Foreign Affairs in Court

Elena Chachko
Friday, April 13, 2018, 8:00 AM

Scholars have long debated the role of courts in foreign affairs and national security. These debates have centered on the institutional competence of courts to address complex and secretive foreign and security issues, as well as the democratic and constitutional legitimacy of judicial review in those areas.

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Scholars have long debated the role of courts in foreign affairs and national security. These debates have centered on the institutional competence of courts to address complex and secretive foreign and security issues, as well as the democratic and constitutional legitimacy of judicial review in those areas. In a new draft paper, forthcoming in the Yale Journal of International Law, I explore the dynamic between courts and policymakers in the foreign and security domain through an empirical study of the targeted sanctions jurisprudence of the EU courts. The paper evaluates the practical consequences of the particular form of judicial intervention that the EU courts have exercised, namely, process-oriented review. The data and analysis shed new light on the longstanding debate about courts and foreign and security policy.

The study is based on an original dataset that includes 204 decisions issued by the EU General Court between July 2009 and March 2017. The decisions reviewed the legality of individual economic sanctions (primarily asset freezes) that the EU imposed within the framework of its Iran and Syria sanctions regimes. In reviewing targeted sanctions, the EU courts have focused on policing the EU Council’s compliance with due process requirements in individual designations, while giving the council virtually absolute deference with regard to the underlying sanctions policies. In other words, the courts have not told the EU Council which sectors to target, whom to designate for individual sanctions or how to design designation criteria. The EU Council has therefore been free to re-designate individuals who won annulment of their designation in court after addressing the procedural flaws identified by the courts.

Importantly, the study does not only document the content and outcomes of the judicial decisions. It also traces the political and judicial dialogue related to these decisions by collecting data on the EU Council’s policy responses to judicial intervention. The study followed up on each individual sanction struck down by EU courts to see whether that sanction was subsequently reimposed by the council. In addition, the study explores how judicial intervention influenced the EU sanctions architecture concerning Iran and Syria more broadly, including compliance with due process in the designation process.

The principal findings of the study are as follows:

  1. For first-time applicants, EU courts struck down challenged sanctions on due process grounds in 73 percent of the cases.
  2. The EU Council reimposed most of these invalidated sanctions. Approximately two-thirds of invalidated sanctions ultimately survived judicial annulment.
  3. In approximately one-third of cases, however, judicial invalidation of the sanctions prevailed, and individual sanctions were not reimposed.

These findings suggest that judicial review has had an impact on both substantive EU policy decisions and on the council’s compliance with due process obligations. Although judicial annulment of sanctions ultimately did not change the situation of designated persons and entities in the majority of cases in the dataset, the significant percentage of cases in which the council did not reimpose invalidated sanctions suggests that judicial review was successful in eliciting policymakers’ preferences and eliminating excessive sanctions. That is, the council’s decision as to whether or not to reimpose an invalidated sanction represents a judgment as to which individual sanctions were actually essential to achieving EU policy goals vis-a-vis Iran and Syria. Moreover, judicial review seems to have encouraged the council to adhere to more robust procedures before sanctions are imposed.

These empirical findings further indicate that procedural judicial review can reconcile the need for oversight of executive action related to foreign affairs and national security with institutional concerns that have long stood in the way of judicial review in those areas. In the case of EU sanctions, procedural judicial review coupled with deference on substantive policy facilitated a dynamic of accountability, without substantially hindering the ability of EU policymakers to achieve their policy goals.

It is important to emphasize that these findings do not allow for any definitive normative conclusions. I do not argue that courts should review executive and legislative acts in the areas of foreign affairs and national security. As I note,

[w]hether this is a legitimate exercise of judicial power is a deeply contested normative question, and answering it falls well beyond the scope of this paper. Rather, the paper aims to assess what happens when courts do weigh in. It provides an empirically grounded analysis of how procedural judicial review of foreign affairs and national security measures actually operates in practice. This analysis should be of interest to both champions and skeptics of judicial review in foreign affairs and national security.

Elena Chachko is the inaugural Rappaport Fellow at Harvard Law School. She is also an academic fellow at the Miller Institute for Global Challenges and the Law at Berkeley Law School. Elena’s scholarship at the intersection of administrative law, foreign relations law, national security law and international law has been published or is forthcoming in the California Law Review, the Georgetown Law Journal, the Stanford Technology Law Review, the Yale Journal of International Law, and the American Journal of International Law Unbound, among other publications. It has won several awards, including the 2020 Mike Lewis Prize for national security law scholarship, the Harvard Law School Irving Oberman constitutional law writing prize, and the Harvard Law School Mancini writing prize. Elena previously held fellowships at the University of Pennsylvania’s Perry World House, the Harvard Kennedy School’s Belfer Center, and the Harvard Weatherhead Center. She received her doctoral degree from Harvard Law School. Prior to her doctoral studies, Elena clerked for Chief Justice Asher D. Grunis on the Supreme Court of Israel. She has also worked at the United Nations Office of Counterterrorism and the Israeli Ministry of Foreign Affairs, where she focused on arms control and non-proliferation of weapons of mass destruction.

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