Kassoti: International Law as a Political Question: The CJEU’s Deference to the Institutions on Questions of International Law

Eva Kassoti (T.M.C. Asser Institute) has posted International Law as a Political Question: The CJEU’s Deference to the Institutions on Questions of International Law. Here's the abstract:

In the field of EU external relations law, judicial deference has been discussed mostly within the context of the political question doctrine debate. The latter has a long pedigree in US law. Its nature, scope and legitimacy as well as its applicability in the EU external relations context are controversial and the topic has been mainly discussed in the context of the CFSP. At the same time, the CJEU’s deference to the political institutions on questions relating to international law and international relations has been overlooked in the relevant literature, despite the historic relationship between the political question doctrine and international law and the fact that, there is relevant CJEU practice.

Questions of judicial deference in the realm of foreign affairs bring to the fore fundamental constitutional questions regarding the role of the judiciary and the proper division of powers between courts and the political branches.

In this light, the contribution focuses on the question of whether and under what circumstances the EU courts follow the lead of the political branches when faced with questions of international law. By doing so, the paper purports to feed into the broader debate on deference to the political institutions in EU external relations law as well as to illuminate the constitutional dimension of the discussion.