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.
Starting Monday of next week, Opinio Juris is pleased to be hosting an online preview of a roundtable at the annual meeting of the American Political Science Association. Entitled “The Allocation of Normative Power to and among International Tribunals,” the roundtable will explore legal and political issues arising out of the rise of international tribunals and the increasing legalization of international relations.
The roundtable will take place at 2 p.m Friday, September 1 at the annual meeting of the American Political Science Association in Philadelphia (details can be found here).
The roundtable was organized by Professor Tomer Broude of the Hebrew University of Jerusalem Faculty of Law and Deparment of International Relations.* Professor Broude has gathered an impressive set of legal scholars including Opinio Juris’ own Roger Alford of Pepperdine, Jeffrey Dunoff of Temple, Allison Danner and Larry Helfer of Vanderbilt University, Kal Raustiala of UCLA, Thomas Lee of Fordham, and myself (Julian Ku of Hofstra).
Our plan is to kick off our roundtable a few days early here on Opinio Juris before convening in Philadelphia to hash out the rest of our thoughts. If you can’t join us in Philly, we hope you will enjoy and participate in our discussion here next week. See you on Monday!
*Corrected to include his full affiliation.