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Patterns of avoidance: Political questions before international courts
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
When a fence becomes a cage: the principle of autonomy in EU external relations law
In Opinion 2/13 the Court of Justice of the European Union found that the draft agreement on the EU’s accession to the European Convention on Human Rights was “liable adversely to affect the specific characteristics of EU law and its autonomy.” The Court in recent years has applied the principle of autonomy – a concept first developed regarding the relationship between the EU and its Member States – to the EU’s relationship with third states and international organizations. The EU’s increased interaction with external actors raises questions regarding the effects this might have on the integrity and unity of EU law and the EU legal order. What exactly does the principle of autonomy entail in EU external relations law? This Working Paper examines the case-law in which the Court has applied the principle of autonomy and argues that the principle is a more broad and all-compassing structural principle than is often presented. The Court’s focus is almost entirely on what might be called the negative dimension of autonomy; it is about ensuring that the EU legal order is protected from external threats. It is less concerned, however, with the positive dimension of autonomy, which entails providing the EU with the ability to act effectively as a distinct actor on the international stage
A Giant Step Backwards? Opinion 2/13 on the EU's Accession to the European Convention on Human Right
Brexit and International Law
nrpages: http://www.ejiltalk.org/brexit-and-international-law/status: publishe
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