Study On Judicial Activism Of The International Court Of Justice

Judicial activism is the characterization and evaluation of the performance of judicial institutions in dealing with a legal issue.The existence of judicial activism demonstrates the active attitude of judicial institutions,indicating that they break through and develop established rules or practices in order to achieve a certain result.From the 1950 Interpretation of Peace Treaties Advisory Opinion case to the 2019 Chagos Islands Advisory Opinion case,the International Court of Justice has developed a distinctly activist judicial philosophy in its long-term advisory practice,mainly manifested in its habitual neglect of the principle of State consent in pursuit of important values such as justice and the rule of law and in achieving the goals and principles set forth in the United Nations Charter,when advisory requests involve specific disputes.By relying on various grounds such as the advisory request does not include a dispute,the issuance of an advisory opinion is not to resolve a dispute,the issuance of an advisory opinion will not have the effect of resolving a dispute,etc.,the Court insists on exercising its advisory jurisdiction and issuing an advisory opinion.The drivers of the Court’s judicial activism include the external environment and the internal dynamic.The external environment in which the Court operates,i.e.the social and jurisprudential basis of international law,has changed compared to the period of the Eastern Karelia Advisory Opinion case: on the one hand,the international community has replaced the fragmented collection of sovereign states and has given rise to interests and values shared by States;on the other hand,the change in the social basis has led to a subsequent hierarchical trend in international law itself,in particular the emergence of jus cogens.Based on the appropriate conditions provided by the external environment,the autonomy of the Court directly drives it to break through the limits of the principle of State consent.The Court’s autonomy derives from its independence and authority,which is driven by the pragmatic role that the Court and its judges play in the international community.The combination of external environment and internal dynamic has led the Court to deliberately ignore the principle of State consent in the exercise of its advisory jurisdiction and to insist on judicial activism.However,the actual effect of the Court’s pursuit of judicial activism has not been as expected.The judicial activism of the Court created a de facto compulsory jurisdiction,and treated the principle of State consent differently when exercising advisory jurisdiction and contentious jurisdiction,and had broken up the Court’s jurisdiction system.This discriminatory practice was exploited by Mauritius.After obtaining an advisory opinion in its favor,Mauritius also influenced the judgment of the Special Chamber of the International Tribunal for the Law of the Sea by virtue of the authority of the advisory opinion,and solved the territorial sovereignty dispute with the United Kingdom in a roundabout way in disguised form,which exposed the contentious procedure of the Court to the risk of being useless and undermining the system of international law.In addition,its excessive activism has led to errors in the application of the Statute and Rules of the Court.the challenge to the principle of State consent also infringes on the core interests of the parties to the dispute,which causes them to disagree with the advisory opinion issued by the Court,and fails to resolve the dispute and achieve the expected goals of the Court,and undermines the authority of the Court.To study the judicial activism of the Court: first,take the advisory cases such as the Chagos Islands Opinion case as the object of analysis,and clarify the specific performance of the Court in challenging the principle of State consent;Next,we should reveal the reasons why the Court pursues judicial activism when exercising its advisory jurisdiction in terms of the external environment and internal dynamic;Then,explain the negative impact of the judicial activism of the Court on the system of international law and the authority of the Court;Finally,clarify the inherent flaws of the international community and the importance of the principle of State consent,and put forward effective countermeasures on how to reconcile the contradiction between the exercise of the Court’s advisory jurisdiction and the principle of State consent,rectify the judicial activism of the Court and get it back on track in combination with the preamble,Article 1,Article 96 of the Charter of the United Nations and other relevant provisions.