The Limits of International Adjudication: Regional International Courts in Times of Crisis

Regional International Courts (RICs) are getting increasingly involved with highly politically sensitive issues that divide the polities of their Member States. This has exposed them both to various forms of resistance against their rulings from several actors of their systems, and to heated academic and political debates on the extent to which they can legitimately and and/or effectively play a role in such instances. The paper analyzes the role played by four RICs – the Court of Justice of the European Union (CJEU), the Andean Tribunal of Justice (ATJ), the Central American Court of Justice (CACJ) and the Southern African Development Community (SADC) Tribunal – when called to rule on highly political issues. Among the four Courts’ most important cases, one may found rulings dealing with rule of law violations by their Member States, systemic infringement of regional policies and laws triggered by governmental responses to economic crises, and separation of power disputes between the constitutional organs of their Member States The Paper seeks to understand the factors that affect the fragile authority of RICs in politically fraught issues. The paper argues that the legal framework of RICs plays a limited role in the capacity of RICs to play a meaningful role in this regard. The variation in resistance that the Courts have thus far experienced cannot be explained only by reference to the variation in their institutional design and rules of jurisdiction. The paper, therefore, argues that, to understand the authority of RICs in politically fraught cases, the analysis of the legal and institutional framework needs to be supplemented by an investigation of the institutional and socio-political contexts in which these institutions operate. The paper, hence, suggests that RICs can play an authoritative role in highly political issues only to the extent to which these are supported by a set of institutional, political, and societal factors allowing the concrete enforcement of their rulings at the regional and national levels