Abstract
This chapter concentrates on the lack of recognition of the judiciary’s role in foreign affairs—something that is still noticeable in Foreign Policy Analysis (FPA) literature. FPA has to move away from its state-centred orientation, which focuses on the two political branches of government, and accord due recognition to the judiciary and its increasing relevance and influence in foreign affairs. This concept of state-centrism has been FPA’s gravitational force for too long. National security also begged for more comprehensive understanding. Equally so does the dimension of domestic politics that is important for the analysis of foreign-policy decision making. Many judicial actions directly and indirectly affect foreign affairs. The point is not whether the judiciary has a role to play in foreign affairs, but rather how much influence it exerts. It has become a factor of influence and consequence in foreign affairs in its own right. It may appear small, but its significance is not. The relationship between the judiciary and foreign affairs has taken on added rather than diminished significance. The “repacking” of the FPA toolbox has identified new actors who now influence the policy-making process. The judiciary is certainly not an actor to the same extent and significance as the other two branches. However, this neglected actor does have an influence of consequence when it comes to foreign affairs. Its place in the toolbox is more than justified. The judiciary should therefore be given its due weight in the foreign-policy making process and be recognised for its role in foreign affairs.
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Notes
- 1.
Alden 2006, pp. 9 and 10.
- 2.
Hudson 2010, p. 2384.
- 3.
Hudson 2015, p. 1.
- 4.
Ibid., p. 2.
- 5.
Hudson 2010, p. 2385.
- 6.
Ibid., pp. 2388–2389.
- 7.
- 8.
Fisher 2017, p. 5.
- 9.
United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936).
- 10.
Smith 1987, pp. 345–348.
- 11.
Smith 1983, pp. 556–565.
- 12.
Kaarbo 2015, p. 189.
- 13.
Ibid., p. 191.
- 14.
Breuning 2007, p. 120.
- 15.
Hudson 2005, p. 2.
- 16.
Kaarbo 2003, pp. 156–163.
- 17.
Barani 2005, p. 55. He defines “judicialisation of politics” as a phenomenon aimed at the expansion of the province of the courts and judges at the expenses of the politicians and/or the administrators.
- 18.
Vallinder 1995, p. 13.
- 19.
- 20.
Malir 2013, pp. 208 and 216–217.
- 21.
Ginsburg 2009, p. 3.
- 22.
Ferejohn 2002, p. 41.
- 23.
- 24.
Ibid.
- 25.
Ibid., p. 8.
- 26.
Ibid.
- 27.
Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952).
- 28.
The foremost example of such a decision was SCOTUS’s ruling in Curtiss-Wright 1936. Reference has been made to this case in the preceding section and it is discussed in more detail in Part II, Chap. 3, Sect. 3.8.7.2.
- 29.
The classic example is Curtiss-Wright 1936. It took SCOTUS nearly 80 years to reverse aspects of that 1936-ruling.
- 30.
Their publications are widely referred to and quoted in the course of this chapter. Their listing here would be superfluous.
- 31.
Hudson 2014, p. 5. Her quote is from McCloskey.
- 32.
Smith et al. 2008, p. 3.
- 33.
- 34.
Breuning 2007, pp. 169–173.
- 35.
Alden and Aran 2012, p. 1.
- 36.
Some shift of authority from the state to Non-State Agencies (NSAs) has also occurred. Although most studies focus on domestic affairs there are good reasons to assume that foreign affairs are equally affected by globalisation whereby NSAs have become increasingly involved in foreign affairs. Baumann and Stengel 2014. See Sect. 2.8 infra.
- 37.
Hudson 2015, p. 12.
- 38.
Kaarbo 2003, p. 168.
- 39.
Hill 2003, p. 2.
- 40.
White 2000, p. 32.
- 41.
Ibid., p. 35. See also Hill 2003, pp. 6–7.
- 42.
Smith 1986, p. 28.
- 43.
Ibid., pp. 27–28.
- 44.
Ibid., p. 20.
- 45.
Ibid., p. 25. Emphasis added. The inter-relationship between foreign and domestic politics is dealt with in Sect. 2.5 infra as domestic input has become vitally important in the foreign-policy making process, especially with the prominence given to the new wave that influences foreign affairs—the legal factor. The latter’s manifestations in Court rulings started to affect behaviour in foreign affairs.
- 46.
Kaarbo 2015, pp. 189–195 and 206–209 contain the most important elements of her arguments.
- 47.
- 48.
Breuning 2007, p. 172.
- 49.
Throughout this chapter references are made to relevant scholarly works in this regard. Suffice it to list here the names of specific authors to identify their studies: Alter and Meunier-Aitsahalia 1994; Bauman and Stengel 2014; Breuning 2007; Farnham 2004; Ferejohn 2002; Ginsburg 2009; Hill 1974 and 2003; Kaarbo 1998, 2003 and 2015; Light 1994; Malir 2013; Risse 2013; Smith 2003; Smith 1983, 1986 and 1987; Smith et al. 2008; Ura and Wohlfahrt 2010; White 1989 and 2000.
- 50.
White 1989, pp. 17–18.
- 51.
Hill 2004, p. 154.
- 52.
Hudson 2007, pp. 30–31.
- 53.
Hill 2003, p. 15.
- 54.
Neack et al. 1995 (Chap. 1), pp. 1–15. The first three chapters set the context for the generational change in FPA. The subsequent 11 chapters deal with specific topics encountered by the second generation. They capture the essence of this new FPA generation.
- 55.
While no dates are given to indicate the time span of each of the generations the names of scholars from each generation are mentioned.
- 56.
Neack et al. 1995, p. 9.
- 57.
Ibid., p. 5.
- 58.
Ibid., pp. 11–12.
- 59.
Ibid., p. 10.
- 60.
Hagan 1995, pp. 117–143. With Brexit PM May focused too much on domestic pressures.
- 61.
Ibid., p. 121.
- 62.
Smith 1986, p. 13.
- 63.
Ibid., p. 20.
- 64.
Kuchinsky 2011, p. 414.
- 65.
Eckes 2014, p. 183.
- 66.
Breyer 2015, p. 170.
- 67.
Howell and Pevehouse 2007, p. 98.
- 68.
Part II, Chap. 4, reverts back to this question of national security.
- 69.
Alden and Aran 2012, p. 3.
- 70.
During his confirmation hearing to fill a vacancy on SCOTUS Judge Gorsuch was asked whether presidents may bypass statutes in national security matters. His response: “Presidents make all sorts of arguments about inherent authority and that is why we have courts, to decide”. The New York Times 2017.
- 71.
Schmidt 2012, p. 202.
- 72.
Between 2004 and 2008 SCOTUS ruled in four cases arising out of the detention of enemy combatants held at Guantánamo Bay Prison—the Detainee Cases.
- 73.
The Detainee Cases illustrate this point. See Part II, Chap. 4, Sect. 4.4.
- 74.
The Islamic State—also known as ISIS or ISIL—directly threatens the USA, Europe and the stability of the entire Middle East. ISIS is not merely a terrorist organisation. It is an aspiring state rooted in a radical ideology that seeks to build a global caliphate through terror and bloodshed. Up to May 2017, ISIS has committed or inspired at least 140 attacks in some 29 countries other than Iraq and Syria, killing more than 2,000 people. ISIS remains a global threat. Al-Qaeda remains active.
- 75.
The instability in, inter alia, Syria has caused an uncontrolled flow of refugees into Europe, dramatically increasing the risk of further ISIS-led or ISIS-inspired attacks on the continent. In 2015 more than one million refugees from the Middle East and North Africa arrived in Europe. According to the Statistical Office of the EU the number of first time asylum applicants in 2015 and 2016 was 1,393,875 and 1,291,785 respectively. In 2017 the number was down to 728,470. Eurostat 2018.
- 76.
See Part II, Chap. 6, Sect. 6.1.4.2.
- 77.
Hudson and Vore 1995, p. 211.
- 78.
Ibid., p. 212. Hudson and Vore quote this sentence from Hermann 1988, pp. 175–203.
- 79.
Part IV, Chap. 8, Sect. 8.4.2, deals exhaustively with the series of cases that have become known as the Kadi cases.
- 80.
Haass 2011 explores the imperatives of sound domestic policies being a precondition for effective foreign policy. The interdependence of domestic and foreign policy was already advanced by Warburg 1944. The interaction of the international system and domestic structures, and how international politics and those structures affect each other, are dealt with by Gourevitch 1978, pp. 881–911. His conclusion:
International relations and domestic politics are therefore so interrelated that they should be analyzed simultaneously, as wholes.
Ibid., p. 911.
Putnam 1988 explores this symbiotic relationship between diplomacy and domestic politics.
- 81.
Kaarbo 2003, p. 168.
- 82.
Kaarbo 2015, p. 195.
- 83.
Hill 2003, p. 248.
- 84.
Breuning 2007, pp. 115–140. Her Chap. 5 is entitled: “Domestic Constraints on Foreign Policy Making”.
- 85.
Breyer 2015, p. 87: The public regards SCOTUS “as one of the few remaining bulwarks against abuse”.
- 86.
Hill 2003, p. 37. Elsewhere in his book he declares that foreign and domestic affairs are separate but not separable. Ibid., p. 224.
- 87.
Breuning 2007, pp. 116 and 120.
- 88.
Light 1994, p. 95.
- 89.
Ibid., p. 100.
- 90.
Ibid., p. 101.
- 91.
Gerner 1995, pp. 17 and 21.
- 92.
Ibid., p. 18. See also De Mesquita 2002, pp. 1–9. Again Brexit comes to mind.
- 93.
Dugis 2009, p. 175.
- 94.
Carlsnaes 2013, p. 324.
- 95.
Smith 1986, p. 13.
- 96.
Hill 2003, p. 222.
- 97.
- 98.
Hudson highlights the effects of domestic political contestations of foreign-policy decision-making. Hudson 2012, pp. 13–23.
- 99.
White 1989, p. 7. Emphasis in original text.
- 100.
Franck 1991, p. 86. He expands further on this theme:
In today’s world, no ‘affair’ is any longer exclusively ‘foreign.’ Every international initiative, every foreign expenditure of lives and treasure, has significant domestic repercussions … There is no longer any such thing as a discrete ‘foreign-affairs’ enterprise, certainly not one so distinct as to warrant a radically different, and surely inferior, constitutional arrangement of its own.
Ibid.
- 101.
Rosenau 2008, p. i.
- 102.
Hill 1974, pp. 152–153.
- 103.
Ibid., p. 150.
- 104.
Hudson and Vore 1995, pp. 211 and 228.
- 105.
Hudson 2014.
- 106.
Foyle 2003, pp. 164 and 170.
- 107.
Farnham 2004, p. 459.
- 108.
Hudson and Vore 1995, p. 209.
- 109.
Baumann and Stengel 2014, pp. 489 and 494.
- 110.
Risse 2013, pp. 181–183.
- 111.
Farnham 2004, p. 441.
- 112.
Irish and Frank 1975, p. 3.
- 113.
Hill 2003, p. 39.
- 114.
In terms of basic powers over foreign-policy making Congress exerts a strong influence. Hill 2003, p. 253. See also Part II, Chap. 3, Sect. 3.6. Ross makes these relevant concluding observations:
Oversight is a profound responsibility, deeply embedded in the Constitution’s grant of powers to the Legislative Branch. Effective oversight means a serious, objective, and persistent examination of whether the Executive Branch is making use of the taxpayer resources entrusted to it in ways that are effective, efficient, accountable, and in accordance with law and congressional direction. It also means—critically, in this era of increasingly sophisticated threats and responses—helping to educate the public. To achieve both goals, it must be conducted with balance, bipartisanship, and restraint against tendencies to pursue political vendettas.
Ross 2018.
- 115.
See Part III, Chap. 7, Sect. 7.3.5 for particulars of legal action taken by the Official Opposition.
- 116.
Franck and Weisband 1997 is most useful as an introduction to this subject.
- 117.
Rodman 2009, p. 114. He provides the following to give an indication of legislative involvement in foreign affairs:
In 1964, the House and Senate foreign affairs committees began publishing a handy joint compilation called Legislation on Foreign Relations. The 1964 edition was a volume of about 650 pages. By 1985, it had grown into three volumes totalling more than 4,000 pages. The most recent [2008] complete set comprises five volumes, published over a number of years, totalling over 9,500 pages. This represented a revolution in the balance between the two branches of government.
Ibid.
- 118.
One year after the final curtain on the Watergate-saga Secretary of State, Henry Kissinger, declared the following, which is quite revealing given the fact that he was part of the executive branch at the time:
The decade-long struggle in this country over executive dominance in foreign affairs is over. The recognition that Congress is a coequal branch of government is the dominant fact of national politics today. The executive accepts that Congress must have both the sense and the reality of participation; foreign policy must be a shared enterprise.
Kissinger 1975, p. 562. Emphasis added.
- 119.
Drischler 1986, p. 196. Given the extent of Congress’s foreign-policy making powers under the Constitution, it is quite remarkable that Congress was quiescent for as long as it was. His concluding sentence has been prophetic:
But the struggle to find a role for the activist Congress consistent with the needs of American security and the values of American democracy is just beginning.
Ibid., p. 204.
- 120.
Howell and Pevehouse 2007, p. 100.
- 121.
Hudson 2015, pp. 3 and 7.
- 122.
Ibid. She quotes Groom on p. 5.
- 123.
Ibid., p. 13.
- 124.
Smith 1983.
- 125.
Carlsnaes and Smith 1994, p. 11.
- 126.
Hudson 2015, p. 1.
- 127.
Ibid., pp. 6 and 10–13.
- 128.
Smith 2003, pp. 239–254.
- 129.
Ibid., p. 239.
- 130.
Ibid., p. 240.
- 131.
Ibid.
- 132.
Smith 2009, p. 1.
- 133.
ECPR 2000, p. 3.
- 134.
Ibid., pp. 3–4.
- 135.
Loisel 2005, pp. 6–7. Emphasis added.
- 136.
Ibid., p. 7.
- 137.
White 1999, pp. 37–66.
- 138.
Loisel 2005, p. 7.
- 139.
White 1999, p. 37.
- 140.
Ibid.
- 141.
Lister 1997, p. 6.
- 142.
Hill 1996.
- 143.
Ibid., p. 39.
- 144.
Ibid., p. 40.
- 145.
Sari 2011, p. 59.
- 146.
Alter and Meunier-Aitsahalia 1994, p. 558. With Brexit the UK found this a very challenging concept.
- 147.
Breuning 2007, p. 164.
- 148.
Light 1994, p. 100.
- 149.
Piper 1975, p. 22.
- 150.
ECPR 2000, p. 13.
- 151.
Alden and Aran 2012, p. 2.
- 152.
Baumann and Stengel 2014, p. 511.
- 153.
Ibid., pp. 490, 491 and 499.
- 154.
Alden 2006, p. 10.
- 155.
According to Wagner NSA’s comprise, inter alia, international organisations, such as the World Bank and the International Monetary Fund, trade associations and transnational corporations. Wagner 2013, p. 742.
- 156.
These two authors include as NSA’s, inter alia, private actors, such as business companies and national media, and transnational actors, such as NGO’s, the Roman Catholic Church, and the International Red Cross. Baumann and Stengel 2014, p. 511.
- 157.
Hudson and Vore 1995, p. 210. Emphasis added.
- 158.
Smith et al. 2008, p. 3.
- 159.
Hudson 2005, p. 6. Emphasis in original.
- 160.
Kaarbo 2003, pp. 156–163.
- 161.
Breuning 2007, pp. 172–173.
- 162.
- 163.
Ibid., p. 427.
- 164.
- 165.
Holsti 1992 p. 444.
- 166.
- 167.
- 168.
Kaarbo 1998, p. 67.
- 169.
Hermann 2001, p. 47.
- 170.
Beasley et al. 2001, pp. 219 and 232.
- 171.
Hill 2003, p. 250.
- 172.
Hudson and Vore 1995, p. 210.
- 173.
Ibid., pp. 209–210.
- 174.
- 175.
Ura and Wohlfarth 2010.
- 176.
Hermann and Hermann 1989, pp. 361 and 363.
- 177.
- 178.
Spiro 2002, pp. 649–650.
- 179.
Part II, Chap. 4, Sect. 4.4, deals with the four Detainee Cases in which SCOTUS has addressed this overreach.
- 180.
During the confirmation hearing of Judge Gorsuch to fill a vacancy on SCOTUS, Senator Charles Schumer remarked that the Judge had been unable to sufficiently convince him that he would be an “independent check on a president who has shown almost no restraint from executive overreach”. The Washington Times, 23 March 2017.
- 181.
Collins 2002, p. 485. He quotes Lord Atkin who famously articulated this principle:
Our state cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another.
Ibid., p. 487.
- 182.
- 183.
Koh 1988, p. 1306.
- 184.
- 185.
See footnote 37 supra referring to the influential role of the African Union and SADC.
- 186.
Smith makes this observation:
… the British FPA community has a more realistic view of the way to develop accounts of foreign policy behaviour than do those FPA scholars in the USA who continue the search along the road to general theory.
Smith 1987, p. 348.
- 187.
Smith 1986, p. 25. Emphasis added.
- 188.
Franck 1991, pp. 66 and 86.
- 189.
A classic example of such a parameter is that set in Hamdi v. Rumsfeld 542 U.S. 507 (2004), at 536—no blank check for the President. J O’Connor expands on this: the judiciary “plays a necessary role in maintaining this delicate balance of governance” and to strike “the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat’’. Ibid., at 536 and 532. Part II, Chap. 4, Sect. 4.4.4, deals with these concepts and this case in particular.
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Eksteen, R. (2019). Foreign Policy Analysis. In: The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-295-8_2
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