Robert Bork asserts that “judges of international courts . . . are continuing to undermine democratic institutions.” This hostility implies that international courts engage in illegitimate judicial activism. Assuming that international judges do occasionally engage in international lawmaking, does this activity deserve to be dismissed as untoward?
It is becoming increasingly clear that states tolerate—and perhaps encourage—international judicial norm creation. Tomer Broude’s work on the WTO’s Appellate Body and my research on the ICTY, the Geneva Conventions, and the ICC demonstrate that states are aware of lawmaking by international courts and yet do little to curtail courts’ power. Far from punishing activist courts, states have incorporated judicial lawmaking into other treaties (as they did when adopting rules into the ICC treaty that were created by ICTY judges) or have let judges decide questions for which a political resolution remains elusive. The failure of the Doha Round, for example, will likely push the highly contentious question of agricultural subsidies from the WTO members to the organization’s Appellate Body.
Yet in neither the case of the ICTY nor the WTO did states primarily create these courts to engage in lawmaking. On the contrary, states declared (through oral statements or treaty language) that these courts should not perform this function. Yet they have tolerated—even embraced—the lawmaking that has occurred. It seems incontrovertible that states find the lawmaking that international courts sometimes engage in to be useful at least some of the time.
How will this crescendo in their lawmaking role affect international courts? I predict that international courts will play a critical role in the articulation of global norms, but they will also increasingly serve as a flash point in the debate over the wisdom of increasing the density and detail of international norms. The true test, of course, is whether states will comply with or incorporate into domestic law this bevy of judicially-created rules. On this meta-question, the jury is still out.