1 Introduction**
One of the most salient features of international adjudication today is that there are numerous international courts and tribunals, each of which differs from the other in terms of its mandate and subject-matter jurisdiction. Yet, there is a good deal of similarity among all these jurisdictions in that they all proclaim to perform their judicial function according to law, thus deciding cases by applying international legal rules. However, this does not mean that they all act in the same way and produce the same result. Each international court or tribunal produces its own conception and interpretation of the rules and in so doing balances its conception and interpretation of the rules according to certain policy considerations.1 It follows that based on different policy considerations, an ad hoc arbitral tribunal with a specific mandate and a permanent court with a wider mandate may apply the same rules differently. This proposition is ostensibly contrary to the traditional approaches to international judicial function which advocate the view that there is always a single right answer to every legal question. International courts and tribunals, therefore, must find the right answer and apply it to the case at hand.
Nonetheless, the claim here is that judicial and arbitral bodies have always the discretion to opt for the best answer among various right answers. The best answer, unlike the elusive right answer, is the one which is consistent with prevailing policy considerations that permeates international law rules in general, but also is the mandate of the body deciding the case in particular. In this sense, the notion that international adjudication is free from certain policy considerations is a non-starter.
Against this background, the concept of legal policy should be considered not only at a theoretical level, but also in light of the jurisprudence of the international adjudication body concerned. However, an inquiry into the theoretical aspects of the matter is quite necessary since the mainstream international legal scholarship has so far tended to take the situation for granted. Thus, the phenomenon has not attracted much debate or sustained inquiry, especially in the context of the International Court of Justice.2 In consequence, we have no clear understanding of what legal policy is, or what functions it serves. Thus, we lack a conscientiously developed appreciation of what it means to international law. In other words, we have no theory to appreciate its basis, parameters, and functions.
This article begins with a discussion of the need for the development of a theoretical understanding of legal policy, mainly by providing some tentative and exploratory analysis. The aim is to give a general account of what legal policy is and how it differs from what it is not, or to articulate, the structure and parameters of this concept. This is necessary because legal policy – or judicial policy in a broad sense – is employed loosely as a convenient catch-all term that is susceptible to misuse. Also, the phenomenon itself is so vast and amorphous that no crisp and perspicuous analysis of its concept can avoid being procrustean. For this reason, even some preliminary questions about legal policy have remained not only unanswered, but perhaps unasked.
This article first describes the theoretical framework necessary for understanding judicial functions in light of international jurisprudence. Thus, it argues against the right answer thesis in favor of the doctrine of judicial discretion. The idea is then put forth that the judge must always choose between different possible answers based on certain policy considerations that are not necessarily trans-legal but are part of the basic principles underlying the legal rules and the function of the adjudicating body, that is legal policy. Thereafter, the most significant aspects of the legal policy of the International Court of Justice, the principal judicial organ of the United Nations, will be analyzed in light of its long-lasting jurisprudence in both advisory and contentious cases.
2 The Right Answer Thesis and the Doctrine of Judicial Discretion
It would seem in the first place that any question – if set up correctly – has an answer; a right and unique answer which entails that all other alleged answers are necessarily wrong ones. This idea traces back to the traditional theories in the philosophy of science upon which one could understand the nature of things and grasp their essences. Based on these views, one should refrain from engaging personal and subjective value-judgments in scientific matters and do the job without any presuppositions. Consequently, a scientist in a given discipline must only discover the preexisting fact without adding anything to it.3 The same applies to legal scholarship: according to the traditional approaches4 and most conceptions of positivism – even the “powerful form”5 of Hart, that is a moderated positivism which does not accept formalism, at least, in its ordinary meaning6 – law can be considered a set of rules.7 These rules, according to most proponents of positivism, should be merely discovered and applied to concrete cases. In this respect, Hart and Kelsen8 are exceptions. According to this account of positivism, the main task of a judge is to discern the correct meaning of a legal norm.9 In this sense, the judge acts merely as a machine that must avoid any value-laden and ideological opinion in his judicial function. The reason is that, according to this point of view, if the legal agent inserts the non-legal into her function, she can no longer be considered an agent of the rule of law, but rather politics in disguise: a wolf in sheep’s clothing. Based on this “mechanical jurisprudence,”10 the state of judicial discretion is clear: if the legal rule itself provides such a possibility to the judge, this type of discretion can be accepted or otherwise, it must be rejected. In other words, according to classical positivism – which claims “objective interpretation” of legal rules – the doctrine of “judicial discretion” is completely anathematized if it is meant to give political or quasi-political power to the judge so that she can adjudicate by means of some extra-legal considerations and gives directions to her interpretation and deals with so-called judicial law-making by preferring one principle to another. This conception echoed Montesquieu’s idea on the separation of powers whereby judges are but the mouths that pronounce the words of law,11 and judicial law-making would amount to a usurpation of powers. According to this perception of law, it is generally argued that there is a single right answer to be found for each dispute which arises in law; the very idea enshrined in the French école de l’exégèse of the nineteenth century.12
However, the intense attacks against essentialism and the shift to a kind of nominalism or “modified essentialism”13 led to the abandonment of the view discussed above, the advancement of theories in favor of possible worlds,14 and passing “from the closed world to the infinite universe.”15 In the new perception, while the positivistic philosophy of science was criticized, in the theory of knowledge, the “searchlight theory” supplanted the “bucket theory,”16 the meaning of “objective” was changed, and it was shown that human knowledge is necessarily based on numerous assumptions and therefore inevitably value-laden. The results of these developments emerge also in the world of law. In this regard, new schools of thought, including the critical legal studies movement – which is more inclined to policy-oriented and deformalized approaches – claimed that the interpretation of legal rules relies at least tacitly upon principles and counter-principles which, in turn, presuppose some conceptions of extra-legal considerations.17 International law, they claim, is inevitably left with complex opposites. To put it differently, adherents of the indeterminacy thesis suggest that legal norms are not able to provide a legal question with a single right answer since legitimate sets of claims can be proffered from either side of the “dyads or pairs of opposites.”18 Thus, it was said that individuals with different assumptions could give different answers to a single legal question. The rules can be interpreted in various ways, all of which can be legally considered as right. The logical consequence of this claim is that in exercising their judicial discretion, judges have the power to choose between valid interpretations.
However, in recent decades, the right answer thesis and the widely accepted notion that judges have judicial discretion have been sharply challenged once again. In this regard, more than others, Dworkin, opposing “policies” which are standards for reaching collective goals with “principles” which are right-oriented standards that are to be observed as requirements of justice, fairness, or other dimensions of morality,19 declares that the legislature is the forum of policy whilst the judiciary is the “forum of principle,”20 deciding for one party over another not based on consequences, but rights as the only trumps.21 Consequently, contrary to Hart, based on his legal liberalism, Dworkin suggested that one should accept that, in most disputes presented for adjudication, even in hard cases and even before consideration of the case by the judge,22 a single right answer is in existence. To explain his comprehensive theory of adjudication, Dworkin postulates a fictional judge – Hercules, a superhuman of exceptional valor and wisdom – confronted with a hard case. In order to adjudicate, Hercules should build a general scheme of abstract and concrete principles, and in doing so, examines all political theories that might serve as justifications for the rules relevant to the issue at hand. If more than one political theory provides an acceptable interpretation of the rules, Hercules must consider the remaining related rules and practices to construct a single theory for the given legal system as a whole. He will finally apply this theory to the case at hand. Dworkin believes that judges should see Hercules as an ideal model for their judicial functions and behave like him.23
With the exercise of the Herculean theory of adjudication, criticizing the plurality of right answers, Dworkin attacks the doctrine of judicial discretion and declares that if there is only one right legal answer for any legal question, then, the judge must discover and apply that answer. Therefore, the exercise of the doctrine of judicial discretion and choice among several answers will essentially be ruled out. It is interesting that although Dworkin criticizes positivist jurisprudence, he defends the right answer thesis and is in favor of the opinion that the judge accepting a “presumption of gaplessness,” should not entertain the possibility that “there is no right answer” through exercise of interpretative techniques.24 This, however, should not in principle be the case since the school of thought usually aligned with the right answer thesis is positivism.25 That is why some scholars considered Dworkin as a “continental” in this respect.26
In addition, Dworkin’s disagreement with his opponents on the doctrine of judicial discretion and its status in international law is also worth contemplating. Dworkin claims that the doctrine of judicial discretion is in harmony with a positivist conception of law according to which when there is no law governing the fact, the judge must make law taking into account the general principles considered by the legislature. In this respect, Hart declares that it is not the case that in the event of indeterminacy of rules or silence of law, the judge starts to legislate arbitrarily. Rather, in deciding such cases, he should refer to general principles and purposes of the preexisting law and complete it. This, he continues, is the very idea of “constructive interpretation” as a feature of Dworkin’s theory of adjudication. Although this statement of Dworkin is certainly acceptable for Hart, he is not convinced that it precludes judicial law-making, since in hard cases, “different principles supporting competing analogies may present themselves and a judge will often have to choose between them.”27 Nevertheless, the issue in international law – at least, according to the prevalent narrative of the discipline – is quite different: when there is silence in international law, it means that the action concerned is not prohibited, and “what is not prohibited is permitted” (the (in)famous Lotus principle). Based on this construction, the international legal system is necessarily complete, and a gap in it cannot arise at all.28 Therefore, a prima facie gap is filled with the residual principle of freedom, and there is no need for legislation by international judges. This shows that the common understanding of the function of an international judge is much more limited than that of a national judge, since if the law is silent, even according to Dworkin’s view which is critical of judicial law-making and judicial discretion, judges should reconstruct the legal rules and act in accordance with the guiding principles through constructive interpretation, whereas in international law as commonly perceived, the residual principle of freedom comes into play.
In the final analysis, one cannot accept the right answer thesis. This theory is incapable of explaining what the benefit of this thesis is. This idea is a preordained response that is solely available to Hercules and “is laid up in a jurist’s heaven and no one can demonstrate what it is.”29 That may be why the late Dworkin reviewed his earlier theory. Due to the fact that he was always concerned with the role of the political in his theory of adjudication, and that he believed that judges must internalize political principles – as opposite to political policies – in the course of their legal argumentations,30 Dworkin ultimately, though not expressly, revised his former view according to which the judicial function should be reduced in the discovery and application of the preexisting law. Based on his more recent view, more specifically, the constructive interpretation, one may regard Dworkin as a proponent of plurality in answers to legal questions and therefore, accepting of the judicial discretion doctrine.31 Thus, Dworkin, who at the beginning had stated that law provides us in every legal matter one and only one right legal answer,32 is “now quietly acknowledging that … law is in reality a technique that operates pragmatically within specific political contexts,”33 and therefore, the right answer thesis falls within the framework of “essentially contested concepts.”34
In the same vein, in the international legal scholarship which was once the empire of the right answer thesis,35 this idea is avoided to such an extent that even some contemporary positivists in international law claim that being positivist does not necessarily require being in favor of the right answer thesis. For instance, Simma and Paulus, who advocate “enlightened positivism,” maintain that this positivism is equivalent neither to formalism nor to voluntarism. However, in their positivism, “formal sources” remain at the center of international law. Without them, there is no “law properly so-called.”36 According to these self-confessed positivists:
Relying on a positivist conception of law does not necessarily imply subscribing to the view that there is only one correct answer to any legal problem. Rather, it means that we do not give up the claim to normativity and the prescriptive force of law.37
Furthermore, it has been claimed that it is quite possible that certain solutions appear legally better than others, but it does not follow that such solutions would be the only possible ones or that the others, judged less good, would be “non-legal.”38
The critique of the right answer thesis implies also that choices bring responsibility. True, legal phenomena should not be ruled by politics, but at the same time, one should not deny the surrounding political atmosphere. Law is in no need of becoming politicized: it is already political. The burden of any decision taken in international law is placed on the shoulders of its decision-makers. It can no longer be said that since there is just one right answer, the judge is only “doing his job.”39 International courts and tribunals cannot lay blame upon others who create the law by a mere mechanical application of rules detached from the realities of the international community. One should always bear in mind that the line of demarcation between lex lata and lex ferenda is not a positive rule, but a theoretical construct and is therefore fluid.40
3 The Matter of Choice between Possible Interpretations
If one believes that there is only one right answer to every legal issue which should be discovered, then, there is no room for choices. On the contrary, when it is accepted that there can be more than one right answer,41 then, at the level of adjudication, the next step is how to choose among possible answers. In this regard, it is worth noting that while in the pure account of law it is sufficient to show only the correct possible interpretations, the international courts and tribunals – confronting the essential contradiction between the inevitably political scope of the interpretative activity and the alleged exclusively legal character of the judicial function42 – should, at the end of the day, choose one of the interpretations as more justified and binding.
Thus, the Kelsenian “pure theory of law” should be considered not as a Lebensfremd abstraction but an acknowledgement of the political nature of any legal content;43 and yet, it is mostly considered as pawn.44 In fact, this theory suggests that jurisprudential (i.e. scientific) interpretation must carefully avoid the fiction that a legal norm always allows only a single right interpretation,45 and therefore, the law-applying authority must choose among the existing answers.46 Accordingly, to Kelsen, it is not the logically true, but the politically preferable meaning of the interpreted norm which becomes binding.47 He believes that one should distinguish between law as “being” (Sein), and law as “ought to be” (Sollen). These two conceptions of law are related to “legal science” (Rechtswissenschaft) and “legal policy” (Rechtspolitik)48 respectively. In this way, Kelsen, considering the mixture of the two as a false amalgam,49 indicates that an attorney who, in the interest of her party, suggests to the court only one of several possible interpretations of the applicable law, or a writer, who in her commentary designates a particular one of several possible interpretations as the only right one, does not render a function of legal science, but of legal policy.50
In this respect, in the last part of his Pure Theory of Law on “Jurisprudential Interpretation,”51 Kelsen states that there are two kinds of legal interpretation: (1) jurisprudential interpretation and (2) law-applying interpretation. The former is “scientific,” “non-authentic,” “pure,” merely “cognitive,” and thus, unable to create law52 or to be gap-filling, whilst the latter is “unscientific,” “authentic,” “law-creating,” and “gap-filling.” On the one hand, in the scientific construct of interpretation, a legal scientist may speak about different meanings and interpretations of a single norm. On the other, a law-applying entity, such as a judge, in addition to the scientific task, must choose one of the interpretations as the applicable one. Therefore, to use Kelsen’s own vocabulary, jurisprudential interpretation is only related to the “act of knowledge,” while judicial interpretation relates to both the “act of knowledge” and the “act of will.” This amounts to saying that the judicial organ first ascertains the possible interpretations through the “act of knowledge,” and subsequently chooses among them the authoritative interpretation through the “act of will.”53
Kelsen places legal scientists in one pan of his balance scales and all organs and persons, including attorneys and judges who must choose between the existing options according to their functions, in the other, and paints all existing entities in the latter category with the same brush. Nonetheless, it does not seem that one should treat the will of a judge and that of an attorney the same: the will exercised by an attorney is an instrument in favor of her client’s interest in winning the case and therefore completely biased. But the will of a judge based on a disinterested point of view is in line with justice in order to find the most justified answer. In this sense, the will of an attorney is arbitrary through and through and lacking the act of knowledge in its Kelsenian sense. To put it differently, it is possible that the interpretation submitted by an attorney is not aligned with his actual opinion. In this case, she is supporting the chosen interpretation simply because the interest of her client requires that she do so. But the will of a judge is made behind a “veil of ignorance,” in Rawls’ terms.54
For Kelsen, legal policy is what ought to be as opposed to what is,55 and thus deals with the legislator56 on the one hand and with the law-applying organ57 on the other, each of which, in turn, has its own law-creating function.58 On the contrary, it would seem that legal policy is not limited to “oughts”: it appears that legal policy encompasses a set of extra-positive law considerations which relates to both “being” and “ought”. For this very reason, contrary to Kelsen’s view, it can be claimed that the policy is not connected to just the act of will, but also to the act of knowledge. In other words, legal policy is not merely the product of the aspirations of the entity concerned.
The latter conception of legal policy is, in another sense, also wider than the legal policy that Kelsen put forward: legal policy exists not only in judicial and law-applying interpretations, but also in non-judicial interpretations (including jurisprudential interpretations, to use Kelsen’s terms). Legal policy is ubiquitous. Since any interpretation is dependent on an order of values,59 then, even an international lawyer who is interpreting a norm in a purely scientific way – in understanding of what is called juris dicere60 – involuntarily injects his extra-positivistic convictions – including “being” and “ought” – into the process. Therefore, he does not consider the interpretations opposed to his a priori assumptions as even the possible right answers at the level of the act of knowledge.61 Here, Kelsen himself is not an exception.62 This is of course not limited to the world of law and can also be seen in empirical natural sciences that seem to be more objective than human sciences.63
Furthermore, for Kelsen, the act of knowledge can be carried out with the aid of purely logical instruments while the act of will is completely based on the considerations of “legal policy.”64 However, it would seem that the act of will itself is not something arbitrary. This act is, in turn, based on certain knowledge. For instance, a judge who believes in liberalism and consequently accepts a liberal account of justice can only make interpretations as the possible right answers that are not at odds with that assumption. Again, this process of providing possible interpretations does not occur in a voluntary way; exactly in the same way that Newton could not consider answers that rejected the “simplicity of nature” as possible right choices.65 Therefore, a liberal judge rejects anti-liberal interpretations ab initio and does not regard them as even the potential right answers based on, inter alia, the assumption that they are against the “object and purpose” or the raison d’être of the norm,66 not that the judge identifies both liberal and anti-liberal interpretations as the possible answers and then chooses the liberal one merely through his “will.” Otherwise, the legal function goes beyond the scope of the rule of law. If, regarding the reason for his rejection of the anti-liberal interpretation, the judge refers simply to his “will” without giving any legal explanation about the choice he made, one cannot come up with any persuasive answers as to why the issue had been basically submitted to a court of law. And what is then the difference between a judge – who is supposed to function sine ira et studio – and a politician? For this reason, one should accept that at the time of choosing between the interpretative options, the judge must have certain legal arguments for preferring one interpretation over the others.
The meaning of the act of will is not clear in Kelsen’s work. He has merely stated in general terms that the act – which makes the choice among the existing interpretations all of which are logically possible – is based on “political motives,”67 “political principles,”68 and “legal policy.”69 Accordingly, although one may not agree with Dworkin’s assertion on the “right answer thesis,” as stated above, his claim seems more compelling and legal than of Kelsen’s in the present debate. According to Kelsen, the task of a legal scientist is merely to present the different meanings of a legal rule to the competent legal authority. Which one of these meanings is acceptable as the preferred and binding answer is, in Kelsen’s view, not a legal and scientific, but a political task.70 For Kelsenians, legal policy is not a form of knowledge at all.71 In other words, for them, legal policy itself is not something legal. Therefore in a Kelsenian perspective, as Schachter says, “the problems of interpretation are virtually removed from the legal sphere,”72 and there are no legal criteria based on which the judge can choose. On the contrary, the gist of Dworkin’s account of adjudication is that, if a rule of law has a prima facie potential for multiple meanings – by applying what he calls “constructive interpretation” – the judge chooses the meaning that is most consistent with the principles of morality and justice in the legal system in its entirety. This task, in Dworkin’s view, is within the scope of a judge’s legal function. The practical implication of this argument is that, if Kelsen’s point of view is accepted, judgments issued correctly based solely on formal logic can no longer be legally criticized. By contrast, if it is accepted that logical correctness is not enough, and that international courts and tribunals should respect some extra-positive – but still legal – standards, this would enable international legal scholars to criticize judgments issued “correctly,” but that are practically destructive of the purposes of international law in general, or dispute settlement in a given case in particular.
For instance, if there are two interpretations of a single rule which both can be right, and yet the first interpretation would extinguish the dispute, while the other one would fan the flames of it, then the judge should choose the former as right and justified and reject the latter as right but unjustified. If this standard can be accepted as a legal policy consideration of international courts and tribunals,73 then one cannot accept the Kelsenian claim that judges’ choices among different interpretations of a rule are based on such things as “political motives.”74
4 The International Court of Justice as the Principal Judicial Organ of the United Nations
Some of the policy considerations of international courts and tribunals may be the same, but some of them are specially designed for some courts and tribunals or even for a single one. In addition to its several special characteristics, the International Court of Justice (ICJ or Court) is also the principal judicial organ of the UN. This unique feature gives the Court a special place in international law.
There are many similarities between the International Court of Justice and the Permanent Court of International Justice (PCIJ) to the extent that they can be considered essentially as a single court in substance. For this reason, the term “World Court” is often used to refer to both. However, structurally, there are differences between the two Courts. One of these has to do with the institutional status of the two. The Permanent Court of International Justice was associated with the League of Nations, while the International Court of Justice is now associated with the United Nations. In addition, the ICJ, unlike the former, is the “principal judicial organ of the United Nations,” and its Statute is an integral part of the Charter (pursuant to its Article 92 and Article 1 of the Statute of the Court). And this is what has elevated the present Court to, in a sense, the principal judicial organ of the international community75 or the “guardian of legality for the international community as a whole, both within and without the United Nations.”76 It should be noted that the Charter has never referred to the General Assembly or the Security Council as the main executive or legislative organs of the United Nations, but the Court has been accepted and characterized as its principal judicial organ. Thus, the decisions of the International Court of Justice can be expected to have a special place in international law, a trace of which can also be recognized in positive international law. In fact, the Statute and judgments of the Court in general benefit from a “super-binding” character that emanates from Article 103 of the Charter.77 According to this provision: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”78 However, the decisions of the Permanent Court did not have such high status. Thus, in accordance with Article 103 of the Charter, the Member States of the UN are obliged to implement the decisions of the ICJ in the event of conflict between the decisions of the Court and the decisions of other jurisdictions.
In this context, the ICJ should always pursue goals such as maintaining international peace and security, promoting human rights, establishing friendly relations between nations. It should uphold principles such as the sovereign equality of States, the prohibition of the use of force, and, most importantly, the peaceful settlement of disputes in accordance with the principles of justice and international law (as set forth in paragraph 1 of Article 1 of the Charter). These principles should be considered as effective grounds for interpreting norms of international law in the exercise of its judicial function. In other words, in addition to considering the interpretative principles contained, inter alia, in the law of treaties, the Court must always consider the objectives and principles of the United Nations as the corrective basis for the outcome of its interpretation and choose a result that conforms to those objectives and principles. Consequently, contrary to what is generally understood from Article 38 of the Statute of the Court, the function of the Court is not merely a “dispute resolution” function in the simplest sense of the term; the Court must also exhaust its jurisdictio, i.e. stating the law, function.79 In other words, in its judicial function, the Court must always distinguish between jus dicere and jus dare, between interpreting the law, and making/giving the law, although the first one is the primary function, and any development of law, as a secondary function, should be “integral and incidental” to the first.80 It follows that in addition to its usual function, the Court is expected to clarify general international law and the norms and rules therein; apply the same function when facing requests for advisory opinions on the law of the United Nations; and take an active role in maintaining international peace and security.81
In such an environment, the Court not only decides upon the cases of which it is seised, but also, in a general framework, seeks to develop international law by declaring “statements of principles” in its decisions.82 In other words, the ICJ, as a court of law, is expected to bring about “justice” – as its name implies: the International Court of Justice – and, on the other hand, to apply the law in force.
The International Court of Justice as the principal judicial organ of the United Nations manifests itself in the way in which arguments are made in both types of cases referred to the Court – advisory opinions and contentious cases.
4.1 Advisory Opinions
In the time of the Permanent Court, the effects of objective and dynamic interpretations can be found, for example, in the cases on the Competence of the ILO to Regulate Incidentally the Personal Work of the Employer (1926)83 and the Jurisdiction of the European Commission of the Danube (1928).84 However, as noted, the Permanent Court did not have the structural and institutional capacity as the International Court to develop more dynamic interpretations. Thus, today such approaches can be pursued in the new Court through stronger institutional foundations. In this regard, in many of its advisory opinions, the International Court has, especially in the first phase of its work,85 generously developed and expanded the provisions of the Charter of the United Nations in particular, and of international law in general. For example, in its famous advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations (1949), the Court established the meaning of the “international legal personality” of the United Nations and established a general theory on the identification of the legal personality of international organizations.86
It is worth noting that the legal basis for requesting a judgment in contentious cases is the consent of the States concerned, while the basis of the Court’s jurisdiction in advisory opinions is the power given to the competent organs by the Charter and the Statute of the Court. In addition, the direct audience of advisory opinions are, in principle, the requesting organs.87 However, a distinction must be made between the two types of advisory opinions: first, opinions directly related to a dispute between two or more States. Second, opinions that are more general and do not relate directly to a dispute between two or more States.
Because of their abundant similarity to judgments in contentious cases, the opinions of the first kind have similar characteristics to judgments. For example, in this category of advisory opinions, directly involved States can appoint a judge ad hoc. Thus, in the Western Sahara case (1975),88 the Court allowed Morocco to appoint a judge ad hoc but did not grant the same right to Mauritania. This distinction between the two types of advisory opinion is set out in Article 102 (3) of the Rules of Court (1978), which provides: “When an advisory opinion is requested upon a legal question actually pending between two or more States, Article 31 of the Statute [regarding the appointment of judges ad hoc] shall apply, as also the provisions of these Rules concerning the application of that Article.”
In this type of advisory opinion, the Court understands that it is in fact facing an existing dispute between States, although the issue has been raised as a request for an advisory opinion. Therefore, in these opinions, it is generally not possible to observe the strongly progressive approaches of the Court. For example, the Court’s advisory opinion on the Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (2011)89 – although prima facie answering the question of the General Assembly of the UN – was in fact involved with several specific States, and therefore this advisory opinion was issued based on judicial caution.
In contrast, in the second category of advisory opinions, the Court does not see the need to pay too much attention to States and their will, as the relevant advisory opinions are essentially not directly related to specific States. In these cases, the Court can more easily adhere to judicial activism.
It should be noted that the above-mentioned distinction is not sufficient to show the difference between the Court’s judicial policy in these two types of advisory opinions. In fact, in the first kind, the Court, inter alia, looks at the status of States involved in the dispute and may take other considerations into account in rendering its opinions. Therefore, even in cases such as the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons (1996),90 which is structurally one of the advisory opinions in the second category, the Court was not able to engage in its progressive approach sufficiently. In effect, it fell into the trap of formalism, simply because the main addressees of this advisory opinion were not the powerful States themselves, but rather, the States that had declared that their very existence was in danger.91
In many of its advisory opinions, given its institutional position in the UN, the Court offers a view of what may be called ‘judicial activism’92 within the UN system, rejecting the formalist approach to the individual will of States to increase the efficiency of the UN. In particular, the Court’s following advisory opinions have been regarded on the basis of considering the Court as the principal judicial organ of the United Nations: Reparation for Injuries Suffered in the Service of the United Nations (1949),93 identifying the objective legal personality of the United Nations and its opposability; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951),94 developing the law governing reservations to treaties; Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (1954),95 declaring that the General Assembly may establish an independent panel of judges as its subsidiary body; and Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (1962),96 announcing the power of the United Nations to conduct peace-keeping operations and observe the doctrine of implied powers.97 In this way, one can see how the Court’s advisory opinions contribute to the growth and development of international law within and without the United Nations.
Moreover, since they are issued by the principal judicial organ of the UN, the Court’s advisory opinions seem to be complied more seriously in other international courts and tribunals. A recent example of this is the judgment of the International Tribunal for the Law of the Sea in Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives) (Preliminary Objections) (2021), which held:
[T]he Special Chamber finds it necessary to draw a distinction between the binding character and the authoritative nature of an advisory opinion of the ICJ. An advisory opinion is not binding because even the requesting entity is not obligated to comply with it in the same way as parties to contentious proceedings are obligated to comply with a judgment. However, judicial determinations made in advisory opinions carry no less weight and authority than those in judgments because they are made with the same rigour and scrutiny by the “principal judicial organ” of the United Nations with competence in matters of international law ... determinations made by the ICJ in an advisory opinion cannot be disregarded simply because the advisory opinion is not binding … The Special Chamber considers that those determinations do have legal effect.98
Granting this high degree of significance to the ICJ’s advisory opinions becomes more serious, when in the case at hand – for instance, the Chagos advisory opinion,99 which was at issue in the ITLOS case – the ICJ, itself, understand “its duty to contribute to the activities of the UN as the organization’s ‘principal judicial organ’.”100
Regarding the ICJ’s robust approach to advisory opinions, the closer we get to its practice in recent years, the more formalistic and conservative the Court’s approach towards States becomes. For example, in the advisory opinion Legality of the Threat or Use of Nuclear Weapons (1996), although the Court held that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law,”101 ultimately, it did not rule on the absolute prohibition of the use of nuclear weapons, based on a judicial caution-oriented approach, holding that the Court could not find legal rules on the absolute prohibition or threat of the use of nuclear weapons.102 Moreover, in its advisory opinion in Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (2010), the Court found that the declaration of independence of Kosovo did not violate international law.103 Although some have pointed out that in the Kosovo opinion, the Court was asked the wrong question,104 it should be noted that this is not a valid reason for the Court’s limited and formalistic point of view. The Court’s case law witnessed several cases in which the Court has reconstructed the question asked to be able to address the real question.105 In fact, in the Kosovo opinion, also, the Court considered the original question – regarding the conformity of the declaration with international law – misleading, and therefore, tried to reformulate the question in order to declare that the declaration was not contrary to international law. Therefore, whether or not the Court’s statement is true, the Court is in principle allowed to reformulate the question. Therefore, contrary to a commentator, in such a case, it is not wise to declare that “[a] silly question calls for a silly answer.”106 Instead, when confronted with an allegedly vague or unwise question, the Court should reformulate the question and answer it accordingly.
4.2 Contentious Cases
In most contentious cases, the Court has paid close attention to the will of States. The reason for these two different attitudes is quite clear: in advisory opinions, the Court looks from an institutional perspective and the top-down view of the United Nations towards its Member States, while in contentious cases, the jurisdiction of the Court is more narrowly subject to the consent of the States concerned, and therefore the Court must decide more carefully between them and take into account the intentions of the parties to the dispute, as generally stated in their compromis.107 However, the Court also considers it its duty, in turn, to take action to achieve the purposes of the United Nations, in view of its position as an organ of the United Nations. For example, the Court has always played an important role in one of the most important principles of the UN Charter – the prohibition of the use of force contained in Article 2 (4) as a peremptory norm of general international law. Thus, in the Nicaragua case, the Court, exhausting its jus dare function, went significantly beyond merely resolving the dispute between the United States and Nicaragua, and in some fundamental respects, addressed international law in its entirety and developed the law on the use of force.108 This approach of the Court is not limited to this case. In the Oil Platforms case, while the real issue was the use of force, the jurisdiction of the Court was limited to some peripheral matters. Therefore, by creative reasoning and reversing the order of procedure – “judicial gymnastics” to use Thirlway’s term109 – the Court exercised “its freedom to select the ground upon which it will base its judgment,”110 and once again raised the prohibition of the use of force.
In this case, involving the United States’ bombing of Iranian oil platforms, Iran had sought the Court to find that the United States had breached Article X, paragraph 1 of the 1955 Iran–US Treaty of Amity, Economic Relations and Consular Rights, which provides that “Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation.” In contrast, the United States denied any breach of Article X, and further relied on Article XX, paragraph 1 (d) of the Treaty, which stipulates that the Treaty “shall not preclude application of measures … necessary to protect [the] essential security interests” of the party taking those measures. The United States, therefore, claimed that the attacks are considered as acts of self-defence according to this provision. According to the United States, the first question for the Court to consider was whether the US attacks were justified under Article XX, paragraph (d) as actions necessary to protect the essential interests of the United States, rather than whether they amounted to a breach of Article X, paragraph 1. If the ICJ was simply an arbitral tribunal, or even was not the “principal judicial organ” of the UN, it “might have been expected that the Court would first determine whether there had been a breach of Article X, and if it found that there had, continue by considering whether the United States could rely on Article XX to justify its action.”111 However, taking into account its judicial function within the UN system, using its “freedom to select,” the Court considered that at the time of the attacks, the real issue was about the right to self-defence, not the Treaty of Amity.112 Against this background, the Court reversed the order of procedure, and concluded first that the United States’ actions could not have been considered as self-defence, and only subsequently found that the United States’ actions had not breached Article X.113
In fact, in the Oil Platforms case, the Court directed its argumentation by proposing a kind of judicial diplomacy.114 This approach enabled the Court to examine the actions of the United States in the light of jus ad bellum and to conclude that since those actions could not be considered as acts of self-defence, they could not be regarded legitimate and justified security measures under Article XX. According to some, in this case, by applying an interpretative approach which prioritizes peremptory norms to contractual obligations, the Court suggested that the interpretation of the Treaty of Amity could not have been considered in violation of the fundamental principles of international law, such as the prohibition of the use of force.115 As Judge Simma put it:
[T]he provisions of any treaty have to be interpreted and applied in the light of the treaty law applicable between the parties as well as of the rules of general international law “surrounding” the treaty. If these general rules of international law are of a peremptory nature, as they undeniably are in our case, then the principle of interpretation just mentioned turns into a legally insurmountable limit to permissible treaty interpretation.116
Therefore, in identifying the hierarchy between rules of law, the ICJ as the main organ of the international judiciary can well play a key role in identifying and reinforcing the peremptory norms of general international law.117
The Court’s creative approach towards contentious cases because of its institutional position in the United Nations is also seen in other issues of international law. The Court’s following judgments in contentious cases, inter alia, have been issued on this basis: the Fisheries case,118 inventing a creative method of determining baselines to delimit maritime zones using straight baselines where a coast is deeply indented and cut into; The North Sea Continental Shelf case,119 developing the law governing restriction based on the general principle of equity or equitable principles; the LaGrand case (2001),120 providing a teleological interpretation of the subject matter and purpose of the judicial proceedings and declaring that orders for provisional measures issued in accordance with Article 41 of the Statute – as are the judgments of the Court – are binding.121
5 Conclusion
As a general statement, one may say that a good judgment is one that decides in strict accordance with the law, without the influence of any political, economic, or in general, any “non-legal” factors.122 However, at the same time, a good judgment cannot be indifferent to policy considerations integrated in the legal system. In fact, while the judge is forbidden to make decisions based on a subjectively desired result or ground of pure expediency,123 she cannot be unaware of policy considerations when making of legal argumentations.124
The contribution of the concept of legal policy in international law is that international courts and tribunals must make choices among various legal answers to every legal question according to certain policy considerations in light of the development of international law in general, and special features of each adjudicative body. In this sense, it is misleading to advocate a right answer for a legal question based on syllogism and an alleged single logical and necessary right answer.
The ICJ, whose function is “purely judicial,”125 decides cases not in a legal vacuum, but according to the policy within international law itself. Such a policy gives the Court the discretion to make choices. Thus, according to the ICJ, “when an advisory opinion could complicate the maintenance or reinforcement of international peace and security, the Court, an organ of the United Nations, should abstain from rendering that advisory opinion.”126 Such policy considerations come into play in contentious cases as well.127
The ICJ, as the principal judicial organ of the UN, therefore, attempts to not only settle the disputes brought before it in contentious cases and answer the questions referred to it in advisory opinions, but also go beyond and act as the guardian of international lawfulness. In the latter function, in order to fulfil this legal policy, while duly ruling on the case in question, with the necessary supporting reasons, and without unduly exceeding the limitations of the case, the Court employs those aspects of it which have an interest or connotation in a broader context, in order to form general statements of law that may contribute to the development of international law.128 In this sense, the concept of legal policy plays the role of the polar star for the ICJ in its interpretative function.
LLB, LLM, PhD.
The author would like to thank Judge Jamal Seifi and Dr. Lorenzo Palestini for their helpful and constructive comments.
Rosalyn Higgins, Policy Considerations and the International Judicial Process, 17 International & Comparative Law Quarterly 58 (1968).
The literature on the role of policy considerations in the jurisprudence of the ICJ is surprisingly poor. As Abi-Saab once observed, the notion of judicial policy is not common in French literature. The only two works he mentioned in this context are as follows: Georges Abi-Saab, De l’évolution de la Cour internationale: réflexions sur quelques tendances récentes, 96 Revue générale de droit international public 273, 273–298 (1992), reprinted in 1 Georges Abi-Saab, Le développement du droit international: Réflexions d’un demi-siècle 243–263 (Marcelo G. Kohen & Magnus Jesko Langer eds., 2013) and (although in English) Pierre-Marie Dupuy, The Judicial Policy of the International Court of Justice, in Il ruolo del Giudice Internazionale nell’evoluzione del diritto internazionale e communitario 61, 61–82 (Francesco Salerno ed., 1995). See Georges Abi-Saab, La métamorphose de la fonction juridictionnelle internationale, in Unité et diversité du droit international: Ecrits en l’honneur du Professeur Pierre-Marie Dupuy 375, 391 n. 16 (Denis Alland et al. eds., 2014). One may also take into account some insightful paragraphs dedicated to this concept in Robert Kolb’s monograph on the ICJ. See Robert Kolb, La Cour internationale de Justice 1184–1185 (2014). In any event, it would seem that this is all the more true in the English literature, in which a single work on the judicial/legal policy of the Court was not found. Therefore, so far as we are aware, very little work has been done on this subject.
Cf. Denys Simon, L’Interprétation judiciaire des traités d’organisations internationales: Morphologie des conventions et fonction juridictionnelle 113 (1981) (“Le postulat de base de la conception classique de l’interprétation … consiste finalement à admettre … que le texte à interpréter a un sens et un seul qu’il appartient au juge de découvrir.”).
The proponents of these approaches are of the opinion that the discipline consists of “objective principles and neutral rules …. and extra-legal considerations … are alien to legal analysis.” See Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking 21 (2016).
Ronald M. Dworkin, The Model of Rules, 35 University of Chicago Law Review 14, 17 (1967).
Hart describes this with the open-textured nature of law and the minimum content of natural law. He also tries to draw a third road: something between formalism and rule-skepticism, between the Scylla and Charybdis of juristic theory. See H. L. A. Hart, The Concept of Law 124–154 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
For instance, see John Austin, The Province of Jurisprudence Determined 2 (1832); See also Hart, supra note 6, at 79.
According to some commentators, in Kelsen’s view, “[T]he legal system will provide one correct answer for any legal problem.” See Bruno Simma & Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 American Journal of International Law 302, 304 (1999). However, Kelsen has the exact opposite view in this respect, which will be addressed extensively in the next section of this article.
It may be of interest to note that, although Hart defines law as “rules,” he does not believe in the right answer thesis. In fact, in his opinion, in many cases, one can have different interpretations of a single rule, all of which are legally acceptable. Therefore, courts have discretion when the law does not determine a uniquely correct answer in the case before them. In such cases, judges must choose among possible interpretations. In Hart’s own words, since there is an inevitable indeterminacy in law whose open-textured nature is obvious, in the phase of actual application, “a fresh choice between open alternatives” as a “creative or legislative activity” is necessary. Hart, supra note 6, at 128, 135.
Roscoe Pound, Mechanical Jurisprudence, 8 Colombia Law Review 605 (1908).
2 Montesquieu, Œuvres de Montesquieu: De l’Esprit des Lois 57 (1758).
Cf. Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public 36 (2006) (“La racine de [l’école de l’exégèse] repose sur une conception particulièrement rigoureuse de la séparation des pouvoirs.”). Also, it has been said that positivism with its claim to objective interpretation, “ne pourrait mener qu’à une et une seule solution juridique correcte. Cette imagerie prend sa source dans la doctrine de l’exégèse, qui réduit l’interprétation à une opération passive consistant à consacrer le sens, souvent qualifié de « clair », du texte législatif applicable.” See Olivier Corten, Méthodologie du droit international public 214 (2017).
See Karl R. Popper, The Aim of Science, in Objective Knowledge: An Evolutionary Approach 191, 191–205 (1979).
Roberto Mangabeira Unger, The Context and Consequences of the Argument, in The Singular Universe and the Reality of Time: A Proposal in Natural Philosophy 46, 97 (2015):
“The solution is to treat our universe as simply one of many universes. In the strongest formulation of this idea, and the one that has exercised the greatest influence on contemporary cosmology, these are not just many possible worlds; they are many actual worlds: the universe that we observe and the many universes that we could not even in principle observe.”
Alexandre Koyré, From the Closed World to the Infinite Universe (1958).
Popper, supra note 13, at 341–361.
Roberto Mangabeira Unger, The Critical Legal Studies Movement 89 (1986); Cf. Hart, supra note 6, at 275 (stating “in any hard case different principles [support] competing analogies”).
Bianchi, supra note 4, at 136.
Ronald Dworkin, Taking Rights Seriously 22, 90 (rev. ed. 1978).
Ronald Dworkin, The Forum of Principle, 56 New York University Law Review 469, 469–518 (1981).
Ronald Dworkin, Rights as Trumps, in Theories of Rights 153, 153–167 (Jeremy Waldron ed., 1984).
Some have claimed that based on Dworkin’s theory, the existence of the right answer can only be decided after the application of the political theory of the judge to the case. Cf. David Jennex, Dworkin and the Doctrine of Judicial Discretion, 14 Dalhousie Law Journal 473, 479 (1992). However, Dworkin’s tone implies that he considers the existence of the right answer as a priori issue and sees the existence of it exactly in the same way as the right answer in real life. See Ronald Dworkin, No Right Answer?, 53 New York University Law Review 1, 3 (1978):
“It may be uncertain and controversial what that right answer is, of course, just as it is uncertain and controversial whether Richard III murdered the princes. It would not follow from that uncertainty that there is no right answer to the legal question, any more than it seems to follow from the uncertainty about Richard that there is no right answer to the question whether he murdered the princes.”
Ronald Dworkin, Hard Cases, 88 Harvard Law Review 1057, 1094 (1975).
Duncan Kennedy, The Distinction Between Adjudication and Legislation, in A Critique of Adjudication: {fin de siècle} 23, 35–36 (1997).
See, for instance, Rosalyn Higgins, Final Remarks: From Conference in Honour of Professor Philip Allott, in 2 Themes and Theories: Selected Essays, Speeches, and Writings in International Law 1006, 1008 (2009), in which the “positivist perception of the role of norms” has been treated as “giving a ‘right answer.’”
Kennedy, supra note 24, at 36.
Hart, supra note 6, at 274–275; Cf. Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification 3, 234–50 (Ruth Adler & Neil MacCormick trans., 1989). In Alexy’s terms, there are different “canons of interpretation” based on which an international judge is able to understand rules and apply them to concrete cases. However, there are disputes regarding the ranking order of these canons with practical repercussions since “[d]ifferent canons may lead to quite different results.” Therefore, even if one accepts that these canons are “capable of yielding a single correct answer by way of a well-grounded result,” the right answer thesis is not proved for the very reason that this requires an articulation of “strict criteria for ranking them,” and “[n]o one has as yet succeeded in doing this.” For an insightful analysis of “the canons of interpretation.”
Hersch Lauterpacht, Some Observations on the Prohibition of ‘Non Liquet’ and the Completeness of the Law, in Symbolae Verzijl: présentées au professeur J.H.W. Verzijl à l’occasion de son LXXX-ième anniversaire 196 (1958).
H.L.A. Hart, American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, 11 Georgia Law Review 969, 985 (1977).
Ronald Dworkin, A Matter of Principle 11 (1985).
Even some argue that on this issue, Dworkin is following exactly in the footsteps of Hart, and that he has made his arguments compatible with the existence of judicial discretion as understood by Hart. See Joseph Raz, Dworkin: A New Link in the Chain, 74 California Law Review 1103, 1115–1116 (1986) (book review). Also, Hart himself referring to the recent claim of Dworkin that all propositions of law are interpretative, considers this quiet change of opinion as approaching of their views and the confirmation of his own claim on the existence of judicial discretion. See Hart, supra note 6, at 306–307.
Ronald Dworkin, No Right Answer?, 53 New York University Law Review 1, 1–32 (1978).
Martin Loughlin, Constitutional Theory: A 25th Anniversary Essay, 25 Oxford Journal of Legal Studies 183, 194 (2005).
Ronald Dworkin, Thirty Years on, 115 Harvard Law Review 1655, 1686 (2002) (book review).
Bianchi, supra note 4, at 21. Based on traditional approaches, international law “is considered as unitary and problems are supposed to have one correct legal answer. The answer is to be found in the legal system as such.”
Bruno Simma & Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 American Journal of International Law 302, 307–308 (1999).
Id. at 307 (emphasis added). By contrast, some believe that law is objective only if there is a unique right answer for every legal question. See, e.g., David O. Brink, Legal Interpretation, Objectivity, and Morality, in Objectivity in Law and Morals 12 (Brian Leiter ed., 2001):
“A conception of law can be understood to be objective insofar as it represents the law in actual or hypothetical controversies as determining a uniquely correct outcome.”
Pierre Brunet, Examen sceptique de la distinction entre motifs juridiques et non-juridiques, in Les motifs non-juridiques des jugements internationaux 9 (Florian Couveinhes Matsumoto & Raphaëlle Nollez-Goldbach eds., 2016).
Martti Koskenniemi, Epilogue: To Enable and Enchant – On the Power of Law, in The Law of International Lawyers: Reading Martti Koskenniemi 393, 404 (Wouter Werner et al. eds., 2017).
One of the best explanations in this respect is that of Rosalyn Higgins, Problems and Process: International Law and How We Use It 10 (1994), arguing that the dichotomy between lex lata and lex ferenda is a distinction that only makes sense to positivist and “rule-based” international lawyers seeing law as a mere set of rules. However, the distinction is, to the law as process, a “false dichotomy” and “a cleavage that we can ourselves banish from existence.”
Cf. Philip Allott, Interpretation – An Exact Art, in Interpretation in International Law 373, 374 (Andrea Bianchi et al. eds., 2015):
“An interpreter may claim to find ‘the meaning’ of the text, when everyone knows full well that a text has countless possible meanings (emphasis in original).”
In this regard, see, inter alia, Emile Giraud, Le droit international public et la politique, 110 Collected Courses of the Hague Academy of International Law (1968); David Kennedy, Les clichés revisités, le droit international et la politique (2000); Martti Koskenniemi, The Politics of International Law, Cursos Euromediterráneos Bancaja de Derecho Internacional: Vol. VIII/IX 2004/2005, at 51 (2009).
The theory of Kelsen was not a Lebensfremd abstraction for “[it] revealed the ‘value- neutrality’ of any substantive legal order as a myth” and showed that “[a]s the content of legal standards, law [is] political through and through.” Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, at 248 (2004). However, there are some scholars who still believe in the principle of “axiological neutrality” which “implique de ne pas prendre parti sur le plan des valeurs et, par conséquent, de se limiter à la formulation de jugements de fait.” Corten, supra note 12, at 118. Nonetheless, as Sabète correctly mentions, “[l]a neutralité axiologique [itself] n’est pas neutre.” Wagdi Sabète, De la complexité de détermination des valeurs fondatrices du droit à la difficulté de jugement de fait ou Suite antihumienne, 50 Archives de philosophie du droit 371, 387–388 (2007).
For instance, Bix aptly refers to the inattention of the Anglo-Saxon legal literature to Kelsen and enumerates certain misunderstandings in this respect. See Brian H. Bix, Kelsen in the United States: Still Misunderstood, in Hans Kelsen in America – Selective Affinities and the Mysteries of Academic Influence 17, 17–27 (D.A. Jeremy Telman ed., 2016).
Hans Kelsen, Reine Rechtslehre: Studienausgabe der 2. Auflage 1960, at 353 (Matthias Jestaedt ed., 2017) [hereinafter Kelsen, Reine Rechtslehre] (“Legal interpretation must carefully avoid the fiction that a legal norm always allows only one ‘right’ interpretation” (translation provided by the author); He also repeated this claim elsewhere. For instance, see Hans Kelsen, The Law of the United Nations, at xv (George W. Keeton & Georg Schwarzenberger eds., 1951) [hereinafter Kelsen, The Law of the United Nations] (“The view that it is the function of interpretation to find the ‘true’ meaning of law, is based on an erroneous conception of interpretation.”).
Hans Kelsen, Science and Politics, in What is Justice? Justice, Law, and Politics in the Mirror of Science 350, 368 (1957). Cf. Michel Troper, Le problème de l’interprétation et la théorie de la supralégalité constitutionnelle, in Pour une théorie juridique de l’État 291, 295 (1994) (“Tout texte est affecté d’un certain degré d’indétermination et est porteur de plusieurs sens entre lesquels l’organe d’application doit choisir et c’est dans ce choix que consiste l’interprétation.”).
See also Charles de Visscher, Problèmes d’interprétation judiciaire en droit international public 14 (1963) (“La fonction de toute interprétation juridique est de choisir entre plusieurs significations possibles d’un texte ou d’un comportement humain celle qui paraît à la fois la plus conforme aux données observées et la mieux adaptée à certaines fins.”).
Kelsen, Reine Rechtslehre, supra note 45, at XV.
The translators of Kelsen’s work have employed the terms “legal policy” and “legal politics” interchangeably. Cf. Hans Kelsen, Pure Theory of Law 1 (Max Knight trans., 1967); Hans Kelsen, Introduction to the Problems of Legal Theory 7 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., 1992). In French, there is only the term politique juridique to refer to the term. See, e.g., Hans Kelsen, Théorie pure du droit 9 (Charles Eisenmann trans., 1962).
Kelsen, Reine Rechtslehre, supra note 45, at 75 n.** (“Law is knowledge, not the formation of law. But in traditional jurisprudence, there is a belief that jurisprudence can and should shape law.”) Typical in this respect is Karl Engisch, Einführung in das juristische Denken 8 (1956) (stating that “It is the almost unique privilege of jurisprudence among the cultural studies not to go alongside and behind the law, but the law itself and the life in and under the law.” Therein lies a mixture of legal science and legal policy (translation provided by the author)). For unknown reasons, these phrases do not exist in the English translation.
Kelsen, Reine Rechtslehre, supra note 45, at 353.
Kelsen, Reine Rechtslehre, supra note 45, at 352–354.
This is against the position of the so-called school of “jurisprudence of concepts” (Begriffsjurisprudenz) according to which it is possible to create law by merely cognitive interpretation. This school of thought, in turn, is rejected by the Kelsenian pure theory of law. See Kelsen, Reine Rechtslehre, supra note 45, at 353.
Kelsen, Reine Rechtslehre, supra note 45, at 351 (In the application of law by a legal organ, the cognitive interpretation of the applicable law is combined with an act of will, in which the law-applying body makes a choice between the possibilities indicated by the cognitive interpretation (translation provided by the author)). Cf. 1 Paul Guggenheim, Traité de droit international public 247 (1953) (interpreting “ne se ramène pas en effet à une simple connaissance du droit positif; elle soulève également un problème de politique juridique.”).
John Rawls, A Theory of Justice 118, 136 (Harvard Univ. Press rev. ed. 1999).
Kelsen, Reine Rechtslehre, supra note 45, at 1 (stating that as theory, it [i.e. the Pure Theory of Law] wants to recognize it subject-matter exclusively and solely. It tries to answer the question of what and how the law is, not how it should be or how it should be made. It is legal science, not legal policy (translation provided by the author)); Cf. Hans Kelsen, General Theory of Norms 337 n. 96 (Michael Hartney trans., 1991) (“Determining what law ought to be is legal politics, not legal science.”).
Kelsen, Reine Rechtslehre, supra note 45, at 263 (stating that the legal order may either place more weight upon the declaration than on the actual will or, conversely, more weight upon the actual will than on the declaration. Which of these two solutions is preferable depends on the principles of legal policy which guide the legislator (emphasis added and translation provided by the author)).
Kelsen, Reine Rechtslehre, supra note 45, at 350 (stating that the question of which of the possibilities given in the applicable law is the “right” one […] is not a legal theory but a legal policy problem (emphasis added and translation provided by the author)).
According to Kelsen, the difference between the law-creation of a judge and that of a legislature is not a matter of kind, but a matter of degree. The difference is merely that the constraint exercised by the constitution upon the legislator is not as strong as the constraint exercised upon the judge. Thus, in creating law, the legislator acts much more freely than the judge. But at the end of the day, the judge also creates law. Id. at 351. In this respect, for Kelsen, apart from the act of knowledge, what leads to the law-creation (which has something to do with the act of will and the legal policy of the organ) are “norms of morality, justice, social value judgments which are usually called by catchwords such as public welfare, national interest, progress, etc.” (translation provided by the author). Id.; Cf. The elements enumerated by Dworkin that a judge is bound to observe in order to apply the Herculean theory of adjudication and make the “constructive interpretation” as explained in the first part of this article. See also, Charles de Visscher, Problèmes d’interprétation judiciaire en droit international public 23 (1963):
“[A]u-delà de la connaissance du contenu des normes, leur application par le juge est acte de volonté. Pour s’acquitter de sa fonction, le juge doit, par un appel de réflexion personnelle, situer le cas particulier dont il est saisi dans un ensemble d’intérêts sociaux et de principes généraux qui en découlent et qui constituent son cadre. A ce niveau la justification, qui prend ici la forme de la motivation, s’intégre dans le plan de l’action; elle est dictée par l’échelle des valeurs. Cette valorisation des données permet à l’interprétation de se faire constructive. Elle fait d’elle un problème de politique juridique.”
Charles de Visscher, Problèmes d’interprétation judiciaire en droit international public 14 (1963) (“Toute interprétation est tributaire d’un ordre de valeurs.”).
Cf. Robert Kolb, Interprétation et création du droit international: Esquisses d’une herméneutique juridique moderne pour le droit international public 365 (2006).
Cf. C. K. Ogden & I. A. Richards, The Meaning of Meaning: A Study of the Influence of Language upon Thought and of the Science of Symbolism 244 (7th ed. 1945) (“Our interpretation of any sign is our psychological reaction to it, as determined by our past experience in similar situations, and by our present experience.”) And one should add to this by saying that our interpretation of any norm is our reaction to it, as determined by our assumptions and presuppositions.
For instance, in Kelsen, The Law of the United Nations, supra note 45, Kelsen presents allegedly a “juristic – not a political – approach to the problems of the United Nations” according to which his task as a legal scientist is to find all the possible interpretations of the legal norms of the UN Charter. However, as Schachter put it, “[O]n a number of questions Kelsen fails even to present the interpretations which have, in fact, been advanced by member states and in some cases adopted by the [ICJ]. Instead, Kelsen has presented as ‘correct’ his own interpretation, either ignoring the other views or merely characterizing them as doubtful.” Oscar Schachter, The Law of the United Nations, 60 Yale Law Journal 189, 190–91 (1951) (book review).
The claim of Kelsen on the unique correctness of his own interpretation goes on to such an extent that he submits that “[i]t is impossible to interpret Article 24 [of the UN Charter] to mean that it confers upon the Council powers not conferred upon it in other Articles of the Charter.” Kelsen, The Law of the United Nations supra note 45, at 284 (emphasis added).
Newton, here, is a persuasive example. Believing in the mathematical methodology for explaining nature, he proudly finds that “the only safe method [is] to ban hypotheses entirely from experimental philosophy, confining … rigorously to the discovered and exactly verifiable properties and laws alone.” Moreover, Newton’s work is replete with a constant polemic against “hypotheses.” For him, hypotheses – i.e. “whatever is not deduced from the phenomena” – has no place in scientific scholarship. However, in his Philosophiæ Naturalis Principia Mathematica, he included a version of Occam’s Razor as one of his “Rules of Reasoning in Philosophy” and submitted that “[w]e are to admit no more causes of natural things than such as are both true and sufficient to explain their appearances,” for, inter alia, “nature is pleased with simplicity.” Isaac Newton, Newton’s Principia: The Mathematical Principles of Natural Philosophy 384 (Andrew Motte trans., 1687). With this, he opens the door for his a priori hypotheses. For a profound analysis of the subjective elements in Newton’s cosmology, see Edwin Arthur Burtt, The Metaphysical Foundations of Modern Physical Science 207, 215–220 (rev. ed. 1932).
Simon, supra note 3, at 116.
See Newton, supra note 63.
Cf. Allott, supra note 41, at 377:
“‘Object and purpose’ [as enshrined in Article 31 of the VCLT] is a transmuted form of ‘policy’ – the watchword of an approach to interpretation favoured by the US delegation at the United Nations Conference on the Law of Treaties and promoted by a school of thought associated with the name of Myres S McDougal of Yale Law School, who was a member of the US delegation.”
Kelsen, The Law of the United Nations supra note 45, at xiv–xv:
“If there are two or more possible interpretations, the law-applying organ has always the choice among them. […] Hence, the function of authentic interpretation is not to determine the true meaning of the legal norm thus interpreted, but to render binding one of the several meanings of a legal norm, all equally possible from a logical point of view. The choice of interpretations as a law-making act is determined by political motives” (emphasis added).
He surprisingly reduces this to motives affected by emotions; Kelsen, Reine Rechtslehre, supra note 45, at IV.
Hans Kelsen, Science and Politics, in What is Justice? Justice, Law, and Politics in the Mirror of Science 350, 368 (1957):
“[T]he task of a legal scientist interpreting a legal instrument is to show its possible meanings and to leave it to the competent legal authority to choose in accordance with political principles the one which this authority thinks the most appropriate. In showing the possibilities which the law to be applied opens to the legal authority, the legal scientist scientifically serves the law-applying function; and in revealing the ambiguity, and thus the necessity for improving the wording, he serves the law-creating function in a scientific way. If the legal scientist recommends to the legal authority one of different meanings of a legal norm, he tries to influence the law-making process and exercises a political, not a scientific, function; if he presents this interpretation as the only correct one, he is acting as a politician in the disguise of a scientist” (emphasis added).
Kelsen, Reine Rechtslehre, supra note 45, at 350–351 (translation provided by the author).
Antonio Truyol y Serra & Robert Kolb, Doctrines sur le fondement du droit des gens 79 (2007).
Pierluigi Chiassoni, Wiener Realism, in Kelsen Revisited: New Essays on the Pure Theory of Law 131, 160 (Luís Duarte d’Almeida et al. eds., 2013).
Oscar Schachter, Interpretation of the Charter in the Political Organs of the United Nations, in Law, State, and International Legal Order: Essays in Honor of Hans Kelsen 269, 270 (Salo Engel & Rudolf Aladár Métall eds., 1964).
Cf. Mohammed Bedjaoui, Expediency in the Decisions of the International Court of Justice, 71 British Yearbook of International Law 1, 2 (2001).
It may be assumed that even if a legal settlement of a dispute, does not improve the situation between the parties to the dispute, it will at least not worsen the situation. Yet, this is not always the case. For instance, the arbitral award in the Beagle Channel case (1977) not only did not help to resolve the issue, but also nearly led to a full-blown war. Cf. Robert Jennings, International Courts and International Politics: The Josephine Onoh Memorial Lecture 1986, in Contemporary Issues in International Law: A Collection of the Josephine Onoh Memorial Lectures, at 13, 13–28 (David Freestone et al. eds., 2002).
Georges Abi-Saab, The International Court as a World Court, in Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings 3, 3–16 (Vaughan Lowe & Malgosia Fitzmaurice eds., 1996).
Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. U.K.), Order, 1992 I.C.J. 3, 26–27 (April 14) (separate opinion by Lachs, J.).
For the super-binding character of the Statute and the judgments of the Court, respectively, see Alain Pellet, Strengthening the Role of the International Court of Justice as the Principal Judicial Organ of the United Nations, 3 Law and Practice of International Courts and Tribunals 159, 161 (2004); see also Robert Kolb, La Cour internationale de Justice 77–80 (2014).
Cf. Robert Kolb, L’article 103 de la Charte des Nations Unies, 367 Recueil des cours 247–250 (2014). This Article contains the rule for resolving conflicts between obligations, not the rule for resolving conflicts between rules. Also, the legal effect of this provision is not the invalidity of conflicting obligations, but their suspension in execution. In particular, in cases of conflict between the pronouncements of the International Court of Justice – as the principal judicial organ of the United Nations – and the pronouncements of other international courts and tribunals, the Member States of the UN must prioritize the obligations arising from the pronouncements of the Court.
Pierre-Marie Dupuy, The Judicial Policy of the International Court of Justice, in Il ruolo del Giudice Internazionale nell’evoluzione del diritto internazionale e communitario 61, 66 (Francesco Salerno ed., 1995).
Robert Y. Jennings, The Role of the International Court of Justice, 68 British Yearbook of International Law 1, 39–41 (1997).
Florian Couveinhes Matsumoto, LES MOTIFS DES MOTIFS DES ARRêTS ET AVIS DE LA COUR INTERNATIONALE DE JUSTICE, in LES MOTIFS NON-JURIDIQUES DES JUGEMENTS INTERNATIONAUX 129, 138–142 (Florian Couveinhes Matsumoto & Raphaëlle Nollez-Goldbach eds., 2016).
Gerald Fitzmaurice, 1 The Law and Procedure of the International Court of Justice 1 (1986).
Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer, Advisory Opinion, 1926 P.C.I.J. (ser. B) No. 13 (July 23).
Jurisdiction of European Commission of Danube Between Galatz and Braila, Advisory Opinion, 1927 P.C.I.J. (ser. B) No. 14 (Dec. 8).
Robert Kolb, La Cour internationale de Justice 1192–1206 (2014) (distinguishing three main phases in the jurisprudence of the ICJ: (1) the period of dynamism and internationalism (1947–1962); (2) the period of proceduralism and stagnation (1966–1986); and (3) the period of renaissance and hyperactivity (1986–the present day)). This method of classification has precedent. See also Georges Abi-Saab, De l’évolution de la Cour internationale: réflexions sur quelques tendances récentes, 96 Revue générale de droit international public 273, 273–298 (1992), reprinted in 1 Georges Abi-Saab, Le développement du droit international: Réflexions d’un demi-siècle 249–263 (Marcelo G. Kohen & Magnus Jesko Langer eds., 2013) for enumeration of the very same phases of the ICJ.
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174 (Apr. 11).
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, 1950 I.C.J. 65, 71 (Mar. 30).
Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 16 (Oct. 16).
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 404 (July 22).
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8).
Cf. Rein Müllerson, On the Relationship Between Jus ad Bellum and Jus in Bello in the General Assembly Advisory Opinion, in International Law, the International Court of Justice and Nuclear Weapons 267, 270 (Laurence Boisson de Chazournes & Philippe Sands eds., 1999):
“[S]uch an interpretation and the reference to self-defence and to extreme circumstances seem to encourage the acquisition of nuclear weapons by states which believe that they need them as a weapon of last resort against a potential aggressor. Ironically, none of the five declared nuclear powers seem to belong to the category of states whose survival (especially in the post-Cold War world) may be dependent on the existence of a right to threaten to use or to use nuclear weapons (emphasis added).”
For an analytical account of the notion, see Fuad Zarbiyev, Judicial Activism in International Law – A Conceptual Framework for Analysis, 3 Journal of International Dispute Settlement 247 (2012).
Reparation for Injuries Suffered in the Service of the United Nations, supra note 86.
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. 15 (May 28).
Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, 1954 I.C.J. 47 (July 13).
Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, 1962 I.C.J. 151 (July 20).
Pierre-Marie Dupuy, The Judicial Policy of the International Court of Justice, in Il ruolo del Giudice Internazionale nell’evoluzione del diritto internazionale e communitario 61, 65 (Francesco Salerno ed., 1995); Robert Kolb, La Cour internationale de Justice 1226–27 (2014).
Dispute Concerning Delimitation of the Maritime Boundary Between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), Preliminary Objections, Case No. 28, Judgment of Jan. 28, 2021, 30 ITLOS Rep. 17, ¶¶ 203–206 (emphasis added).
Legal Consequences of the Separation of the Chagos Archipelago From Mauritius in 1965, Advisory Opinion, 2019 I.C.J. 97 (Feb. 25).
Fernando Lusa Bordin, Procedural Developments at the International Court of Justice, 20 The Law and Practice of International Courts and Tribunals 395, 441 (2021).
Legality of the Threat or Use of Nuclear Weapons, supra note 90, at 266.
Id.
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 404, 406 (July 22).
James Crawford, The Place of the International Court in International Dispute Settlement, in The International Legal Order: Current Needs and Possible Responses: Essays in Honour of Djamchid Momtaz 95, 110 (James Crawford et al. eds., 2017). According to Crawford, the question asked should have been not on the legality of the declaration itself, but the consequences of such a declaration, for example, “the legality of recognizing Kosovo’s independence or about Kosovo’s actual legal status.” Id. (Emphasis in original).
The jurisprudence of the PCIJ and ICJ shows that the Court is widely free to reformulate the question asked. Sometimes, the Court even express its power to do that. For instance, in Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt, Advisory Opinion, 1980 I.C.J. 73, 88 (Dec. 20), the Court held:
“[I]t is apparent that, although the questions in the request are formulated in terms only of Section 37, the true legal question under consideration in the World Health Assembly is: What are the legal principles and rules applicable to the question under what conditions and in accordance with what modalities a transfer of the Regional Office from Egypt may be effected? This, in the Court’s opinion, must also be considered to be the legal question submitted to it by the request. The Court points out that, if it is to remain faithful to the requirements of its judicial character in the exercise of its advisory jurisdiction, it must ascertain what are the legal questions really in issue in questions formulated in a request.”
Alain Pellet, Kosovo – The Questions Not Asked: Self-Determination, Secession, and Recognition, in The Law and Politics of the Kosovo Advisory Opinion 268, 268 (Marko Milanovic & Michael Wood eds., 2015).
Cf. Djamchid Momtaz, L’attachement de la Cour internationale de Justice au consensualisme judiciaire est-il sans faille?, in Les limites du droit international: Essais en l’honneur de Joe Verhoeven 487–500 (Pierre D’Argent et al. eds., 2015).
Some argue, however, that the Court did not show such courage after the Nicaragua case and sought to act as a mere arbitration body. Cf. Dupuy, supra note 79, at 67.
1 Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence 1698 (2013).
Application of the Convention of 1902 Governing the Guardianship of Infants (Neth. v. Swed.), Judgement, 1958 I.C.J. 55, 62 (Nov. 28).
Thirlway, supra note 109.
Alexander Orakhelashvili, The International Court and ‘Its Freedom to Select the Ground upon Which It Will Base Its Judgment’, 56 International & Comparative Law Quarterly 171, 176 (2007).
Oil Platforms (Iran v. U.S.), Judgment, 2003 I.C.J. 161, ¶¶ 32–38 (Nov. 6).
Jamal Seifi, Procedural and Evidentiary Innovations in the Judgment of the International Court of Justice in the Oil Platforms Case (November 2003), in Asian Approaches to International Law and the Legacy of Colonialism: The Law of the Sea, Territorial Disputes and International Dispute Settlement 9, 9–24 (Jin-Hyun Paik et al. eds., 2013).
Orakhelashvili, supra note 112, at 176–177.
Oil Platforms (Iran v. U.S.), Judgment, 2003 I.C.J. 161, 324, ¶ 9 (Nov. 6) (separate opinion by Simma, J.). It should not be forgotten that the Court’s ruling on the compatibility of self-defence with general international law has also been charged by two judges of the Court – Judges Higgins and Buergenthal – with violating the non ultra petita rule. See 1 Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence 1696 (2013).
Cf. Djamchid Momtaz, La Hiérarchisation de L’Ordre Juridique International Cours général de droit international public, in 412 Recueil des cours de l’Académie de la Haye en ligne 62 (2019).
Fisheries (U.K. v. Nor.), Judgement, 1951 I.C.J. 116 (Dec. 18).
North Sea Continental Shelf (Ger./Den.; Ger./Neth.), Judgement, 1969 I.C.J. 3, ¶ 4 (Feb. 20).
LaGrand (Ger. v. U.S.), Judgement, 2001 I.C.J. 466 (June 27).
Robert Kolb, La Cour internationale de Justice 1227–1228 (2014).
Cf. Marcelo Kohen, RÈGLEMENT JUDICIAIRE DES DIFFÉRENDS: LA COUR INTERNATIONALE DE JUSTICE DE PLUS EN PLUS SOLLICITÉE PAR LES ÉTATS, 6 LA REVUE DE L’INSTITUT DE HAUTES ETUDES INTERNATIONALES ET DU DEVELOPPEMENT 8 (2010). In this respect, some argue that the line of demarcation between the legal and non-legal is dependent on the way one thinks about international law. Besides, “one of the most well-known techniques for discarding an opinion or a piece of scholarly writing is simply to say that it is not ‘legal’.” See Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking 28 (2016).
Free Zones of Upper Savoy and the District of Gex (Second Phase), Order, 1930 P.C.I.J. (ser. A) No. 24, at 15 (Dec. 6) (“[T]he Court, being a Court of justice, cannot … base its decision on considerations of pure expediency”) (emphasis added). This suggests that expediency per se was acceptable in the eye of the PCIJ.
Jennings, supra note 80, at 40.
See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, Judgment, 1984 I.C.J. 392, 434–445, ¶ 95 (Nov. 26); United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 I.C.J. 3, 21–22, ¶ 40 (May 24).
Alain Pellet, Strengthening the Role of the International Court of Justice as the Principal Judicial Organ of the United Nations, 3 Law and Practice of International Courts and Tribunals 159, 170–171 (2004).
Northern Cameroons (Cameroon v. U.K.), Preliminary Objections, Judgment, 1963 I.C.J. 15, 37 (Dec. 2):
“[E]ven if, when seised of an Application, the Court finds that it has jurisdiction, it is not obliged to exercise it in all cases. If the Court is satisfied, whatever the nature of the relief claimed, that to adjudicate on the merits of an Application would be inconsistent with its judicial function, it should refuse to do so.”
Gerald Fitzmaurice, Hersch Lauterpacht – The Scholar as Judge: Part I, 37 British Year Book of International Law 1, 14–15 (1961).