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Patterns of avoidance: Political questions before international courts

Odermatt, J. ORCID: 0000-0002-6073-3033 (2018). Patterns of avoidance: Political questions before international courts. International Journal of Law in Context, 14(2), pp. 221-236. doi: 10.1017/S1744552318000046

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.

Publication Type: Article
Additional Information: © 2018, Cambridge University Press.
Publisher Keywords: trade policy; free-trade agreements; World Trade Organisation; succession; Global Britain; UK politics; EU law
Subjects: J Political Science > JX International law
Departments: The City Law School > Professional Programmes
The City Law School > International Law and Affairs Group
The City Law School > Institute for the Study of European Laws
URI: http://openaccess.city.ac.uk/id/eprint/20820
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