Great Power Politics and the Structure of Foreign Relations Law

18 Pages Posted: 23 Jan 2009 Last revised: 7 Oct 2009

See all articles by Daniel Abebe

Daniel Abebe

University of Chicago - Law School

Date Written: January 21, 2009

Abstract

Foreign relations law serves as an internal constraint on the unilateral exercise of foreign relations powers through the distribution of authority within the national government. Given the predominance of the executive branch in foreign affairs, courts routinely resolve questions regarding the breadth of the executive’s authority by reference to the Constitution, legal precedent, historical practice, and functional considerations. Though courts generally focus on these domestic factors, they have been historically quite sensitive to the international political implications of their decisions. But we don’t have a clear understanding of how or when courts consider international politics in resolving foreign relations law questions. We lack a framework to begin thinking about the relationship between international politics and the allocation of decisionmaking authority.

This short Article frames foreign relations law as a function of international politics to explore the relationship between the strength of external international political constraints on a state and the levels of judicial deference to the executive in that state. Variation in the structure of international politics— bipolar, multipolar or unipolar—likely produces variation in the strength of external constraints on a state. This approach yields a simple descriptive claim and a related predictive claim. The stronger the external constraints on a state, such as the constraints present in multi-polar or bipolar worlds, the greater the likelihood of judicial deference to the executive on institutional competency grounds. Conversely, the weaker the external constraints on a state, such as the constraints present in a unipolar world, the lesser the likelihood of judicial deference to the executive. If this claim is accurate, it leads to a predictive claim that the rate of judicial deference to the executive will likely decrease as long as the United States is the hegemon of a unipolar world. This approach also provides a clearer picture of the overall level of constraint on the executive, helps describe the impact of external constraints on judicial deference, and explores the effects of international politics on the US’s engagement with international law.

Keywords: foreign relations law, separation of powers, international law and international politics

Suggested Citation

Abebe, Daniel Y., Great Power Politics and the Structure of Foreign Relations Law (January 21, 2009). U of Chicago, Public Law Working Paper No. 256; Chicago Journal of International Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1331162 or http://dx.doi.org/10.2139/ssrn.1331162

Daniel Y. Abebe (Contact Author)

University of Chicago - Law School ( email )

1111 East 60th Street.
Chicago, IL 60637
United States
7738344164 (Phone)

HOME PAGE: http://www.law.uchicago.edu/faculty/abebe

Register to save articles to
your library

Register

Paper statistics

Downloads
168
Abstract Views
1,312
rank
179,231
PlumX Metrics