Beyond Backlash: The Consequences of Adjudicating Mega-politics

Abstract

This article concludes the special issue on “The International Adjudication of Mega-Politics”. It examines the implications of adjudicating mega-politics for politics, for society, for the case at hand, and for the ICs involved. We draw on the findings of the special issue contributions, identifying the many strategies that ICs use to rule on the issue without inciting a political backlash. The conclusion also develops further the claim that the international adjudication of mega-political disputes is not necessarily democracy undermining. The analysis ends up questioning whether we should be worried about ICs adjudicating mega-political disputes. The cautiously salutary findings do not mean that all involved should welcome more adjudication of mega-political disputes. It is generally better for stakeholders to resolve their disputes themselves, so long as minority and vulnerable individuals and groups are not thrown under the bus in the process. The findings of this special issue do, however, mean that the international adjudication of mega-politics, while deeply frustrating for political leaders that would prefer to ignore international law, is perhaps not something that should be avoided wherever possible. Circling back to Ran Hirschl’s original concern about juristocracy, the overall finding is that international judicial review need not contribute to juristocracy. Instead, international legal review of mega-political cases may be a limited but nonetheless consequential fail-safe against the alternative of unfettered and unquestioned actions and interpretations of international law, rendering international law a rule-by-law tool of heads of state.