The Allocative Function of Foreign Relations Law

Abstract

Foreign relations law needs to be developed as a distinct field in Anglo-Commonwealth legal systems. The failure to do so to date, which is the result of an outmoded view of the role of the law in this field, has left a key gap. The development of this field will help to analyse and explain better a whole class of legal issues and disputes, dealing with: the relationship between public international law and the municipal legal system in the control of foreign relations; the exercise of the foreign relations power by the three organs of government–its legal implications and its limits; the implications of the foreign relations power for the rights of the individual; and the treatment of the foreign state within the municipal legal system. Foreign relations law thus has a dual character concerning the relations between home state and foreign state: (i) outward , concerning the external activities and relations of the home state outside its own borders and with other states; and (ii) inward , concerning the treatment of the foreign state within the legal system of the home state. This article aims to explore why coherent treatment of this field has been largely excluded from Anglo-Commonwealth law; and to suggest how such a gap may be filled.The central idea here advanced is that foreign relations law performs an allocative function. Its prime purpose is not, as is so often maintained, to exclude foreign affairs from legal regulation. Rather, it serves to allocate competence and applicable law in cases involving the external exercise of the public power of states. Seen in this light, foreign relations law serves to fill a key gap: by extending to the field of public powers the techniques of private international law – jurisdiction and determination of applicable law – and by showing that foreign relations can indeed be included within a modern conception of the constitutional state and not excluded from it.