<論説>国際司法裁判所と法の創造(2・完)
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概要
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In this issue, the writer continues his analysis of the cases of the International Court of Justice which appear to contain some sort of law-making by the Court. The examination of the four cases, taken up in this second part of the article, has led the writer to the conclusion that two of them, i.e. the Case concerning Reservations to the Genocide Convention and the Nottebohm Case, are very likely to involve law-making in its genuine sense. In these two cases, the Court has developed solutions that are based upon subjective criteria, disregarding the existence of relevant rules of international law. This might be interpreted as expressive of the well-intentioned effort of the Court to meet the desire for filling up the gap that exists between law and reality in the international community. Nevertheless, there is no assurance that this very effort might not become the source of additional confusion in the international legal order, thus making the gap ever wider. On the other hand, the remaining two cases, i.e. the Case concerning International Status of South-West Africa and the Fisheries Case, proved to be the cases which involve apparent rather than genuine law-making by the Court. Although the law-developing function of the I.C.J. exemplified in these latter cases is very important for the international community, the development of international law by the judicial organ will inevitably be a slow and unsystematic process. It is true that the Court's pronouncements have greatly contributed to the development of international law by restating, confirming or interpreting the existing rules. But, at the same time, we should realize that there is a limit beyond which judicial courts cannot step out. If we misunderstand this aspect of the Court's function, we will, sooner or later, experience a disappointment. Adapting obsolete rules of international law to new developments, or creating new rules in order to regulate new international relations, these functions should be expected not from the judicial institutions such as the I.C.J. but from other international organs more appropriate for the codification and progressive development of international law, such as the Legal Committee of the General Assembly of the United Nations and the International Law Commission.
- 関西学院大学の論文
- 1965-08-30
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