TITLE:
War Powers Clauses: A Globally Comparative Perspective Based on 191 Constitutions
AUTHORS:
Yue Zhu
KEYWORDS:
Commander-in-Chief, Constitution, Deciding War, Declaring War, War Powers Clause
JOURNAL NAME:
Beijing Law Review,
Vol.9 No.5,
November
19,
2018
ABSTRACT: The restriction of war powers is one of the core functions of model constitutions. War powers clauses, relating to the distribution of the powers to decide on, declare and lead war, are basic constitutional instruments for control over war. Through a global survey of war powers clauses based on a comprehensive review of 191 constitutions in force, the article found that, although war powers clauses vary, some common techniques, models and logics can be found. Three models are built to describe the relationship between the power to decide whether to go to war and the power to declare war. The article also provided a statistical view on the commonalities of the functional distribution of war powers in making the proposal of war, approving the bill of war, and deciding whether to go to war in the absence of the legislative branch. In addition, given that in most nations, the head of state doubles as commander-in-chief, the abuse of war powers by commanders-in-chief, following the example of some western nations since World War II, may result in unrestricted undeclared wars, which implies a return to authoritarianism in war-making and poses a growing challenge to the constitutional restriction of contemporary war powers.