course, this portrayed such commitments in quite a different light than how they portrayed themselves: not some sort of Kantian a priori commitment to the law as an incarnation of reason, but a somewhat interested commitment to the law as a form of protection. Still, the grounding of support for an international rule of law in the national interest made it seem much less utopian.

In that light, states typically sought to both inscribe themselves within international law and push it in a direction that was favourable to them. Guy de Lacharrière could not fail to have been impressed as legal adviser to the French foreign ministry by the vast movement of challenge of international law that had arisen in the two previous decades as a result of the rise of the Third World. He was less inclined than some to describe what they did as ‘political’ and what Western states did as ‘legal’. Instead, he expressed a certain understanding for their aspiration to transform international law from an oligarchic and confiscatory system into a more equal and participatory one.Footnote ³⁵ Even the Soviet notion of international law as an instrument of class coercion found favour in principle with de Lacharrière (whose own political sensitivities one imagines to have otherwise been quite remote from material determinism), since it had the merit of expressing a clear sense of ‘interest’ in international law.Footnote ³⁶

For Guy de Lacharrière, the ‘national interest’ in international law arose not purely domestically, but in relation to the interests of others. The national interest was a ‘preference’ for the state’s own well-being over the well-being of others. Yet, to be taken seriously, it also had to be enunciated in ways that resonated with the system. In the process, they would seek to pass off their national interest as entirely compatible with the common good.Footnote ³⁷ This was perhaps a very French way of identifying the national and universal interests as coinciding. But even the most radical turn in international law (such as the one argued for by the Third World in the 1960s) was likely to be justified as consonant with the interest of the international community. The ability to speak the language of the common interest, then, was crucial to states’ success in promoting their vision of international law.

At times, though, the incompatibility of one’s national interest with the national interest of others would be hard to ignore, in which case one’s interest might simply be claimed to be superior. Particularly revolutionary projects in international law had been less prone to underline the consensus, and more ready to highlight the element of struggle involved in international law.Footnote ³⁸ Imperialism and aggression are, however, always on the other side. And in the end, de Lacharrière entertained little doubt that his fellow practitioners of international law on behalf of states implicitly acknowledged that each of them was championing a national cause, and that there would not be much use in pretending that this was otherwise. Every state tended to see the proclamations of innocence of others as merely self-serving, perhaps only because they subtly knew their own proclamations to be so.

How should one go about – if at all – reconciling opposite national interests? Guy de Lacharrière was sceptical that a formula existed that could easily be relied on. To be sure, chairs in international conferences would not tire of insisting on the importance of ‘equitable and reasonable compromise’.Footnote ³⁹ But who was to say what such a compromise entailed? How far should individual negotiators go in taking into account the interests of others? What if the opening position of one party had been plainly unreasonable? And how might each convince herself that the interest represented on the other side was as respectable as her own? And if the notion of compromise is so ambiguous, then how much of an obligation to compromise can there be? As de Lacharrière put it, ‘les affirmations d’ouverture au compromis colorent donc de courtoisie l’antagonisme des préférences nationales mais en confirment surtout l’existence sans en réglementer précisément l’issue’.

Instead, the effect of foreign legal policy was to distribute the advantages and disadvantages of international law. States typically wanted to have their cake and eat it and to hold others to standards that they sought to escape for themselves. A government will be intransigent vis-à-vis the need for a manifestation of its own voluntarism, but adopt a more relaxed attitude when it comes to the consent of other states. It will protest other states’ use of their veto at the Council, but will be very understanding of its own. States will formulate apparently general rules in terms that happen to narrowly suit their own characteristics. The game is a game of passing off one’s interest as the general interest, but it is a ‘game’ nonetheless, with its rules and constraints and, indeed, its risks and dangers. For example, every rule or interpretation thereof that one puts out there is likely to be used by one’s ‘enemies’. Here law can be seen to have a somewhat autonomous effect: rules imply corresponding obligations; obligations are understood to be symmetrical, etc. States must constantly bear in mind the risk that pushing a certain abstract position in international law will come back to haunt them.

Rather than the problem of incoherence in international law itself (a non-problem as far as de Lacharrière was concerned), what intrigued was the problem of incoherence within the foreign legal policy of states. Because of the evolving national interest foundation of all foreign legal policy, states might over time be called upon to argue the opposite of what they had previously argued. Indeed, they might occasionally simultaneously adopt opposite positions in different sectors of international legal regulation where their interests differed, or even on the same issue. (De Lacharrière cites the example of the lawyer of a Third World country who simultaneously favoured the equidistance and the equitable principles approaches to maritime delimitation ‘depending on which part of their coast’.Footnote ⁴⁰) Would this doom their policy and expose them to the critique of contradicting themselves?

Although politically possible, legal incoherence could sometimes be paid with a high price. Newly decolonised states who strongly defended the principle of self-determination, for example, were sometimes caught at their own game when they had to insist that it was not available to Katanga or Biafra.Footnote ⁴¹ Nonetheless, Guy de Lacharrière was sceptical that incoherence would be exposed as such, at least if it was managed well. There are, after all, many ways in which states can rationalise evolutions in their policies and distinguish the facts. They can make sure that they are evasive about why they have adopted certain options and avoid too onerous a judicial scrutiny and the threat of estoppel.Footnote ⁴² As to other states, although they may temporarily exploit the sin of incoherence, they are likely to be understanding of a practice that they themselves partake in.

III Consequences for International Law

But what of international law in this context? Was it anything more than the aggregate of foreign legal policies and did that not point to its fundamental instability or even futility? One of the most striking conclusions of Guy de Lacharrière was that states – as opposed to academic international lawyers – had relatively little interest in international law in general. They might certainly have strident opinions on certain points of international law or claim a broad commitment to it (as in the recent Franco-German ‘Alliance for Multilateralism’), but no state would commit itself to some general concept of what international law stood for (or only in the broadest, most rhetorical terms).Footnote ⁴³ The challenge for someone working at the intersection of foreign legal policy and international law – as had by then become de Lacharrière’s case given his ICJ functions – was to imagine what all this meant for the idea of international law, despite states’ best efforts not to do so. The simplest conclusion that de Lacharrière came up with was that the existence of foreign legal policies testified to international law’s existence:

This sort of trope has long been quite familiar in discussions of international law and may not be much of a defence of the existence of international law. International law is detected indirectly through one of its effects, but this does not tell us much about whether it has any causal force or what it means to see it only through the eyes of its actors rather than, say, the perspective of the system. Moreover, international law’s content and structure are very uncertain even as Guy de Lacharrière never makes the move, conceptually, to an understanding of international law as a practice. He even ponders the possibility that there are ‘many international laws’ each existing, perhaps, only as a figment of the imagination of a particular participant.

More interestingly, de Lacharrière saw foreign legal policy as not only a passive response to an already existing international law, but as actively involved in shaping it. De Lacharrière could not imagine states that would merely ‘apply’ international law in good faith, without seeking to influence it. Such a position would be non sensical precisely because the content of the law stood to be determined by its subjects’ deliberations and determinations about it. In international law, ‘la distinction entre l’élucidation du droit positif et l’influence sur celui-ci est particulièrement émoussée’.Footnote ⁴⁵ This is particularly true of treaty-making of course – where no actor pretends that they are just implementing international law since per hypothesis there is no law to implement yet – but it is also clear in relation to customary international law where states could be mindful that what they did might participate in the production of custom. They would, as a result, become deliberate customary agents, encouraging or impeding its formation. After all, the very notion of opinio juris makes it clear that what states think about a norm is crucial to it becoming a norm, perhaps one of the most striking recognitions, from the point of view of international law, of a form of at least de facto foreign legal policy.

In the end, Guy de Lacharrière found that foreign legal policies were efficient, precisely because international law was their product:

In fact, states had a chance to influence not only this or that rule of international law, but also its very function, subject of course to the limits of political reality.

International law might be felt as an imposed law, a constraint, by some states but that was only because it was the willed law of another set of states. This is also the source of one of its weaknesses. If international law was only the manifestation of the preferences of some states generalised to the world, then violating international law should cease to appear so scandalous. Violating international law might just be an instance of ‘l’opposition d’une politique à une autre’.Footnote ⁴⁷ In fact, de Lacharrière noted that most states were not particularly shocked by violations of international law most of the time, and only pressed a point if it happened to conflict with their national interest: ‘une certaine non-application des traités bénéficie en fait d’une indulgence très générale comme si chacun comprenait fort bien, même s’il ne juge pas opportune de le dire officiellement, qu’il est imprudent de trop blâmer chez l’autre la recherche d’une liberté que l’on entend bien revendiquer pour soi’.Footnote ⁴⁸

This notion of treaties as basically a useful technique to predetermine the future was fully compatible with frequent violations. This might seem like a fairly cavalier attitude to international law coming from a jurisconsult, but in Guy de Lacharrière’s mind it did not make the mechanism of binding treaties useless; it just made it useful in a way different than that commonly understood. States embraced treaties precisely because they saw them as flexible and because they could interpret their obligations in ways that would not compromise their interest. At the same time, the treaty form remained useful as long as there was a certain ‘taux de concordance’ between treaty provisions and actual behaviour.Footnote ⁴⁹

In practice, did international law determine state behaviour? Guy de Lacharrière’s concern was not with such systemic questions as such; rather, he was more interested in the foreign legal policy question of how international law might enter into decision-making. At times, it would be a decisive factor (for example when two equally beneficial political outcomes were available), but it could also be one element among others. Even compliance with the law was in the end a strategic element to be taken into account by states strategically. More often than not, international law intervened as a justification of decisions that would most likely have been taken on other grounds, although it might temporarily succeed in making that justification appear as causal.Footnote ⁵⁰ In short, the international lawyer was often called up after the decision; more rarely before the facts.Footnote ⁵¹ But even the justification of decisions might ‘retroact’ on the determination of that decision, by at least affecting its modalities of execution.

The strength of de Lacharrière’s analysis of international law is threefold. First, he emphasises the role of the national interest in spurring international law. The national interest is not, as in the typical realist account, a limitation on the ability of states to comply with international law; rather, it is, more productively, an orientation that dictates the kind of international law that states want and can over time seek to obtain. In short, the national interest is productive of international law because it makes international law the sort of law that states can, precisely, live with. Second, the book emphasises the relatively decentralised nature of international law-making and its bottom-up character. Contra a view of states as mere conveyor belts for the injunctions of international law, it sees them as implicated in its production, all be it with their own interest in sight. In that respect, de Lacharrière was less interested in ‘respect’ for or enforcement of international law than in the creation of international law. Third, the book suggests the creativity and a priori undetermined character of international law. States do not know in advance what international law’s exact injunction is, at least until they have thrown their forces in the battle and sought to develop it in a direction that suits them. Contra the focus on adjudication, his emphasis on the living actors of international law – his role as legal adviser far more than his role as ICJ judge – is what makes for compelling reading.

In short, in being a theory of the international legal policy of states, La politique juridique extérieure could not avoid also being a theory of international law. Guy de Lacharrière foreshadows, in some ways, Martti Koskenniemi’s work on The Politics of International Law.Footnote ⁵² Koskenniemi, in focusing on the more systemic level of international law does not start explicitly from what states’ foreign legal policy should be. But as himself a former legal advisor to a foreign ministry, he is keen to construct a theory of international law that understands it as the product – inchoate, contradictory and even circular – of various discursive practices by which international lawyers in a position to do so produce its meaning. Where de Lacharrière’s standpoint is one of moderate realism, Koskenniemi’s is based on a more systematic critique of international law itself: international law can only be this discursive practice not specifically because states treat it that way (although that is also no doubt true), but because states could only treat it that way. In that respect, La politique juridique extérieure is aligned and converges with that later and in many ways far more sophisticated body of work in at least one fundamental respect: that of the theoretical (and not just practical) primacy of the experience of the practitioner over a more academic and contemplative approach to international law. Where de Lacharrière innovates ‘in advance’ of From Apology to UtopiaFootnote ⁵³ as it were is in his willingness to share some of the tricks of the trade by which practicing international lawyers, confronted with contradictions of their discipline, act as its sophisticated managers, for the greater good of their state and, quite possibly, of the project of international law itself. There is no place in La politique juridique extérieure, however, for envisaging how this exercise might be more fundamentally liberating and open up emancipatory possibilities; only the certainty of how one might go about best serving one’s masters.

One common theme that runs through the book is, in that respect, the relative inadequacy of scholarly treatments of international law. Although Guy de Lacharrière was characteristically and typically diplomatic, he knew that his readership would be largely academic and that his views could be seen as a provocation to the French professorate. He noted, for example, that governments and their agents would be surprised to learn that academic international lawyers (such as Georges Scelle) thought of international law as attributing the state certain competencies, where their daily experience was surely that these competencies were very much the state’s in the first place and in no need of recognition from outside. He also noted in relation to treaties, for example, that ‘les recherches sur le caractère de dogme fondamental du principe pacta sunt servanda semblent un peu à côté de la question’.Footnote ⁵⁴ However, de Lacharrière also saw the kind of distortions introduced by academic international lawyers as relatively minor as long as they were of marginal importance (and in his view no international legal theory ever created a significant obstacle to good foreign legal policy).Footnote ⁵⁵

Indeed, Guy de Lacharrière did not let these imperfections of international law stand in the way of an overall positive evaluation of its incidence. He was aware that his book might be dispiriting for scholarly observers who had ‘the internal model’ of law in mind and who thought that international law should promptly be reformed to be something else than it currently was – presumably something more hierarchical and institutionalised.Footnote ⁵⁶ The truth of the matter, however, is that international law is exactly where states want it to be, and no less useful for it:

International law, moreover, cannot improve itself by itself and, as a technique, is neutral as to its destination. If states wanted more jurisdictional control and compulsory jurisdiction, they would create it. Nothing happened by chance and no ‘defect’ that was intentionally there was about to be remedied. It would have been hypocritical for anyone with governmental experience to claim otherwise.

It remains that the foreign legal policy of some states is not the foreign legal policy of others, and that, for example, a rougher, more primitive international legal order may be to the benefit of a minority. Of course, nothing prevented weaker states, according to Guy de Lacharrière, from at least constituting a more integrated international legal system between themselves, and to thus announce a more cosmopolitan international law.Footnote ⁵⁸ Moreover, it was not impossible that the concurrence of foreign legal policies would end up upgrading international law indirectly as captured in this ambiguous formula: ‘les politiques juridiques extérieures manipulent le droit international, mais du même coup elles s’occupent de lui’.Footnote ⁵⁹ Still, de Lacharrière may have ended up broadly satisfied with this vision of international law only because he understood it as having served his own political commanditaires well. But there was something almost a bit smug about the way in which he saw states as masters of their foreign legal policy, as if all states could equally afford to choose which foreign legal policy path they could adopt (consider, for example, the situation of France’s former African colonies).

As Robert Kolb has pointed out, moreover, ‘Il n’est sans doute pas innocent que G. de Lacharrière était le ressortissant d’un Etat se voyant traditionnellement comme Grande Puissance’.Footnote ⁶⁰ His broad-brush, somewhat carefree vision of an instrumental international law worked better for France in the 1970s and 1980s than for others (although arguably he would have been the first to concede this). To this day, the vast majority of states are relatively weak powers who may find more succour in a strong international law than a sense that key powers have mastered the art of crafting the international law that works for them and that they are free to do the same. France itself has evolved somewhat in this direction as its influence declined. Still, it is not actually clear that this need always be the case: witness, for example, the discontent of a number of African states vis-à-vis the International Criminal Court, an institution that is at least relatively strong towards them, but on the receiving end of which they are not particularly happy to be and against whom they have waged a quite significant battle. Moreover, a commitment to a ‘strong international law’ (whatever that may mean), de Lacharrière would no doubt argue, is itself merely a form of foreign legal policy.

IV Conclusion

Guy de Lacharrière’s La politique juridique extérieure was an odd book by French standards and has remained so ever since. It has a cult following of sorts, but is not part of the canon in the teaching of French universities. It is largely unknown beyond the borders of France and does not fit within any simple category. However, it remains a singular and refreshing contribution to the study of foreign policy, one that can be recast in light of an increasingly global interest in foreign relations law. As I have argued in this paper, de Lacharrière was not interested in the conventional sense of that paradigm in that he largely ignored the constraints of domestic law on foreign policy. Partly, one is tempted to say, this is because he could. Under the Fifth Republic, the conduct of foreign policy is a singularly presidential prerogative, and the holders of the post (de Lacharrière served under de Gaulle, Pompidou and Giscard-d’Estaing) intended it to remain that way. A legal adviser in the foreign ministry would entertain few doubts about his position within a larger hierarchy of decision-making that foregrounded a certain fait du prince.

In a more than 200 page book, Guy de Lacharrière only devotes about 5 to the issue of domestic constraints.Footnote ⁶¹ To the extent that La politique juridique extérieure can be construed as a book on foreign relations law, then, it is one that is largely dismissive of the role of domestic law, emphasising instead domestic politics of the highest order and an almost neo-realist insistence on the place of each state within the international system with deep conservative overtones. This does not mean of course that La politique juridique extérieure was, instead, a matter of helping and even coaxing the state to respect its international law commitments. De Lacharrière was too wedded to a model of medium-power politics to think that his role as legal adviser was to ‘represent’ international law to his government. He would have scoffed at the suggestion that he was primarily an agent of international law within a national setting.

Interestingly, however, even in his role as a legal apologist for the national interest of France, he thought quite highly of international law as something that he understood to transcend that national interest. International law might well be the sum of successful foreign legal policies, but it was at least that. Moreover, one did not, at least not always, win in foreign legal policy through sheer brute force. One needed to persuade, rally, entrench certain forms of legal reasoning, in the hope that they would catch on and would, in turn, become international law. This is an exercise that conventional international lawyers would probably recognise as coming quite close to their lived experience of the making of international law.

Foreign legal relations, then, were certainly not determined by domestic law and was certainly more than the implementation of international law. It involved an intermediary element of legal statecraft, one in which states deliberately thought about their use of international law over time, calculated what they could get away with, were often brazen about adopting contradictory positions, but much less inclined to see this as contradictory or at least problematic than a pious doctrine speaking from outside the cenacle of power. This might not seem much of a defence of international law and indeed it is one that is very much at odds with how many international lawyers – most of them academics – see its promise. Yet this is no doubt on some level intended and de Lacharrière was certainly out, on some level, for a degree of provocation.

How has the book aged, and what can it tell us today? Guy de Lacharrière’s treatment is very much based on his own experience as legal adviser. Although this surely gave him a first-row seat to observe the making of international law, it is also, in its own way, a limited vision for at least three reasons. First, just as de Lacharrière faults scholars of international law for focusing too much on judges, he is guilty of the symmetrical mistake, that of not focusing on judges at all. The same is true of de Lacharrière’s discreet dismissal of scholars of international law; as Alain Pellet once noted, it is precisely his presentation of foreign relations as largely determined by idiosyncratic national interest calculations that militates for a strong role for la doctrine.Footnote ⁶² In fact, de Lacharrière’s strong emphasis on political voluntarism could only go so far from a theoretical point of view: it helped explain the formation of international law, quite possibly its implementation, but Michel Virally specifically put the former legal adviser to task for failing to explain the very authority and legitimising function of international law, which could not themselves be derived from state will.Footnote ⁶³

Second, it is true that legal advisors tend to operate in a relative shadow and that his book was thus an irreplaceable testimony on a considerably important but unfairly neglected facet of international lawmaking. But international law is not exclusively a creation of states, and to the extent that it is it is hardly entirely determined by legal advisors. Indeed, in upgrading international law-making to a matter of policy, Guy de Lacharrière is always at risk of subtly overestimating the importance of lawyers’ calculations, at the expense of general policy development. Indeed, from the point of view of the mainstream of foreign relations law, de Lacharrière’s treatment is almost hubristic in its focus on the executive and the foreign ministry. It entirely neglects the role of the legislative and judicial branches in ways that are problematic now in France as in most countries. It also is oblivious to the role that civil society actors have increasingly played. La politique juridique extérieure would gain from being reread in light of these developments and understood as henceforth more embedded in domestic practices – precisely the gap that foreign relations law has identified. At any rate, there are greater dangers for the purposes of human rights or the rule of law, than states not maximising their national interest because of incoherences in their legal discourses.

Third, Guy de Lacharrière also wrote at a time of great change (decolonisation, the law of the sea) but in a context where the Cold War had frozen many options for international law. La politique juridique extérieure entirely ignores some areas such as international environmental law, international human rights law and international trade law, not to mention the law of European integration which has arguably such an impact on foreign relations law.Footnote ⁶⁴ It is as if the conversations that animate these branches of international law did not exist for the once legal adviser to the French foreign ministry. This is in itself a striking contrast to some of his successors who have made a name for themselves as pleader before the European Court of Human Rights (Ronny Abraham) or judge at the International Criminal Court (Perrin de Brichambaud). Although a recent treatment by Robert Kolb takes de Lacharrière’s book as his starting point, Kolb is more sanguine about the autonomous existence of international law and its ability, without denying the incidence of foreign legal policy, to retroact on its creators and actors. Kolb goes as far as to suggest that, next to an interest-driven foreign legal policy, is a more objective variant that is geared towards the creation of stable relations and devoted to some of the ideals of an international community.Footnote ⁶⁵

It is true that the two can at times seem hard to distinguish, as when France famously opposed the war in Iraq, in ways that could be understood to exalt international law and its prudential restraints or, more simply, to coincide with the country’s geopolitical interest of the moment. Champions of international law often happen to be champions of their own interest. Certainly, legal advisers in both the UK and the US have been in the spotlight for their willingness to provide excessively supple advice in relation to tortureFootnote ⁶⁶ or the use of force,Footnote ⁶⁷ in ways that show the limits of a purely instrumental approach to international law especially when, as is increasingly the case, civil society is watching. Indeed, one of the facets of foreign legal policy-making that has changed is the willingness of various groups and individuals to challenge it ‘from below’. The days in which foreign policy was a purely regal function insulated from common politics and activism seem to be long gone. French foreign policy appears more constrained by its legal environment today and less administratively elitist than it may have appeared to de Lacharrière forty years ago. If not quite the constraint of foreign relations law or the command of international law, then, that is a further significant domestic constraint on foreign policy-making.

I Introduction: Administrativization of Jurisdiction and Juridification of Foreign Relations

On 19 March 2019 the High Administrative Court (OVG) of North Rhine-Westphalia (Münster) issued a decision on the legality of the use of the Ramstein military air baseFootnote ¹ which had been made available by Germany to the US for drone strikes in YemenFootnote ². Reversing the holding of the lower court, the OVG found that the measures taken by the German government did not suffice to fulfil its positive obligations arising from the right to life. Touching on crucial diplomatic relations, this decision is remarkable for at least two reasons. First, before starting the lawsuit before German courts, the plaintiffs had already sued the US government before American federal courts, but on appeal the DC District court decided that the alleged extrajudicial killings by drone strikes were a non-justiciable political question. Second, the OVG did not only find a violation of applicable constitutional and international law, but ordered also the German government to put into place measures to ensure the legality of the use of the Ramstein base. Therefore, the OVG did not only review – unlike its US counterpart – the foreign policy of its own government, but also required it to manage/administer it in a different manner. This also means that, following the judgment, the German government was called to interact with the US in a way different from that originally planned, with a potential adverse impact on their otherwise (mostly) friendly relationship.

This case is exemplary of a general trend in contemporary western tradition systems towards the weakening of two fundamental dichotomies in their political-legal structures: that between domestic and foreign affairs; and that between judicial and executive/administrative power. Indeed, at least since the principle of separation of powers emerged as a distinctive feature of modern constitutionalism, western legal tradition has been built on the assumption that the public authorities performing executive/administrative functions and those performing judicial functions should be kept structurally distinct.Footnote ³ At the same time, liberal constitutions of the eighteenth and nineteenth centuries were based on a clear divide between internal and external sovereignty,Footnote ⁴ dealing with foreign relations (FRs) only in a limited and ostensibly value-neutral way. That is why they generally did not impose substantive obligations to the political branches of government in the management of FRs. Interestingly, in Locke’s construction of the separation of powers – which did not clearly distinguish between executive and judicial power – the federative power,Footnote ⁵ what today is usually indicated as foreign relations power (FRP), was qualitatively different from the legislative and the executive: insofar as it could not be subject to prior legal norms, a judicial review over the exercise of federative power was conceptually inconceivable.Footnote ⁶ More generally, the original theories of the rule of law and liberal constitutional models did not focus on the relationship between a single State and other States, but almost exclusively on the internal sovereignty.Footnote ⁷ As a consequence, they generally framed FRs as a sort of free zone where the rule of law did not apply, characterized by judicial deference and self-restraint, and therefore by a certain ‘exceptionalism’.Footnote ⁸

Both normative and factual developments of the twentieth century affected the divide between domestic and foreign affairs. From a normative perspective, post-war constitutions have established more institutional constraints on FRP.Footnote ⁹ At the same time, contemporary constitutionalism and international human rights and humanitarian law gave more relevance of the legal position of the individual, strengthening material constraints legal systems – especially in western tradition jurisdictions –Footnote ¹⁰ and turning some cosmopolitan values into binding legal principles, that is, result-oriented norms to be potentially applied as standards of review also in the field of FRs.Footnote ¹¹ This might explain both the rise of foreign relations law (FRL) as a distinct field of legal studies and its persistently disputed disciplinary location.Footnote ¹² Indeed, constitutional and international law together changed the normative relationship between law and FRs,Footnote ¹³ traditionally based on a strict interpretation of the separation of powers and on axiological neutrality.Footnote ¹⁴ From a more factual perspective, globalization processes established deep and unprecedented interdependencies among individuals, polities and systems at global level,Footnote ¹⁵ piercing national-political boundaries and therefore weakening the factual bases underpinning the domestic/foreign dichotomy.

Turning to the divide between judicial and executive/administrative power, today even Kelsen would be surprised to see how the prediction he made in the early twentieth century while discussing the theoretical foundations of constitutional adjudication – the end of the ‘opposition’ between judicial and executive power –Footnote ¹⁶ has come close to reality. Following the rise of principled (i.e. result-oriented)Footnote ¹⁷ norms and relative indeterminacy in contemporary legal systems,Footnote ¹⁸ and the spread of judicial review mechanisms, judicial practice has progressively internalized consequentialist and teleological approaches.Footnote ¹⁹ Next to normative inputs, courts are more and more conditioned by the (expected) output of their decisions, and accommodate them to future-oriented purposes set by law in specific regulatory fields, as general or indeterminate as they may appear. Often based on balancing/proportionality techniques, domestic and international courts turn (their perception of) social expectations and policy goals, positivized in legislative, constitutional or international norms, into decisions aimed at solving and/or managing concrete issues on an ongoing basis, thus performing de facto executive/administrative functions. Therefore, rather than simple external reviewers, they increasingly act as internal participants in administrative functions. In the context of global governance, such ‘administrativization’ of the judicial function places courts in the broader set of global regulators,Footnote ²⁰ thus contributing to the development and implementation of rules of coexistence, collision and cooperation among involved systems.Footnote ²¹

This chapter investigates the connection between the expanding ‘administrative’ functions of courts and the ongoing normalization (i.e. juridification/judicialization) of FRs.Footnote ²² To that purpose, it resorts to the analytical tools of the ‘global administrative law’ (GAL) approach, and argues that there is a factual trend towards what may be seen as a ‘global administrative law of foreign relations’, that is, a transnational legal language erratically but increasingly developed by courts in different jurisdictions, aimed at concretely managing issues falling within the scope of FRs. More specifically, the GAL approach is used, firstly, to conceptualize the function performed by courts applying FRL in the context of the increased interdependence driven by the processes of globalization and global governance. This means that, as courts increasingly participate in the ‘administration’ of FRs, an administrative conception can be added to and, to a certain extent, overlaps with other conceptionsFootnote ²³ of FRL. From this perspective, the trend towards the judicial ‘administration’ of FRs could be seen as the ultimate form of the – admittedly precarious and reversible – normalization of FRL. Secondly, the GAL approach is here used to categorize judicial rulings, according to the type of norms they implement or develop in the context of FRL. Here, it is possible to conceptually distinguish between norms and/or standards implemented or developed in relation to the FRs conduct of the political branches of the jurisdiction to which a given court belongs (‘review norms’); and norms and/or standards implemented or developed to manage interactions with other jurisdictions or legal systems affecting FRs (‘interaction norms’).

Section II briefly recalls the main features of FRL (subsection II.A) and GAL (subsection II.B), mapping the analytical bases of the chapter, their conceptual assumptions, and the main challenges they face. Based on an a-systematic survey, Section III outlines a tentative taxonomy of the forms that the judicial practice takes in developing an embryonic ‘global administrative law of foreign relations.’ In particular, subsection III.A focuses on the ‘review norms’, while subsection III.B on the ‘interaction norms’. Section IV concludes, summarizing the core claims and highlighting, from a more normative perspective, the potential risks of the administrativization of FRs, which may also cast doubts on the general value of GAL as a normative endeavor.

II Bringing Together FRL and GAL

III A (Tentative) Taxonomy of a ‘Global Administrative Law of FRs’

Drawing a clear-cut taxonomy of the decisions taken by domestic courts in FRs matters is problematic, considering the institutional and procedural variances among different systems of judicial review. However, based on the GAL framework,Footnote ⁵¹ one may distinguish between (1) norms involving the application of certain standards of review on FRs acts, or of acts otherwise affecting FRs (‘review norms’); (2) norms affecting the coordination/cooperation with other systems in FRs matters (‘interaction norms’). Both categories may in turn be subcategorized, based on the procedural or substantive grounds. Such taxonomy is summarized above in Table 7.1.

To be sure, these categories should be seen only as a general descriptive account of the way courts generally frame the arguments underpinning their decisions in FRs matters, and may in fact overlap. For example, reasonableness/proportionality arguments are categorized sub the ‘review norms’ category, as they are mostly used as a benchmark to review domestic acts, but may often explicitly enter into considerations related to comity. Similarly, decisions based on justiciability doctrines (e.g. the British ‘foreign act of State’) may also give rise to interaction norms. More generally, such taxonomy does not aspire to establish strong normative divides, especially considering that the same decision may often generate uno actu both review and interaction norms.

IV Conclusion: The Administrative Conception of FRL, its ‘Transnationality’ and Potential Risks

The necessarily a-systematic survey conducted above, based on the GAL analytical framework, seems to provide some answers to the persisting struggles of FRL scholarship. First, the GAL approach confirms the necessity to look at FRL in functional terms. At a time when the divide between foreign and domestic affairs has become almost impalpable, the (study of the) law of FRs cannot be limited to the traditional areas of treaty-making; international and supranational integration; and use of military force. To have a realistic understanding of the law/FRs relationship, the scope of FRL (and its scholarship) must include the legal fields functionally affecting FRs. Although admittedly in the age of globalization FRs are virtually everywhere, the GAL approach provides reasons to expand the scope of FRL, so as to include at least all the legal fields that somehow separate the internal from the external and mediate the inward reception of international law into the domestic legal system.Footnote ¹³⁰ In this regard, looking at FRL through the lenses of GAL offers another conception of (the function of) FRL in the context of legal-political globalization: the administrative one. Such conception captures the idea that the sources of FRL – be they domestic or international – provide relevant institutional actors with concrete goals and results to accomplish in the context of FRs, as well as substantive and procedural standards to ‘manage’ FRs, whose respect can be in turn reviewed by judicial bodies.

The functional understanding of FRL makes apparent another key element brought out by the GAL approach: the role of ‘global regulators’ of courts, in a domain where their influence is still underestimated.Footnote ¹³¹ The expansion of the judicial reach in FRs is not just quantitative, as more and more FRs questions are adjudicated by courts on the merits; but also qualitative, as judicial rulings affect the concrete management/‘administration’ of FRs. Courts – either voluntarily or involuntarily, either directly or indirectly – increasingly participate in the exercise of FRP, as they contribute to set or change the legal patters that the political branches must follow, also prospectively. This holds true even when courts adhere to the position of political branches: as courts step into the FRs arena, for analytical purposes it does not change much whether their assessments coincide to that of the executives and parliaments or not. For this reason, in highlighting the role played of courts, the GAL approach could also strengthen their self-awareness and responsiveness, just as for other GABs.

The analytical tools provided by GAL proved also useful to assess the emerging ‘transnationality’ in FRL, in two respects at least. Firstly, in adjudicating FRs questions judicial bodies often apply a sort of ‘patchwork’ of domestic and international legal sources.Footnote ¹³² Secondly, courts seem increasingly to develop comparable and/or equivalent argumentative models and standards of review, sometimes even explicitly recognizing reciprocal influence.Footnote ¹³³ However, the degree of formalization of such ‘common language’ is probably fated to remain underdeveloped, when compared to other functionally differentiated fields which constitute the usual focus of GAL studies. Indeed, next to other factors which make judicial networks less formalized than others, in FRs matters judiciaries are ‘torn between, on the one hand, [their] loyalty to the international and national rule of law and, on the other, [their] allegiance to national or organisational interests’.Footnote ¹³⁴

This point leads to a final consideration. The survey showed that the expansion of the judicial reach on FRs questions often ends up in further obstacles to the coordination of conflicting systems and to the ordering of global governance. Even the use of human rights or other substantive standards can lead to greater disorder, especially because courts’ decisions highly differ as regards their hierarchization. The administrativization of FRs – a complex phenomenon driven, among other factors, by the greater relevance to the legal position of the individual, the spread of (constitutional) result-oriented norms, and a procedural turn in FRL – does not always imply greater coordination among systems, but can rather bring more disorder, conflict and unpredictability. The Miller judgment of the UK Supreme Court, the ItCC judgment no. 238/2014 and the ruling of the OVG Münster on the Ramstein base – the very case with which we opened this chapter – are glaring examples of the risks linked to this trend. More generally, this consideration puts somehow into question the normative aspirations of GAL, insofar as it advocates for the expansion of ‘administrative’ norms and judicial control on the exercise of power in transnational arenas, with the goal to decrease conflicts and inconsistencies among involved actors/systems, and increase their legitimacy. Although a critical assessment of such normative aspirations lies outside the scope this chapter, the administrativization of FRs, and the role played by courts in that context, constitute a hard test for the capacity of the GAL project – not only to describe, but also – to order the structures of global governance, and opens new venues for further research in the vast field of the relationship between law, FRs and global governance.