An article titled "When AUKUS Meets the Rule of Law", jumping off from a recent report on the legal and constitutional status of AUKUS in its member countries, to the question of how the changing role of courts in Anglosphere foreign policy, as well as that of political currents as such, will complicate any long-term military or diplomatic projects. In the era of the US embracing multipolarity, so to speak, while dismantling its own centuried institutions by fiat, we can really extend the parameters of the analysis to anything in international or internal politics that requires long-term planning and stability.

Although I disagree with the premise that executive privileges in foreign policy used to be unchallenged but now are challenged. As far as I know, even as the courts are more actively encountering such questions, a co-driver of that process is itself the continuing limitless arrogation of sole discretion and scope of action in the foreign policy of the American executive, and to some extent other national executives within the traditional American sphere. The relevance of the analysis to decision-making in crises is also overblown, as there is no reason to believe that participating in legal/judicial niceties will be part of most executives' concerns during world-historical international crises, which more involve the fruition of long-term planning and cooperation rather than its formation, and are also naturally statist-authoritarian moments, for better or worse.

A new report published earlier this year, “AUKUS and Justiciability,” draws together judicial, academic, and strategic voices to revisit a legal doctrine long assumed to shield war powers from legal scrutiny. That doctrine—nonjusticiability—has traditionally insulated decisions about military deployment from judicial review. But across all three AUKUS countries, that insulation is increasingly open to challenge.

The report therefore charts a subtle but important shift. Courts are still reluctant to rule on foreign policy or defense operations, but they are no longer ruling them out entirely. AUKUS is often framed as a strategic and technological milestone, but this piece argues it is equally a constitutional experiment. As courts in Australia, the United Kingdom, and the United States become more willing to entertain challenges to military deployments and executive power, the long-assumed doctrine of nonjusticiability is eroding. Even unsuccessful litigation—on issues like Indigenous land rights, nuclear safety, or statutory authority—can introduce delays, caution, or political friction that undermine allied coherence. In a future crisis, this legal vulnerability could translate into strategic paralysis.
That is why the question of justiciability matters. Not because courts are likely to overrule deployment decisions—but because they may increasingly be asked to. Once a court entertains the question, even to dismiss it, the political landscape changes. Executive power no longer enjoys the special preeminence in foreign affairs that was once presupposed by civil society. Nor are understandings of constitutional history and practice as strong as they once were, particularly in the political sphere. That perception alone is enough to embolden those seeking to delay decisions or complicate coordination among allies.
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"As such, these are not just matters of legal theory. What is at stake here is the very operability of AUKUS in moments of crisis. Strategic alliances require not just political will and shared threat perceptions, but timely decisions and unified action. If a future crisis in the Indo-Pacific requires a coordinated AUKUS deployment, but one partner is faced with litigation or domestic legal hurdles, that coherence collapses. Legal uncertainty becomes strategic liability.