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Overview: Judicial Lawmaking in the International Arena
What Counts As Judicial Lawmaking?
States join treaties or enjoin regulations in order to coordinate their activities with the activities of other states. Even if the states have two separate goals in view, coordinating efforts generally works to the benefit of all parties to the law.
However, even the most thorough international laws are subject to alternative interpretations. Also, international laws are meant to apply in an ever-changing, globalizing world. Situations change and it is frequently unclear how the treaty applies in these new situations. Which facts are relevant to the law?
So, even when states are committed to a treaty or a body of regulations, they may encounter challenges to interpretation and application. International dispute settlement processes help states rectify their differences. In doing this, international courts and tribunals change the law (sometimes broadening it, sometimes making it more specific). This is known as "residual lawmaking."
Customary International Law
Lawmaking by international courts and tribunals is not always about treaties and codified regulations. Sometimes disputes between states occur when there is no formal agreement. In cases like this, international judges or arbitrators may be called upon to clarify "customary" international law. In this case, the activity of international judges and arbitrators may actually create law by codifying convention.
Two Approaches to Clarifying International Law: Dependent and Independent Tribunals
There are different dispute settlement mechanisms in the international arena. These mechanisms run on a continuum from dependent to independent.
Dependent dispute settlement methods are set up only after the dispute occurs and they exist only until the dispute is settled. Arbitration is a good example. Arbitrators do not seek to make law. Their job is simply to find a solution that fits the interests of the states in the dispute. The goal of arbitration depends on the states' interests. However, even when dependent mechanisms are used to settle disputes, a body of private law develops and may later become codified into formal law.
Independent dispute settlement mechanisms, on the other hand, are permanent and are staffed by judges who are appointed for long terms. The goal of independent judges is not explicitly to settle disputes in terms of states' interests, but to settle the dispute according to international law. This is not to say that the work of international courts has nothing to do with state interests. Since international courts and tribunals are created and maintained by states, their existence and work does fit state interests, in general. But a particular state's interests in a particular dispute are less relevant. So, the outcome of dispute settlement in independent courts or tribunals is formally "independent" of state interests.
In short, both dependent and independent dispute settlement methods create international law. They just do it in different ways.
Which Works Better?
Scholars are frequently concerned about which type of dispute settlement is more effective: Independent or dependent. While the last half of the 20th century saw a dramatic growth in the number of more independent international tribunals, this does not mean that these types of tribunals are more effective. In fact, some scholars argue that independent international tribunals may, on the whole, be less effective at settling disputes among states.
A different way of coming at the question of effectiveness is to ask a different set of questions:
States delegate the authority to make international law (that is, clarify the law and its application) in different ways. They also delegate authority to international tribunals for different reasons. What this means is that the question about the effectiveness of different types of dispute settlement mechanisms is not a black-and-white, either-or situation. Rather, independent and dependent methods of settling disputes may be effective for different purposes and under different conditions.
International courts and tribunals make law by clarifying the meaning of agreements and their application or by identifying principles that apply in a particular dispute. International law comes into being when disputes among states are settled. However, there are different ways that states settle disputes. Some are temporary and look only to state interests (called dependent dispute settlement mechanisms). Others are permanent and make decisions in terms of the rule of law (called independent dispute settlement mechanisms). However, both dependent and independent dispute settlement methods create international law. They just do it in different ways.
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