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Constitutions in most countries grant power over external affairs to national (not sub-national) governments and to the political branches (not the courts). However, the allocation of governmental power over external affairs is changing in response to changing conditions. In recent years, executive officials have responded to novel national security threats by appropriating power previously exercised by legislatures. The rapid growth of cross-border activities has given domestic courts a greater role in cases implicating external affairs. The global diffusion of international human rights norms has shifted responsibility for compliance with international legal obligations from national to sub-national governments. The subject will explore these developments. Students interested in the intersection between law and foreign affairs will benefit from this subject.
Professor Sloss is an internationally renowned expert in both United States foreign affairs law and comparative constitutional law.
This subject provides a comparative perspective on the allocation of governmental power over the conduct of external affairs. Subject materials will draw primarily from four countries: Australia, Canada, the United Kingdom and the United States.
Principal topics include:
- An overview of constitutional structure in Australia, Canada, the United Kingdom and the United States
- The division of foreign affairs powers between national and sub-national governments (focusing on Australia, Canada and the United States)
- The division of foreign affairs powers between the legislative and executive branches (focusing on the four main countries, plus Israel)
- The role of the judiciary in cases implicating both external affairs and individual rights (focusing on the four main countries, plus South Africa)
- The scope of immunity granted to foreign sovereigns in the domestic courts of other states (focusing on the four main countries, plus New Zealand).
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of constitutional principles related to the allocation of governmental power over the conduct of external affairs in Australia, Canada, the UK and the US
- Be able to exam, analyse, and critically assess the practical implications of relevant constitutional and statutory principles and rules for the conduct of external affairs
- Be an engaged participant in debates regarding emerging and contemporary issues at the intersection of law and foreign affairs
- Have a sophisticated appreciation of factors and processes that are changing the de facto division of foreign affairs powers between national and sub-national governments, between legislative and executive branches, and between the political branches and the courts
- Have an advanced understanding of the domestic and international legal rules governing the immunity of foreign sovereigns in the domestic courts of other states
- Have an advanced understanding of the ways in which global diffusion of international human rights norms has shifted responsibility for compliance with international legal obligations from national to sub-national governments
- Have the cognitive and technical skills to generate critical and creative ideas relating to the optimal allocation of governmental power over external affairs
- Have the cognitive and technical skills to examine, research and analyse existing and emerging legal issues at the intersection of law and foreign affairs
- Have the communication skills to articulate and convey complex information regarding constitutional and statutory foreign affairs law to relevant specialist and non-specialist audiences
- Be able to demonstrate autonomy, expert judgment and responsibility as a practitioner and learner in the field of comparative foreign affairs law.
Last updated: 29 January 2022