The Dutch Supreme Court is grappling with a question that has profound implications for modern democracies: Can, and should, a court dictate foreign policy? This is the central issue as the government appeals a judicial ban on exporting F-35 fighter jet parts to Israel.
The government’s position is unequivocal: no. Its legal team argues that the constitution assigns the conduct of foreign relations to the executive branch, accountable to a democratically elected parliament. They contend that a court, made up of unelected judges, lacks the democratic legitimacy, the expertise, and the constitutional authority to make complex decisions about military exports and international alliances.
This traditional view was upended in February 2024 when a Dutch appeals court did exactly what the government claims is illegitimate. By ordering a halt to the shipments based on its interpretation of international law, the court effectively overruled the government’s foreign policy stance. The judges prioritized legal obligations over political discretion.
This has created a constitutional flashpoint. Proponents of the court’s action argue that it represents a vital “check and balance,” ensuring that a government cannot violate fundamental international laws under the guise of “foreign policy.” They see the judiciary as the ultimate guardian of the rule of law.
The Supreme Court must now resolve this tension. Its ruling will not just be about F-35 parts; it will be a defining statement on the balance of power in the Netherlands and a crucial precedent for the role of courts in overseeing a government’s actions on the world stage.
