Elena Chachko, Foreign Affairs in Court: Lessons from CJEU Targeted Sanctions Jurisprudence, 44 Yale J. Int’l L. 1 (2019).
Abstract: This paper seeks to shine new light on the dynamic between courts and policymakers in the areas of foreign affairs and national security through an empirical study of the targeted sanctions jurisprudence of the EU courts. It draws on an original dataset that includes judicial decisions reviewing 204 individual sanctions imposed under the EU Iran and Syria sanctions regimes, as well as the subsequent political and judicial dialogue related to these decisions. The principal findings of the study are (1) for first-time applicants, EU courts struck down challenged sanctions on due process grounds in 73% of the cases, (2) The EU re-imposed most of these invalidated sanctions, with the result that approximately 2/3 ultimately survived judicial annulment, and (3) in approximately 1/3 of the cases, however, judicial invalidation of the sanctions prevailed. While the data do not permit any definitive normative conclusions, they do suggest that process-oriented judicial review in the case study was successful in eliciting policymakers’ preferences as to which individual sanctions were actually essential to EU policy goals, in eliminating excessive sanctions, and in encouraging the EU Council to adhere to more robust procedures before sanctions are imposed. The empirical findings therefore indicate, the paper argues, 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 under study, procedural judicial review facilitated a dynamic of accountability, without substantially hindering the ability of EU policymakers to achieve their policy goals.