Lunch seminar with Fernanda Nicola

The Judicialization of Foreign Relations

Abstract:
The judicialization of foreign relations sounds contradictory and almost paradoxical to the notion that international disputes should be resolved by political branches rather than the judiciary. If in the United States federal courts play a limited role in interpreting background rules that shape the powers of the political actors implicated in foreign relations disputes, this has become an increasing prerogative of international courts. Because of their multilateral and regional nature international courts find themselves solving foreign relations disputes between sovereign states or between individuals and states by filling gaps lefts by executive or legislative branches. In doing so international courts serve a diplomatic role in walking the fine line between law and politics in international relations, or in exceptional cases they use such conflicts to consolidate their positions within their own internal legal hierarchies.

The evolution of the juridification of EU foreign relations shows the evolution of a judiciary among the various political, economic and rule of law crisis. Initially preoccupied with its authority vis à vis its Member States, rather than its external action or its global perception, the Court of Justice of the European Union (CJEU) in Luxembourg has shown more awareness of the global reach of its decisions and its power to shape EU foreign policy.[1]  Recent judgements at the intersection of Common Foreign and Security Policy (CFSP), Common Commercial Policy (CCP) and human rights conditionality exemplify the distinctive diplomatic role that the Luxembourg Court is playing by filling gaps in the EU Treaty while expanding its check and balances over the EU’s executive and legislative branches. While the EU is facing unprecedented internal and external challenges ranging from Brexit to foreign migration crisis the CJEU is stretching its jurisdiction to maintain a legal order that will need to be complemented by more intergovernmental as well as executive EU action.

The judicialization of foreign relations in Luxembourg comes through the expansion of human rights obligation but also jurisdictional limitations and creative treaty interpretations. In light of the rule of law crisis within the EU the CJEU adjudication does not signal that more diplomacy by adjudication will strengthen democratization. Rather every success or set back shows how internal and external dynamics as well as judicial and political hierarchies play a central role in the judicialization of foreign relations.

All interested are welcome to attend. Registration is not necessary.