<論説>国際司法裁判所と法の創造 (1)

概要

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The Statute of the International Court of Justice prescribes that the Court should carry out two judicial functions-rendering judgments in contentious cases and giving advisory opinions in response to requests by the competent international organs. In addition to these functions, however, not a few people seem to have the expectation that the Court should positively develop international law. They desire that the World Court be more active in bridging the gap between law and reality, which has been brought about by the dynamic changes the international community is still undergoing. There is no doubt that the contemporary community of nations badly needs the rapid development of the rules of international law that would be workable in regulating new ralationships among nations. But the mere existence of such need does not justify the Court to assume a legislative role as its third function. What, then, will be the proper role of the I.C.J. in the matter of developing international law? Under what circumstances and to what extent can it play a creative role in addition to its law-finding function envisaged by its constitutive instruments? This writer intends to develop some criteria that might be of some help in clarifying these questions. It should be noted that nowhere in the Charter of the United Nations nor in the Statute can we find any provision which entrusts the Court with the task of law-making. Clearly, the Court is not authorized to function as if it were a legislasive organ of the international community. At the same time, however, no one can deny that the Court has actually rendered judgments or opinions that can be deemed as involving some sort of law-making. In an attempt to reconcile these conflicting facts, this writer proposes to divide the notion of law-making into two categories, namely, the genuine law-making which intends to create new rules of law or to modify the existing ones and apparent law-making which does not go so far but limits itself to the elucidation of the existing rules. Obviously, the Court is debarred from engaging in the former. But we see no need of excluding the latter type of law-making. On the contrary, apparent law-making, for all its prima facie outlook of creativeness, cannot be detached from the normal judicial activities of the Court. The possibilities of apparent law-making by the Court may occur (i) when it applies general rules of international law to the particular cases, (ii) when it confirms newly-established rules of customary international law, or (iii) when it applies general principles of law recognized by civilized nations. After discussing these points, the writer concludes that the I.C.J. can, and should, contribute to the development of international law through its normal judicial functions-through interpretation and application of international law as prescribed in Art. 38 of the Statute, and that there must be a reasonable limit beyond which the Court should not overstep in playing its creative role. Bolder attitude of the Court going beyond this limit is not legally supported, on the one hand; it may well impair its prestige as the highest judicial organ of the world, on the other. Based on these preliminary observations, the writer has examined closely the pronouncements of the Court and extracted therefrom five cases which appear to involve some sort of law-making in connection with their principal legal points. The first of these cases, i.e. the case concerning the Reparation for Injuries Suffered in the Service of the United Nations, is analysed in this issue and is found to include within it both genuine and apparent aspects of law-makings. Four other cases will be discussed in the forthcoming issue.
関西学院大学の論文
1964-12-30

<論説>国際司法裁判所と法の創造 (1)

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関西学院大学 | 論文

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