Research Handbook on the Theory and Practice of International Lawmaking
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Research Handbook on the Theory and Practice of International Lawmaking

Edited by Catherine Brölmann and Yannick Radi

The global landscape has changed profoundly over the past decades. As a result, the account of the making of international law based on the traditional theory of sources is increasingly challenged. This Handbook offers a comprehensive guide to the theory and practice of international law‐making today. It takes stock at both the conceptual and the empirical level of the instruments, processes, and actors involved in the making of international law. The book contains essays by leading scholars on key aspects of international law-making and on law-making in the main issue areas, with an interest in classic processes as well as new developments and shades of normativity.
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Chapter 10: International judicial lawmaking

Gleider I. Hernández


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.

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