I Introduction: Administrativization of Jurisdiction and Juridification of Foreign Relations
On 19 March 2019 the High Administrative Court (OVG) of North Rhine-Westphalia (Münster) issued a decision on the legality of the use of the Ramstein military air baseFootnote 1 which had been made available by Germany to the US for drone strikes in YemenFootnote 2. Reversing the holding of the lower court, the OVG found that the measures taken by the German government did not suffice to fulfil its positive obligations arising from the right to life. Touching on crucial diplomatic relations, this decision is remarkable for at least two reasons. First, before starting the lawsuit before German courts, the plaintiffs had already sued the US government before American federal courts, but on appeal the DC District court decided that the alleged extrajudicial killings by drone strikes were a non-justiciable political question. Second, the OVG did not only find a violation of applicable constitutional and international law, but ordered also the German government to put into place measures to ensure the legality of the use of the Ramstein base. Therefore, the OVG did not only review – unlike its US counterpart – the foreign policy of its own government, but also required it to manage/administer it in a different manner. This also means that, following the judgment, the German government was called to interact with the US in a way different from that originally planned, with a potential adverse impact on their otherwise (mostly) friendly relationship.
This case is exemplary of a general trend in contemporary western tradition systems towards the weakening of two fundamental dichotomies in their political-legal structures: that between domestic and foreign affairs; and that between judicial and executive/administrative power. Indeed, at least since the principle of separation of powers emerged as a distinctive feature of modern constitutionalism, western legal tradition has been built on the assumption that the public authorities performing executive/administrative functions and those performing judicial functions should be kept structurally distinct.Footnote 3 At the same time, liberal constitutions of the eighteenth and nineteenth centuries were based on a clear divide between internal and external sovereignty,Footnote 4 dealing with foreign relations (FRs) only in a limited and ostensibly value-neutral way. That is why they generally did not impose substantive obligations to the political branches of government in the management of FRs. Interestingly, in Locke’s construction of the separation of powers – which did not clearly distinguish between executive and judicial power – the federative power,Footnote 5 what today is usually indicated as foreign relations power (FRP), was qualitatively different from the legislative and the executive: insofar as it could not be subject to prior legal norms, a judicial review over the exercise of federative power was conceptually inconceivable.Footnote 6 More generally, the original theories of the rule of law and liberal constitutional models did not focus on the relationship between a single State and other States, but almost exclusively on the internal sovereignty.Footnote 7 As a consequence, they generally framed FRs as a sort of free zone where the rule of law did not apply, characterized by judicial deference and self-restraint, and therefore by a certain ‘exceptionalism’.Footnote 8
Both normative and factual developments of the twentieth century affected the divide between domestic and foreign affairs. From a normative perspective, post-war constitutions have established more institutional constraints on FRP.Footnote 9 At the same time, contemporary constitutionalism and international human rights and humanitarian law gave more relevance of the legal position of the individual, strengthening material constraints legal systems – especially in western tradition jurisdictions –Footnote 10 and turning some cosmopolitan values into binding legal principles, that is, result-oriented norms to be potentially applied as standards of review also in the field of FRs.Footnote 11 This might explain both the rise of foreign relations law (FRL) as a distinct field of legal studies and its persistently disputed disciplinary location.Footnote 12 Indeed, constitutional and international law together changed the normative relationship between law and FRs,Footnote 13 traditionally based on a strict interpretation of the separation of powers and on axiological neutrality.Footnote 14 From a more factual perspective, globalization processes established deep and unprecedented interdependencies among individuals, polities and systems at global level,Footnote 15 piercing national-political boundaries and therefore weakening the factual bases underpinning the domestic/foreign dichotomy.
Turning to the divide between judicial and executive/administrative power, today even Kelsen would be surprised to see how the prediction he made in the early twentieth century while discussing the theoretical foundations of constitutional adjudication – the end of the ‘opposition’ between judicial and executive power –Footnote 16 has come close to reality. Following the rise of principled (i.e. result-oriented)Footnote 17 norms and relative indeterminacy in contemporary legal systems,Footnote 18 and the spread of judicial review mechanisms, judicial practice has progressively internalized consequentialist and teleological approaches.Footnote 19 Next to normative inputs, courts are more and more conditioned by the (expected) output of their decisions, and accommodate them to future-oriented purposes set by law in specific regulatory fields, as general or indeterminate as they may appear. Often based on balancing/proportionality techniques, domestic and international courts turn (their perception of) social expectations and policy goals, positivized in legislative, constitutional or international norms, into decisions aimed at solving and/or managing concrete issues on an ongoing basis, thus performing de facto executive/administrative functions. Therefore, rather than simple external reviewers, they increasingly act as internal participants in administrative functions. In the context of global governance, such ‘administrativization’ of the judicial function places courts in the broader set of global regulators,Footnote 20 thus contributing to the development and implementation of rules of coexistence, collision and cooperation among involved systems.Footnote 21
This chapter investigates the connection between the expanding ‘administrative’ functions of courts and the ongoing normalization (i.e. juridification/judicialization) of FRs.Footnote 22 To that purpose, it resorts to the analytical tools of the ‘global administrative law’ (GAL) approach, and argues that there is a factual trend towards what may be seen as a ‘global administrative law of foreign relations’, that is, a transnational legal language erratically but increasingly developed by courts in different jurisdictions, aimed at concretely managing issues falling within the scope of FRs. More specifically, the GAL approach is used, firstly, to conceptualize the function performed by courts applying FRL in the context of the increased interdependence driven by the processes of globalization and global governance. This means that, as courts increasingly participate in the ‘administration’ of FRs, an administrative conception can be added to and, to a certain extent, overlaps with other conceptionsFootnote 23 of FRL. From this perspective, the trend towards the judicial ‘administration’ of FRs could be seen as the ultimate form of the – admittedly precarious and reversible – normalization of FRL. Secondly, the GAL approach is here used to categorize judicial rulings, according to the type of norms they implement or develop in the context of FRL. Here, it is possible to conceptually distinguish between norms and/or standards implemented or developed in relation to the FRs conduct of the political branches of the jurisdiction to which a given court belongs (‘review norms’); and norms and/or standards implemented or developed to manage interactions with other jurisdictions or legal systems affecting FRs (‘interaction norms’).
Section II briefly recalls the main features of FRL (subsection II.A) and GAL (subsection II.B), mapping the analytical bases of the chapter, their conceptual assumptions, and the main challenges they face. Based on an a-systematic survey, Section III outlines a tentative taxonomy of the forms that the judicial practice takes in developing an embryonic ‘global administrative law of foreign relations.’ In particular, subsection III.A focuses on the ‘review norms’, while subsection III.B on the ‘interaction norms’. Section IV concludes, summarizing the core claims and highlighting, from a more normative perspective, the potential risks of the administrativization of FRs, which may also cast doubts on the general value of GAL as a normative endeavor.
II Bringing Together FRL and GAL
A The Struggles of FRL with its Scope, Sources and Functions
FRL intersects two axes of constitutional legal theory: the relationship between domestic law and international/transnational legal systems;Footnote 24 and that between judicial and political branches in legal systems characterized by the constitutionalization of value choices.Footnote 25 However, although it is by now relatively well-established as a field of studies (at least in common law jurisdictions), FRL still struggles with some foundational issues,Footnote 26 concerning its scope, sources and functions.
Concerning its scope, at least two conceptions of FRL may be individuated. The first one, based on a strict dichotomy domestic/foreign, limits FRL to three macro-areas: treaty-making, -development and -termination; international and supranational integration; and use of military force.Footnote 27 A broader conception, based on a functional understanding of FRL, focuses on all the legal norms affecting the relations of a nation with the rest of the world. Under this broader conception, FRL would for example include the conflict of laws of each nation,Footnote 28 and in some cases even fields normally regarded as purely internal. A US Supreme Court decision concerning the interpretation of federal copyright lawFootnote 29 may matter to manufacturers and consumers both in the US and throughout the world, with economic impacts worth billions, and potentially generating significant diplomatic frictions.Footnote 30 Likewise, a judgment of the German Federal Constitutional Court (BVerfG), holding that a specific statutory design for the surveillance powers of intelligence agencies violate the Basic Law, and forbidding the transfer of data thus obtained to other intelligence services,Footnote 31 may undermine the diplomatic position of the German government. Similarly, constitutional provisions and the related judicial rulings concerning public ownership of natural resources and property rights of corporations constitute examples of norms functionally falling withing FRL – especially from a ‘peripheral perspective’.Footnote 32 In all these cases constitutional courts inevitably decide also on FRs issues, as in the age of globalization FRs are virtually everywhere. Therefore, the struggles of FRL scholarship with the definition of its own analytical scope derive also from the difficulty to be coextensive with its factual scope.Footnote 33
Regarding its sources, FRL has been traditionally conceived as a branch of domestic systems,Footnote 34 namely of their constitutional and administrative law.Footnote 35 However, following the normative developments occurred during the twentieth century, FRL has progressively come to include international law,Footnote 36 to the extent this latter applies to a specific domestic jurisdiction, or imposes on States a certain conduct in the management of their FRs, or directly regulates the conduct of individuals. Importantly, the influence of international law sources contributes to making FRL at least in part ‘transnational’, insofar as courts in different jurisdictions, which apply the same rules of international law or decide on similar issues concerning FRs, increasingly develop comparable and/or equivalent – albeit not identical – standards of adjudication,Footnote 37 also through reciprocal influence and cross-fertilization.Footnote 38
This last aspect is linked to the functions attributed to FRL. Campbell McLachlan has listed five conceptions of the functions performed by FRL, namely the exclusionary, the internationalist, the constitutional, the diplomatic and the allocative.Footnote 39 While not necessarily mutually exclusive, these conceptions have different ideological roots, and potentially result in conflicting implementations by institutional actors, especially courts. Put differently: in applying FRL or in adjudicating issues related to FRs, judicial bodies may develop different understandings of their own role and the results to pursue, also depending on the underlying function attributed to FRL. However, none of these conceptions as such captures the idea that FRL has come to provide concrete legal standards – potentially justiciable by courts – to ‘manage’ FRs on an ongoing basis.
In the light of such struggles, it seems that no single approach accounts in a comprehensive manner for some key elements of FRL, namely the mismatch between its analytical and factual scope; its ‘transnationality’; its potentially ‘administrative’ function; and, finally, the active – be it unifying or fragmenting – role played by judicial bodies in that context.
B GAL As an Analytical Approach to FRL
Giving an accurate idea of GAL in few words is not easy. It has emerged together with other approaches in the galaxy of global law and postnational constitutionalism,Footnote 40 and it does not indicate a full-fledged legal system in a traditional sense.Footnote 41 Rather, it can be broken down into two main parts.
Firstly, GAL stands as an analytical/descriptive tool, referring to a factualFootnote 42 trend whereby a set of procedural and substantive norms – inter alia review, transparency, reason-giving, participation, audiatur altera pars, legal accountability and liability of administrative authority – has been increasingly developed and implemented, either formally or informally, by ‘global administrative bodies’ (GABs) all around the world and at different governance levels, including the domestic one. GAL focuses on the ‘mechanisms, principles, practices, and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies’.Footnote 43 It highlights that, when confronted with functionally differentiated issues of global concern (corruption, competition, banking supervision, terrorism, food safety, etc.), GABs of different jurisdictions and governance levels increasingly interact, often working as (either formal or informal) transnational networks. From this standpoint, GAL claims that ‘much of the global governance can be understood in administrative terms, as global administration that operates in a “global administrative space” … in which the strict dichotomy between domestic and international has largely broken down’.Footnote 44 Therefore, the label ‘GAL’ refers to an emerging form of transnational law, whose norms are implemented and developed by sub- and non-state administrative institutions, often with little or no involvement of political branches of governments.
Secondly, GAL embodies the normative stance of a scholarly movement towards such practices. In other words, the GAL approach does not only outline the factual implementation of a certain set of norms by administrative bodies, but also supports their spread and strengthening. It also argues that these norms and networked modes of action help to order the structures of global governance and achieve results in fields of common concern, by also strengthening their legitimacy and cooperation, and decreasing conflicts and inconsistencies among involved actors/systems. From this perspective, GABs would be also incentivized to act as transnational networks. Overall, the GAL approach claims to retains a soft normative value, aiming to bridge a relatively little gap between an ‘Is’ and an ‘Ought’ at global level, by expanding guarantees in administrative action, in fields where they have not been established yet. By these means, the GAL approach is – or claims to be – less ambitious than other ‘constitutionalist’ approaches to global law,Footnote 45 as it does not engage directly with the issue of unitary axiological framework(s) and global democracy.
The GAL approach deals with courts in two different yet linked ways.Footnote 46 First, they are regarded as reviewing bodies, checking the respect by GABs of the norms aimed at keeping them accountable and increasing their legitimacy. Therefore, courts implement and develop review norms on administrative action. Secondly, they are regarded as GABs themselves, especially when exercising substituting functions or working as transnational networks. In this latter case, the standards developed or implemented by courts often take the form of ‘interaction norms’ (margin-of-appreciation; Solange-like doctrines; subsidiarity; deference/comity doctrines), and are generated by courts to manage actual or virtual clashes among the systems where they operate respectively.Footnote 47 One of the merits of GAL as an analytical tool has been to highlight that, whether they act as reviewers of the action of GABs or as GABs themselves, courts take part of the regulation/administration of global governance.Footnote 48 Another analytical contribution of GAL is to read the interactions and reciprocal influences among courts as networks. Indeed, judicial networks, just like other information, harmonization and enforcement networks,Footnote 49 may promote convergence, compliance and cooperation among involved systems, and they are called upon to manage clashes emerging from globalization processes.Footnote 50
In the light of these considerations, the GAL approach may provide a useful – although not exclusive – analytical/descriptive framework, at the same time accounting for the elusive scope of FRL, its ‘transnationality’, its ‘administrative’ function, and the role played by courts in managing coordination and/or fragmentation among systems. In other words, the GAL approach constitutes a viable tool to frame and understand two major tensions underlying FRL: that between its still somehow persistent ‘exceptionalism’ and ongoing/erratic process of normalization, where the aspiration to manage even FRs according to material legal standards meets the obstacles of the Realpolitik; and that between its domestic and international dimensions, where the aspiration to provide global legal standards meets the obstacles of different sources of legitimation and modes of lawmaking. The GAL approach crosscuts these tensions and may potentially offer a useful conceptual framework. Building on this core insight, the next section brings the argument further and, based on the GAL framework, outlines a tentative taxonomy of the decisions of courts ‘administering’ FRs.
III A (Tentative) Taxonomy of a ‘Global Administrative Law of FRs’
Drawing a clear-cut taxonomy of the decisions taken by domestic courts in FRs matters is problematic, considering the institutional and procedural variances among different systems of judicial review. However, based on the GAL framework,Footnote 51 one may distinguish between (1) norms involving the application of certain standards of review on FRs acts, or of acts otherwise affecting FRs (‘review norms’); (2) norms affecting the coordination/cooperation with other systems in FRs matters (‘interaction norms’). Both categories may in turn be subcategorized, based on the procedural or substantive grounds. Such taxonomy is summarized above in Table 7.1.
| review of FRs acts/conducts (‘review norms’) | interaction with other systems in FRs (‘interaction norms’) | |
|---|---|---|
| judicial procedure grounds | ||
| substantive grounds |
|
To be sure, these categories should be seen only as a general descriptive account of the way courts generally frame the arguments underpinning their decisions in FRs matters, and may in fact overlap. For example, reasonableness/proportionality arguments are categorized sub the ‘review norms’ category, as they are mostly used as a benchmark to review domestic acts, but may often explicitly enter into considerations related to comity. Similarly, decisions based on justiciability doctrines (e.g. the British ‘foreign act of State’) may also give rise to interaction norms. More generally, such taxonomy does not aspire to establish strong normative divides, especially considering that the same decision may often generate uno actu both review and interaction norms.
A Review Norms
The first category, comprising the review norms implemented and/or developed on the issue as to whether to decide, includes rules on the access/standing of private parties, the deference towards executive (either on the interpretation of relevant law or on factual findings), the justiciability of the question, etc. In this field, for the last decades domestic judicial practice has been heading – slowly, contradictorily, but constantly – towards the expansion of the courts’ competence to adjudicate FRs issues, both in common law and in civil law jurisdictions. More importantly, courts seem increasingly to be reducing the use and scope of ‘exceptional’ doctrines of nonjusticiability (such as the US political question doctrine) and/or of deference to executives’ interpretations/findings, often under the influence of international human rights law.Footnote 52 Indeed, even when they accord such deference, they increasingly give their own legal justifications as to the reasons for doing so (e.g. executive expertise).
In civil law jurisdictions, Germany is probably the most prominent example of rejection of doctrines of judicial abdication in FRs matters, even for cases involving the deployment of military force.Footnote 53 Helped by their specific cultural and institutional environment, since at least the 1954 Status of the Saar case,Footnote 54 through the 1983 Pershing II case,Footnote 55 up to the decision of the OVG Münster on the use of the Ramstein base, German courts have consistently rejected doctrines of intrinsic nonjusticiability,Footnote 56 and rather tend slightly to lower the intensity of scrutiny of the merits case.Footnote 57
Contrary to some scholarly suggestions,Footnote 58 even common law jurisdictions, where the influence of ‘foreign affairs exceptionalism’ is traditionally stronger, seem to participate in this trend. Importantly, in its most recent case law the US Supreme Court has increasingly rejected the use of the so-called Chevron approach in FRs matters. Such approach, intrinsically linked to the autonomous political legitimation of the executive branch in US government, compels federal courts to defer to a federal agency’s interpretation of an ambiguous statute that Congress delegated to the agency to administer, and results in an almost exclusive abdication to government’s agencies in interpreting the statutes.Footnote 59 Similarly, US federal courts are gradually reducing the application of the political question doctrine, even in key FRs cases such as Zivotofsky,Footnote 60 the Guantanamo casesFootnote 61 and, more recently, Al Shimari,Footnote 62 concerning alleged acts of torture committed by a private military contractor’s employees towards Abu Ghraib prisoners, which vacated the lower court’s dismissal based on the political question doctrine.
Other examples of this trend may be found in the case law of the Israeli Supreme Court starting from the beginning of the 1980s,Footnote 63 in the practice of the Canadian Supreme Court,Footnote 64 as well as in India,Footnote 65 UK,Footnote 66 South AfricaFootnote 67 and even Russia.Footnote 68 More generally, when courts declare inadmissible a question related to FRs, they increasingly resort to the ‘ordinary’ tools provided by judicial procedure, such as standing requirements, although even the evolutive interpretation of these latter seems increasingly to permit a greater access of private individuals to litigate FRs issues.Footnote 69 In particular, the comparison between Germany and the US shows that, while the respective practice still differs as for the underlying legal culture and the concrete results, there is a sort of progressive alignment as for the restriction of ‘exceptional’ doctrines of judicial abdication.
These insights support the claim that the area of judicial reach over FRs is expanding. Such ‘normalization’ is a necessary precondition for claiming that the management of FRs can be conceived in terms of (co-)administration by courts. Indeed, insofar as judicial bodies increasingly address the merits of FRs cases, or declare them inadmissible based on ordinary procedural standards, they apply the same norms as for any other executive action. At the same time, the possibilities for courts to adjudicate and even ‘administer’ FRs issues grow.
Concerning the legal standards used on the merits, that is, the norms concerning how to decide on FRs issues, it is also possible to identify an expanding trend. Indeed, national courts – in the different ways permitted by their respective domestic law – increasingly use the same substantive criteria of evaluation as for ordinary domestic issues. This trend, which varies in context and intensity, does not concern only the application of constitutional/legislative norms specifically related to FRs (e.g., the content of an agreement or the process of treaty-making) which in some cases may lead to the invalidation of the law implementing a treaty, but also the use of constitutional general principles. These latter include both the respect of constitutional rights, often interpreted in the light of international law, and general clauses and standards such as reasonableness and proportionality. Major examples pointing to this direction may be drawn from German,Footnote 70 ItalianFootnote 71 and US case law, as well as from the European Court of Justice (ECJ).Footnote 72
Importantly, US federal courts applied proportionality/balancing techniques in issuing (or in staying) preliminary injunctions barring the enforcement of President Trump’s ‘travel bans’.Footnote 73 This application is particularly significant, especially when compared to the traditional ‘plenary power doctrine’.Footnote 74 Similar developments may be observed in the case law on the treatment of enemy combatants in the ‘war on terror’.Footnote 75
In this context, and even though it did not resort to balancing techniques, the decision of the OVG Münster is particularly interesting. Indeed, based on a typical result-oriented norm – the obligation to protect the life and physical integrity deriving from article 2(2) of the German Basic Law – it held that, as the legality of the US strikes was doubtful under international humanitarian law, the right to life of the claimants might have been violated. This triggered two obligations of the German authorities: (1) to make sure, on the basis of the legal assessment of the court, whether the practice of US strikes in Yemen region is in conformity with international law as it stands – to the extent that the German territory is involved; and (2) to take measures deemed appropriate in order to work towards compliance with international law.
Another interesting instance is the Urgenda saga, where Dutch courts ruled that the government owes a duty of care to its citizens to provide protection against the risks posed by climate change.Footnote 76 Based on general principles of domestic civil law, reinterpreted in the light of the UN and EU climate agreements, along with international law principles and climate science, Dutch courts ordered the government to revise its policies and ensure that by the end of 2020 carbon dioxide emissions are reduced by 25 percent compared to 1990 levels, that is, more than that initially planned by the government in the context of the Paris agreement. Also in this case, based on result-oriented domestic and international norms (principle of duty of care plus reduction of greenhouse emissions), judicial bodies reviewed the legality of measures adopted by political branches, and indicated the way to manage (‘administer’) a given issue, namely climate change. This also implies that the court co-determined, at least indirectly, the concrete implementation of the Netherlands’ international obligations. Although not immediately connected with IRs stricto sensu, the Urgenda saga is highly significant to our purposes: by judicially restricting the executive’s discretion on the concrete implementation of international obligations, Dutch courts potentially set an important precedent also in fields different from climate justice, as they codetermined the possible options on the design of foreign policy.
A third exemplary case is the 2019 SADC Tribunal judgment of the South African Constitutional Court,Footnote 77 concerning the decision of the Southern African Development Community (SADC) heads of State and Government to remove the right of individual access to the SADC Tribunal. Approached by the Law Society of South Africa, the Court found that the executive’s participation in the ‘decision-making process and his own decision to suspend the operations’ of the Tribunal to be unconstitutional, unlawful and irrational.Footnote 78 The judgment also found that the signing of the 2014 Protocol was unconstitutional, unlawful and irrational and, as a result, ordered the President to withdraw his signature, greatly restricting the executive’s discretion. Importantly, the Court based its reasoning on the fact that the 2014 Protocol denied citizens of South Africa and other SADC countries the access to justice at a regional level, despite the fact that such individual access is not per se imposed by any international law obligation, not even at regional level.Footnote 79
A final remarkable example is the judgment C-252/19 of the Colombian constitutional court.Footnote 80 Evaluating the compatibility with the domestic constitution of a bilateral investment treaty (BIT) signed with France, the court declared it ‘conditionally constitutional’, that is, only under specific conditions. Turning away from previous approaches,Footnote 81 the Colombian court imposed to the executive branch the negotiation and adoption of a joint interpretive note, concerning the meaning to attribute to several clauses of the BIT. Also in this case, a domestic court did not merely review the legality of executive’s conduct in FRs – namely, the exercise of treaty-making power – but also imposed to take specific measures and, therefore, actively participated in the concrete management/administration of Colombia’s FRs.
In other cases, judicial review of FRs conducts has come to impose participatory/procedural rights of parliaments or other actors, even when relevant domestic law does not explicitly provide for or is unclear on that point.Footnote 82 In this regard, however, there are still significant differences between the US and other – notably European – jurisdictions. Undeniably, a field where the US political question doctrine remains almost untouchable concerns the choice on the way to internally implement or to withdraw from international agreements.Footnote 83
On the other side of the ocean, the UK Supreme Court recently held that the government was required to obtain authorization from parliament before it could initiate withdrawal from the EU.Footnote 84 Although British scholarship has not reached a consensus as to whether the decision is in continuity with UK constitutional tradition,Footnote 85 it was mainly based on the principle of parliamentary sovereignty. However, it also relied on the principle that democratic consent mediated by (constitutional) law is necessary to take the most fundamental FRs decisions affecting the rights of British citizens, and, more generally, involving ‘fundamental change in the constitutional arrangements’. The UK Supreme Court seemed thus to overcome the 1971 ruling concerning the British accession to the European Community, stating that it was beyond the jurisdiction of the courts to perform a judicial review on Parliament’s rightful exercise of its powers.Footnote 86 Even more importantly, following such judgment the British parliament passed legislation empowering the Prime Minister to give to the EU Council the notice for starting negotiations for the UK’s withdrawal from the EUFootnote 87 and requiring Parliamentary approval of the outcome of the government’s negotiations with the EU under article 50(2) of the TEU.Footnote 88 It is therefore fair to say that, although it cannot be regarded as a direct judicialization of FRs, the high instability due to the parliamentary involvement in the Brexit negotiations is also and at least indirectly a result of that decision, that is, that of the imposition by a court of a procedural requirement on the management of a FRs issue.
Similar decisions were taken by the Irish Supreme Court, ruling that any new provision amending the EC/EU treaties which alters ‘the essential scope or objectives’ of the EC/EU requires the intervention of the people to be constitutionally valid;Footnote 89 and the BVerfG which, in its Lisbon treaty ruling, alluded to the possibility that the German people as constituent power adheres to a future European federal state through referendum, despite the fact that such institute is not foreseen by the German Basic Law.Footnote 90 In this regard, it worth recalling that some continental scholars have even taken a step further, looking for legal bases to entitle foreign subjects to challenge a State’s foreign policy.Footnote 91
Outside the European context, the major example can probably be found in South Africa. In Democratic Alliance v. Minister of International Relations and Cooperation,Footnote 92 the High Court of Gauteng was faced with a question similar to that decided by the UK Supreme Court in Miller, that is, the executive’s withdrawal from the Rome Statute, an international treaty ratified and domesticated by the parliament, without prior parliamentary approval. Although the question is not directly addressed by the South African Constitution, in 2017 the Court, stressing the importance of public participation when withdrawing from treaties,Footnote 93 held that Section 231(2) of the Constitution, requiring parliamentary approval for treaties subject to ratification, also requires by implication parliamentary consent to withdraw from such treaties. Therefore, the notice of withdrawal was unconstitutional and invalid.
More generally, some scholars suggest that FRs issues are best addressed by judicial bodies through traditional balancing/proportionality standards of review.Footnote 94 Obviously, in deciding which values/rights to balance, and the ‘weight’ to give to each of them, courts inevitably exercise some discretion, which cannot but impact on a State’s FRs. Also from this perspective, they might increasingly participate in the management/administration of FRs.
B Interaction Norms
This subsection looks at the trends concerning the interaction norms, implemented and/or developed to manage interactions with other jurisdictions or legal systems affecting FRs. Similarly to the review norms, courts may base their rulings on either procedural or substantive grounds, but such subcategorization can be even more blurred.
Such norms include the application of ‘(foreign) act of State’ and sovereign immunity doctrines – limiting the circumstances under which courts examine the validity of foreign governments acts and the responsibility of sovereign actors – as well as other doctrines of judicial abstention (international comity, forum non conveniens, margin-of-appreciation, subsidiarity, Solange, controlimiti, etc.) preventing judges from evaluating the merits of a claim or grant recognition/enforcement of outer legal sources.
In particular, in common law jurisdictions – especially in the US – courts seem to explicitly take into consideration, next to strictly legal elements, lato sensu political elements.Footnote 95 While such attitude contributes to make their decisions more understandable, it also affects their capacity to set clear and foreseeable standards, and has been generally criticized for its unpredictability.Footnote 96 In European jurisdictions, where the choice-of-law rules are generally seen as less flexible and more predictable,Footnote 97 such elements are hidden in the folds, so to say, of legally ‘pure’ argumentations.
This attitude is quite apparent in the evolution of the US ‘act of State’ doctrine, whose scopeFootnote 98 has been narrowed since 1990 by the Supreme Court,Footnote 99 limiting the case-by-case balancing in deciding whether to apply it or not.Footnote 100 More generally, US courts increasingly adopt reasonableness standards in deciding whether to extend the reach of domestic law or not.Footnote 101 Importantly, this ‘prescriptive comity’, consisting in the respect sovereign nations afford each other by limiting the reach of their laws, does not totally coincide with the ‘judicial comity’, whereby judges decline to exercise jurisdiction over matters more appropriately adjudged elsewhere, as it happens in the forum non conveniens doctrine.Footnote 102 Similarly, in the field of extraterritorial jurisdiction, it is possible to observe an – apparently paradoxical – double movement toward global coordination: while US courts seem to progressively reduce the extraterritorial reach of their jurisdiction when the legal text do not explicitly provide otherwise,Footnote 103 the European multilevel system seems to progressively expand its reach.Footnote 104
Here, two points are worth underlining. First, in many instances courts, especially in the US, take into consideration the foreign policy dimension in order to decide a case or to interpret relevant laws, often against the positions of executive branches. This is quite apparent in the Alien Tort Statute (ATS) case law,Footnote 105 where the Court explicitly or implicitly decided the cases based on its own assessment of how to avoid diplomatic frictions. Second, reasonableness and proportionality may be applied not only to evaluate a FRs act as such, but also to extend or narrow the reach of a court’s own legal system. Consequently, substantive evaluations affect procedural decisions, which only apparently do not concern the merits of a case. Indeed, in the context of decisions related to interaction norms, there is often a silent shift towards substantive standards of review, hidden in the fabric of procedural rulings.Footnote 106
This is quite apparent when courts, in deciding whether to extend their jurisdiction extraterritorially or not, refer to the respect of human rights and/or justice in the system which would be competent. For example, before the ECJ judgment Owusu ruled that Regulation (EC) 44/2001 prevented its application, this was the case for the British forum non conveniens doctrine. In determining ‘the more appropriate forum’, British courts took into account the interests of the parties and the nature of the subject matter, and made a determination as to whether another forum was more appropriate than England. Further, they inquired as to whether ‘substantive justice’ would be achieved in that other forum. This second part distinguished the English test from the US test, where ‘justice’ is not such an explicit element.Footnote 107 Similar considerations influenced the Pinochet case, where the House of Lords held that (1) allegations of torture and hostage taking ‘pierced the veil’ of the personal jurisdictional immunity granted of Heads of State, codified in articles 28, 29 and 31 of the Vienna Convention of Diplomatic Relations (and in part II of the 1978 State Immunity Act); (2) the Crown act of state doctrine was inapplicable, as Parliament, by enacting section 134(1) of the 1988 Criminal Justice Act defining torture and section 1(1) of the 1982 Taking of Hostages Act, had shown that the conduct with which Pinochet was charged was a justiciable matter before the English courts.Footnote 108 More recently, similar arguments were the basis for the Belhaj decision,Footnote 109 holding that the UK government could not rely on sovereign immunity and foreign act of state to escape claims in the two cases alleging UK involvement in breaches of human rights by foreign governments in Libya.Footnote 110
In an opposite and equal direction, domestic courts increasingly use balancing techniques, reasonableness and human rights in granting recognition or enforcement to foreign sources into domestic systems, or in granting self-executing status to international law norms. This field is notoriously explored in the European continental scholarship, as a consequence of the EU integration process. EU member States, Germany and Italy in particular, have developed similar – though not coincident – doctrines of constitutional tolerance/resistance (Solange, controlimiti), which accord or deny the ‘entrance’ of external legal sources under certain circumstances, and have contributed to the reflexive evolution of the EU system towards greater political integration and respect of fundamental rights.
These models of constitutional tolerance/resistance/jurisgeneration are increasingly invoked and applied outside the intra-EU context, as a general template to manage inter-systemic collisions.Footnote 111 The most famous example probably remains the Kadi saga, comprising several decisions whereby the ECJ annulled EU Regulations implementing UN Security Council resolutions imposing restrictive measures directed against persons and entities associated with Al-Qaeda, for the violation of the affected persons’ procedural rights, such as the right to be heard and the requirement for an adversarial process. As a result, a source of binding international law was denied entrance and implementation into the EU legal system.Footnote 112
A significant example of this model and its potential risks is judgment no. 238/2014 of the Italian constitutional court. Although it is not possible to provide the full procedural background, this ruling held that the norm of customary international law (CIL) concerning the jurisdictional immunity of States for acta iure imperii, as ascertained by the ICJ in 2012 –Footnote 113 was incompatible with the ‘supreme principles’ of the constitution, when applied to exclude Italian civil jurisdiction for war crimes committed by the Third Reich.Footnote 114 In particular, the Italian court recognized the ICJ’s monopoly over the interpretation of CIL, proclaiming its incompetence to reassess the existence of the rule on the State immunity, and how it relates to the right to jurisdictional remedy. Secondly, claiming to adopt a balancing approach,Footnote 115 it weighted the values that – in its opinion – were at stake: the total ineffectiveness of the right to an effective jurisdictional remedy, under articles 24 of the Italian Constitution and 6 ECHR; and the State immunity recognized by international law, in this case shielding the commission of war crimes. Thirdly, it denied the ‘entrance’ of the CIL norm into the domestic system, thus preventing ordinary courts from implementing it.
Importantly, and first, the court at least formally accorded deference to the ICJ. As some scholars argued,Footnote 116 the court could have autonomously reassessed the scope of the CIL norm on State immunity, but rather claimed not to be allowed to do so. However, in this case ‘judicial comity’ did not lead to ‘legal comity’,Footnote 117 as it provoked a diplomatic deadlock. Secondly, the court took a position clearly in conflict with the Italian parliament and government.Footnote 118 Indeed, in its balancing it did not take into account, or did not give much weight, to other possibly involved values, for example the ‘peace among nations’ and the interest to friendly relationships among sovereign entities (article 11). Regardless of its legal form, this relatively discretional choice had a political impact. Thirdly, the court explicitly had a ‘iurisgenerative’ intent, that is, the purpose of inducing changes in international law, namely the scope of the State immunity norm,Footnote 119 and also aimed to compel the Italian government to promote further negotiations with Germany. Fourthly, in order to support its argument and the final outcome, the court explicitly relied on the ECJ’s Kadi case law, thus trying to present its decision so as to be coherent with a broader ‘transnational’ judicial consensus.Footnote 120 Finally, the subsequent practice of lower courts has proved crucial in somehow managing and de-escalating the resulting diplomatic deadlock, either when they formulated settlement proposals with the German government;Footnote 121 or when they found that the rule on State immunity still barred the exercise of executive jurisdiction, thus avoiding the seizure of German assets in Italy.Footnote 122
From a more general perspective, this example is significant, as it concerns the development by a domestic court of norms regulating the relationships between an external legal system (in this case, CIL) with the domestic one. Further, it demonstrates that, while it is generally true that the ‘“judge judging the judge” activity heavily depends on the political influence and diplomatic relations between systems’,Footnote 123 in many instances judicial rulings may run contrary to otherwise friendly relations and the reciprocal trust.
The scenario arisen from the judgment no. 238/2014 is not an isolated case but, as courts increasingly ‘administer’ FRs, reflects a potentially recurring scenario. Here again, and although it did not involve any interaction between judicial bodies, the decision of the OVG Münster on the Ramstein base provides a significant example. Indeed, insofar as it raised doubts on the legality of the strikes conducted through the Ramstein base by the US government, and imposed the German government to take appropriate measures in that regard, such decision generated also interaction norms, affecting the coordination/cooperation with other systems in FRs matters. This, however, restricted greatly the diplomatic room of maneuver of Germany, and seem to have produced a diplomatic deadlock with the US, a key strategic ally.Footnote 124
In yet other cases, political influence and economic interests, as well as power grab considerations,Footnote 125 rather than ‘humanity’, might play a more direct role into the development of interaction norms. This may be the case, for example, of the use of self-executing doctrines by the US Supreme Court towards the rulings of the ICJ,Footnote 126 and by the ECJ in the field of GATT, WTO and international economic agreements.Footnote 127 Similarly, US courts restricted the extraterritorial reach mainly in the field of human rights protection,Footnote 128 but narrowed it only slightly as regards its instruments of (direct or indirect) government of global economy, often with the result to shield US companies from lawsuits brought by foreign nationals.Footnote 129 In these instances, domestic courts, in denying the direct effect of international binding norms, seem more concerned with preserving their domestic authority as holders of the ‘final say’, or with guaranteeing domestic political and/or economic interests.
IV Conclusion: The Administrative Conception of FRL, its ‘Transnationality’ and Potential Risks
The necessarily a-systematic survey conducted above, based on the GAL analytical framework, seems to provide some answers to the persisting struggles of FRL scholarship. First, the GAL approach confirms the necessity to look at FRL in functional terms. At a time when the divide between foreign and domestic affairs has become almost impalpable, the (study of the) law of FRs cannot be limited to the traditional areas of treaty-making; international and supranational integration; and use of military force. To have a realistic understanding of the law/FRs relationship, the scope of FRL (and its scholarship) must include the legal fields functionally affecting FRs. Although admittedly in the age of globalization FRs are virtually everywhere, the GAL approach provides reasons to expand the scope of FRL, so as to include at least all the legal fields that somehow separate the internal from the external and mediate the inward reception of international law into the domestic legal system.Footnote 130 In this regard, looking at FRL through the lenses of GAL offers another conception of (the function of) FRL in the context of legal-political globalization: the administrative one. Such conception captures the idea that the sources of FRL – be they domestic or international – provide relevant institutional actors with concrete goals and results to accomplish in the context of FRs, as well as substantive and procedural standards to ‘manage’ FRs, whose respect can be in turn reviewed by judicial bodies.
The functional understanding of FRL makes apparent another key element brought out by the GAL approach: the role of ‘global regulators’ of courts, in a domain where their influence is still underestimated.Footnote 131 The expansion of the judicial reach in FRs is not just quantitative, as more and more FRs questions are adjudicated by courts on the merits; but also qualitative, as judicial rulings affect the concrete management/‘administration’ of FRs. Courts – either voluntarily or involuntarily, either directly or indirectly – increasingly participate in the exercise of FRP, as they contribute to set or change the legal patters that the political branches must follow, also prospectively. This holds true even when courts adhere to the position of political branches: as courts step into the FRs arena, for analytical purposes it does not change much whether their assessments coincide to that of the executives and parliaments or not. For this reason, in highlighting the role played of courts, the GAL approach could also strengthen their self-awareness and responsiveness, just as for other GABs.
The analytical tools provided by GAL proved also useful to assess the emerging ‘transnationality’ in FRL, in two respects at least. Firstly, in adjudicating FRs questions judicial bodies often apply a sort of ‘patchwork’ of domestic and international legal sources.Footnote 132 Secondly, courts seem increasingly to develop comparable and/or equivalent argumentative models and standards of review, sometimes even explicitly recognizing reciprocal influence.Footnote 133 However, the degree of formalization of such ‘common language’ is probably fated to remain underdeveloped, when compared to other functionally differentiated fields which constitute the usual focus of GAL studies. Indeed, next to other factors which make judicial networks less formalized than others, in FRs matters judiciaries are ‘torn between, on the one hand, [their] loyalty to the international and national rule of law and, on the other, [their] allegiance to national or organisational interests’.Footnote 134
This point leads to a final consideration. The survey showed that the expansion of the judicial reach on FRs questions often ends up in further obstacles to the coordination of conflicting systems and to the ordering of global governance. Even the use of human rights or other substantive standards can lead to greater disorder, especially because courts’ decisions highly differ as regards their hierarchization. The administrativization of FRs – a complex phenomenon driven, among other factors, by the greater relevance to the legal position of the individual, the spread of (constitutional) result-oriented norms, and a procedural turn in FRL – does not always imply greater coordination among systems, but can rather bring more disorder, conflict and unpredictability. The Miller judgment of the UK Supreme Court, the ItCC judgment no. 238/2014 and the ruling of the OVG Münster on the Ramstein base – the very case with which we opened this chapter – are glaring examples of the risks linked to this trend. More generally, this consideration puts somehow into question the normative aspirations of GAL, insofar as it advocates for the expansion of ‘administrative’ norms and judicial control on the exercise of power in transnational arenas, with the goal to decrease conflicts and inconsistencies among involved actors/systems, and increase their legitimacy. Although a critical assessment of such normative aspirations lies outside the scope this chapter, the administrativization of FRs, and the role played by courts in that context, constitute a hard test for the capacity of the GAL project – not only to describe, but also – to order the structures of global governance, and opens new venues for further research in the vast field of the relationship between law, FRs and global governance.
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