Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs?

By Thomas M. Franck | Go to book overview

CHAPTER NINE
The Special Cases: In Camera Proceedings
and Declaratory Judgments

WE MAY HAVE something to learn from Germany, but we are also differently positioned. American foreign relations are infused with the special circumstances that go with being a superpower. Our foreign policy defends the frontiers of our national interest, but it is also the arrowhead of security for many other democratic nations that rely on us for their defense. Some of these democracies—Japan is the leading example—have been partially disarmed as a consequence of settlements ending great wars. Others live under military restrictions imposed by international agreement (Germany) or a voluntary (Switzerland) or imposed (Austria) policy of neutrality or are simply too small or weak to rely on their own capacity for self-defense.

Admittedly, the special role of the United States as the leader of an expanding coalition of democracies is no longer one of absolute paramountcy, as it was in the decades following the Second World War, and the threats facing what was called the western alliance have diminished since the mid-1980s with the disintegration of the rival Communist camp. Nevertheless, U.S. foreign policy is still of special, indeed unique, significance in stabilizing the global system. This means that U.S. courts must be aware of our foreign policy's special global role and its implication for the role of judges in reviewing the constitutionality and legality of policy choices made by foreign-policy managers.

Here the U.S. federal judiciary cannot expect guidance from its German brethren because Germany, even since reunification, has eschewed for historical reasons any assumption of a foreign-policy responsibility comparable to that of the United States. Thus, the German Federal Republic's judiciary, in taking jurisdiction over foreignaffairs cases, took quite a different and less complex responsibility than would American courts if they were similarly to extend the scope of judicial review.

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