Does the International Court of Justice make international law? Should it do so?/As cortes internacionais fazem direito internacional? Elas deveriam faze-lo?

AutorRached, Danielle Hanna
  1. Introduction

    Legal theory has produced thousands of pages about one of the central characters in the legal phenomenon: the judge. The judicial decision is usually supposed to solve controversies, dissipate conflicts and promote some criteria of justice in concrete cases, a necessary task of any legal system. It does so in a specifically meaningful context: it must be a practical implementation of the general ideal of the "rule of law, not of men", which transcends the particular case and gives a justification for it. In this sense, a judicial decision should be in accordance with the "law", not with the result of a human arbitrary will. It should be part of a system, not an isolated fact.

    One of the main controversies that legal theory has to address, at least since the liberal revolutionary era of the end of XVIII century, is whether the judicial decision is and should be an activity of merely "law-applying" or of genuinely "law-making". The responses, like in all deep themes in the theoretical agenda, are far from a stable agreement and vary between both extremes. Herbert Hart, for example, coined a provoking classification as to the theories of adjudication in the American jurisprudence. At one extreme are those who conceive the judicial decision as pure creation, or as "crypto-legislation". (2) At the other, are those who claim that it can and should be made within the boundaries of the law. The former, referring mainly to the American Realists, he called "The Nightmare". The latter, he named "The Noble Dream". (3) For Hart, the real decisional context of judges lies somewhere between the extremes of an absolute constrained and an absolute free situation. (4)

    This article is an attempt to give an account of this theoretical problem in relation to the International Court of Justice (ICJ), a central forum of many-faceted conflicts in international law. This account is both descriptive and normative, or, in other words, tries to answer the questions of how the ICJ actually operates and how it should act as regards that problem. The status of adjudication is, itself, as stated above, a complex question and it gains another ingredient of complexity when it is seen from the perspective of international courts, because in this case the "legal character of international law" also comes to the fore. (5) Nevertheless, this work will not reflect upon this prior question, but will assume that international law deserves the "legal label" despite some singular features as opposed to domestic law. This is an uncontested and stipulated starting point in order to give priority to the main problems the title of this article suggests.

    Therefore, my choice is to focus on the nature of the judicial decision of the ICJ. In this respect, I would like to propose a further distinction of two perspectives in which the activity of judicial "law-making" can be seen: (i) the degree of creativity of the decision in relation to previous legal sources and (ii) the authority that this decision has in relation to future similar cases. In the first case, the question is whether and to what extent the decision is creative, inventive and discretionary (an unconstrained choice between alternatives, an act of will), or an act of merely application or discovery of a pre-existent law, fully defined in a previous source. In the second case, the challenge is to find out whether the judicial decision is a mere solution of a present concrete conflict, or if it transcends the specific case and stands as a source of law, a precedent to be taken into account in future similar cases.

    Thus, the descriptive and the normative dimensions of the central topic are analytically decomposed in these two perspectives, leading us to a fourfold investigation: 1) Are ICJ's decisions creative? 2) Should they be? 3) Are ICJ's precedents "sources of international law"? 4) Should they be?

    The structure of this article is inspired by the explanatory strategy proposed by Jerzy Wroblewski as regards the judicial decision:

    From a descriptive point of view the question is whether or not a judicial practice, in defined spacio-temporal dimensions, is an 'application of law' or 'law-making'. To answer this question one must (a) make clear the meaning of the terms 'application of law' and 'law-making', and (b) analyse concrete judicial decisions in relation to the valid legal rules which are their normative basis. (6) From a normative point of view, one may add that both descriptive steps proposed by Wroblewski (clarifying the terms and analysing concrete cases to find out the concept to which they fit better) are a necessary starting-point from which it is plausible to conceive some normative patterns of how judges should decide. The next topic will describe how this problem arises in the context of ICJ and how some relevant authors in international law deal with it; the second topic will develop a short case analysis to depict, according to premises previously stated, the actual nature of ICJ decision-making. Finally, this article will raise some concluding remarks, specially related to the normative claims that can reasonably be made under the evidence described.

  2. The International Court of Justice: law-making or law-applying powers

    The paragraph 1 (d) of Article 38 of the Statute of the ICJ provides that when deciding a dispute the Court shall apply "judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law". (7) In addition, Article 59 states that "The decision of the Court has no binding force except between the parties and in respect of that particular case". (8) Thus, among other sources, the ICJ shall apply judicial precedents as a "subsidiary and indirect source of international law". (9) The combination of both provisions seems to institutionalise, through a formal normative text, a traditional theory of the sources of law in the ICJ's decision-making, that is to say, a theory that considers the judicial precedent as a secondary and subsidiary reference for decision, similar to the canonical description of civil law statutory systems.

    But that first impression is not so uncontroversial within the general literature on the subject. According to the Oppenheim's International Law, "since judges do not in principle make law but apply existing law, their role is inevitably secondary since the law they propound has some antecedent source". (10) Hugh Thirlway says, on the other hand, that judicial decisions, differently from the other three formal sources indicated in paragraphs (a) to (c) of Article 38, are material sources which have a "special degree of authority". (11)

    Originally, when the draft of the Statute of the Permanent Court of International Justice was made in 1920, the prevailing idea among the Advisory Committee of Jurists was that judicial decisions could only find and develop the existing international law and not create new law. (12) These are, nonetheless, incomplete descriptions of the Court's tasks, as Shahabuddeen notes, and it remains to be answered "whether the interpretation and development of the international law in force can result in the creation of new law". (13) He points out that when the Court decides one case according to the existing legal system, "new law has in fact been made". (14) Moreover, he notes that "the molecular nature of the activity does not obscure its creative character". (15)

    The application of the existing law to settle a particular dispute should not be seen, in this vein, as an automatic act. (16) As Tom Ginsburg warns, the process of judicial reasoning demands more than a mathematic syllogism. It requires, to a certain extent, a creation which may be the result of the exercise of interpretation, because the existing rules do not always provide a definite answer. (17)

    The creative character of the Court's functions was also explicit at Judge Alvarez's dissenting opinion:

    (...) by virtue of the dynamism of international life (...), (the Court) has a double task: to declare the law and develop the law. (...) As regards the Court's second task, namely, the development of law, it consists of deciding the existing law, modifying it and even creating new precepts, should this be necessary. This second mission is justified by the great dynamism of international life. (18) Yet, the inescapable awareness of the ICJ's power to create new precepts comes along with its resistance to acknowledge it. The law can be even changed by a decision, but the Court usually does not explicitly accept it. (19) One reason for this caution is probably related to a sensitive topic that all international courts have to deal with: the States' sovereignty. Lauterpacht puts bluntly:

    (...) in so far as sovereignty is, inaccurately, identified with the traditional legal right of States to be judges in their cause, submission to the jurisdiction of the Court does imply a surrender of sovereignty. The measure of that surrender is to some extent proportionate to the degree of discretion open to the...

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