The International Court of Justice and International Law-making: The Judicial Activism/Self-Restraint Antinomy

摘要

The antinomy between judicial activism and self-restraint, well known to students of the US Supreme Court, has implications today also for international tribunals. The resort to judicial settlement of international dispute is still predicated upon a certain basic homogeneity of legal cultures and values going with them. When, however, social and cultural values are in fundamental tension or collision with each other, there may be an inclination towards activism to try to resolve the conflicts or contradictions. Any such activism on the part of the International Court of Justice, after the way seemed opened by the landmark advisory opinion in Nambia in 1971, effectively “overruling” earlier, more static jurisprudence, seems, however, to have been tempered by a perceived obligation of judicial respect for the constitutional role and missions of the other policy-making UN organs and other main players in the international community. As a result, this tends to lead to a situation in which the Court may be dealing with no major, high political–legal tension-issues of the day.