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The Role of the Highest
Courts of the United
States of America and
South Africa, and the
European Court of
Justice in Foreign Affairs

Riaan Eksteen
The Role of the Highest Courts of the United States
of America and South Africa, and the European
Court of Justice in Foreign Affairs
Riaan Eksteen

The Role of the Highest

Courts of the United States
of America and South Africa,
and the European Court
of Justice in Foreign Affairs

123
Riaan Eksteen
Swakopmund, Namibia

ISBN 978-94-6265-294-1 ISBN 978-94-6265-295-8 (eBook)

https://doi.org/10.1007/978-94-6265-295-8
Library of Congress Control Number: 2019935823

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl

Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg

© T.M.C. ASSER PRESS and the author 2019

No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any
means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written
permission from the Publisher, with the exception of any material supplied specifically for the purpose of
being entered and executed on a computer system, for exclusive use by the purchaser of the work.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publi-
cation does not imply, even in the absence of a specific statement, that such names are exempt from the
relevant protective laws and regulations and therefore free for general use.

This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part
of Springer Nature
The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany
To my long-suffering and patient wife, Ria,
who has given her love in abundance. That
sustained me. She sacrificed a lot by being
alone during many days and nights while I
was completing my thesis and compiling this
book.

To my three sons, Riaan Jr., François and

Louis, with their wives, and my nine
grandchildren for their endless
encouragement and support.
Foreword

In this book, Dr. Riaan Eksteen persuasively demonstrates that the judiciary has
incontrovertibly had an impact on the foreign policy behaviour of states, as well as
on the policy-makers responsible for foreign policy decision-making. That makes
this book a valuable and innovative contribution to foreign policy analysis.
Foreign policy analysis is an eclectic field of inquiry, and scholars have sought
to understand the role of a broad array of actors in a variety of foreign policy
domains. There are numerous studies on the role of the executive and legislative
branches of government, as well as quite a few studies that have sought to
understand the role of leaders, advisors and the bureaucracy in foreign policy
decision-making. However, studies on the role of the judiciary have been largely
absent from the field.
Although there are studies that discuss law or legal principles, these generally
focus on the influence of international law and norms on domestic politics or
foreign policy obligations. In other words, such studies focus on external influences
on foreign policy. Dr. Eksteen’s project asks a very different question: his work
probes the role of the state’s domestic judiciary—and specifically its high courts—
on its foreign policy. This sets Dr. Eksteen’s study apart and makes this book so
valuable. Scholarship in foreign policy analysis has been largely silent on the role
of the judiciary. In the study of foreign policy, the judiciary has essentially been the
forgotten branch of government.
Dr. Eksteen’s book begins to rectify this. He correctly argues that the role of the
judiciary in foreign policy is largely uncharted terrain. As he begins to set out his
course through this terrain, Dr. Eksteen proceeds to show why, how and to what
effect the judiciary has played a role in foreign affairs. In doing so, he takes an
important step in opening up a new area of inquiry. I fully expect that other scholars
will seek to build on this study—this book—with their own inquiries into the role
of the high courts in foreign-policy making.

vii
viii Foreword

The core of Dr. Eksteen’s book is formed by the close examination of a group of
precedent-setting legal decisions, not just from a single judiciary but from the high
courts of two countries—the USA and South Africa—and the European Union.
Dr. Eksteen’s examination, which is grounded in both foreign policy analysis and
law, starts by delving into decisions made by the US Supreme Court. Given that this
court has been in existence longer than the other courts studied in this book, the US
Supreme Court has the longest historical track record. Among the many cases, it has
decided across its history are a number that have had important implications for the
country’s foreign policy. Dr. Eksteen subsequently moves on to discuss cases
decided by “younger” courts. The book includes cases decided by the two high
courts in South Africa—the Constitutional Court and Supreme Court of Appeal—
and ends with an investigation of cases before the European Union’s European
Court of Justice. The selection of the two countries and the European Union allows
for worthwhile comparisons across different legal systems, as well as courts with
very different histories.
It should be evident that the comparative nature of the book is important: it
allows Dr. Eksteen to not only compare the judicial decisions within each setting
across time, but also allows him to draw comparisons between the different courts
and their national/regional settings. This comparative element enriches the study in
important ways and allows Dr. Eksteen to reach nuanced conclusions.
Across the chapters of the book, it is clear that Dr. Eksteen has a clear under-
standing of the chosen case study methodology, which is consistently applied. He
provides an appropriate justification for the selection of the USA, South Africa and
the European Union, as well as for the specific court cases, which are all meticu-
lously researched. In addition to discussing the legal cases, Dr. Eksteen provides
sufficient background to the settings and the cases to help the reader have a
well-rounded understanding of each decision within its proper historical context.
Overall, this book represents a valuable addition to the literature in foreign
policy analysis and fills a gap in the literature that begs to be filled. As already
mentioned, other branches of government have received ample attention in foreign
policy analysis. Although there is good reason to study leaders and their advisors,
as well as their relationships with the bureaucracy and the legislature, the judiciary
clearly also has a role to play in either constraining or enabling specific actions in
foreign policy. The analysis presented in this book is valuable in its own right, but
also makes the case that the judiciary’s impact on foreign policy is worthy of more
scholarly attention than it has received to date.
This book represents an innovative study of a neglected actor in foreign policy
analysis. It is a solid contribution to the literature in foreign policy analysis and the
broader field of international relations. This study also begs to be emulated.
Dr. Eksteen’s insightful book is interesting in its own right: it demonstrates that
the judiciary does influence foreign policy making and should not be overlooked.
Hence, the book is worth reading for the insights it offers into the role of the high
Foreword ix

courts in foreign policy making. That said, it also opens up an area of inquiry that
has been long—too long?—neglected. Foreign policy analysis, as a field of inquiry,
would do well to pay more—and more serious—attention to the role of the judi-
ciary in foreign policy.

Denton, Texas Marijke Breuning

United States of America Professor of Political Science
University of North Texas
Former Editor, American Political Science Review
2012–2016; Author of Foreign Policy Analysis
A Comparative Introduction (2007)
Preface

This book is based on the thesis that the author successfully submitted to the
University of Johannesburg, South Africa, in fulfilment of the requirements for the
D Litt et Phil degree in Politics. The degree was awarded on 16 October 2018.
The significance of this book lies in the novel contribution it makes to under-
standing the judiciary’s role in foreign affairs based on a comprehensive case study
approach. This created the opportunity to explore in depth the way the three
judiciaries studied handled issues with implications for the foreign affairs of the
USA, South Africa and the European Union and to prove that judiciaries deserve to
be included as a state-related actor in foreign policy analysis (FPA).
It is acknowledged that the subject of the judiciary’s involvement and impact on
foreign policy is under-researched, and thus, a greater interest has emerged in the
influence of various domestic dynamics on foreign policy decision-making. In
addition, the book identifies the judiciary as largely uncharted terrain in terms of its
impact on foreign affairs.
FPA typically does not address the impact of the judiciary on foreign affairs.
Consequently, the field of judicial politics does not focus on the foreign policy
impacts of court decisions in a systematic way. That identified vacuum is now filled
with this book. It has been done in an authoritative and persuasive way. It is not
only instructive, but also makes a contribution to libraries’ holdings of publications
on foreign affairs. As far as can be established, this is the first such comprehensive
and systematic inquiry into the foreign policy role of the four courts.
Important aspects relating to the US Constitution are put into a historical per-
spective. Similarly, facts about the two South African courts and the ECJ are
conveyed in an orderly fashion—contributing to a better understanding of these
courts, which are not that well known and understood.
A wide range of non-governmental organisations involved in research and
advocacy in areas such as human rights, foreign relations and national politics, and
EU issues will also find the book a very useful source of information. Non-students
in foreign affairs may well be educated and informed about the three court systems
in a way that is not too legalised and easy to understand and appreciated. Even these
readers will get an educational experience about issues that are still current and

xi
xii Preface

constantly in the news. These are also placed in a context that is easily understood.
Suffice it to refer to Chap. 10 that deals with the ECJ in the context of Brexit. From
its inception, the ECJ has been an unusual international forum for the EU. Its
influence has become more apparent and contested. It has been hailed as the most
powerful supranational court in world history. The court has already had a sig-
nificant impact on the EU’s foreign affairs. Over six decades, the ECJ has grown
into a formidable force, so much so that it has not endeared itself to the UK. In the
Brexit negotiations between the UK and the EU, the ECJ has become a major bone
of contention—a red line for Prime Minister Theresa May.
The subject of this book has not been a static one. New points of view identified
in selected case studies as germane to this study were accommodated. Information
has been sourced and analysed on a continuous basis. It is an evolving subject, with
new aspects constantly coming to the fore because of new rulings being delivered
by the relevant courts devoted to court cases related to foreign affairs.
Consequently, this book is not confined to developments in the distant past and
commentary thereon. Care and notice of all developments taking place during the
whole period of its preparation and completion have been taken into account. The
position of the UK on its exit strategy from the EU is a prime example of the
importance of attending to that issue on a continuous basis, especially given that the
UK has had such an extraordinary preoccupation and inordinate obsession with the
ECJ leading up to and after the referendum in June 2016. It underscores in no small
way to what extent the ECJ is of consequence in foreign affairs. It is not that the UK
has singled out a particular ruling to substantiate its abhorrence; instead, it has an
overwhelming aversion to the court that has clouded its whole approach to finding a
new and mutually accommodating relationship with the EU. The ECJ became a red
line, and Prime Minister Theresa May forcefully ensured the country that the UK
would never be subjected to the court again. When the Withdrawal Agreement was
settled with the EU, that red line was very much blurred. Still, this study had to
have a cut-off point. It was 31 December 2018. The UK is destined to leave the EU
on 29 March 2019.
Attention should be given to the book’s didactic elements—their importance,
reasons for their use and methodology. The first thing to emphasise is the research
design and methodology. The role of the judiciary in foreign affairs is investigated
in this study by way of qualitative research, or systematic enquiry, whereby the
wide range of published material on FPA and the three judiciaries, especially
SCOTUS and the ECJ, is interpreted. Hesse-Biber and Leavy call it a
knowledge-building process—an intellectual, creative and rigorous craft that can
only be learnt and developed through practice.1 With its well-established modes of
enquiry, qualitative research was most appropriate in finding answers to the study’s
research question.2 This approach is supported by the statement by Babbie and

1
Hesse-Biber S, Leavy P (eds) (2011) The Practice of Qualitative Research, 2nd edn. Sage
Publications, Inc., London, p. 4.
2
Marshall C, Rossman GB (eds) (2016) Designing Qualitative Research, 6th edn. Sage
Publications, London, p. 1.
Preface xiii

Mouton that qualitative research focuses on cases studied and their “structural
coherence with a larger context”.3
Secondly, regarding the book’s theoretical framework it is important to record
that it is an interdisciplinary study, involving international relations and law, and
having FPA as its point of departure. Consequently, FPA has presented the core
theoretical framework for research. The relevant literature revealed that judicial
institutions have been largely overlooked—basically neglected—in FPA. Hudson
maintains that this methodology possesses the required tools to explore questions,
such as the role of the judiciary in foreign affairs.4 There is thus a need to look
afresh at the main actor, the state, and its components, in the foreign policy
decision-making unit in FPA and to consider the judiciary as a proper entity for
inclusion in that unit as well because of its influence. With data collected and
interpreted, the merits for that inclusion could be argued and the analytical
framework adjusted.
The main structures in that framework include primarily qualitative research
focusing on the identification of the research question and engaging in case study
research; assessing historical material; interpreting accumulated material; and
reaching a conclusion on the contribution of the study.
Thirdly, the qualitative research and the research question are of equal impor-
tance. Qualitative research is a process that attempts to arrive at a new under-
standing of the study’s main topic and its numerous, diverse sub-topics.5 Maxwell
elaborates that this is to comprehend the meanings and perspectives so intertwined
with that topic.6
This process starts with the formulation of the important research question—the
backbone of this book. Babbie and Mouton explain that such a conceptual
framework requires the aim of a study to be stated as well as the principles guiding
it.7 The question thus has to articulate what this study wants to achieve and know,
as well as to fill the knowledge gap with new information and concepts. For Agee, it
is critical that the question remains focused at all times.8 Therefore, an overarching
question must be clear, concise and brief.9 It has to be formulated properly and
unambiguously. This will assist in developing new, more specific questions as
research progresses. Flick insists that it must be couched in concrete terms with the

3
Babbie E, Mouton J (eds) (2003) The Practice of Social Research. Oxford University Press,
p. 272.
4
Hudson VM (2014) Foreign Policy Analysis: Classic and Contemporary Theory, 2nd edn.
Rowman & Littlefield Publishers, Inc., Lanham, Maryland, pp. 30–31.
5
Riviera D (2010) Handling Qualitative Data: A Review. The Qualitative Report, Vol. 15, No. 5,
p. 1300.
6
Maxwell JA (2013) Qualitative Research Design: An Interactive Design Approach, 3rd edn. Sage
Publications, London, p. viii.
7
Supra n. 3, p. 282.
8
Agee J (2009) Developing qualitative research questions: a reflective process. International
Journal of Qualitative Studies in Education. Vol. 22, No. 4, pp. 431–447, p. 446.
9
Flick U (2009) An introduction to qualitative research, 4th edn. Sage Publications, London,
p. 100.
xiv Preface

aim of clarifying what the research must reveal.10 This will ensure that all com-
ponents of the framework are directly connected to it and in turn with each other.11
Maxwell stresses the point that the research question must be constructed and
reconstructed as the different components of the design unfold and their implica-
tions for one another are assessed.12 It is vital that the qualitative question reflects
the particularity of the study. This will guide the analysis of the researched mate-
rial.13 Agee concludes with the following on the critical role of questions in the
research process:

During the inquiry process, a researcher needs to see questions as tools for discovery as
well as tools for clarity and focus. In the end, good qualitative questions are dynamic and
multi-directional, drawing the reader into the research with a focus on a topic of
significance.14

With the framework established, it is clear what is going on with the issues to be
researched and what theories, principles and doctrines will guide the study. It is
essential for the end product that the research has been done effectively and
reliably.15
For this book, the research question has been formulated as follows: What is the
role of the judiciary in foreign affairs?
According to Bogdan and Biklen, in methodological writing the term “qualita-
tive data” is generally taken to encompass the rough materials researchers collect
from the field they study.16 Furthermore, it demonstrates how researchers make
decisions along the way that impact on their research findings.17 The overall
research strategy for this study was to collect and analyse material on this book’s
topic so that a credible end product could be assured. The main guide for con-
ducting the research was relevancy. The strategy relied on was qualitative assess-
ments of written accounts—i.e. a literary study—owing to the specificity of the
research subject and of the judicial and foreign affairs fields of enquiry.

Swakopmund, Namibia Riaan Eksteen

10
Ibid., p. 98.
11
Supra n. 6, p. 3.
12
Ibid.
13
Supra n. 8, pp. 441–442.
14
Ibid., p. 446.
15
Supra n. 5, p. 1302.
16
Bogdan RC, Biklen SK (eds) (2006) Qualitative Research for Education: An Introduction to
Theories and Methods, 5th edn. Pearson Education Group, Boston, p. 117.
17
Supra n. 1, p. xiii.
Acknowledgements

The stimulus for this book has been my exposure to and never-ending interest in the
US political scene. It started from my first days at the SA Embassy in Washington,
DC, where I assumed duty on 1 March 1968. It resulted in my M.A. degree (Cum
Laude) from the University of South Africa in March 1974 on the subject of the US
Senate’s role in foreign affairs.
During my 16-month submergence in pursuing the subject matter that first led to
my doctoral thesis and has now resulted in this book, exceptional guidance was
provided by Prof. Deon Geldenhuys, Department of Politics and International
Relations, and Prof. Hennie Strydom, Department of Public Law, at the University
of Johannesburg, and South African Research Chair in International Law.
I wish specially to convey my deepest appreciation to Prof. Marijke Breuning for
graciously accepting my invitation to write the foreword, and for then honouring
me by providing a thorough and generous overview of the book from her distinctive
academic vantage point.
Encouragement came from several quarters. My mentor and friend of 55 years,
Pik Botha—former South African Foreign Minister for 18 years, to whom I owe so
much in various ways—never failed to inspire me during our lifetime
friendship. My first lecturer in Political Science and later also my study leader for
my M.A. degree, Dan Kriek, egged me on for many years—finally I succumbed.
The constant interest shown by countless friends was most valuable, especially that
of Frans Stroebel.
Throughout, expert assistance was given by Prof. Craig MacKenzie, who
ensured that the text was grammatically up to a high professional standard. Natania
du Plessis helped assiduously to keep the end result in a proper format.
Thanks must be bestowed on my Creator, who endowed me with a few qualities
and some talents that enabled me to conclude both tasks and to answer the call that
has always been uppermost in my mind to guide me to persevere—The Parable
of the Talents in Matthew 25.

xv
xvi Acknowledgements

In the end, I came to appreciate the apt remark of Norbert Elias even more:
We all have to bear in mind the island of our knowledge in the sea of our
ignorance.
About This Book

The purpose of this book is to investigate the role of the Supreme Court of the
United States of America (SCOTUS), the two Appellate Courts of South Africa
(Constitutional Court (CC) and the Supreme Court of Appeal (SCA)) and the
European Court of Justice of the European Union (ECJ) in foreign affairs. The first
two are of course constitutional democracies institutionalising the separation of
powers between different branches of government and observing the rule of law. In
all three cases, the courts mentioned are legally entitled to deal with matters related
to foreign affairs. In order to examine the role of the four courts in practice, the
study reviewed a vast number of judicial decisions, presentations and briefs
addressed to the courts, scholarly writings, and various other relevant sources. The
latter three courts do not have a history or track record in matters involving foreign
affairs to the same extent as SCOTUS. The main focus has consequently been on
this court, with a more incisive examination of its role in foreign affairs. The study
presents essential material and analysis on foreign affairs by all four courts through
their decisions, presentations and briefs to these courts, scholarly contributions and
relevant publications. The book recognises the ECJ as the most powerful supra-
national court in world history, with defined jurisdiction over Member States of the
Union.
In this study, the author addresses a vastly neglected question in the scholarly
domain of foreign policy analysis (FPA): What role does the judiciary play in the
foreign-policy process of states? Courts are not formally authorised to formulate
foreign policy, a task that states typically assign to the executive and to a lesser
extent the legislature—or what the author calls the political branches of govern-
ment. This long-standing and familiar distribution of functions has led to the pre-
sumption in the FPA literature that the judiciary does not merit serious
consideration as a factor in the foreign policy process. The author records the
current state of FPA in his literature review in Chaps. 1 and 2, which is dedicated to
an overview of foreign policy analysis as a research tool.
Since SCOTUS has a long history of dealing with foreign policy issues and
hence has generated a large volume of related documentation, the author devotes
four chapters to this court. He traced the evolution of SCOTUS through four eras in

xvii
xviii About This Book

terms of its handling of matters concerned with US foreign policy. As the court
continuously re-examined its role in this regard, SCOTUS developed into a pow-
erful and bold constitutional adjudicator that did not shrink from judging (and often
overturning) the foreign policy actions of the political branches in terms of con-
stitutional provisions. The author illustrates very clearly that SCOTUS has become
an important influencer of foreign policy by reviewing the decisions and actions
of the foreign policy makers.
Because the two South African courts have by contrast dealt with relatively few
foreign affairs cases, their role is examined in a single chapter. Still, the courts have
already decided a number of benchmark cases in which human rights issues fea-
tured prominently. Their rulings in these hearings, the author concluded, have
already left an indelible reminder that the judiciary will not be kept from adjudi-
cating cases that may have implications for the country’s foreign affairs.
The three chapters on the ECJ draw on a wealth of cases related to the foreign
affairs of the EU. Known for its judicial activism, the court’s jurisdiction has
extended to areas such as human rights, monetary policy, immigration and
citizenship. The pronouncements show that the ECJ is committed to guiding the EU
in its foreign relations. It is especially with regard to human rights, which the court
placed at the apex of the EU’s edifice, that the ECJ has taken a forceful and
uncompromising stand. The book’s overall conclusion, based on the three judi-
ciaries studied, is that the courts involved do not shy away from using their judicial
power when dealing with cases relating to foreign affairs. As a result, the author
argues that the executive has to bend to the judiciary.
Through in-depth and wide-ranging inquiry, the author has demonstrated con-
clusively that the judiciaries involved have assumed a definite role in the foreign
policy processes of the USA, South Africa and the EU, respectively. This is where
the book’s original contribution to knowledge lies. It is, as far as the author could
determine, the first such comprehensive and systematic inquiry into the foreign
policy role of the four courts. With his findings, the author has thrown down the
gauntlet to foreign policy analysts: they need to give due recognition to the role
of the judiciary in the formulation and conduct of the foreign relations of the USA,
South Africa and the EU and also take the study a step further by examining the
same question in other democratic states.
The book consists of five parts with eleven chapters. Each chapter has its own
Reference List and, in some instances, also Further Reading suggestions.

Part I

Chapter 1 introduces the book by providing a background, explaining the selection

of case studies, defining the research problem and conducting a literature review.
The key question of the work is defined as why, how and to what effect the
judiciary is involved in foreign affairs.
Chapter 2 is devoted to foreign policy analysis as the appropriate research
technique for this study and focuses on what the author defines as the state-centred
About This Book xix

approach by FPA that has its focal point the two political branches of government.
His critique that follows is aimed at this approach.
The bottom line is that the author has correctly identified a gap in the literature
that is well worth exploring—the lack of recognition of the judiciary’s role in
foreign affairs is still noticeable in FPA literature. Among the domestic impacts on
foreign policy, the judiciary has been largely ignored. And this matters in an
environment where the boundary between domestic and international politics has
become quite porous, as the author rightly notes. The chapter concludes that FPA
has to move away from its state-centred orientation, which focuses on the two
political branches of government and gives due recognition to the judiciary and its
increasing relevance and influence in foreign affairs.

Part II

Chapters 3–6 deal with SCOTUS. This court is not charged explicitly by the
Constitution with any responsibility in foreign affairs. It does, however, embody the
crucial principles of the separation of powers and checks and balances. Together
with the doctrine of judicial review that the court explicitly defined in 1803,
SCOTUS is assured of being a formidable force in US society—and one no less in
that country’s foreign affairs from a very early stage. In the past 25 years, SCOTUS
has dealt more and more with issues pertaining to foreign affairs. The result has
been that the executive paid the price when SCOTUS started cutting the President
down to constitutional size. Therefore, while SCOTUS may not formulate foreign
policy, nor engage in relations with foreign entities, many judicial actions directly
and indirectly affect foreign affairs. The point is thus not whether the judiciary has a
role to play in foreign affairs, but rather how great its influence is. The stage has
now been reached where the President can no longer merely assume that his actions
—defined as constitutional overreach—will not be critically scrutinised and he
himself not be beyond rebuke. The court has thus determined that the point has
been reached that a President has to be called constitutionally to order when he has
gone too far. The conclusion reached is that SCOTUS is a de facto element in US
foreign affairs. SCOTUS does decide cases that affect the relationship of the USA
with the rest of the world; and as the Justices decide these cases, they are doing as
much as anyone to influence US foreign affairs. The court’s pronouncements in an
age of globalisation, international terror, economic turmoil and, now lately, also
with the ever-growing international debate on immigration, and their consequential
impact on the country’s foreign affairs are not to be underestimated. With the
decision on President Trump’s travel ban, the court admitted what the President had
underlined all along: the crux of his immigration actions has been national security.
The decision gives credence to a statement that in the case of the USA, SCOTUS
has now concretised its role in foreign affairs. Consequently, the stage is set for a
greater involvement of SCOTUS in foreign affairs than before.
Chapter 3 provides a well-developed review of the role of the judiciary in the
foreign affairs of the USA. It provides detailed background and overview of the
judiciary’s involvement in foreign affairs. The chapter is well researched and
xx About This Book

appropriately structured. It focuses on the framing of the US Constitution with its

foreign affairs and judicial content and their implications; judicial review and the
various doctrines and principles applied by SCOTUS, such as deference to the
executive; and important rulings up to 1952.
Chapter 4 gives a structured overview of legal decisions that had an impact on
the powers of the US president. Especially important is the discussion of the
Curtiss-Wright case, which expanded presidential power, and the subsequent
seminal case of Youngstown, which contracted it in 1952 by delivering such a
devastating rebuke to the President in foreign affairs in the midst of the Korean
War. The remaining cases continue to constrain presidential power after 9/11. These
cases differ in that they pertain to convictions of foreign nationals in the USA.
However, they also directly relate to matters of national security and what
Presidents can lawfully do in the name of national security. Full attention is given to
the entry of human rights issues on the court’s calendar.
This chapter is well developed and demonstrates that SCOTUS, after initially
creating a precedent that helped expand the powers of the executive, later served to
constrain those powers (and to make clear that the President needed to act within
the parameters of the Constitution). Special focus is placed on presidential
overreach.
It furthermore concentrates on the entry of human rights issues on the court’s
calendar; and the effects of a changing world with the advent of globalisation, war
on terror and national security issues after 9/11, highlighting how the court began to
curtail the President’s exercise of security measures and the treatment of detainees
at Guantánamo.
Chapter 5 explores in full aspects relating to the Alien Tort Statute (ATS) of
1789 and its impact on foreign policy. The discussion persuasively shows the
intersection between the ATS and foreign affairs. The question is interesting: the
chapter shows the debate on the reach of US courts (i.e. whether they have juris-
diction beyond the USA) as well as the (potential) implications of these decisions
for foreign policy, including foreign economic policy.
Here, too, there seems to be a broadening of the use of ATS in one time period,
followed by a narrowing of its applicability, at least in the view of the court, after
9/11. The author shows why this development makes sense. In the process, the
chapter shows the intersection between court decisions and international diplomacy.
Overall, this chapter changes the frame somewhat (in comparison to the previous
two chapters). Rather than court decisions that affect the President’s power, this
chapter discusses court cases that affect diplomacy and relations with other states.
Chapter 6 discusses recent cases with implications for foreign affairs. The author
argues persuasively that one case of a person with dual citizenship and who is
asking to have the place of birth affixed in his son’s passport as “Jerusalem, Israel”
actually has significant implications for US foreign policy. Moreover, the case is
important for its implications for the political question doctrine, which specifies that
the court cannot rule on explicitly political matters.
The chapter further provides interesting and useful information about the role of
amicus curiae briefs.
About This Book xxi

The chapter concludes by demonstrating how judicial trust once placed in the
executive has been replaced by distrust. The closing section of the chapter sums up
the arguments of Chaps. 3–6 regarding the role of SCOTUS in matters related to US
foreign affairs.

Part III

Chapter 7 helpfully outlines the basic structure of South Africa’s highest courts
(Constitutional Court (CC) and the Supreme Court of Appeal (SCA)), before dis-
cussing specific cases. The highest judicial authority in South Africa has not shied
away from involving itself in issues that may have an impact on foreign affairs.
These two courts have already decided benchmark cases with profound statements
on human rights. The treatment of the South African judiciary must of necessity
rely on a lot less material, since the current court structure has been in place for
much shorter time than the court systems in the USA and the EU.
With a determined approach to human rights issues, their rulings have already
left an indelible reminder that the judiciary will not be kept from adjudicating cases
that may have implications for the country’s foreign affairs. This chapter examines
these two courts with their profound statements on human rights and the impact
of their rulings on the country’s foreign affairs. With its stern reprimands in these
cases, the two courts have lived up to their role of upholding the rule of law in
exemplary fashion. Their rulings carried another equally important message: the
judiciary has an unmistakable role to play in foreign affairs. These cases support the
author’s conclusion that the South African courts have been willing to address
questions related to matters of foreign policy. In doing so these two courts will not
only hold the executive to the principles enshrined in the Constitution, but also keep
the executive within constitutional limits. This they have done in several cases
without fear or favour.

Part IV
From its inception, the ECJ has been an unusual international forum for the EU.
Over the years, it has expanded its jurisdictional authority well beyond its original,
narrow boundaries. Its influence has become more apparent and contested.
Contrariwise, the ECJ has been hailed as the most powerful supranational court in
world history. It has already had a significant impact on the EU’s foreign affairs by
placing human rights unequivocally at the heart of the EU legal order. It secured an
appropriate balance between fighting terrorism and protecting those rights. The
court’s central argument was that the protection of fundamental rights forms part
of the very foundation of the EU’s legal order whereby the court is committed to
guide the EU in its foreign affairs. In doing so the court has ensured that all EU
actions are commensurate with and in harmony with obligations encompassed in all
EU treaties. Over six decades, the ECJ has grown into a formidable force, so much
so that it has not endeared itself to the UK. In the Brexit negotiations between the
xxii About This Book

UK and the EU, the ECJ has become a major bone of contention and stands central
in the efforts to finalise the UK’s exit from the Union by the end of March 2019.
Chapter 8 provides a review of the authority of the ECJ, as well as its place in the
EU more broadly. The ECJ differs from national courts in that it does not have a
mechanism whereby it can enforce its decisions. Even so, the ECJ has been
influential with respect to the foreign policy of the EU. In addition to the general
introduction to the ECJ, this chapter contains a review of the several related Kadi
cases. The discussion of these cases clearly confirms their relevance to the Union’s
foreign policy, although they are quite different from the sort of cases presented in
the other chapters. These cases involving Kadi are especially informative because
of their intersection with UNSC decisions. Hence, these decisions are also about the
role of international governance in foreign policy.
While this chapter analyses the role of the ECJ in the foreign affairs of the EU
and the crucial Kadi-saga and accompanying cases with their focus on human
rights, Chap. 9 pays attention to a series of additional case studies of the ECJ.
Chapter 10 deals with the importance of the ECJ in relation to Brexit. The author
maintains that even after Brexit, the UK will probably need to recognise the ECJ’s
authority in some respects for cooperation with EU countries to be able to work
smoothly. The discussion of the impact of Brexit on the relationship between the
UK and the EU/ECJ is grounded in research and solid knowledge of the role of the
ECJ in European politics and foreign policy. The author makes a credible argument,
and time will tell how the relationship between the UK and the EU (including the
ECJ) will evolve post-Brexit.

Part V
While the political branches of government most directly determine outcomes in
foreign affairs, the contributions of the judiciary are no less significant. Many
questions impacting on foreign affairs require constitutional interpretations relating
to the authority vested in the executive and legislative branches. Only the judiciary
possesses the authority to interpret constitutional and treaty stipulations. In doing so
judicial decisions define the parameters and boundaries within which the political
branches can and should operate—in domestic affairs and most definitely also in the
foreign affairs of the USA, South Africa and the EU.
The study produces a carefully considered argument that draws on a wealth of
literature to address its key research question. Its originality lies in the fact that it
conducts a comparative study of the role of the judiciary in foreign affairs that
enables it to make a contribution to the understanding of the specificities of the part
played by the judiciary in each political system and, more broadly, to make general
points about the nature of that influence. In the study, the author points out that the
scholarly literature in FPA does not fully recognise the judiciaries’ growing
influence, nor does it theorise the process or even the impact in any structured way.
Chapter 11 concludes by giving prominence to the rationale for and role of all
of these Courts in foreign affairs and hence the need to revise established FPA
frameworks. It summarises the findings reached on the role of the courts in foreign
About This Book xxiii

affairs and how this role is growing in substance. This concluding chapter points to
the relative paucity of studies addressing the role of the judiciary in FPA. This is the
result of the field’s strong focus on the executive branch. The study persuasively
shows that FPA would do well to pay more systematic attention to the judiciary as
an important actor in influencing foreign affairs.
Contents

Part I Introduction and Foreign Policy Analysis 1

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.2 Problem Statement and Rationale . . . . . . . . . . . . . . . . . . . . . . 6
1.3 Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.4 Literature Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.4.2 Foreign Policy Analysis . . . . . . . . . . . . . . . . . . . . . . 9
1.4.3 Judiciaries of the USA, South Africa,
and the EU . . . . . . . . . . . . . . .................. 11
1.5 Conclusion . . . . . . . . . . . . . . . . . . . . .................. 16
References . . . . . . . . . . . . . . . . . . . . . . . . . . .................. 17
2 Foreign Policy Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.2 FPA as a Research Tool . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.3 New Circumstances Demanding the Attention of FPA . . . . . . . 32
2.4 National Security and FPA . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.5 Influence of Domestic Affairs on FPA . . . . . . . . . . . . . . . . . . 36
2.6 Impact of the Legislature . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2.7 European Perspectives on FPA . . . . . . . . . . . . . . . . . . . . . . . 42
2.8 Presence of Non-State Actors . . . . . . . . . . . . . . . . . . . . . . . . . 45
2.9 New Actors in FPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2.10 Repacking the FPA Toolbox . . . . . . . . . . . . . . . . . . . . . . . . . 47
2.11 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

xxv
xxvi Contents

Part II United States of America 61

3 SCOTUS (Segment A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
3.2 Constitutional Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
3.3 Evolution of SCOTUS’s Four Historical Eras . . . . . . . . . . . . . 67
3.4 Recognition of Congressional Involvement in Foreign
Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 70
3.5 Framing of the Constitution—Foreign Affairs and Judicial
Content with Their Implications . . . . . . . . . . . . . . . . . . . . . . . 71
3.5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
3.5.2 Constitutional Convention . . . . . . . . . . . . . . . . . . . . . 72
3.6 Foreign Affairs Powers Granted to the Legislative Branch . . . . 77
3.6.1 Specific Powers Granted to Congress . . . . . . . . . . . . . 77
3.6.2 Specific Powers Granted Solely to the Senate . . . . . . . 78
3.7 Constitutional Interpretations of These Powers
by SCOTUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
3.7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
3.7.2 Powers Granted to Congress . . . . . . . . . . . . . . . . . . . 80
3.7.3 Powers Granted Solely to the Senate . . . . . . . . . . . . . 84
3.8 Doctrines Applied by SCOTUS in Cases Involving
Foreign Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
3.8.1 Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
3.8.2 Political Question Doctrine . . . . . . . . . . . . . . . . . . . . 89
3.8.3 Act of State Doctrine . . . . . . . . . . . . . . . . . . . . . . . . 96
3.8.4 Sovereign Immunity . . . . . . . . . . . . . . . . . . . . . . . . . 98
3.8.5 The State Secrets Doctrine . . . . . . . . . . . . . . . . . . . . 110
3.8.6 The Charming Betsy Canon . . . . . . . . . . . . . . . . . . . 111
3.8.7 Deference to the Executive . . . . . . . . . . . . . . . . . . . . 112
3.9 Involvement of US States in Foreign Affairs . . . . . . . . . . . . . . 126
3.10 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
4 SCOTUS (Segment B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
4.2 Youngstown Sheet & Tube Co. v. Sawyer . . . . . . . . . . . . . . . 144
4.2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
4.2.2 The Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
4.2.3 Reaction to and Evaluation of the Decision . . . . . . . . 150
4.3 Human Rights Cases Decided by SCOTUS . . . . . . . . . . . . . . 154
4.3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
4.3.2 Breard v. Greene . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
4.3.3 Medellín v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
4.3.4 Humberto Leal Garcia v. Texas . . . . . . . . . . . . . . . . . 158
Contents xxvii

4.4 Detainee Cases and Their Human Rights Implications . . . . . . . 160

4.4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
4.4.2 Guantánamo Bay Prison . . . . . . . . . . . . . . . . . . . . . . 162
4.4.3 Rasul v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
4.4.4 Hamdi v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . . 166
4.4.5 Hamdan v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . 168
4.4.6 Boumediene v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . 171
4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
5 SCOTUS (Segment C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
5.2 Alien Tort Statute of 1789 . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
5.2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
5.2.2 Filártiga v. Peña-Irala . . . . . . . . . . . . . . . . . . . . . . . . 187
5.2.3 Different Applications of the Alien Tort Statute . . . . . 189
5.2.4 SCOTUS and the Alien Tort Statute Cases . . . . . . . . 191
5.3 Mark Sokolow, et al. v. Palestine Liberation
Organization and Palestinian Authority . . . . . . . . . . . . . . . . . . 220
5.3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
5.3.2 Briefs Submitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
5.3.3 The Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
5.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
6 SCOTUS (Segment D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
6.1 Recent SCOTUS Decisions Involving Foreign Affairs . . . . . . . 230
6.1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
6.1.2 Zivotofsky v. Clinton and Zivotofsky v. Kerry . . . . . . 232
6.1.3 Central Bank of Iran v. Peterson . . . . . . . . . . . . . . . . 244
6.1.4 Cases Resulting from President Trump’s Travel
Bans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
6.1.5 President Trump’s Asylum Ban . . . . . . . . . . . . . . . . . 254
6.1.6 Holder v. Humanitarian Law Project . . . . . . . . . . . . . 256
6.2 Significance of Amici Curiae . . . . . . . . . . . . . . . . . . . . . . . . . 258
6.2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
6.2.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
6.2.3 Importance of Briefs Addressing Foreign Affairs
Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
6.2.4 Selection of Briefs . . . . . . . . . . . . . . . . . . . . . . . . . . 262
6.2.5 Assessment of the Briefs Filed by the George
W. Bush Administration in ATS Cases . . . . . . . . . . . 265
xxviii Contents

6.3 Growing Distrust in the Executive . . . . . . . . . . . . . . . . . . . . . 267

6.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
6.5 Summation of SCOTUS’s Involvement in Foreign Affairs . . . . 270
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277

Part III South Africa 283

7 South Africa—Constitutional Court and Supreme Court
of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
7.2 Human Rights and South Africa’s Foreign Policy . . . . . . . . . . 286
7.3 Cases Involving Foreign Affairs . . . . . . . . . . . . . . . . . . . . . . . 287
7.3.1 National Commissioner of the South African
Police Service (SAPS) and the Southern African
Human Rights Litigation Centre . . . . . . . . . . . . . . . . 287
7.3.2 Kaunda and Others v. President of the Republic
of South Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
7.3.3 Von Abo v. President of the Republic of South
Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
7.3.4 Government of the Republic of Zimbabwe
v. Fick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
7.3.5 President Al-Bashir and the International
Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
7.3.6 S. v. Okah . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
7.3.7 Law Society of South Africa v. President
of the Republic of South Africa . . . . . . . . . . . . . . . . . 305
7.4 Significance of Amici Curiae . . . . . . . . . . . . . . . . . . . . . . . . . 311
7.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313

Part IV European Court of Justice 317

8 European Court of Justice (Segment A) . . . . . . . . . . . . . . . . . . . . . 319
8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
8.2 Foreign Affairs of the EU and Its Judicialisation . . . . . . . . . . . 321
8.3 The ECJ and Its Powers and Functions in Foreign Affairs . . . . 323
8.3.1 Promotion of European Integration in an Enlarged
Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
8.3.2 The ECJ and the EU Treaties . . . . . . . . . . . . . . . . . . 327
8.3.3 The ECJ and Trade . . . . . . . . . . . . . . . . . . . . . . . . . . 334
8.4 Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
8.4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
8.4.2 Yassin Kadi and the Al Barakaat Foundation . . . . . . . 336
8.4.3 Final Perspectives on the Kadi Rulings . . . . . . . . . . . 348
Contents xxix

8.5 Absence of Amici Curiae in the ECJ System . . . . . . . . . . . . . 350

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
9 European Court of Justice (Segment B) . . . . . . . . . . . . . . . . . . . . . 359
9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
9.2 Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
9.2.1 NV Algemene Transport- en Expeditie
Onderneming van Gend & Loos v. Netherlands
Inland Revenue Administration and Flaminio
Costa v. E.N.E.L . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
9.2.2 Rewe-Zentral AG v. Bundesmonopolverwaltung
für Branntwein (Cassis de Dijon case) . . . . . . . . . . . . 361
9.2.3 Economic Community of West African States
(ECOWAS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
9.2.4 EU-USA Counterterrorism Agreement . . . . . . . . . . . . 363
9.2.5 PJSC Rosneft Oil Company v. Her Majesty’s
Treasury and Others . . . . . . . . . . . . . . . . . . . . . . . . . 363
9.2.6 Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
9.2.7 Maximillian Schrems v. Data Protection
Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
9.2.8 Morocco and Western Sahara (Polisario Front) . . . . . . 367
9.2.9 Two Cases Involving Iranian Banks . . . . . . . . . . . . . . 368
9.2.10 Agreement Between Canada and the European
Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
9.2.11 Consequences of Russian Involvement in Ukraine . . . 369
9.2.12 Council of the European Union v. Hamas . . . . . . . . . 370
9.2.13 Kurdistan Workers’ Party (PKK) v. Council
of the European Union . . . . . . . . . . . . . . . . . . . . . . . 371
9.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
10 European Court of Justice (Segment C) . . . . . . . . . . . . . . . . . . . . . 377
10.1 Introduction to the UK and Brexit—No ECJ . . . . . . . . . . . . . 378
10.2 UK Resentment of the ECJ . . . . . . . . . . . . . . . . . . . . . . . . . . 381
10.3 Reasons for this Resentment . . . . . . . . . . . . . . . . . . . . . . . . . 381
10.3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
10.3.2 Issue of Deportation from the UK . . . . . . . . . . . . . . . 382
10.3.3 ECJ Decision of 21 December 2016 . . . . . . . . . . . . . 382
10.3.4 EU and the Singapore Free Trade Agreement . . . . . . . 383
10.4 Constructing the UK’s Future with the EU . . . . . . . . . . . . . . . 385
10.4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385
10.4.2 UK Proposals for a New Relationship
with the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385
10.4.3 Supreme Court Judgment in Miller Case . . . . . . . . . . 386
xxx Contents

10.4.4 Official Notification of Withdrawal Conveyed

to the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
10.4.5 First White Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
10.4.6 European Union Withdrawal Bill . . . . . . . . . . . . . . . . 388
10.4.7 Position of European Citizens in the UK and UK
Citizens in the EU After Brexit . . . . . . . . . . . . . . . . . 389
10.4.8 European Arrest Warrants . . . . . . . . . . . . . . . . . . . . . 391
10.5 Second White Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393
10.5.1 Prelude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393
10.5.2 White Paper Presented to Parliament . . . . . . . . . . . . . 395
10.5.3 Reaction to References to the ECJ in the White
Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396
10.5.4 Reaction to the Overall Package of Proposals
Presented by PM May . . . . . . . . . . . . . . . . . . . . . . . 400
10.6 Comments by the Legal Establishment in the UK Prior
to the Withdrawal Agreement Reached with the EU
in November 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404
10.7 Relevance of Article 50 of the Lisbon Treaty on European
Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
10.8 Withdrawal Agreement Reached with the EU in November
2018 and Its Aftermath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
10.8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
10.8.2 Withdrawal Agreement . . . . . . . . . . . . . . . . . . . . . . . 410
10.8.3 Political Declaration . . . . . . . . . . . . . . . . . . . . . . . . . 411
10.8.4 Inclusion of the ECJ in the Withdrawal
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
10.8.5 Legal Review of the Withdrawal Agreement . . . . . . . 413
10.8.6 The Aftermath and Political Fallout . . . . . . . . . . . . . . 414
10.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415
10.10 Summation of the ECJ and Its Involvement in Foreign
Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418

Part V Conclusion 427

11 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429
11.1 Achieving the Purpose of the Study and the Benefit
to Foreign Policy Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
11.2 United States of America . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433
11.3 South Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437
11.4 European Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . 437
11.5 Concluding Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443
About the Author

Riaan Eksteen was a member of the South African Foreign Service for 27 years
and served during that period at the Foreign Ministry in Pretoria from 1964 to 1967
(in the Namibian division with South Africa’s involvement in a court case in the
International Court of Justice in The Hague), 1973 to 1976 (Head of the UN and
Namibian divisions) and 1981 to 1983 (Head of Planning).
He served from 1968 to 1973 at the South African Embassy in Washington, DC.,
and later on as Ambassador and Head of Mission for 12 years at the U.N. New
York (1976 to 1981); Namibia (1990 to 1991); U.N. Geneva (1992 to 1994); and
Turkey, with accreditation also to Azerbaijan, Kyrgyzstan, Turkmenistan and
Uzbekistan (1995 to 1997). The ambassadorial assignments to Windhoek and
Geneva were appointments by President De Klerk. The one to Ankara was by
President Nelson Mandela.
He was Director-General of the South African Broadcasting Corporation from
1983 to 1988.
He was Political Analyst at the Johannesburg Stock Exchange from 1988 to
1990.
From 1997, he has been active as an international consultant and business
facilitator in Southern Africa.
He obtained B.A. degree from the University of Pretoria (1963) majoring in
Political Science, Roman-Dutch Law and German; B.A. Honours (Political
Science) degree from the University of South Africa (1971); M.A. degree (Cum
Laude) from the University of South Africa (1974) with the dissertation in
Afrikaans entitled: “The Role of the USA Senate in Foreign Affairs”; D Litt et Phil
Degree from the University of Johannesburg (October 2018) with the thesis enti-
tled: “The Role of the High Courts of the United States of America, South Africa
and the European Union in Foreign Affairs”.
He is the author of an unpublished article: “Does your company have a foreign
policy and the instruments to execute it?”
He is married and resides in Swakopmund, Namibia.

xxxi
Abbreviations

9/11 11 September 2001

ANC African National Congress of South Africa
ATS Alien Tort Statute of 1789
AU African Union
BREXIT Br(itain)exit (impending withdrawal of the UK from the EU)
CC Constitutional Court of SA
CFI Court of First Instance of the European Court of Justice
CFSP Common Foreign and Security Policy of the EU
CJ Chief Justice
EC European Commission
ECJ European Court of Justice
EU European Union
FPA Foreign Policy Analysis
FSIA Foreign Sovereign Immunities Act of 1976
HC High Court of South Africa
ICC International Criminal Court
ICJ International Court of Justice
IFC International Finance Corporation
INA Immigration and Nationality Act of 1952
IOIA International Organizations Immunities Act of 1945
J Justice (in the highest courts of the USA and SA)
PM Prime Minister (of the UK)
RICO Racketeer Influenced and Corrupt Organizations Act of 1970
SA South Africa
SADC Southern African Development Community
SCA Supreme Court of Appeal of SA
SCOTUS Supreme Court of the USA
TEU Treaty on European Union (The Treaty of Lisbon 2009)
UK United Kingdom
UN United Nations

xxxiii
Another random document with
no related content on Scribd:
never was such a winding brook; first it twisted one way, then
another, curled round trees, hid under rocks, fell down precipices in
sheets of foam, and even flowed up a gentle incline. At last it began
to grow straighter, and finally led Kelch into a wide open glade
girdled with trees, but flowed directly in front of him, so that, in order
to reach the glade, he would have to cross it.
“I don’t see any castle,” said Kelch to himself; “but then the Owl said,
‘Jump water cold,’ so if I cross this brook, which evidently renders
the castle invisible, I will see it.”
As soon as he made up his mind to do this, he jumped over, and, on
landing safely on the opposite bank, saw before him a great castle,
with many towers all overgrown with ivy. So Kelch was right, the
brook rendered the castle invisible, and unless he had jumped
across it he would have seen nothing.
Kelch saw no lights in the castle, but, being a brave lad, he did not
mind that, so marched boldly forward, climbed up a broken-down
flight of steps leading to the front door, and, finding it open, entered.
It was all dark inside, but Kelch had a bit of candle in his pocket, and,
having lighted it, he set out to explore the castle, which was evidently
quite deserted.
He wandered through room after room, all of which were quite
empty, and inhabited by nothing but spiders, there not even being a
rat. The moonlight streamed into the lonely halls through the painted
glass of the windows, and filled them with strange shadows, but
Kelch, knowing that he had done no one harm, was not afraid, and
began singing to keep up his spirits:
“Thro’ lonely halls,
Wander, wander;
The moonlight falls
Yonder, yonder;
Tho’ dark appals,
Ponder, ponder.

Sad thoughts arise,

Weary, weary;
The night-wind sighs,
 Dreary, dreary;
I hear strange cries,
Eerie, eerie.”

And indeed he did hear strange cries, sometimes like the roaring of
wild beasts, then shrill sounds like the piping of winds upon sandy
beaches, sometimes a cry of pain, and at time as burst of wild
laughter. In order to protect himself, he drew his hunting-knife from
his girdle, and went in the direction from whence the noises
proceeded. When he did this, he found himself descending the
stairs, and thought he must now be going to the cellars where the
Wicked Baron kept his gold. The noises grew louder and louder as
he descended, and at last all dwindled down to one harsh voice,
which was singing this song:
“The Goblin Golden
Here you will find;
From ages olden
I’ve ruled mankind.

Another victim
I now will bind;
When I have tricked him
He’ll sorrow find.”

Kelch had by this time come to the end of a long dark passage, and
was stopped by an iron door, under which gleamed a line of bright
yellow light. He knocked, then suddenly with a loud crash the door
flew open, and he saw before him a circular room illuminated with
the bright yellow light. In the centre was a great pile of gold coins, on
the top of which was seated a funny little man.
Such a queer figure he was, with a great fat body like a bag of
money tied round the top with a golden cord, so that it made a ruffle
for his neck, and above this was an enormous head with two fierce
yellow eyes, a great beak of a nose, and a wide mouth, which when
open showed long golden teeth. He had short little legs, with long
peaked shoes of gold, and in his hands held a golden sceptre, while
on top of his great head of yellow hair was a huge crown of heavy
gold set with flashing diamonds. He had a yellow skin and yellow
 clothes,—in fact, he was yellow all over, and
he sat cross-legged on the top of the heap of
gold, grinning and nodding at Kelch till the
diamonds in his crown glittered like great
stars.
“I am the Golden Goblin,” he cried in a harsh
voice, when he saw the lad, “and I know what
you come for, so take as much gold as you
like and go.”
“But where is the Wicked Baron?” asked
Kelch.
“He has gone to my kingdom below,” said the Goblin, grinning; “he
was my servant, and had as much gold as he wanted, on condition
he came with me when he died, so he did die last year, and I’ve got
him safe in my kingdom.”
 “I AM THE GOLDEN GOBLIN,” HE CRIED IN A
HARSH VOICE

Kelch’s hair arose on end at this, so wicked did the Goblin look, but
as he had done no harm, he was not afraid.
“Can I take some gold?” he asked; “I want some in order to marry
Filina.”
“You can take as much gold as you like,” replied the Goblin
graciously, “on condition that you put this ring on Filina’s finger as a
present from me.”
“Oh, I don’t mind that,” said Kelch, taking the gold ring held out to
him by the Goblin. “Thank you kindly; it will do for a wedding ring.”
“Exactly,” cried the Goblin, nodding his ugly head; “it will do for a
wedding ring. Now, fill your pockets with this gold, and it will do for
Filina’s dowry.”
“But then this gold belongs to the Baron.”
“No, it doesn’t; he’s dead, and it belongs to whomsoever I choose to
give it,” roared the little man, kicking several pieces across the floor.
“All the gold in the world is mine—take as much as you like, and
don’t say I’m not kind.”
You may be sure Kelch did not require a second invitation, and filled
all his pockets with money, so that he bulged out all over in the most
grotesque manner. While he did so, the Golden Goblin jumped off
the heap and danced about the room, singing the queerest songs
Kelch had ever heard. When his pockets were quite full, he thanked
the Goblin and said good-bye.
“Good-bye,” cried the Goblin, as Kelch went to the door, “till I see
you again.”
“You’ll never see me again,” returned Kelch, rather annoyed.
“Oh yes, I will,” grinned the yellow man, jumping up again on the
golden heap. “Don’t forget to marry Filina with my ring.”
“No, I won’t forget,” said Kelch; and then the Goblin burst out
laughing, while all the gold upon which he was seated commenced
to whirl round, until Kelch could not see the little man, but only a
gleaming column of gold, which was at first as high as the roof, then
sank lower and lower until it disappeared through the floor. Then the
yellow light commenced to fade, so Kelch, seeing there was no time
to be lost, left the chamber and hurried up-stairs as hard as ever he
could.
Feeling very delighted that he had attained his object, he left the
castle of the Wicked Baron and jumped across the brook. When he
did so, the magic castle disappeared, and Kelch, with the gold in his
pockets and the ring upon his finger, followed the windings of the
brook until he arrived back at the oak tree.
“Oh, you’ve got back!” cried the Owl, putting out her head.
“Yes; and I’ve got the gold, thank you,” said Kelch cheerfully.
“Much good may it do you,” hooted the Owl, and withdrew her head
again.
Kelch thought the Owl was very rude, but as she had done him a
great service, he said nothing, but walked through the forest, and on
arriving at the outskirts went straight home just as the red dawn was
breaking in the east.
During the day he went to Filina’s father and gave him all the gold he
had obtained from the castle of the Wicked Baron, upon which the
old man was so delighted that he at once gave his consent to the
marriage, much to the disgust of Hocky, who was very envious of
Kelch’s good fortune.
In the evening Filina’s father gave a dance on the village green in
honour of his daughter’s marriage, and while the merrymaking was
going on, Kelch took the opportunity to slip the Goblin’s ring on
Filina’s finger. No sooner had he done so, than, to the dismay of
every one, the poor girl vanished out of their sight, and Kelch was in
despair.
Filina’s father was very angry at the disappearance of his daughter,
and his rage was further increased by Hocky, who said that Kelch
must have promised to give Filina to the Goblin in exchange for the
gold. All the villagers believed this malicious story, and drove Kelch
from his home with sticks and stones. So the poor lad found himself
at last seated once more under the oak tree, having lost Filina, his
gold, his home, and his good name.
 II.

THE REALM OF GOLD.

It was now night-time once more, and the wood was again full of
merry faeries, but Kelch was too much taken up with his own
sorrows to notice them, although the pranks they played would have
amused the saddest person in the world. However, when things are
at their worst they generally begin to mend, as Kelch soon found out,
for, while he was lamenting his evil fortune, the Owl put her head out
of the hole in the oak tree and hooted loudly, “Tu-whit! tu-whoo!”
Kelch looked up, and, knowing owls to be wise birds, fond of word-
twistings, made instant reply.
“True wit I have not owing to my sorrow, and I go not to woo because
Filina has been taken from me.”
“Very neat indeed,” replied Mrs. Owl politely. “I see you have the real
court air.”
“It must be natural, then,” said Kelch, with a sigh, “because I’ve
never been to court.”
“Never mind,” observed the Owl, nodding her head sagely; “perhaps
you will go some day. But why do you sit under my tree and cry?”
“Because I’m so miserable,” said Kelch, and thereupon he told the
Owl all his troubles in connection with Filina. The Owl listened
attentively with her head on one side, and, when he came to the end
of his story, wiped her eyes with a dry leaf, for she was a very
tender-hearted bird, and felt very sorry for Kelch.
“Ah, that Goblin, I know him well!” she said, when she had recovered
from her emotion; “he has carried off my friend the Wicked Baron,
who was no more wicked than you, except that he was too fond of
gold. Ah, that was his ruin! for if it had not been for his love of
money, the Golden Goblin would never have carried him off.”
“Why did he carry him off?” asked Kelch.
“Because once a year the Golden Goblin has to make the offering of
a human being to the King of Fire, for if he did not, the King of Fire
would invade the Realm of Gold, and destroy the kingdom of the
Golden Goblin. He offered the Baron as the last victim, and the next
will be Filina.”
“Filina!” cried Kelch in a tone of despair. “Oh no, it can’t be true.”
“It is true—quite true,” replied the Owl in a dignified manner. “The
ring he gave you is a magic ring, and as soon as it was placed on
Filina’s finger, she vanished from the earth.”
“She did—she did! but where is she now?”
“Down below in the Realm of Gold. To-morrow she will be given up
as the bride of the King of Fire.”
“Cannot I save her?”
“I don’t know,” said the Owl reflectively. “If your heart is strong, and
you don’t feel afraid, perhaps you may.”
“Oh, I’m not afraid!” cried Kelch quickly. “Do help me to save her,
dear Mrs. Owl—please do!”
“I’ll help you to save Filina and punish wicked old Hocky on one
condition,” said the Owl slowly; “and that is that you never cut down
my oak tree yourself, or let any one else cut it down.”
“Oh, I’ll promise that,” answered Kelch earnestly. “Your oak tree will
always be safe.”
“Then you keep your promise and I’ll keep mine,” cried the Owl.
“Now, first you must get to the Realm of Gold.”
“But how?”
“Don’t be impatient, and I’ll tell you. The way to the Realm of Gold is
down the trunk of this oak tree, so if you climb up to my nest, I’ll
show you how to crawl down.”
“But I’m too big,” said Kelch, looking at his sturdy figure.
“Oh, that will be all right; climb up to my nest, and as you climb you’ll
grow smaller.”
Kelch lost no time in obeying Mrs. Owl, and started to climb up the
great trunk of the oak tree. As he did so, he found himself shrinking
every minute, and when he arrived at the nest he was only two feet
high, and able to enter the hole without bowing his head.
The Owl received him very graciously, and showed him her home,
which was beautifully furnished with dry grass, and curtains of green
moss.
“These are my books,” said Mrs. Owl, showing him some dried
leaves; “for I read a great deal—it improves my mind. The Faery
Minervetta gave me these beautiful volumes.”
“They look like dried leaves,” observed Kelch.
“To you; yes, because you are a mortal, but I am a faery owl, and
can read faery books. However, there’s no time to be lost, or Filina
will become the bride of the King of Fire, and then I cannot help you.
Now, take this phial of water.”
“What good will it do?” asked Kelch, putting the phial in his pocket.
“A great deal of good,” replied the Owl severely; “all the subjects of
the Golden Goblin are mortals who are discontented with their lot,
and want gold to buy all sorts of bad things; that phial contains the
water of contentment, and if you sprinkle it over the men and women
you find in the Realm of Gold, they will grow satisfied with their
station in life, and not want any gold; therefore the Goblin will lose all
his subjects. When he sees that, he’ll soon make terms with you,
and then you can demand back Filina.”
“I understand,” said Kelch; “but how do the men and women get to
the Realm of Gold if they are mortal?”
“They go in their dreams,” replied the Owl. “When they are awake
during the day they live on earth, but at night in their sleep they go
down to the Realm of Gold to be the slaves of the Golden Goblin;
and, indeed, many of them are his slaves in the day as well as in the
night. Now go away at once, or you’ll be late.”
Kelch thanked the kind Owl, and, going through a little door at the
back of the nest, commenced to clamber down the inside of the oak
tree trunk, while the Owl resumed her studies.
“I’ve saved my tree,” said the Owl to herself sagaciously; “no one will
cut it down now. Ah, there’s no doubt I’m really a very wise owl!”
And indeed she was; for she had gained by kindness what she never
would have gained by force, which shows that it is best to be gentle
in all things if we want to be successful.
Meanwhile, Kelch, being completely in the dark, did not know his
way, and in spite of all his care suddenly slipped and fell right down
the centre of the tree trunk. However, as he was in Faeryland, he felt
no fear, for, indeed, he was falling quite gently, as the air was so
heavy, and he was so small and light. Down, down he fell through
the darkness, till at last he came bump upon a cushion of moss
which was at the foot of the tree. Here there was a faint glimmer of
light, and he saw above him the mighty roots of the oak stretching
out in all directions like the rafters of a huge hall. His eyes soon
became accustomed to the glimmering twilight in which he now
found himself, and he looked around to see where he would go next.
Through the misty blue light he espied a small hole which seemed to
lead downward in a gentle slope, but it was so dark that he felt rather
afraid to enter into it. Suddenly he saw that the misty blue light was
caused by the radiance of some decayed wood which lay about, so,
catching up a piece, he advanced boldly into the hole, and soon
discovered that it gave him sufficient light to see a short distance
before him.
Kelch was now in a narrow tunnel, the sides, floor, and roof of which
were nothing but rough rock, but as he advanced these commenced
to glisten with jewels, until they reflected the light of his decayed
wood torch so brightly, that he walked in the centre of a brilliant
blaze. At last the passage ended suddenly at a deep hole, up which
rushed a current of warm air. There seemed no way of getting down,
but Kelch, remembering his experience in the oak tree, never
hesitated for a moment, but flung himself boldly into the hole. The
warm air bore him up, and he fell gently for a long time, seeing the
sides of the hole rushing past him one blaze of light, like a splendid
jewel. The air grew hotter and hotter as he fell, until at length he
tumbled right into the centre of a heap of gold dust, which made him
sneeze dreadfully. All around him was a soft golden light, such as he
had seen in the treasure vault of the Wicked Baron; so, throwing
away his useless torch, he jumped to his feet and looked about him.
He was now in the middle of a large plain, and could see neither the
sides nor the roof of what he thought must be a cavern, as it was
below the earth, but only a soft gold mist floating above him, and
surrounding him on all sides, while the ground was covered with fine
glittering gold dust, in which lay great rocks and stones of pure
yellow gold, gleaming dully in the subdued yellow twilight.
It was truly a wonderful place, and what was more wonderful was,
that Kelch now found he had grown again to his natural size; so, very
satisfied with everything, he marched along over the plain to look for
the Golden Goblin.
For a long time the plain was quite lonely, and then he saw one or
two people in the distance; shortly afterwards, some more, until at
length he found himself among a great crowd of shadows. Kelch
knew they were dream-shadows, although they looked like flesh and
blood men and women, and he moved through the dense mass quite
unnoticed, so intent were they on their occupations. These consisted
in picking up nuggets of gold from the ground and putting them in
their pockets; but Kelch noticed that all their pockets had the bottoms
cut off, so that when the nuggets were put in, they simply fell through
to the ground once more. Some of the shadows wore chains of gold,
of which they seemed very proud, and not one person paid any
attention to another, but each bent eagerly down gathering up the
gold, and putting it into their bottomless pockets. There were old
white-headed men, palsied elderly women, men in the prime of life,
and beautiful maidens; but all their faces wore the same eager
expression, as they clutched the shining gold.
Kelch could not help pitying them as they worked at their fruitless
tasks, but he knew they did it of their own free will, so that the work
which appeared a pain to him was a pleasure to them.
Suddenly he recollected the phial given to him by the Owl, and, as
he did not see anything of the Goblin, pulled it out of his pocket and
began to sprinkle the water of contentment on the avaricious
shadows.
Every time a drop fell on one of them, that shadow vanished, and
Kelch knew that it had returned to its sleeping body on earth, quite
contented with its station in life, and would look no more for gold.
Hundreds of shadows vanished as he sprinkled them with the water
of contentment, when all at once a quiver passed through the crowd,
and before Kelch had time to wink, the Golden Goblin, with his eyes
blazing with rage, stood before him, looking uglier than ever.
“Ho! ho!” cried the Goblin furiously; “it is you who are trying to rob me
of my subjects—but I’ll give you to the King of Fire. Seize him at
once!”
A crowd of grotesque goblins, all very like their master, rushed
forward and tried to seize Kelch, but he sprinkled them with the
magic water, which burnt like fire, and they all tumbled back in a
confused mass. The Golden Goblin stamped with rage, but was
afraid to come near Kelch, lest he also should be sprinkled with the
water of contentment.
“What do you want?” he shouted, as Kelch paused for a moment. “I
told you we would meet again—but what do you want?”
“You know well enough,” retorted Kelch coolly. “I want Filina—you
stole my Filina from me.”
“She’s mine now,” said the Goblin in a grumbling tone, “and I’m
going to give her as a bride to the King of Fire; besides, I paid you
well for her—you took a lot of gold.”
“Yes, but that was a present,” cried Kelch hotly. “I never said I would
let you steal my future wife; I want Filina, not your gold.”
“Don’t want gold!” said the Goblin in astonishment; “you are the first
mortal I ever heard say that.”
“I’ve got no time to talk,” observed Kelch, raising the phial, “so if you
don’t give me back my Filina, I’ll leave you without a single subject.”
“Stop, stop!” cried the Goblin in consternation; “don’t do that. Come
with me to my palace, and I will give you back your Filina—on
conditions.”
“I won’t make any conditions,” said Kelch, as they walked along; “I
want my Filina, and nothing else.”
The Golden Goblin grinned angrily at this, but as Kelch had the phial,
and could make his subjects vanish, he was afraid to say anything
as they glided rapidly along to the palace. It was gliding and not
walking, for Kelch found that though his legs did not move, still he
seemed to be approaching nearer to the great gold castle in which
the Goblin held his court.
It was all built of shining gold, with innumerable towers, and huge
windows of diamond glass. There was a great flight of steps leading
to the front door, and the Goblin ran up these, followed by Kelch,
until at length they came to a great hall with many golden pillars, and
an immense domed roof all glittering with jewels.
The Goblin went to the end of this hall, and, having seated himself
upon his throne, which was cut out of one gigantic diamond, he
offered Kelch a goblet filled with liquid gold.
“I won’t drink that,” said Kelch, and dashed the goblet out of the little
man’s hand.
“Just as well you refused,” replied the Goblin complacently, pointing
to a golden statue that stood near the throne, “or you would have
become like that.”
Kelch turned to examine the statue, and saw to his grief that it was
pretty Filina thus changed. Every hair of her head, every fold of her
dress was there, but she was nothing but a stiff golden statue.
“I can’t take my Filina back like this,” he cried, turning to the Goblin,
who sat on his throne grinning at Kelch’s sorrow.
“I don’t mean you to,” retorted the Goblin; “it’s far too valuable a
statue to give to you.”
“Filina is still more valuable.”
“Would you rather have Filina than all that gold?”
“Yes, a thousand times!” said Kelch boldly.
The Goblin looked rather discomfited at this, and nodded several
times as if puzzled.
“You’re too good for me,” he observed at length; “I can gain no power
over you. But if I give you back Filina, how am I to pay my yearly
tribute to the King of Fire? If I don’t do it, he will burn all my kingdom
to cinders.”
“He can’t burn it to cinders when it’s all gold,” cried Kelch; “but can’t I
find you a substitute for Filina?”
“Ah, that’s a good idea!” screamed the goblin, while all his ugly little
courtiers jumped with joy at this solution of the problem. “Bring me
Hocky, and I’ll give you Filina.”
“But what will you do to Hocky?” asked Kelch anxiously, for even to
rescue Filina he was unwilling to bring harm to any one else.
“I’ll give him to the King of Fire.”
“But he’ll be burnt up.”
“Only the bad part of him,” said the Golden Goblin; “all that is good in
him will not be touched by the fire. When he is quite purified by the
fire, he will be allowed to return to earth again, and instead of being
a bad man as he is now, he will be very good.”
“In that case I don’t mind,” replied Kelch, much relieved. “But how
am I to give you Hocky in exchange for Filina?”
“Oh, that’s easily done,” said the Goblin, holding out to Kelch a cup
filled with some liquor which sparkled like diamonds. “Drink this, and
you will be immediately transported back to your cottage. There you
will find Filina, who will still be a statue of gold. Get Hocky to pull off
the ring that is on her finger and put it on one of his own, then Filina
will become flesh and blood once more, and Hocky will vanish.”
“Where to?” asked Kelch, taking the cup of diamond water from the
Goblin.
“Down here,” replied the Goblin, grinning; “then I’ll give him to the
King of Fire, and when all the bad is burnt out of him, he’ll go back to
earth again. Come, drink up.”
“No tricks,” said Kelch, placing the goblet to his lips.
“On the honour of a king,” answered the Goblin, placing his yellow
hand on his yellow breast; “but be quick, for there’s no time to be
lost.”
So Kelch drained the goblet to the dregs, and as he did so all the
golden palace seemed to spin round and round as he fell down on
the ground. He knew nothing more that happened till he woke up,
feeling quite bright and gay, when he found himself lying on the floor
of his own cottage, and the morning sun shining through the window.
 III.

KELCH REGAINS FILINA.

Finding himself at home, Kelch jumped to his feet with a cry, for at
the end of the room he saw the golden statue of Filina standing in
the sunlight, with outstretched arms, as if she were imploring him to
release her from the enchantment. Kelch hurried forward and saw
the magic ring was still on her finger, but it looked too firmly fixed to
pull off, and although he tried, he could not get it away. The only
thing to be done was to bring Hocky to the cottage and let him try,
and as the Goblin had fulfilled his promise of placing both Kelch and
the statue at home, the youth had no doubt that everything else
would soon come all right.
He hurried out into the open air, and found all the villagers returning
from the fields for their noonday meal. They scowled at Kelch as he
passed, and asked how a wicked magician like him dared to return
to the village from whence he had been driven.
Kelch, however, never minded their anger, but ran to the village
green, where he found Hocky talking to Filina’s father.
“Here’s that wicked magician!” cried Hocky when he saw Kelch, for
he hated the youth almost as much as the villagers hated himself.
“Drive him away.”
“He robbed me of my daughter,” said Filina’s father, lifting up his
staff, as the men and women of the village broke into murmurs of
anger.
“I have come back to restore her,” said Kelch boldly; “and if you
come with me to my cottage, you will find her there.”
On hearing this, Filina’s father, followed by Hocky and all the
villagers, hastened to the cottage, and there they saw the golden
statue.
“It is my daughter sure enough!” cried Filina’s father, with tears in his
eyes; “but she is changed into gold.”
“Would you rather have your daughter living, or her golden statue?”
asked Kelch, looking at the old man.
“Say the golden statue,” whispered Hocky, pulling the father’s
sleeve.
“No, no!” cried Filina’s father, shaking his head; “no gold would
recompense me for the loss of my daughter.”
“But your daughter is going to marry me,” said Hocky.
“Yes, that is true,” replied the old man.
“Then I would rather have her as a golden statue,” shrieked Hocky
avariciously, approaching Kelch.
“You hear what he says!” cried Kelch: “I love Filina for herself, Hocky
loves her because she is turned to gold, and would rather see the
father unhappy than let her be alive again.”
“She’s mine,” said Hocky rudely, getting in front of the golden statue;
“I have her father’s word, and all this gold is my own.”
“What will you do with her?” asked Filina’s father tremulously.
“Melt her down into broad gold pieces,” roared Hocky, dancing; “into
the furnace she shall go.”
“What! melt my daughter!” said the old man in a wrathful tone.
“Never! You shall not have her—sooner than that I’ll give her to
Kelch.”
“Keep your promise, and I’ll change her into a living woman once
more,” cried Kelch eagerly. “I love your daughter for her own sake.”
“Give me my daughter once more, and you will be her husband,”
said Filina’s father quickly.
“No—no!” yelled Hocky; “the statue is mine—mine!”
“What do you all say?” said Kelch, turning to the villagers. “You drove
me from my home because you said I was a magician; now I have
brought back Filina, and can restore her to life, so you see I am not
so bad as you thought I was.”
“You shall be her husband!” cried the villagers; “we believe you to be
a good lad.”
“If you give him the golden statue, I’ll ruin the whole village!” cried
Hocky in a rage. “You know I can do it.”
And indeed it was the truth, for Hocky had lent the villagers a lot of
money, and in return they had given over their lands and houses to
him, so he was really owner of the whole place. All the villagers were
dismayed at this, and Filina’s father began to weep, for he thought
he would never hear his daughter’s merry voice again, when Kelch
spoke.
“I’ll restore Filina to life and get rid of Hocky, if you withdraw your
accusations of my being a magician.”
“Yes, yes!” they all cried; “you are no magician—you are a good
man, and shall marry Filina.”
“And how will you get rid of me?” asked Hocky, angrily turning to
Kelch.
“By giving you more gold than you ever saw before in your life,”
replied Kelch. “Will you agree to that?”
“Yes, I will,” replied Hocky greedily, “if you give me more gold than
I’ve got, and more gold than there is in this statue of Filina.”
“Very well,” observed Kelch; “in order to see more gold than you ever
saw in your life, all you’ve got to do is to pull that ring off Filina’s
finger and place it on your own.”
“Hurrah!” cried Hocky, turning to the statue. “I’ll do it at once.”
He pulled the ring off the finger of the statue with the greatest ease,
and slipped it on his own with a greedy laugh, when suddenly there
was a loud crash like thunder, and Hocky vanished into air, while
Filina, once more a bright, laughing girl, hastened forward to kiss her
father.
“Where is Hocky?” asked all the villagers,
when they had congratulated Filina.
“Gone where he’ll never trouble you again,”
replied Kelch, with a laugh, taking his
sweetheart in his arms. “Now, am I to marry
Filina?”
“Yes, yes! Hurrah!” every one cried.
Then Filina put on her bridal dress, all the
village was decked with flags, the school
children received a half-holiday, and Kelch
married his sweetheart that afternoon.
They lived long and happily together, and when Filina’s father died,
he left them all his property, and the gold Kelch had brought from the
castle of the Wicked Baron. Hocky never came back again, which
made Kelch think that he must have had a lot of bad in him, as it
took such a long time to burn out.
Kelch paid a visit to the oak tree and thanked the kind Owl; when
she, hearing that the Wicked Baron’s castle was in ruins, left her oak
tree and went to live there, where no doubt she is still.
Kelch and Filina lived happily ever afterwards, and had lots of
children, to whom their father often told the story of his adventures
with the Golden Goblin.
 THE ENCHANTED FOREST.

I DO not know how long I was in King Oberon’s library, as, being
very much interested in the books, I took no notice of the flight of
time. But reading becomes wearisome even in Faeryland, so, feeling
rather tired with study, I lay down beside the marble-encircled pool,
and fell fast asleep on the soft green carpet. The delightful stories I
had been reading still ran in my head, for my slumber was filled with
the most charming dreams. I seemed to see beautiful faces smiling
at me from amid masses of golden clouds, long ranges of marble
colonnades stretching far away in dazzling whiteness against a dark
blue sky, mighty ranges of mountains with snowy summits roseate
with the flush of sunsets, and sombre Egyptian temples, wherein
lovely priestesses danced their mystic dances before the unseen
fane of the sacred Isis. All these wonderful pictures passed through
my visionary brain, blending one into the other in inextricable
confusion, while strains of the most delicious music kept rising and
falling at intervals during this strange phantasmagoria of dreamland.
At length the music grew louder and louder, until I slowly opened my
eyes to find myself once more in the enchanted forest, lying on the
cool green grass, with the dark blue sky silvered with stars above
me, and the thin pale moonlight shining down on the solemn trees
and glimmering pool. The music had now words to its melody, for a
choir of faery voices, clear and distinct as the sound of tiny silver
bells, sang as follows:
“In the moonshine cold and chill,
Nightingale
To the woods so calm and still
Tells her tale.
Dance the fairies one and all
Lightly at the elfin ball,
To her singing’s dying fall.

In the moonshine chill and cold,