Judicial Pronouncements in International Law: The Arrest Warrant Obiter Dicta
in, L. Vicente and H.-W. Micklitz (eds), Interdisciplinary Research: Are We Asking the Right Questions in Legal Research?
7 Pages Posted: 12 Oct 2017
Date Written: January 7, 2015
Courts often say more than required to reach their decisions. While these judicial pronouncements have been criticised at the national level, it has been argued by international judges and commentators that they are necessary in international law. International law is vague and undeveloped; judicial maximalism is in that sense to the benefit of international law. Nevertheless, the reason international judges write obiter dicta might be solely to mitigate the effect of the ratio decidendi of their decision. This paper argues that the obiter dicta of the International Court of Justice in the Arrest Warrant Case were given for just such a reason. Furthermore, while the International Court of Justice has done no more than mention in passing that immunities of Heads of State do not apply before certain international criminal courts, these obiter dicta became the ratio decidendi of many international criminal courts. This case study demonstrates that when the judicial pronouncements of one actor are used by other actors to fit their agenda, international law may develop to the benefit of certain institutions and possibly at the expense of the fundamentals of international law.
Keywords: International Court of Justice, International Criminal Court, Immunity, Arrest Warrant Case
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