Description:

For public international lawyers, “public” points the way ahead, whether the vision projected onto the international legal order is a full-fledged world state, some federal architecture for the globe, the rudiments of administrative law, a constitutional law mindset or other public-law model writ large.

Insofar as international lawyers pay attention to the actual public law of states, since the 1990s it tends to be as a vehicle for the internally directed delivery of international law: paradigmatically, the use of international human rights law in constitutional interpretation.  The populist backlash has changed this direction.  International lawyers are being drawn onto the terrain of the externally directed domestic law known in the United States as “foreign relations law” and in some countries as “external public law”: the state’s public law concerned with the distribution of government powers over relations with the outside world.  Thus, arguing for the foreign-relations powers of legislatures and courts in constitutional or administrative law becomes a way to prevent or impede a state’s executive from exiting major multilateral treaties and institutions.  Similarly, arguing in favour of the foreign-relations powers of sub-units enables provinces and cities to step up on climate change, human rights and other global issues to compensate for the inaction or opposition of the overarching state.

Such tactics for resisting the populist backlash draw international lawyers onto unfamiliar or uneasy ground.[1]  In most countries, the domestic-law rules regulating foreign relations are not treated as a distinct field of law and therefore not analyzed systematically.  And to the extent that non-US international lawyers contemplate foreign relations law, the prominence of the US field’s nationalistic tendencies makes them suspicious of the field more generally as a parochial substitute for public international law.  The recent arrival of comparative foreign relations law has increased awareness of more internationalist versions in other countries as well as of foreign relations law as a subject.  Thus far, this scholarship tends to focus on the current law in particular countries from the domestic perspective.

The subject of this workshop is public international law’s neglected, and troubled, history with foreign relations law.  While this history has not been told, it would include British imperial laws, “external public law” in the German lineage of international law thought and EU external relations law as well as US foreign relations law “exceptionalism.”  Bringing together public and private international lawyers, public law scholars, legal historians and comparativists, the workshop aims (1) to draw out and interrelate the history of a number of national traditions of foreign relations law thought, particularly as they relate to international law, (2) to address the common assumption that, for its part, public international law has always been indifferent to foreign relations law, and (3) to make connections between foreign relations law, public international law and populism.  More generally, the relationship between public international law and foreign relations law will be approached as one between different ideas of the state.

Format:

The workshop is designed as a combination of reading group and “ideas incubation” event.  It is a reading group in the sense that the readings selected are an opportunity for participants in different but related fields to discuss excerpts from a cross-section of historical periods and public law traditions related to the themes.  In each session, the moderators will begin by offering remarks on the readings and then move to discussion among all participants.  The workshop is also intended as an ideas incubation event in that interested participants will have the opportunity to develop papers for a larger conference on a similar theme to be held in 2-3 years with a view to publication.

Materials:

The schedule, list of participants and excerpted readings are posted on this website.

The full texts of the readings have also been posted for those interested in reading further.

 

Organizers:

Karen Knop, Erkko Visiting Professor, HCAS / Professor of Law, University of Toronto

Martti Koskenniemi, Professor of International Law, University of Helsinki

 

[1] Karen Knop, “Uneasy Alliances: Populism, International Law and the Rise of Foreign Relations Law,” Erkko Lecture, Helsinki Collegium for Advanced Studies, 25 March 2021.