DUBROVNIK INTERNATIONAL UNIVERSITY

Foreign Affairs and Democratic Constitutionalism

Course Objectives:
This course is designed to introduce the student to the principal areas of the legal relationships
and interaction between national democratic constitutions and foreign affairs (external
relations, of which diplomacy is a part). In using real-life examples and cases taken from the
United States, Germany and other jurisdictions, students will learn how the domestic
constitutional law of such jurisdictions structures, affects, supports, limits and possibly
prohibits certain action and behaviour of national foreign affairs actors. The materials of the
course are not limited to one specific jurisdiction, students will therefore learn to understand
and analyse the issues addressed in the course also in other jurisdictions and environments in
which they may later decide to work.
The course consists of six major Chapters whose contents may be summarized as follows:
(1) The first Chapter focuses on the fundamental structures and values of democratic
constitutionalism, the real or perceived conflicts for foreign affairs actors between
constitutional / legal strictures and efficiency, speed and realism. This first Chapter
will also deal with the relationship of national domestic law and international law and
with the limitations and effects which domestic constitutional rights will have for
foreign affairs actors.
(2) In the second Chapter the students will discuss and analyse the rules allocating foreign
affairs powers to the executive and / or legislative functions in democratic
constitutions, the issue of implied (if any) foreign affairs powers, the general shift of
power towards the executive function and the potential (or intentional) tensions
between the executive and legislative functions resulting from the specific allocation
of foreign affairs powers.
(3) The third Chapter of the course will deal with the treaty powers of the foreign affairs
actors, issues relating to the conclusion and termination of treaties under both
international and domestic law and other forms of international accords between
sovereign states.
(4) Chapter four will give the students an introduction to the law, principles and a series
of incidents and cases relating to the allocation and exercise of the war power. It will
address in detail the post World War II changes away from traditional wars to local
and regional armed conflicts (including some in South Eastern Europe) and deal with
the responses which states have used unilaterally or multilaterally to contain such

conflicts. The course will analyse new forms of international forcible interventions,
including interventions for humanitarian, democratic and other (plainly illegal)
purposes.
(5) In Chapter five the class will look into the role of the judiciary, i.e., the third of the
three co-equal branches, in foreign affairs. We will evaluate a spectrum of judicial
attitudes reaching from close to total deference of the courts towards the executive
branch to attitudes which in principle find no political issue in-justiciable while still
reaching politically practicable solutions.
(6) In view of the issues discussed, the course will conclude with a re-assessment of the
relationship between the discipline of law and foreign affairs. The class will address
the perennial question of might v. right and the limits and the potential of the
discipline of law vis--vis a governmental function for which democratic constitutionalism might hold more in stock than simply efficiency and realism.

Although this course predominantly focuses on legal issues it will be conducted such that the
practical relevance of its topics will be easily understood also by students with a background
other than law.

Course Rules:
1. Class attendance, reading the assignments and active participation in class is essential
to meeting the objectives of the course.
2. Class sessions will be in various formats, including lectures, class discussions and
student presentations.
3. Students are expected to complete and submit assignments on the due date. This
applies to reading assignments, oral presentations, papers, etc. In accordance with
university policy, a written assignment handed in late will be penalized with 5% of the
grade for that assignment.
4. Any proven case of plagiarism or cheating will be dealt with according to university
policy with due process being fully maintained.
5. In view of the fact that thorough completion of reading assignments is indispensable to
prepare for lively participation in the class sessions, time allocation to reading
assignments will be generous.
6. During his presence in Dubrovnik, the teacher will be available to the students at
(almost) any time.

Specific Course Requirements:

Reading assignments (to be announced)
Regular oral presentations by students on assigned topics
Ad-hoc response papers on topics agreed with the teacher
Research paper
Final exam

English language books on the subject matter of this course being most likely not easily
accessible in Dubrovnik, a Cases & Materials book containing all course materials will be
made available. A second volume with supplementary materials will be available (hard
copies or electronically) for more in-depth seminar work and research.

ECTS Student Learning Hours

Class sessions: 72 hours
CMF
TA, in CMFs absence

64 hours
12 hours

Assignments and Learning Activities outside of class: 94 hours

Reading assignments - 5 hours per week for 10 weeks
Preparation of oral presentation:
Research and writing of research paper:
Preparation for midterm exam:
Preparation for final exam:

Total ECTS Student learning hours: 166 = 6 ECTS credits

Grading System
Grades will be determined by the following distribution:
Class participation
Oral presentation
Final Exam or Research Paper

Final Semester grades are as follows:

5
4
3
2
1

or A (excellent)
or B (very good)
or C (good)
or D (satisfactory)
or F (unsatisfactory)

30%
30%
40%

50 hours
3 hours
6 hours
3 hours
28 hours

FOREIGN AFFAIRS AND DEMOCRATIC CONSTITUTIONALISM

Table of Contents
All documents referred to in this Table of Contents are included in the courses casebook
Cases & Materials which will be made available to the students sufficiently ahead of the
start of the course.
Not all of the documents referred to below will be read and discussed in class. Some
documents have been included for reference or for presentation purposes only.

Chapter 1

Constitutionalism, Law, Rights and Foreign Affairs

1.1 Democratic Constitutionalism

The Constitution of the Republic of Croatia, 1990
The Basic Law of the Federal Republic of Germany, 1949
The Constitution of the United States of America, 1787
Henkin, Constitutionalism, Democracy, and Foreign Affairs, 1990,
p. 5-16
Kommers, The Constitutional Jurisprudence of the Federal Republic of
Germany, 1997, p. 30-39

1.2 Realism v. Constitutionalism

Nincic, Democracy and Foreign Policy, The Fallacy of Political Realism,
1992, p. 1-15
Henkin, Foreign Affairs and the U.S. Constitution, 1996, p. 1-9
Glennon, Diplomacy, 1990, Preface, p. xix-xxi

1.3 International Law and Domestic Law

Hilf, General Problems of Relations between Constitutional Law and
International Law, in Starck , Rights, Institutions and Impact of International Law according to the German Basic Law, 1987, p. 177-195
Henkin, Politics and Values, International Law and Domestic Law, 1995,

p. 63-77

1.4 Individual Rights and Foreign Affairs

Henkin, Foreign Affairs, p. 283-303
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Excerpt,
incl. concurring opinion by J Jackson)
Dames & Moore v. Regan, Secretary of the Treasury, 453 U.S. 654 (1981)
(Excerpt)
Kaunda and others v. The President of South Africa, Constitutional Court
of South Africa (2004) (Excerpt)

Chapter 2

Foreign Affairs Powers

2.1 Allocated Foreign Affairs Powers

American Constitution (see 1.1 above) , Art. I, sec. 8, Art. II, sec. 1 [1], sec.
2-4
German Basic Law (see 1.1 above), Art. 24, 25, 32, 45a, 45b, 53a, 59, 65a,
87a, 115a-115l
Croatian Constitution (see 1.1 above), Art. 1, 2, 5, 80, 93, 98-100, 112, 128,
130, 138-139, 140
Henkin, Foreign Affairs, p. 1-9 (see 1.2 above), 13-22, 31-50, 63-82

2.2 Implied Foreign Affairs Powers

U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (Excerpt)
Ramsey, The Constitutions Text in Foreign Affairs, 2007, p. 13-28
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
(see 1.4 above)
Ramsey, The Constitutions Text, p. 51-65

2.3 Separation of Foreign Affairs Powers and Executive Legislative

Tensions
Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804)

Glennon, Diplomacy, p. 3-8

Kommers, Constitutional Jurisprudence, p. 148-165
Fisher, Congressional Abdication: War and Spending Powers,
43 S. Louis U.L.J. (1999), 931-940, 946-077

Chapter 3

The Treaty Power

3.1 International Treaties

Henkin, Foreign Affairs, p. 171-198, 211-214
Goldwater v. Carter, 617 F.2nd 697, vacated 444 U.S. 996 (1979)
Ramsey, The Constitutions Text, p. 155-173
Frowein / Hahn; The Participation of Parliament in the Treaty Process
in the Federal Republic of Germany, 67 Chi.-Kent L. Rev. p. 361-389
(1991)

3.2 Executive Agreements

U.S. v. Pink, 315 U.S. 203 (1942)
Dames & Moore v. Regan, Secretary of the Treasury, 453 U.S. 654
(1981) (Excerpt) (see 1.4 above)
Henkin, Foreign Affairs, p. 215-230

Chapter 4

The War Power

4.1 The Law / Principles / Cases

Glennon, Diplomacy, p.71-87
Kirkpatrick & Gerson, The Reagan Doctrine, Human Rights and
International Law, in: Right & Might, International Law and the Use of
Force, 1989, p. 19-36
The U.S. War Powers Resolution (1973), 87 Stat. 555,
50 U.S.C. 1541-48 (1982 ed.)

Henking, Foreign Affairs, p. 104-111

Campbell v. Clinton, 203 F.3rd 19, 340 (2000) (Excerpt)
International Military Operations (German participation) case, German
Constitutional Court, 90 BVerfGE 286 (1994), 106 Intl Law Reports,
p. 319-351
Deployment of German soldiers in AWACS aircraft over Turkey case,
German Constitutional Court, 121 BVerfGE 135 (2008), summary of
decision
Nolte, Germany: Ensuring political legitimacy for the use of military
forces by requiring constitutional accountability, in: Ku, Jacobson (ed.),
Democratic Accountability, p. 231-253

4.2 Collective Use of Force

Damrosch, et al., International Law, p. 1005-1011 [U.N. Charter],
1013- 1025 [Iraq], 1039-1043 [former Yugoslavia]
Fisher, Congressional Abdication, p. 969-971 [Iraq], 972-976 [Bosnia]

4.3 Humanitarian Intervention

Damrosch, et al., International Law, p. 990-1000 [Kosovo]
Cassese, Ex iniuria ius oritur: Are We Moving towards International
Legitimation of Forcible Humanitarian Countermeasures in the World
Community? 10 E.J.I.L. 1999, p. 23-30 [Kosovo]

4.4 Intervention for Democracy

Damrosch, et al., International Law, p. 975-979

4.5 Illegal Intervention

DAmato, International Law: Process and Prospect (1987), p. 348-357
[Nicaragua]

Chapter 5

The Courts and Foreign Affairs

5.1 Judicial review in Foreign Affairs

Lowry v. Reagan, 676 F.Supp. 333 (1987)
Henkin, Foreign Affairs, p. 143-148
Lisbon Treaty case, German Constitutional Court,
123 BVerfGE 267 (2009), summary of decision
Franck, Abolishing Judicial Abdication: The German Model, in:
Political Questions / Judicial Answers, 1992, p. 107-125

5.2 Act of State doctrine

Henkin, Foreign Affairs, p. 136-140

Chapter 6

Foreign Affairs and the Discipline of Law

Assessment and conclusions

Ackerman, The Rise of World Constitutionalism, 83 Va.L.Rev.771

(1997)
Fisler-Damrosch, Constitutional Control over War Powers: A Common
Core of Accountability in Democratic Societies? 50 Miami L. R. 181
(1995)
Ramsey, The Constitutions Text, p. 377-382