The International Adjudication of Mega-Politics

Abstract

This article, the lead article of a special issue on the “The International Adjudication of Mega-Politics,” explores the causes, strategies and consequences of international courts (ICs) becoming embroiled in mega-political legal disputes. In a seminal article, Ran Hirschl described “mega-politics” cases as those where courts – both national and international – spoke to fundamental questions that defined the identity of a polity. In the article, we adapt the term for the specific contexts that ICs face, defining mega-political disputes as cases where ICs are adjudicating legal issues that divide domestic societies or inter-state relations such that one would anticipate that, whatever the outcome, important and sizable social or political groups will end up greatly upset. While there are always risks when courts intervene in issues of high salience and political significance, the article argues that the authority of ICs is more fragile than that of their domestic counterparts which makes the international adjudication of mega-politics even more risky. We identify three structural contexts that lead ICs to become embroiled in mega-politics: 1) inter-state disputes where states and societies are deeply divided; 2) social cleavage issues where domestic actors ask ICs to intervene in contested issues; and 3) sovereignty-based disputes where ICs are ruling on issues many see as elements of national choice. We theorize about the strategies of ICs that are called upon to adjudicate mega-political disputes, and how international adjudication may impact an IC’s authority across various audiences. While the intervention of ICs in mega-political issues is neither new nor likely to disappear, we suggest that the phenomenon is likely to grow in prevalence. Especially in conjunction with the rise of nationalism and populism, ICs face an even greater risk. Here and in the conclusion to this special issue, we argue that this risk rarely translates into backlash politics, and that contra Hirschl’s fears about courts adjudicating mega-politics, IC intervention may actually further rather than compromise democracy.