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Политизация права или легализация политики? О justiciability и доктрине «политического вопроса» на примере международного правосудия
Author is pointing out the problem of interaction between the political nature of the dispute concerned
and the competence of international tribunals. To assess such legal interaction the “justiciability”
concept is used. This concept, well known from the US and the UK jurisprudence, allow national
courts, for the purpose of stable state administration, to exercise “prudency” in invalidating executive
acts, guarantee the operation of the principle of separation of powers, preserve the legitimacy of an
unelected judicial branch allowing it, at the same time, to participate in a dialogue with the other
branches and the public. Despite the fact that the concept initially appeared in the national law, it became
equally important for the international dispute resolution system. Using some remarkable recent
cases from the supreme national and international tribunals’ practice author concludes that international
tribunals are increasingly expanding their own competence to cover issues traditionally
reserved for national authorities and/or lying exclusively in the diplomatic realm. The “evolutive” interpretation
of provisions of international law adapted by some international tribunals (and other international
organs) contradicts their literal meaning as originally intended by the states, is becoming
a persistent trend. This entails a natural reaction of national legal systems represented by higher
courts: on the one hand, they avoid direct confrontation through maintaining the classical paradigm of
respect to international law, and, on the other hand, draw “border lines” designed to limit the jurisdiction
of international courts and arbitration tribunals. The politicization of international arbitration is a
question that should not be embarrassingly swept under the carpet or considered marginal. Otherwise,
there is a risk that it would destroy the international dispute resolution system and, as a consequence,
undermine the mechanisms of international law. At the same time, no peaceful resolution of
the conflict of jurisdictions is possible without understanding the problem in the legal plane, without
joint determination of which cases are justiciable in the international process, and which questions
should be considered “political”. Author made the attempt to give a legal definition of the “political
question” in the international procedure and formulate legal tests which could help international
judges and arbitrators to define, whether they are ready to and whether they should consider the particular
case, related to the “political question”, on the merits (and not to recognise it inadmissible on
procedural grounds).