Contribution to Scholarship and Originality


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

by Riaan Eksteen

A sorely neglected question in the scholarly domain of Foreign Policy Analysis (FPA) concerns the role of the judiciary in states’ foreign policy processes. The Courts studied are all legally entitled to deal with matters related to foreign affairs. In this ground-breaking book, the author has undertaken a detailed examination of the rulings relating to foreign affairs. He demonstrates conclusively that these Courts have not shied away from using their judicial authority when dealing with such cases. He has made an original contribution to knowledge that serves as an encouragement to foreign policy analysts to give due recognition to the role and influence of the judiciary in foreign affairs. It is the first time a comprehensive and systematic inquiry into the foreign policy role of these Courts has been undertaken. The product is a thoughtful and well-documented treatment of the topic. It is a well-structured presentation that is bolstered by comparative case studies and careful analysis. Consequently, it makes a strong and well-substantiated case for its findings. This is an important dimension of the book and one that clearly demonstrates its contribution to the scholarly literature.

As methodology seeks to define the means of acquiring scientific knowledge, the Courts studied and their rulings analised supply rich, varied and significant research material. These Courts as a source of international law are unique. The author clearly outlines the research question and persuasively explains the appropriateness of the chosen methodology. The author discusses the case study method that he uses and explains the appropriate justification for the case selection. His findings and conclusions follow logically from the close analysis of the cases. Their rulings contain persuasive arguments to ensure the proper structuring of core theoretical frameworks for research. The main structure in that framework is based primarily on qualitative research focusing on the identification of the relevant rulings and thereafter systematic analysis of their contents and impact.

The general layout of the book and the sequence of chapters are structured in a logical manner. The author uses existing work (predominantly from the field of law) effectively and engages with the conclusions of relevant scholarly work in a sensible manner. The conclusions are clearly evidence-based. Work from other scholars is clearly marked through paraphrased references and/or quotes, and consistently attributed to the appropriate source. This is a well-written book on a novel subject for FPA. The author provides appropriate historical context to help with the interpretation of the significance of various court decisions. The authorities cited by the author are quite elaborate and include a sound representation of scholarly books and articles with a bearing on the topic of the book.  The author produces a critical analysis of those authorities, with words of praise and of critique where appropriate. Quite significant is the inclusion of recent developments almost up to this very date of events that have a bearing on the subject of the book, such as current disputes and rulings relating to Brexit—to mention only one example.

This book presents a valuable scholarly contribution. The author argues that the impact of the judiciary on foreign affairs is understudied – which it is. Foreign Policy Analysis typically does not address the impact of the judiciary on foreign policy and the field of judicial politics does not address the foreign policy impacts of court decisions in a systematic way. The book in fact has a bi-disciplinary character as it draws on both International Relations and International Law. The author has produced a careful considered argument that draws on a wealth of literature to address its key research question. Its originality lies in conducting a comparative study of the role of the judiciary in foreign affairs which enables it to make a contribution both to the understanding of the specificities of the part played by the judiciary in each political system but, more broadly, make general points about the nature of that influence.  As the author rightly points out, the scholarly literature in International Relations and FPA does not fully recognise the judiciaries growing influence, nor does it theorise the process or even the impact in any structured way It is 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 the relevant judiciaries. All of this makes this book an indispensable source of information, much-needed perspectives and invaluable interpretation for scholars, academics and the legal fraternity.