International Judges the Legal Neutrality

International Judges

The Legal Neutrality of International Judges

This discussion proceeds from the R.Y. Jennings (1996) prompt which asserts that according to the terms of Article 38 of the Statute of the International Court of Justice, international judges are expected to use the resources available to them in existing international law when rendering decisions. At no point is it considered appropriate for a judge to author a new law by effectively establishing a precedent which has not otherwise been set through practice, pattern and collective acceptance. (Muller et al., p. 368)

As Ford (1995) explains, "judges doubtless spend most of their time applying well-established law to disputed circumstances of fact, but while there is judgment and discernment involved in such endeavors, such activities do not involve the articulation of new legal norms." (p. 35) This is a subject which is deeply complicated by the imposition of many conflicting cultural, philosophical and political conceptions of that which is lawful or unlawful. However, according to the Law Library of the University of California-Berkeley (2007), there are myriad established codes of international law to which international judges may generally refer. The Law Library (LL) identifies these as Peremptory Laws and indicates that these refer generally to acts of unprovoked aggression between states, crimes against humanity, acts of genocide, the engagement of slavery, international piracy and a host of other behaviors that have achieved widespread repudiation by the global community.

According to Shaw (2009), such peremptory laws can be traced to 'customary laws' shared amongst nations. Shaw reports for instance that "as the International Court noted in the Libya/Malta case, the substance of customary law must be 'looked for primarily in the actual practice of opinio juris of states.'" (p. 70) the collective acceptance of certain conditions as unlawful contributes to what Law Library describes as a set of essentially 'customary' laws by which precedent is availed to international judges.

Accordingly, LL indicates that "customary international law develops from the practice of States. To international lawyers, the practice of states' means official governmental conduct reflected in a variety of acts, including official statements at international conferences and in diplomatic exchanges, formal instructions to diplomatic agents, national court decisions, legislative measures or other actions taken by governments to deal with matters of international concern." (LL, 1) Here, we recognize that legal terms are often bound only by commitment to international contracts and treaties such as, for instance, that relating to Dispute Settlement through the WTO. Here, "in the words of Article 38(1)(a), the rules of the DSU 'are expressly recognized by the contesting states' that are parties to WTO dispute settlement procedures." (Pelmeter & Mavroidis, p. 398)

Law Library goes on to indicate that the International Law Commission would in 1950 compile a formal collection of internationally achieved agreements in order to create documented international legal precedent. Here, the source denotes that according to Y.B. Int'l L. Comm'n 367, U.N. Doc. a/CN.4/Ser.A/1950/Add.1 (1957), a number of precedents established through the interaction of the international community could be considered binding under the judicial oversight of an international court system. (LL, p. 1) Here, we are inclined by the language of Article 38 itself, which states that the first condition of any decision will refer to "international conventions, whether general or particular, establishing rules expressly recognized by the contesting states." (Perkins, 1)

In a sense, case history on the subject allows us to identify instances in which Article 38 has been invoked by states seeking to be protected from bilateral state action. In these instances, a state might claim that the international community has acted beyond its jurisdiction as limited in Article 38 by allowing some action. Such an action is exemplified by the dispute between the NATO and Yugoslavia regarding ethnic cleansing in Kosovo. Here, Yugoslavia filed an application for proceedings through the ICJ against the United States for its use of force in Kosovo, invoking Article 38. Accordingly, the ICJ reports that "as to Article 38, paragraph 5, of the Rules of Court, it provides that when a State files an application against another State which has not accepted the jurisdiction of the Court, the application is transmitted to that other State, but no action is taken in the proceedings unless and until that State has accepted the Court's jurisdiction for the purposes of the case." (ICJ, p. 1) the ICJ rejected this application on the grounds that it lacked the jurisdiction to intervene between two states, even without Yugoslavia's party to the terms of the ICJ and its grievance against the United States.

Works Cited:

Ford, C.A. (1995). Judicial Discretion in International Jurisprudence: Article 38(1)(C) and General Principles of Law. Duke Journal Companion & International Law.

Online at https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=5+Duke+J.+Comp.+%26+Int%27l+L.+35&srctype=smi&srcid=3B15&key=54b253f6826d9754f32690ee8bb386fc

International Court of Justice (ICJ). (1999). Legality of Use of Force (Yugloslavia v. United States of America). International Court of Justice.org.

Online at http://www.icj-cij.org/docket/index.php?pr=366&p1=3&p2=3&p3=6&k=ed&PHPSESSID=137e6b049d3288ebe37e63211bf47f72&case=112&PHPSESSID=137e6b049d3288ebe37e63211bf47f72&lang=en&PHPSESSID=137e6b049d3288ebe37e63211bf47f72

ICJ. (2003). Oil Platforms Case. Docstoc.com.

Online at http://www.icj-cij.org/docket/index.php?pr=216&p1=3&p2=1&case=90&p3=6&search=%22%22Iran+and+United+States%22%22

Law Library (LL). (2007). International & Foreign Legal Research: Researching Customary International Law and Generally Recognized Principles. University of California-Berkeley.