Research On The Judicial Law-making Of The International Court Of Justice In Treaty Interpretation

The Statute of the International Court of Justice stipulates that the International Court of Justice should be based on international law when deciding disputes submitted to it,among which treaties,as the most important source of international law,are cited the most in judicial practice.When the court decides a dispute,it does not apply the treaty to the case mechanically,and the process of applying the treaty must involve the interpretation of the treaty.Articles 31 and 32 of the Vienna Convention on the Law of Treaties stipulate the general methods of treaty interpretation.If judges interpret treaties in strict accordance with the rules of interpretation,there will be no controversy.However,judges’ discretion and initiative make them show some creativity in treaty interpretation,which sometimes goes beyond the scope of interpretation rules,making people feel that the international court of justice shows the tendency of judicial law-making.In order to save the time and cost of concluding a treaty and promote the conclusion of the treaty,countries will use vague or general expressions for some clauses in the treaty,which is the most direct reason why the International Court of Justice makes judicial laws when interpreting the treaty.When the court is involved in the interpretation of such treaties when deciding disputes,even if the interpretation in strict accordance with the interpretation rules of the Convention on the Law of Treaties cannot meet the needs of hearing cases,the judge cannot refuse to hear them.Therefore,for the purpose of trial,the judge will make some creative explanations,and the results actually modify the treaty,which has the effect of judicial law-making.In addition,the international community is changing with each passing day,but international law cannot be changed overnight.In order to make up for the lag of law,the court has to adopt the method of evolutionary interpretation,which also opens the door for the court to carry out law-making activities.The research on the law-making activities of court treaty interpretation shows that this behavior has limited legitimacy,but it will also have some negative effects.On the one hand,the legitimacy of the court’s law-making behavior is as follows: the contracting state may authorize the court’s discretion in interpretation in the treaty;the rules of treaty interpretation in Article 31 of the Convention on the Law of Treaties do not limit the interpretation of treaties to the scope of literal meaning;the drafters of the Statute of the International Court of Justice intend to make the Court take on the role of developing international law,so as to avoid the dilemma of legal uncertainty;from the perspective of democratic legitimacy of public power,the separation of international courts from politics also provides legitimacy for its law-making behavior.On the other hand,however,the court’s law-making behavior has also had a negative impact that cannot be underestimated: different interpretations of the same clause have damaged the certainty and predictability of international law;the judge’s abuse of discretion may serve the purpose of expanding the jurisdiction of the court,or in some cases it violates the original intention of the state party;the conclusion of treaties has always followed the “principle of state consent”,and the law-making behavior of the court completely ruled out the consultation and agreement of the States parties,and was only unilaterally made by the court.Therefore,we should comprehensively analyze the legitimacy and harm of the court’s law-making behavior,maintain a cautious attitude,and put forward some coping strategies for the court’s law-making behavior on this basis,so as to make its law-making behavior more standardized and legal and improve the acceptance of the results.For the international court of justice,it is necessary to ensure the independence and impartiality of judges,and at the same time,the procedure for adjudicating disputes should be more open and democratic;for China,when the court’s law-making result will adversely affect China’s national interests,no matter whether China is a party to the relevant treaties or not,we should firmly and clearly express our opposition through various channels,so as to exclude the court’s law-making result from binding on our country and unswervingly safeguard our national interests.