The Passive Virtues and the World Court
Michigan Journal of International Law, Vol. 18, No. 3, 1997
Posted: 19 Nov 1998
Date Written: October 1997
Only a few years ago the International Court of Justiceseemed to be edging toward judicial activism. This article argues that in its most recent pronouncements the ICJ has instead employed a variety of techniques for abstention. The ICJ's use of this "arsenal of devices" recalls, however, Alexander Bickel's argument for the exercise of judicial restraint by the U.S. Supreme Court in a way that nonetheless allows the judicial organ to stimulate constitutional politics. In the recent contentious cases and advisory opinions concerning the status of East Timor, exploitation of the natural resources of Nauru, and a trilogy of nuclear testing and nuclear weapons issues, the ICJ has in effect challenged the international political community to debate the application of the core principles of the international legal order. The approach the ICJ now follows thus tracks its South-West Africa Cases, where it successfully prompted constitutional decision-making by the competent U.N. organs. That precedent, in light of recent practice, should now serve as a paradigm for legitimate abstention by the Court -- one that is consistent with its principled exercise of the judicial function and, at the same time, gives shape to the process of legitimate decision-making in the international community.
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