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Additional resources for The Development of International Law by the International Court of Justice

Example text

The present book does not intend to duplicate the existing analysis. It seeks to chart, and occupy, the middle-ground between the conceptual and the specific. It comprises a series of ‘field studies’ that analyse the influence of ICJ decisions on broadly-defined areas of international law such as human rights law, state responsibility, the law of the sea, jurisdictional immunities, the law of treaties, etc. In none of these areas has the ICJ singlehandedly ‘made law’ for the international community (which is why the term ‘law-making’ is avoided22), but all of these have in some way been affected by its jurisprudence.

The focus throughout is on the actual impact of the Court’s pronouncements; conceptual debates about whether the ICJ ‘should’ make law are not rehearsed in any detail. At the same time, the analysis moves beyond the level of micro-history: specific ICJ pronouncements are assessed, but the analysis proceeds from broadlydefined areas of international law and seeks to provide a general account of the ICJ’s influence on the development of those defined areas. 16 But cf A Pellet’s refreshingly clear perspective: ‘I would suggest that you will name “legislation” a legal reasoning you disapprove of but you will call that same reasoning “progressive development” when you favor it’: ‘Shaping the Future of International Law: The Role of the World Court in LawMaking’ in M Arsanjani et al (eds), Looking to the Future.

The more politicized and more general the legal questions referred to the ICJ under the advisory procedure, the more we encounter a problem. This is one I have drawn attention to before, in these words: A court asked to play an advisory role is . . faced with a choice. It may decide that the role requires it to bring to bear its collective judicial experience and wisdom, to be sure, but nevertheless not to act as a court; so it may conceive its function as analogous instead to that of a trusted advisor, like a family lawyer or the legal counsel of a government department or international organization.

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