Developments and limits in international jurisprudence.

• Author: Kovacs, Peter

1. INTRODUCTION

   Today, it is hardly possible to deny the important role that the judicial decisions of international tribunals play in the promotion and execution of states' treaty law commitments, as well as those of international custom. It is commonly admitted that modern international law cannot be understood without acknowledging the paramount importance that scholars, judges, politicians (and students during their exams) attribute to international courts.

   But do we know exactly why courts choose to be innovative in certain cases and why they are hesitant to do so in others? The reasoning of individual judges is, in some respects, explained in their individual opinions, dissents, or advisory opinions. Yet how can we reconstruct ex post facto a set of common jurisprudential principles?

   Interesting and deep analyses of individual cases are available in all the important reviews of international law, and case-law-based commentaries are often prepared on the proper interpretation of a major treaty or even on a particular article of a given convention. That is why this article has no ambition to give an exhaustive description of all the roots and paths of the evolution of international jurisprudence. This article modestly summarizes only those which are most often referred to in judgments and opinions.

   Several different approaches can be chosen for the presentation of the most important factors of jurisprudential development and limitations. I have chosen to begin with legal sources (both written and unwritten) to arrive at an analysis of reasoning beyond traditional legal factors.

   1. Legal Factors in Jurisprudential Development

      Jurisprudential development is engaged in, first and foremost, on a volunteer basis. The will of the state, for example, may be manifested in contractual or ad hoc public documents, but sometimes also in the act of only one of the state-parties, and the international judge will usually take note of such expressions of intent.

      The statute of an international tribunal, a given article of a convention, or the uncertain or contradictory nature of the terms of a treaty, can all be considered as treaty-law bases for jurisprudential developments.

      More specifically, a mandate contained in a treaty authorizing a tribunal to deliver advisory opinions can a priori function as a good tool for jurisprudential development. The Permanent Court of International Justice, (2) the International Court of Justice, (3) and the Inter-American Court of Human Rights (4) have often used treaty mandates for this purpose. A specific example is the Commission of Arbitration of the International Conference for Peace in Yugoslavia, chaired by the president of the French Constitutional Court, Robert Badinter, which delivered a good dozen advisory opinions during its brief existence. (5) Judges may also be pushed towards jurisprudential development by the material, rather than by procedural, clauses of a treaty, especially when it is thought necessary for judicial decision-making. (6)

      The elasticity of the terms of a treaty offer a good starting point. This elasticity can be the product of a deliberate decision (the inclusion, for example, of terms such as "economically reasonable efforts," or "in accordance with environmental standards." French scholars refer to this as renoi mobil--literally, "mobile reference") but it can also emerge nolens volens. (7) It is obvious that the inherent contradictions in treaty texts require a jurisprudential choice between the hypothetically possible contents. There are a number of famous examples of a conflict between languages, and the International Court of Justice (8) and the European Court of Human Rights (9) have both encountered such problems and both resolved the issues according to the same general principles.

      Treaty terms are often interpreted by recourse to preparatory documents (travaux preparatoires), as described in the 1969 Vienna Convention on the Law of Treaties, (10) and most jurisdictions generally consider this to be an important method for arriving at a cleaner vision regarding obscure treaty terms. (11) The International Court of Justice, for example, has often profited from this method. (12)

      At the other end of the spectrum, the precise formulation of a given convention does not necessarily eliminate the possibility of competent and evolving interpretations in various jurisdictions. For example, in the context of the Balkan tragedy, the International Court of Justice was faced with the task of formulating the precise relationship between the crime of genocide as defined in the 1948 Geneva Convention, and the national or international character of the particular armed conflict in which the genocide occurred. The Court concluded that the convention applied to the signatories regardless of the political backdrop behind such crimes. (13)

   2. Jurisprudential Development Beyond Treaty Law Bases

      It happens quite often that jurisprudence benefits from the existence of a custom (or from the mere postulation of its existence) which is interpreted to enlarge the spectrum of international law. The International Court of Justice, developed, in part, from an analysis of certain terms of the 1969 treaty leading to a presumption of the general representative nature of heads of state--a presumption of their ability to act on behalf of a state concerning its international relations which extends beyond mere treaty-making. (14) However, as Judge Jimenez de Arechaga noted not only positive customary law, but crystallizing custom can also exercise a considerable influence on tribunals. (15)

      One could cite several examples of the influence of customs on treaties and vice versa, but the best-known instance of a comprehensive development is the confirmation of the applicability of the story of Sleeping Beauty on codified custom. For example, without the recognition of the autonomous existence of codified customary rules, the International Court of Justice would hardly have been able to decide the dispute between Nicaragua and the United States. (16)

      Do other such considerations constitute sufficient bases for a judge to formulate new jurisprudential development? It is undeniable that international jurisprudence--as well as international doctrinal approaches--does not necessarily ignore factors like philosophy, even if they appear to be of importance only rarely. The use of principles of equity provides a well-recognized exception. (17)

      Obviously, the less someone is limited, the freer he is. Consequently, judges feel the greatest freedom where a decision is to be taken ex aequo et bono. (18) However, neither the Permanent Court of International Justice, nor the International Court of Justice have ever felt such freedom in delivering a judgment, (19) and the same can be said of most international tribunals. (20) The very few examples to the contrary are not very convincing. In these cases, the existence of a mandate to pass a decision ex aequo was never truly clear and certainly not express. (21) Indeed, the related decisions are very short and their formulation is often lacking a proper legal argument, or even a written opinion. As such, they seem not to be judicial decisions so much as amalgams of social, sociological, geographical and ethnic considerations.

      Grosso modo, the same considerations can be evoked in order to explain why states are reluctant when deciding upon a mandate in favor of an international tribunal for a transactional decision. This theoretical possibility apparently does not avail too much of a chance for jurisprudential development. (22)

      However, the use of analogy and general principles of law has contributed largely to jurisprudential development. (23) Though it is sometimes criticized in academic circles because of its seemingly indefinable character, (24) equity has not been abandoned as a component of jurisprudence. Scholars have observed and appreciated the presence of equity in the reasoning of tribunals and consequently, an impressive jurisprudential construction [concerning equity?] has been created, particularly in the law of sea. (25)

      Yet it is without any doubt that the simplest and most often observed method of rendering progressive, activist developments in international law is through the cascade of successive jurisprudential decisions.

      To refer to formerly pronounced dicta, and to profit from their existence in order to go a bit further is a well known and maybe the most often employed method of jurisprudential development. It is rooted also in inherent judicial functions, recognized in the European literature by the German phrase "Kompetenz-Kompetenz" or the more or less similar Latin principle jura novit curia. The judgments passed in Nicaragua v. United States (26) and the Fisheries Competencies (27) cases provide examples. The same doctrine can also play an important role in the field of advisory opinions; from their larger circle, let us cite only the opinion on the legality of the use of nuclear weapons in order to demonstrate the International Court of Justice's adoption of this prerogative. (28)

      May it sound exaggerated to call it a stricto sensu development, it is worth noting that a tribunal can proprio motu pass a decision on issues or aspects of minimal importance even when the question is not explicitly mentioned in the compromise. (29)

      Additionally, the statutory position of a tribunal within the structure of an international organization can have a considerable effect on its reasoning, as judges must place the legal dispute or the legal problem in the general framework of an international organization, either universal or regional. The due consideration of the functional interests of the organization as well as its capacities can exercise an important influence on the procedure of judicial decision-making as well. For example, the functional interests of the United Nations and in particular the role and the position of...