Shany: International Courts in a Politicized World

Yuval Shany (Hebrew Univ. of Jerusalem - Law) has posted International Courts in a Politicized World (in By Peaceful Means: International Adjudication and Arbitration, Charles N. Brower, Joan E. Donoghue, Cian Murphy, Cymie R. Payne, & Esmé Shirlow eds., forthcoming). Here's the abstract:

One of the harshest forms of criticisms directed at international institutions generally, and international courts specifically, is that they are political or politicized. Such a criticism appears to presume (a) that law and politics, in general, and international adjudication and international politics, in particular, can be divorced from one another; and (b) that the values and interests advanced through international adjudication would be better served by insulating international courts from the vicissitudes of world politics. The main claim I make in this Chapter is that, although it is vital to separate between law and politics, there are unavoidable points of contact between the two domains. Furthermore, I maintain that international courts should take cognizance of certain political considerations. While international courts do not serve as a direct extension of international politics, they do interact with their political environment, and depend in meaningful ways on the support of political actors. As a result, international courts cannot afford to ignore their political context; yet, they must also strive to maintain the distinction between law and politics.

As a point of departure, Part One of the Chapter discusses the goals of international courts, and Part Two introduces two key perspectives for evaluating their operations - legitimacy and effectiveness. Part Three describes several dominant points of contact between international adjudication and the political world – acceptance of jurisdiction, support of judicial operations and enforcement of judgments – and Part Four discusses some of normative and practical implications of juxtaposing judicial goals and the political context against which they should be realized. Specifically, I ask there whether and how courts can take cognizance of political considerations without undermining their legitimacy and effectiveness, and propose that legal notions and doctrines, such as accommodating legitimate or reasonable expectations, avoiding imposing on international actors impossible or unreasonable burdens when interpreting and applying legal norms, affording states a margin of appreciation and developing flexible remedies, may play a useful role in this regard. Part Five concludes.