Beyond Dispute: International Judicial Institutions as Lawmakers
German Law Journal, Vol. 12, No. 5, pp. 979-1003, 2011
26 Pages Posted: 17 Nov 2011
Date Written: November, 15 2011
The increasing number of international judicial institutions, producing an ever‐growing stream of decisions, has been one of the dominant features of the international legal order of the past two decades. The shift in quantity has gone hand in hand with a transformation in quality. Today, it is no longer convincing to only think of international courts in their role of settling disputes. While this function is as relevant as ever, many international judicial institutions have developed a further role in what is often called global governance. Their decisions have effects beyond individual disputes. They exceed the confines of concrete cases and bear on the general legal structures. To us, this role of international adjudication beyond the individual dispute is beyond dispute.
This contribution introduces a broader research project on international judicial lawmaking. The project's aim is three‐fold. It first seeks to contribute to a better understanding of international judicial lawmaking and the challenges it raises for prevailing narratives of legitimation in international law. This mainly requires conceptual work and theoretical reflection. Second, it examines instances of lawmaking by particular institutions in closer detail. Such analyses will show that these institutions portray different dynamics and face different problems. Third, it proposes ideas about how to react to problems in the legitimation of judicial lawmaking and it makes suggestions as to how to develop the law accordingly. The task for the present contribution is to introduce the problématique and overall framework.
Keywords: International Law, Adjudication, International Courts and Tribunals, (Judicial) Lawmaking
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