A Fresh Look at the Issue of Non-justiciability of Defence and Foreign Affairs

Abstract

AbstractFor decades it has been authoritatively stressed that non-justiciability of defence and foreign affairs represents one of the major hurdles to the application of international law by domestic courts. Until now, however, international law scholarship seems to have overlooked two aspects of this issue. First, it has not been sufficiently highlighted that the international and the European community legal orders are progressively eroding the scope of application of these non-justiciability doctrines. Second, it has rarely been shown how judicial intervention in international matters can be prevented from turning into the ‘judicialization’ of foreign policy. Hence, ideally by moving along the path traced by those who have already dealt with this issue, the present work aims to analyse these two aspects in greater depth.