Judicial Review, Foreign Relations and Global Administrative Law. The Administrative Function of Courts in Foreign Relations
In: Helmut Aust/Thomas Kleinlein (eds.), Encounters between Foreign Relations Law and Public International Law - Bridges and Boundaries (Cambridge: CUP, 2021), pp. 130-158, available at https://www.cambridge.org/core/books/encounters-between-foreign-relations-law-and-international-law/judicial-revie
26 Pages Posted: 3 Jun 2020 Last revised: 23 Aug 2021
Date Written: June 3, 2020
The chapter investigates the role of domestic courts in the management of foreign relations (FRs). Combining insights from the ongoing trend towards the ‘administrativisation’ of the jurisdictional function and the theoretical approach of Global Administrative Law (GAL), it explores whether and to what extent domestic judicial bodies “administer” FRs, establish coordination relationships and potentially develop a ‘common language’, even in such highly politicized field. In particular, the GAL approach brings out the role of global regulators of courts in a domain where their influence is often underestimated. With a varying degree of awareness, courts contribute to determine States’ FRs, and this role in contemporary constitutional systems has become structural. Indeed, a GAL approach, in highlighting such role, may strengthen the self-awareness and responsiveness of courts. However, a survey on the judicial practice in this field suggests that the intervention of judicial bodies may lead to greater disorder, conflict and de-stabilization, thus – and paradoxically – frustrating the purposes of ordering the structures of global governance underlying the GAL project. Section II briefly recalls the main features of FRL (II.A) and GAL (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, sub section III.A focuses on the ‘review norms’, while sub-section III.B focuses on the ‘interaction norms’. Section IV concludes, summarizes the core claims and highlights, from a more normative perspective, the potential risks of the administrativisation of FRs, which may also cast doubts on the general value of GAL as a normative endeavor.
Keywords: comparative foreign relations law, Global Administrative Law, judicialization of politics, global governance, judicial networks
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