Patterns of Avoidance: Political Questions Before International Courts

Jed Odermatt

doi:10.1017/S1744552318000046

Patterns of Avoidance: Political Questions Before International Courts

Jed Odermatt

Centre of Excellence for International Courts and Governance

13 Citations (Scopus)

Abstract

International courts (ICs) have found themselves dealing with issues that are ‘political’ in nature. This paper 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.

Original language	English
Journal	International Journal of Law in Context
Volume	14
Issue number	2
Pages (from-to)	221-236
ISSN	1744-5523
DOIs	https://doi.org/10.1017/S1744552318000046
Publication status	Published - 1 Jun 2018

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AB - International courts (ICs) have found themselves dealing with issues that are ‘political’ in nature. This paper 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.

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Patterns of Avoidance: Political Questions Before International Courts

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