Article by Christos L. Rozakis
In their thorough and comprehensive study, Sir Basil Markesinis and Jörg Fedtke (authors) scrutinise the role of national judges around the world when, in deciding certain cases in their dockets, they act as “comparatists,” resorting to foreign law and alien legal experiences. The authors present in an exhaustive manner a wide spectrum of possible parameters of this multifaceted phenomenon, where judges open a dialogue with laws and legal practices developed outside their jurisdictional confines in their effort to draw inspiration from them and, as a consequence, to enrich, where appropriate, their administration of justice on the basis, inter alia, of principles and values that presumably have acquired ecumenical dimensions or reflect societal or other changes which their own legal system is also ripe to undergo.
This phenomenon of interaction of national law with foreign law through the intermediary of judges is not, of course, a novel one seen from an historical perspective. Yet it is becoming increasingly frequent in certain legal systems, owing to the evolution of interdependence of legal acts and situations, the close relationships of domestic societies between them, and the curtailment of national boundaries for certain human activities. All of these matters have brought forward the acceptance of common values, morals, and aspirations easily applicable to all of them. Still, this phenomenon is distinguishable from another situation with which it bears some resemblance—that of the adoption of a legal system, or part of it, by another legal order, through the means of law-making activity undertaken by a national legislature. Indeed, this latter phenomenon, which again is not totally novel in the history of law creation, has recently acquired significant dimensions in the postcommunist era of Central and Eastern Europe, where it is being applied as a means of adapting local societies to the western European traditions, and as a tool for integrating the “new” Europe into the “old” one. Although the results may be similar, the first phenomenon—the dialogue of judges with foreign law—should not be confused with the second one—the adaptation, through the legislative process, of a legal order to the precepts of another legal system. First, the repercussions of the legislative process on the legal order of a State is usually far wider than the influence judges can exert on it when they decide a specific case inspired by foreign law; and second, the degree of democratic legitimacy is far higher when the legislature undertakes the task of transplanting foreign law into the domestic order than when judges undertake, in their own microcosm of settling specific disputes, to follow foreign law and decide accordingly. After all, if we follow the usual stereotypes, in the well-known tripartite division of power in modern democracies judges are supposed to apply law, not to create it; they acquire their legitimacy (in most of the legal orders of the world) not through the regular consultation of a people's electoral body but through the people's consent, given once and for all, to the institution that they represent, rather than to the judges themselves. These elements undoubtedly demarcate the boundaries within which judges may act when determining the crucial questions relating to the applicable law and its interpretation.
International justice is also supposed to follow the same patterns: an international judge is, again according to stereotypes, bound to apply the law—most of the time international law, customary or conventional, general or particular—and not to create it. Yet the now long history of international justice—which has entered its second century of existence—has witnessed a substantial departure of the role of an international judge from the stereotypical approaches just described. International justice has acted, and is still acting, with formidable leeway, which many times has transgressed judicial restraint and has produced real, fresh law almost ex nihilo. The most characteristic examples of a “law-making” pattern of an international judicial body can be found in the work of the International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice. In certain fields of international law, such as the law of the sea, this international court has not only contributed to clarifying the law, but also genuinely has moulded legal rules which, in the end, have been adopted by States as part of their law. In this context, we should remind our reader of the law on continental shelf delimitation and the method of “equitable” principles proposed by the ICJ that can easily be traced as judge-made law, later adopted by States through its inclusion in the 1982 Convention on the Law of the Sea.
There is, of course, a plausible explanation to this practice of the ICJ which may equally apply to other international courts as well: the international legal order is still heavily decentralised and is lacking both a central legislature and a central executive power. It is also suffering (less than in the not so remote past, but still suffering) from considerable lacunae in its legal fabric in the sense that, although international relations have become extremely complex and multifarious, legal rules have not always followed suit to cover in an effective manner all the legal exigencies of the new international realities. Hence the courts—and not only the ICJ—are almost obliged to assume the role of a legislator in situations where the law itself is incapable of providing adequate answers to the problems that they face when they deal with particular disputes.
About the Author
Christos L. Rozakis. Professor of Public International Law, University of Athens; Vice-President, European Court of Human Rights; Associate Member, Institut de Droit international.
Citation
80 Tul. L. Rev. 257 (2005)