Professor Karen Knop

Foreign relations law (FRL) can broadly be described as that part of the law that regulates a state’s conduct vis-à-vis other states and international organizations. FRL includes, for example, the constitutional requirements of ratifying international treaties, the role of international law within the domestic order, the competences given to diplomats to engage in negotiations, and so on. This area of the law is typically understood as domestic public law: in Germany it is called ‘Staatsrecht III’, and in North America it is frequently taught and researched by constitutional lawyers. In a recent prize-winning Oxford Handbook of Comparative Foreign Relations Law (Bradley, ed., 2019), to which both Prof. Karen Knop and Prof. Anne Peters contributed, the focus is primarily on domestic public law; this is also the primary focus in The Double-Facing Constitution (Bomhoff, Dyzenhaus & Poole, eds, 2020), to which Prof. Karen Knop contributed, as well as in other current volumes.

This traditional understanding of FRL as tied neatly to a state and its constitution has, in recent years, become increasingly questionable. First, at least in the United States, it has led to a marginalization of international law at the expense of domestic law—international law is often discussed and treated as though it were federal common law. Second, the focus underappreciates the changing role of the sovereign state under conditions of globalisation, which no longer complies with the neat container theory that was familiar throughout much of the twentieth century. Third, by now, much foreign relations law happens on account not of the state but of regional sub-units—cities, Länder—semi-autonomous institutions—central banks, antitrust regulators—or, indeed, NGOs. The field has to catch up with these developments; it can only account for them if it is both expanded beyond constitutional law and deepened in its theoretical and interdisciplinary foundations.

The project aims to expand FRL in two directions. First, the project will reestablish— analytically, critically and historically—the close relation of FRL with public international law (PIL). Most PIL is produced by FRL and stands in a relation of mutual dialogue with FRL. (Indeed, the US Restatement of Foreign Relations Law in its previous edition served in large parts as a Restatement of PIL, as seen from the perspective of the US).

Second, the project will enquire into the nearly ignored potential relations with Private International Law (PrIL) as a technique that interlinks legal orders like those of domestic and international law. Some parts of FRL, having to do with territorial limitations of domestic law, or comity granted to institutions of foreign countries, are so closely linked to private international law that they can often be fruitfully reconstructed in its terms. At the same time, private international law can benefit from a link with FRL.

The project aims to deepen FRL through a historical-comparative and theoretical perspective. This enhanced understanding enables a focus on under-researched issues.