Hostname: page-component-78c5997874-xbtfd Total loading time: 0 Render date: 2024-11-13T02:38:01.700Z Has data issue: false hasContentIssue false
  • English
  • Français

The ICJ in the 21st Century: Judicial Restraint, Judicial Activism, or Proactive Judicial Policy

Published online by Cambridge University Press:  17 January 2008

He Judge Pieter Kooijmans
Get access Rights & Permissions [Opens in a new window]

Abstract

A court of law can take various approaches when dealing with a case before it: judicial restraint, judicial activism or a proactive policy. In the present article the recent case law of the International Court of Justice is analysed in this light. The author is of the view that the Court, as the principal judicial organ of the United Nations should, wherever possible, by a careful judicial policy, apart from deciding the case in hand, give guidance and provide clarification on a number of questions which are of primordial importance in present-day international society but still are largely obscure from a legal point of view.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 56 , Issue 4 , October 2007 , pp. 741 - 753
Copyright
Copyright © British Institute of International and Comparative Law 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 ‘The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.’ Charter of the United Nations, Article 1, para 1.

2 ‘Speech by HE Judge Rosalyn Higgins, President of solemn sitting on the occasion of the sixtieth anniversary of the inaugural sitting of the Court’ Press Release (12 Apr 2006), <http://www.icj-cij.org/presscom/index.php?pr=1004&p1=6&p2=1&search=%2260th+anniversary%22>.

3 Fitzmaurice, G, ‘Hersch Lauterpacht—The Scholar as Judge’ (1961) 37 British Yearbook of International Law 1.Google Scholar

4 Thirlway, H, ‘Judicial Activism and the International Court of Justice’ in Liber Amicorum Judge Shigeru Oda (Brill, Leiden, 2002).Google Scholar

5 Lauterpacht, E, ‘The Juridical and the Meta-Juridical in International Law’ in Makarczyk, J (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzyszt Skubiszewski (Kluwer, The Hague, 1996).Google Scholar

6 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom and Libyan Arab Jamhiriya v United States of America) [1998] ICJ Rep 119 [hereinafter Lockerbie].Google Scholar

7 Dissenting Opinion of Weeramantry, Judge, Lockerbie [1992] ICJ Rep 180.Google Scholar

8 Separate Opinion of Higgins, Judge, Legality of the Use of Force [1991] ICJ Rep, para 26.Google Scholar

9 East Timor (Portugal v Australia) [1995] ICJ Rep 90.Google Scholar

10 Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia [Timor Gap Treaty] (adopted 11 Dec 1989, entered into force 9 Feb 1991) [1991] Australian Treaty Series 9.

11 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Rwanda) [2006] ICJ Rep.Google Scholar

12 ‘Disputes between the Contracting Parties relating to the interpretation, application or fulfil-ment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.’

13 East Timor (Portugal v Australia) [1995] ICJ Rep 102.Google Scholar

14 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Rwanda) [2006] ICJ Rep 27.Google Scholar

15 Declaration of Koroma, Judge, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Rwanda) [2006] ICJ Rep 55.Google Scholar

16 Joint separate opinion of Judges Higgins, Kooijmans, , Elaraby, , Owada, , and Simma, , Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Rwanda) [2006] ICJ Rep 65.Google Scholar

17 ibid 71, para 25

18 ibid 72, para 29.

18a 18bis— Fisheries Jurisdiction (Spain v Canada) [1998] ICJ Rep 456, para 54.Google Scholar

19 Separate Opinion of Kooijmans, Judge, Fisheries Jurisdiction (Spain v Canada) [1998] ICJ Rep 493, para 15.Google Scholar

20 Case 26/62 NV Algemene Transport—en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR I-1|.Google Scholar

21 Case 6/64 Flaminio Costa v ENEL [1964] ECR I-585.Google Scholar

22 Gabčίkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7.Google Scholar

23 ibid 76, para 133.

24 ibid 77, para 140.

25 Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep 1045.Google Scholar

26 See Separate Opinion of Oda, Judge, Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep 1117, para 2.Google Scholar

27 See Declaration of Koroma, Judge, Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep 1112.Google Scholar

28 Separate Opinion of Kooijmans, Judge, Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep 1148, para 22.Google Scholar

29 See Fitzmaurice (n 3).

30 Judge Roberts's Response to the Senate Judiciary Committee Questionnaire: <http://www.cfif.org/htdocs/legislative_issues/federal_issues/hot_issues_in_congress/supreme_court_watch/roberts-judiciary-qustionnaire.htm>.

31 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 3.Google Scholar

32 South West Africa Cases (Ethiopia v South Africa and Liberia v South Africa) Second Phase [1966] ICJ Rep 6.Google Scholar

33 Gabčίkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 78.Google Scholar

34 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) [2002] ICJ Rep 3.Google Scholar

35 Separate Opinion of President Guillaume, Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) [2002] ICJ Rep 35, para 1.Google Scholar

36 Joint Separate Opinion of Judges Higgins, Kooijmans, , and Buergenthal, , Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) [2002] ICJ Rep 63.Google Scholar

37 Oil Platforms (Islamic Republic of Iran v United States of America) [2003] ICJ Rep 161.Google Scholar

38 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136.Google Scholar

39 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) [2005] ICJ Rep 1.Google Scholar

40 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 194, para 138.Google Scholar

41 ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security’ (Art 51 of the Charter of the United Nations).

42 41bis, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) [2005] ICJ Rep, para 147.Google Scholar

43 Jennings, R, ‘The Role of the International Court of Justice’ (1997) 68 British Yearbook of International Law 41.Google Scholar