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  • 8 - Judicial Effectiveness or Judicial Ambiguity

  • from Part II - Methods of CIL Interpretation in International Courts
  • Edited by Marina Fortuna, Rijksuniversiteit Groningen, The Netherlands, Kostia Gorobets, Rijksuniversiteit Groningen, The Netherlands, Panos Merkouris, Rijksuniversiteit Groningen, The Netherlands, Andreas Føllesdal, Universitetet i Oslo, Geir Ulfstein, Universitetet i Oslo, Pauline Westerman, Rijksuniversiteit Groningen, The Netherlands
  • Book:
    Customary International Law and Its Interpretation by International Courts
    Published online:
    22 November 2024
    Print publication:
    28 November 2024, pp 186-210
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  • Summary

    Effectiveness and efficiency in judicial decision-making are the most important objectives of any court. While this concerns primarily the final decisions that are rendered, it is also relevant to the judicial process and the legal reasoning that a court or tribunal carries out to reach its decision, in order to ensure continuity and coherence. Traditional understandings of the international judiciary have seen the judges’ role as one where they discover and declare the law by applying it at face value to the legal issues that have arisen within the case, thereby achieving effectiveness through what is said to be direct and clear application of the law. This sits rather uneasily with the identification of customary international law (CIL), which is by its very nature unwritten and established by identifying evidence of state practice and opinio juris. The aim of this chapter is to examine instances of judicial activism in the decision-making of international courts and tribunals during the determination and application of CIL and how that allows for either judicial effectiveness or ambiguity.