Patterns of Avoidance: Political Questions Before International Courts
Forthcoming in International Journal of Law in Context 14(2)
iCourts Working Paper Series No. 120
29 Pages Posted: 14 Mar 2018
Date Written: March 7, 2018
International courts (ICs) have found themselves dealing with issues that are ‘political’ in nature. This article discusses the techniques of avoidance ICs have developed to navigate such highly political or sensitive issues. The first part discusses some of the key rationales for avoidance. Drawing on the discussion of the political question doctrine in US constitutional law, it shows how ICs may justify avoidance on both principled and pragmatic grounds. It then discusses the different types of avoidance strategies employed by ICs, based on examples from the Court of Justice of the European Union, the International Court of Justice and the East African Court of Justice. ICs are rarely upfront about avoidance strategies. Rather, ICs tend to avoid cases in a more subtle fashion, relying on procedural rules to exclude a case, or by resolving the dispute in a way that avoids the most politically sensitive questions and controversies.
Keywords: International Adjudication, Avoidance Techniques, Judicial Strategy, Political Question Doctrine, Resistance, International Court of Justice, East African Court of Justice, Court of Justice of the European Union
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