Abstract
Judicial activism is a highly controversial term that has given rise to varied debates and discussions. While it remains elusive in legal scholarship on international adjudication, judicial activism features within analyses as anathema to the judicial function, sometimes as a reaction to a particularly unwelcome decision or when the decision may have crossed some alleged boundary or another. It is frequently presented to pinpoint some faulty component of the judicial interpretation with a focus on the end-result of the decision. As literature focuses primarily on a descriptive analysis of the use of activism, the effect of its use on the judicial function itself has been omitted from most discussions. This article seeks to examine how judicial activism, and its contrasting concept of judicial restraint, have allowed international courts and tribunals to shape and evolve their roles as members of an international judicial institution. This is done through an examination of the most innate powers that have been accorded to the international judiciary, namely inherent powers, and more specifically, through the principle of compétence de la compétence. With an emphasis on the public function that the courts seek to fulfil, this article looks towards examining how activism and restraint have been cardinal in the evolution of what is the international judicial function.
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Notes
This approach was usually supported by positivists and formalists such as Francis Bacon, Montesquieu and Edward Coke who saw the function of the judge as a dependent ‘mouthpiece of the law’.
Thomas (2008), p. 1.
See in general on the reasons for judicial creativity, Cappelletti (1981).
This dissatisfaction with the existing state of the law or the lacunae in the law has been used to describe the ‘activist judge’ by Thirlway (2002), p. 76.
Boyle and Chinkin (2007), chapter 6 quoting De Lapradelle from the 1920 Advisory Committee of Jurists responsible for drafting the statute of the Permanent Court of International Justice (the PCIJ). Non-liquet is Latin for ‘it does not appear clear’ and is defined as the instance in which statute and previous case law seem to produce no clear legal answer to a new legal problem.
Pasquino (2003), quoting Torbjörn Vallinder at fn. 1, p. 11.
A term used by Hugh Thirlway in Thirlway (2002).
Kooijmans (2007), p. 744.
For a detailed discussion of this, see Ayoub (2021) chapters 1 and 2.
Weatherill (2003).
Besson (2013), p. 413.
Ibid.
A phenomenon that has long been part of the public international law discussion, even as far back as 1953 as seen in Jenks (1953). It was popularised in the last decade or so through the International Law Commission’s seminal study carried out by Martii Koskenniemi, see Report of the Study Group of the ILC (2006).
See Besson (2013) in general.
Lauterpacht (1982), p. 75.
Bogdandy and Venzke (2012), p. 985.
See Weeramantry (1997) in general.
Lauterpacht (1982), p. 75.
Cassese (2004), p. 3.
Recognised in Status of Eastern Carelia (Advisory Opinion) PCIJ Reports 1923.
Gaeta (2003), p. 365.
For example, the constitutive agreement on the ICJ was annexed to the United Nations Charter (UNC): Charter of the United Nations and Statute of the International Court of Justice (adopted 26 June 1945; entered into force 24 October 1945) 892 UNTS 119.
This is the case with most international courts. See for example: Art. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950; entered into force 3 September 1953) 213 UNTS 222 (hereafter the ECHR).
Gaeta (2003), p. 365.
An in-depth analysis of the theory of the separation of powers is outside the ambit of the present thesis. At this stage we note that it is defined as ‘a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate.’ Found at https://www.law.cornell.edu/wex/separation_of_powers. Accessed: 17 December 2021.
See Shelton (2009) in general.
This is a play on words from Lauterpacht (2011) who referred to ‘The formal and material completeness of international Law’, p. 93.
This is propagated by H.L.A. Hart who conceded a certain similar place, when the rules of the system were not necessarily ‘complete’ and subjected to the ‘open texture’ of the law, for discretion in interpretation to provide an answer to every question that may arise. See Hart (1997).
Terris (2007), p. 103.
Gaeta (2003).
See the preamble to the International Court of Justice, Rules of the Court (adopted 14 April 1978) that begins: ‘THE COURT’; see also the preamble to the Court of Justice of the European Union, Rules of Procedure of the Court of Justice OJ L 265, 29.9.2012, pp. 1–42 that begins: ‘THE COURT OF JUSTICE’.
Ginsburg (2005), p. 641.
Ibid., p. 633.
Ibid.
Brown (2013), p. 842.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ayoub (2021) Sect. 2.1 of chapter 1.
It is noted that the analysis will not include courts and tribunals that deal with international criminal law primarily because of the very restricted nature of their jurisdiction, comprising jurisdiction over particular disputes and historical periods, which could essentially form a discussion in themselves. Additionally, and in the same vein, also excluded from this discussion are cases dealt with by the adjudicating bodies of the World Trade Organisation.
Quote taken from Tridimas (1996).
Kmiec (2004), p. 1443.
Thirlway (2002), p. 77.
Ibid., p. 76, fn. 3.
Kooijmans (2007), p. 746.
Ibid.
Lauterpacht (1982), p. 89.
Ibid.
Kooijmans (2007), p. 751.
See Mahoney (1990) in general.
Ibid.
Ibid.
Ibid.
Also known as pulling a rabbit out of the hat, presented by Talmon (2015), p. 434. It is used to describe the method of determining and applying customary law which the ICJ has adopted, namely, where the Court frequently asserts the law that it sees fit without carrying out any legal interpretation per se.
Brown (2006).
Ibid.
See Shihata (1965) and Chazournes (2010) in general, that provide a thorough history of the principle.
Described by the ICJ in Nottebohm case (second phase), Judgment of 6 April 1955, IC J Reports, p. 4.
Mexico—Tax Measures on Soft Drinks and Other Beverages, Appellate Body Report (6 March 2006) AB-2005–10 para. 45 and Mitchell and Heaton (2010), p. 567.
Loizidou v. Turkey (Preliminary Objections) App. No. 15318/89, ECtHR, 23 March 1995.
These are reservations under Protocol 9 to the Convention for the Protection of Human Rights and Fundamental Freedoms (adopted on the 20 March 1952; entered into force 18 May 1954) ETS No. 009.
Loizidou, para. 67.
Jennings (1996), p. 5.
Loizidou, para. 85.
Ibid., para. 70 referring to the effectiveness of the overall system of the Convention and its ‘special character’.
Ibid., para. 77.
Ibid., para. 75.
Shany (2014), p. 89.
Ibid.
Case of Ivcher-Bronstein v. Peru (Competence) Judgement of 24 September 1999.
American Convention on Human Rights ‘Pact of San José, Costa Rica.’ (adopted on 22 November1969; entered into force 18 July 1978) 1144 UNTS 123.
Ibid., at the preamble.
Ibid., para. 35.
Ibid., para. 35.
Ibid., para. 37.
Ibid., para. 37.
Ibid., para. 40.
Ibid., para. 40.
Constitutional Court v. Peru, Competence, Judgment (IACtHR, 24 September 1999) at para. 36.
Used in Peters (2017), p. 696.
Optional Clause Declarations are declarations made by States under the current Art. 36(2) of the ICJ Statute which recognises the jurisdiction of the Court as compulsory. They usually take the form of a unilateral act and can also consist of reservations to the jurisdiction granted (for more see ‘Declarations recognizing the jurisdiction of the Court as compulsory’ found at https://www.icj-cij.org/en/declarations. Accessed 17 December 2021.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment of 26 November 1984, ICJ Reports 1984, p. 392.
Ibid., at para. 13.
This is the principle of pacta sunt servanda that translates into ‘treaties are observed’, meaning ‘that every treaty in force binds the parties to that treaty to perform their obligations in good faith until their adherence to the treaty has been lawfully terminated’ (see Fellmeth and Horwitz 2009). The Court, however, did not use this phrase.
Ibid., para. 59.
Ibid., para. 60.
Ibid., para. 60.
Nuclear Tests (Australia v. France), Judgement of 20 December 1974, ICJ Reports 1974, p. 253.
Ibid.
Rosenne (2003), chapter 4.
Ibid.
So much so that it withdrew its consent to the Court’s jurisdiction altogether and stopped appearing in this case.
For example, in cases such as Anglo-Iranian Oil Co. case (United Kingdom v. Iran) (Jurisdiction), Judgement of 22 July 1952, IC J Reports 1952, p. 93 or Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgement of 26 May 1961, ICJ Reports 1961, p. 17.
Orakhelashvili (2003), p. 523.
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, ICJ Reports 1998, p. 432.
Ibid., para. 15.
Orakhelashvili (2003).
Fisheries Jurisdiction, para. 44.
Ibid., paras. 52–56.
Fisheries Jurisdiction, para. 46.
Ibid., para. 45.
Ibid., para. 46.
Ibid., para. 47.
Ibid., para. 49.
Kooijmans (2007), p. 747.
Ibid.
Ibid.
The principle was rejected at para. 51 of the case.
See for example Rasmussen (1986). It is recognised that the CJEU possesses certain characteristics that make its position as an ‘international court’ questionable. For this discussion, however, it will be recognised as such despite such controversy because we examine and focus on the judicial element of a court rather than the system within which it acts.
Art. 344 of the Consolidated version of the Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012 (the TFEU) which maintains that Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.
C 459/03 Commission of the European Communities v. Ireland [2006] ECLI:EU:C:2006:345.
The case was initially brought by Ireland in an ad hoc PCA Tribunal (PCA Case No. 2001–03, Ireland v. United Kingdom, OSPAR Convention, Final Award, 2 July 2003) in an attempt to obtain all available information from the UK regarding the discharges. Ireland also brought a case before the International Tribunal for the Law of the Sea (ITLOS) (MOX Plant (Ireland v. United Kingdom), Order of 13 November 2001, ITLOS Reports 2001, p. 89) seeking an award for the disclosure of information regarding the plant. The case which presently concerns us was the third set of proceedings before the CJEU.
This was first referred to in para. 30 of Opinion delivered pursuant to the second subparagraph of Article 228(1) of the Treaty–Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, Opinion 1/91 [1991] ECLI:EU:C:1991:490.
MOX Plant, para. 126.
Ibid., para. 120.
Ibid., para. 135.
Ibid., para. 154.
Lock (2009), p. 298.
Ibid., p. 293.
Ibid.
It had done this previously in Opinion 1/91.
Joint Cases C 402/05 and C 415/05 Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and the Commission of the European Communities [2008] ECLI:EU:C: 2008:461.
Council Regulation (EC) No. 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, OJ L 139, 29/05/2002 p. 0009–0022.
De Burca (2010), p. 18.
Art. 307 Treaty establishing the European Community, OJ C 325, 24.12.2002, pp. 33–184 stated inter alia: ‘To the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established…’.
Martinico and Russo (2015).
Kadi I, para. 316.
Martinico and Russo (2015).
Kadi 1, para. 326.
Ibid., para. 256—This becomes more complicated when one remembers that the UN Sanctions Committee is not a judicial organ, thus the CJEU effectively allowed a review of the political organ of another international organisation.
Odermatt (2016), p. 11.
De Burca (2010), p. 44.
Govaere (2009), p. 2, fn. 3.
See other examples of exercising compétence de la compétence more recently such as Opinion 2/13 Adhésion de l’Union à la CEDH (Accession of the Union to the ECHR) (18 December 2014) ECLI:EU:C:2014:2454 regarding the accession of the EU to the ECHR system where the Court rejected the accession agreement of the EU on entering the ECHR legal order, one of the reasons being a conflict of the basic principles that govern the autonomy of the EU legal order; see also C-284/16 Slowakische Republik v. Achmea BV [2018] ECLI:EU:C:2018:158 where it held that the arbitration clause contained in a bilateral trade agreement between two Member States allowing for the possibility to arbitrate a particular subject matter was incompatible with key principles of EU law and would affect the autonomy of the EU legal system.
ICSID Case No. ARB/07/5, Abaclat and Others v. the Argentine Republic, Decision on Jurisdiction and Admissibility, 4 August 2011.
Ibid., para. 517.
Ibid., para. 519.
Ibid., para. 519.
Art. 44 of the Convention on the International Centre for the Settlement of Investment Disputes between States and Nationals of Other States (adopted 18 March 1965, entered into force 14 October 1966) 575 UNTS 159 (ICSID Convention) and Art. 19 ICSID Rules of Procedure and Arbitration Proceedings (Arbitration Rules).
Abaclat, para. 525.
Karamanian (2013).
Abaclat, para. 521.
Ibid., para. 522.
Donovan (2012).
Nottebohm case (Liechtenstein v. Guatemala), (Preliminary Objection), Judgement of 18 November 1953, ICJ Reports 1953, p. 111.
Ibid., para. 13.
Ibid., para. 12.
Ibid.
Ibid.
This appears in Shihata (1965), p. 39, fn. 3.
Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment of 18 August 1972, ICJ Reports 1972, p. 52.
The Council is founded on the Convention on International Civil Aviation (adopted on 7 December 1944; entered into force 4 April 1947) 15 UNTS 295—also called the Chicago Convention 1944.
ICAO Council, para. 27.
Ibid.
Ibid., para. 31.
Ibid., para. 31.
Thirlway (2013).
Ibid.
Ibid.
Ambatielos case (Greece v. United Kingdom) (Jurisdiction), Judgment of 1 July 1952, ICJ Reports 1952, p. 28 (Ambatielos).
Ibid., p. 41.
Fitzmaurice (1986).
PCA Case No. 2012–04, Arbitration between the Republic of Croatia and the Republic of Slovenia, Partial Award of 30 June 2016.
The Vienna Convention on the Law of Treaties 1969 (adopted on 23 May 1969; entered into force 27 January 1980) 1155 UNTS 331 (VCLT or Vienna Convention).
Ibid., para. 85.
Ibid., para. 149.
Ibid., para. 108.
Ibid., para. 160.
Ibid., para. 166.
The maxim translates as ‘no one should be a judge in his own cause’.
Bosphorus, para. 156.
Ibid., para. 48.
For example, in the cases of Behrami and Saramati, not examined here, the Court implied that this order would have to be in force in the States if the UN organisation did not grant at least equal protection, but it failed to consolidate the superiority of this order. Behrami and Behrami v. France, App. No. 71412/01, Admissibility (ECtHR, 2 May 2007); Saramati v. France, Germany and Norway, App. No. 78166/01, Admissibility (ECtHR, 2 May 2007).
Used in Opinion 1/91.
Used in the case of MOX Plant.
Although we must also note that, as Govaere (2009) starting at p. 7 indicates, the CJEU had already asserted its jurisdiction to rule on the compatibility of EU law with a rule of international law in the case of C-162/92 A. Racke GmbH v. Hauptzollamt Mainz [1998] ECLI:EU:C:1998:293, which was cited in Kadi I.
Ibid., p. 2, fn. 3.
De Burca (2010), p. 42.
Kadi I, para. 285.
It is worth noting that this wording is continuously used today. See for example in the more recent Achmea judgement, mentioned above, where the Court made reference to ‘the constitutional structure of the EU and the very nature of that law’, para. 33. Also noteworthy, however, is the change in the language of that paragraph as the Court now characterises the legal system as a ‘structured network of principles, rules and mutually interdependent legal relations binding the EU and its Member States reciprocally and binding its Member States to each other’, para. 33.
Ginsburg (2005).
Found in Art. 1 of the ICJ Statute and Art. 92 of the UNC.
See Kooijmans (2007), p. 747.
Nottebohm, para. 12.
Fitzmaurice (1986).
Orakhelashvili (2003).
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Ayoub, L. Judicial Activism in the Evolution of a Judicial Function for the International Courts: The Role of Compétence de la Compétence. Neth Int Law Rev 69, 29–55 (2022). https://doi.org/10.1007/s40802-022-00212-2
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DOI: https://doi.org/10.1007/s40802-022-00212-2