Executive Power in Foreign Affairs

Abstract

In Mexico, there is no legal field known as “foreign relations law.” The legal rules and principles that regulate how the country relates to the outside world have been studied as a subfield of international law, known as “the relationship between the international and national legal orders.” This subfield has produced one stream of writings dealing with the prerogatives of the executive in the conduct of foreign policy, and a different one, on treaty-making and the role of treaties within the internal norm hierarchy. Although each approach portrays important aspects of the relationship between national law and international law, this chapter argues that both fail to comprehend that the legal principles and rules on foreign affairs operate at the interstices of these legal orders. In surveying the literature on executive power in external affairs as well as the scholarship on domestic treaty law, the chapter shows that the former has emerged within diplomatic elites, which are concerned with freeing the executive from the constraints related to the principles on foreign policy established in Mexico’s constitution. It also argues that the latter has been either too formalistic or too much focused on global constitutionalism, thus proving unable to capture the new and mainly informal means of executive action in international law. This chapter concludes by making the case for inventing a Mexican foreign relations law that brings both approaches together and is attentive to persistent and novel problems that emerge from the executive’s external actions.