Policy and Procedure in the Age of Personalized Foreign and Security Policy

This paper explores 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.
While the data do not permit any robust normative conclusions, they do suggest that process-oriented judicial review in the case study facilitated a dynamic of accountability and eliminated excessive sanctions without substantially hindering EU policymakers’ ability to execute their policies. They therefore indicate 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.