Aust: The Democratic Challenge to Foreign Relations Law in Transatlantic Perspective

Helmut Aust (Freie Universität Berlin - Law) has posted The Democratic Challenge to Foreign Relations Law in Transatlantic Perspective (in The Double-Facing Constitution: Legal Externalities and the Reshaping of the Constitutional Order, David Dyzenhaus, Jacco Bomhoff & Thomas Poole eds., forthcoming). Here's the abstract:

Foreign relations law as a field was traditionally characterised by a distinction between the inside and the outside of the state. Typically, executives enjoyed greater leeway for cooperation on the international law. To that effect, ordinary constitutional law principles would not apply in the realm of foreign relations law to the same extent as they did internally. This contribution analyses shifting paradigms in foreign relations law in two jurisdictions, i.e. Germany and the United States of America. Based on the identification of two different conceptions of foreign relations, one open and aiming at the facilitation of international cooperation, one closed which strives for a protection of domestic constitutional arrangements, the contribution makes the argument that the foreign relations law debate in Germany is increasingly moving from an open to a closed conception. This shift is taking place in the name of democracy. A more reserved position towards international law is meant to bolster the democratic legitimacy of international cooperation. This risks undermining the capacity of governments to engage in the traditional forms of international law. An unintended consequence of this development might be a further shift towards informal ways of cooperation which are even more difficult to control from a democratic perspective.