International Law as Law at the International Court of Justice

Article excerpt

This plenary panel was convened at 4:30 p.m. on Friday, March 27, by its moderators, Lucy Reed of Freshfields Bruckhaus Deringer and Ralph Steinhardt of George Washington University Law School, who introduced the panelists: President Hisashi Owada of the International Court of Justice; Judge Thomas Buergenthal of the International Court of Justice; and Judge Bruno Simma of the International Court of Justice. *

THE INTERNATIONAL COURT OF JUSTICE AT SEVERAL CROSSROADS

Lucy Reed is certainly right that our panelists need no introduction before this audience, and I am honored to be here. It is also true that the institution they represent needs no introduction to this audience. But the occasion of this annual meeting does offer a unique--maybe even unprecedented--opportunity for three sitting members of the International Court of Justice (ICJ) to assess the role of the Court in this time of transition and challenge for the international legal order.

I should say that as the keyboards player in a little-lamented erstwhile rock-and-roll band, I understand the danger of being the warm-up act. So let me take exactly three minutes to suggest a few, inter-related reasons that I think the challenge before the Court is so remarkable and so important right now.

May I ask in that connection that we pass a moment in celebration of Wolfgang Friedmann, who almost fifty years ago, observed that the defining characteristic of international law in the twentieth century was its transformation "from an essentially negative code of rules of abstention to positive rules of cooperation." He saw that--in its traditional conception--international law was predominantly a collection of jurisdictional rules of mutual forbearance and abstention, rules which tended in operation to preserve more power for states than they constrained. The power of his insight was that we're not in that particular Kansas anymore: the transition to what he called "positive rules of cooperation" marked a dramatic expansion in the substantive reach of international standards, as though a law that had primarily been about the "fences" separating states had to be re-conceptualized as a matter of "bridges" connecting them.

Of necessity, I think that means that the International Court's docket, which has always had its share of jurisdictional and territorial cases, now increasingly addresses legal questions arising in substantive legal areas that would have been inconceivable to the framers of the ICJ Statute and its predecessor court. Look at the range of topics in the program for the Society's meeting this year: gender and race discrimination, banking, intellectual property, environmental protection, family law, the rights of children. We have incrementally abandoned any prissy or stable notion of exclusive domestic jurisdiction as our predecessors understood that term, and the consequences for the institutional life and power of the Court are profound.

Let us acknowledge, second, a related, more procedural phenomenon, namely the continuing decentralization and balkanization of the international law-making processes: new regional and functional tribunals and norm-entrepreneurs at the international plane but also at the domestic plane, including, for example, the supreme courts and constitutional courts of the various nations, which now routinely enforce and articulate international legal standards in ways that no one could have predicted when the ICJ was established. Is the Court in any sense supreme to these other bodies, first among equals, or is the right relationship--whatever it is--something entirely different, more nuanced, potentially more modest?

Third, I would stress the related proliferation in the sources of international law, again in ways that would have been inconceivable to the generation that drafted what became Article 38 of the Court's statute. Read the recent decisions of the ICJ and recognize that it now routinely articulates international obligations on the basis of authorities that are not listed among the famous four of Article 38, namely treaties, customary international law, general principles, and "as subsidiary means for the determination of rules of law," judicial decisions and the teachings of the most highly qualified publicists of the various nations. …