
Contents
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1. Introduction 1. Introduction
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2. The Goals of International Courts and Tribunals 2. The Goals of International Courts and Tribunals
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3. Legitimacy and Effectiveness 3. Legitimacy and Effectiveness
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4. The Political Environment 4. The Political Environment
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4.1 Accepting Jurisdiction as a Political Decision 4.1 Accepting Jurisdiction as a Political Decision
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4.2 Political Support for International Courts 4.2 Political Support for International Courts
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4.3 Enforcement of Judgments 4.3 Enforcement of Judgments
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5. Can International Courts Take Cognizance of Politics Considerations? 5. Can International Courts Take Cognizance of Politics Considerations?
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5.1 Legitimate or Reasonable Expectations 5.1 Legitimate or Reasonable Expectations
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5.2 Impossible or Disproportionate Burden 5.2 Impossible or Disproportionate Burden
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5.3 Margin of Appreciation 5.3 Margin of Appreciation
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5.4 Remedies 5.4 Remedies
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6. Conclusion 6. Conclusion
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24 The Human Right to a Clean Environment and the Jurisprudence of International Courts and Tribunal
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5 International Courts in a Politicized World
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Published:January 2024
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Abstract
One of the harshest forms of criticisms directed at international institutions generally, and international courts specifically, is that they are political or politicized. The main claim this chapter makes is that although it is vital to separate between law and politics, there are unavoidable points of contact between the two domains. 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 a distinction between law and politics. The chapter first discusses the goals of international courts, and then introduces two key perspectives for evaluating their operations—legitimacy and effectiveness. The next section describes dominant points of contact between international adjudication and the political world, before the chapter discusses some of normative and practical implications of juxtaposing judicial goals and the political context against which they should be realized. Specifically, it asks 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. The final section concludes.
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