Do you agree with Judge Alvarez`s proposal?
I think the first function, that the Court ought to elucidate the existing law, is a derived part of the Court`s activity, as in order to apply the law it must first clarify the content of it. The two latter functions takes part in one of international law`s debated questions, which is whether the Court should play a role in the development of international law or if the Court should restrain itself to apply the established law. I agree with Judge Alvarez`s proposal, but I think the Court should be cautious in its creating and formulating of new percepts.
The Statute of the Court does not empower the Court to make or develop law. [1] Article 38 sets the three principal sources of international law, which are international conventions, customs and general principles of law. The Article establishes that the states are the lawmakers of international law through the treaties they consent to and by the custom made by the process of state practice and opinio juris. [2] Judicial decisions are only mentioned as a subsidiary means for the determination of the rules of law.
Furthermore the Court`s judgment has no binding force except between the parties of the particular case. [3] The Court`s decisions are therefore not formally binding precedents. Despite this lack of legislative mandate it is in the present day acknowledged that the Court has a role as an influential agent on legal development. [4]
The principle of state sovereignty, which governs international law, [5] could be violated when the Court engages in law development as the states are then judged according to rules set by the Court, not by themselves. This may be more evident in the creating of new precepts than in modifying existing law, as the Court then no longer has its base in the legally expressed will of the states.
Furthermore the Court may also violate the Lotus Principle which states that “restrictions upon the independence of states cannot be presumed”. [6] Unless the Court can show that there exists a legal norm that prohibits states from acting in a particular way, it must presume that according to international law the states are allowed to act in that way.
It can be argued that there is no need for the Court to develop law when it can use the Lotus Principle. However, applying the Lotus Principle when there is no other suitable law for solving the dispute might lead to a result that do not meet the needs of the time and thereby injustice.
The Court has advantages for developing law which the legislature does not enjoy. It is being provided with the details of particular cases, is being required to fashion a just result, [7] and has the neutrality and the legal expertise. In the lack of an international legislature with general lawmaking powers, as the treaties only bind the consenting parties, [8] the Court should develop the law so that it meets the contemporary requirements of the international community.
Furthermore the Court`s authority as the principle judicial organ of the United Nations is dependent on the states consent. [9] There is no supremacy of the Court. The Court serves a large number of states, each of which tends to guard its sovereignty.[10] If the states sense that the Court infringes their state sovereignty they might withdraw their consent.
An additionally argument for the Court to develop the international law, is that the Court will not have the final word. [11] Other actors engaged in the process of legal development may ignore, overrule or limit the impact of the Court`s contribution. [12]
The Court is an influential agent in the development of law, even though lawmaking primarily is the area of the states. In the lack of a legislature with general lawmaking powers there is a need for the Court to develop the law so that it meets the changing conditions of the international society. But the Court is highly dependent on legitimacy and respect from the states in order to continue its functioning. The Court must therefore show judicial self-restraint in lawmaking and operate within what is acceptable so that the international community keep its confidence in it.
[1] C. J. Tams, A. Tzanakopouls, Barcelona Traction at 40: the ICJ as an agent of legal development (2010) 23 LJIL, 781
[2] ibid.
[3] ICJ Statute Article 59.
[4] Tams, Barcelona Traction.
[5] A. Zimmermann et al., The statute of the international court of justice A commentary (Oxford, 2006), 680.
[6] France v Turkey (1927) P.C.I.J. Reports, A, 10.
[7] C. G.Weeramantry, The function of the ICJ in the development of international law (1997) 10 LJIL, 309.
[8] T. Buergenthal, Lawmaking by the ICJ and other international courts (2009) 103 American Society of International Law Proceedings, 403.
[9] ICJ Statute Article35.
[10] J. O`Brien. International law (Cavendish, 2001), 688.
[11] Zimmermann, A commentary, 790.
[12] Tams, Barcelona Traction.
