The Elephant in the Room of International Adjudication: Political Implications and Their Impact

Abstract The concept of “political disputes” and their justiciability has sparked extensive theoretical debates, yet a consensus remains elusive. Nonetheless, political considerations inevitably affect international adjudication: they influence states’ willingness to submit disputes and shape the strategies of actors in judicial proceedings. Moving beyond theoretical debates, this article examines how the political implications of disputes influence the behaviour of states and the decision-making of adjudicators in the ICJ’s contentious cases and advisory proceedings. It argues that political considerations typically play a dual role for states in interstate disputes. For claimant states, they can serve as a motivation to initiate proceedings, not merely to secure legal remedies but also to pursue broader political objectives. Conversely, for respondent states, political considerations often lead to resistance against adjudication. This resistance manifests in two main ways: through arguments challenging the ICJ’s jurisdiction or the justiciability of disputes, and through actions outside the courtroom aimed at expressing opposition to judicial resolution. The ICJ, while consistently refraining from categorizing matters brought before it as political and therefore non-justiciable, is not immune to political influences. These influences are reflected in two aspects. First, the ICJ exhibits a reluctance to exercise jurisdiction over politically sensitive disputes, often invoking technical grounds as a basis for non-engagement. Second, the ICJ’s substantive rulings sometimes reflect an effort to render politically acceptable decisions to states. The article concludes that political implications remain the elephant in the room of international adjudication. While it may be unrealistic to expect the ICJ to explicitly define the role of political considerations in its decision-making, given its role as the guardian of legality in the international community, further empirical and theoretical research is essential to shed light on these complex dynamics and inform future practice.