Elgar Companions to International Courts and Tribunals series
Chapter 1: The idea and creation of an international court
The idea of some form of international justice, and the efforts to achieve it, have been around for a long time. From the Middle Ages until the nineteenth century it featured prominently in a series of purely theoretical plans for a European, or even a world, federation. Pierre Dubois, King George Podiebrad and Anton Marini, Emeric Crucé, Sully, William Penn, Abbé St Pierre, Jeremy Bentham and Immanuel Kant, among others, anticipated such a federation in which a judicial branch (or system of arbitration) should settle disputes having a legal nature or complexion. The basic idea behind these more or less articulated schemes was always to reduce international anarchy and to achieve, in international affairs as in the domestic arena, the great leap from a ‘natural society’ to a ‘civil society’. If the main evil of international society, especially as it emerged after the Westphalian peace, is rooted in the excessive presumption of sovereignty, the solution must be to limit the reach of sovereignty by the device of a federal power that embraces the whole ‘civilized’ (as it was thought of at the time) world. By entering into such a federation states would relinquish these excessive sovereignties (who were constantly in conflict with one another) in favour of a centralized power. Not only would rivalry between sovereignties be eliminated – as there would remain only one sovereign subject with no possible competition from outside – but moreover international society would be transformed into one in which the rule of law prevails.