The role of judicial institutions in the development of international law has been an open question since the days of PCIJ. If the adjective ‘judicial’ can be used as pertaining to a system of courts of law dedicated to the administration of justice within a legal order, a judiciary’s role in lawmaking remains foundational as regards the nature and form of a legal system. However, number of international judicial institutions renders sweeping generalisations on the phenomenon of international judicial lawmaking difficult. The first section considers the question of judicial lawmaking generally. The second part of this chapter will consider how the jurisprudence of the ICJ and its predecessor, the PCIJ, have contributed to the development of international law. The chapter concludes with the work of the WTO’s Appellate Body, the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, and the American and European human rights courts.
Gleider I. Hernández
If one of the functions of the law is to prescribe norms of acceptable behaviour to members of a political community, then law’s effectiveness is part of the very idea of law itself, and it is for this reason that the concept of effectiveness operates within a legal order as a technique to adapt law to changing circumstances and, thus, to maintain its relevance to the society which it purports to regulate. Invoking effectiveness serves as an argument that both establishes legal authority and demands legal validation. There is a relative indistinction within the concept that suggests the alignment of the law with reality but also seems to suggest a particular form of alignment – one that entails the legal validation of reality, the coconstitutive dimension of which is perhaps the most striking. In this chapter, I put forward the argument that effectiveness plays a dual role: it exists as a notion to ensure, by its observance, that certain desired results may be achieved, and more prescriptively as a notion which assures, by its very existence, that those same desired results can be achieved. Within legal scholarship, then, effectiveness has historically operated as a sort of bridge between normativity (law) and reality (facts) within international law, serving to sustain the relation between the two.