Making Sense of the Political Question Doctrine: The Case of Kosovo

Abstract

Ever since it was announced in Madison v. Marbury, and articulated in Baker v. Carr, the political question doctrine that tends to exclude ‘mega politics’ from judicial check has been a controversial tool of judicial abstention. Not only that it is not universally applied, but it seems also to be losing significance even in countries of its usual influence due to extensive judicialization of ‘mega politics,’ which implies that there is no claim which the courts will not hear. Based on the judicialization of the Kosovo conflict, this paper shows why the doctrine deserves to be revived and even transplanted in jurisdictions outside its usual reach, particularly in disputes regarding real-life unilateral secession.