The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs.

Present at the Northeastern Political Science Association meeting in Philadelphia, PA. on 7 November 2019

Abstract

This chapter sets the scene for the forging of a new path in Foreign Policy Analysis (FPA) thinking and analysis. The primary purpose of the research is to analyse the role and involvement of the judiciary in the foreign affairs of the USA, South Africa and the EU. In FPA literature the judiciary, as an actor in foreign affairs, is not dealt with substantially and appropriately. Restraint, pessimism, and concern about overreach by the executive when it comes to foreign affairs and national security are trends embedded in recent rulings. Decisions critical of the executive—especially on such presidential overreach—are no longer exceptions when that constitutional transgression is at stake. The mood of the judiciary on these issues has shifted. The judiciary is credited with being the constitutional compass. Consequently, a particular niche presented itself to explore and recognise the role of the judiciary in foreign affairs—not in a decision-making role but rather as a force affecting and even restricting and directing the executive in foreign affairs. After an examination of how the four selected Courts have influenced foreign affairs, a discussion follows of why the judiciary’s rightful place in the process of foreign policy decision-making has to be acknowledged. What is explored in the ensuing chapters serves as a clarion call to scholars of FPA. These chapters dealing with the four Courts provide adequate evidence to substantiate the conclusion that the Courts do influence foreign policy and have a role in foreign affairs.

About the book.

• The book has been published on-line on 28 June 2019 and are being distributed for T.M.C. Asser Press by Springer-Verlag. 
• The book provides an intensive and incisive examination of the judiciary’s role in foreign affairs.
• It presents essential material and analysis on foreign affairs by the relevant Courts through their decisions, presentations and briefs to the Courts, scholarly contributions and relevant publications.
• The lack of recognition of the judiciary’s role in foreign affairs is conspicuous, and the book accordingly addresses the deficiency.
• The book gives due recognition to the judiciary and its increasing relevance and influence in foreign affairs.

I trust that, as the opinions quoted below indicate, the book will be an important contribution to the scholarly literature on foreign policy analysis and it future consideration of the judiciary.

In her Foreword Prof. Marijke Breuning* declares that the book

• is an innovative study of a neglected actor in foreign policy analysis;
• represents a valuable addition to the literature on foreign policy analysis and fills a gap in the literature that begs to be filled;
• persuasively demonstrates that the judiciary has incontrovertibly had an impact on the foreign policy behaviour of states, as well as on the policy makers responsible for foreign policy decision making; and
• in its insights is interesting in its own right: it demonstrates that the judiciary does influence foreign policy making and should not be overlooked.
  [*Professor of Political Science at the University of North Texas; former editor of the American Political Science Review (2012-2016) and author of Foreign Policy Analysis: A Comparative Introduction (2007)]

Prof. Chris Alden** has this comment.

• This is a thoughtful and well-documented treatment of the topic. It makes a strong and well-substantiated case for the findings as both part of a trend across all the case studies and one which has been systematically ignored in the existing FPA literature. This is the most important dimension of this book and one which clearly demonstrates its contribution to the scholarly literature.
• It provides a well-structured and original treatment of the theme of the role of the judiciary in foreign affairs, bolstered by its use of comparative case studies and careful analysis.
• It has an innovative approach to FPA, one that sets the stage for necessary corrective to the body of theory on foreign policy making as well as providing new comparative data on how this has occurred in three important judiciaries.
  [**Prof. Alden teaches International Relations at the London School of Economics and Political Science and holds fellowships at several international universities]