The International Court of Justice and International Law-making: The Judicial Activism/Self-Restraint Antinomy

The antinomy between judicial activism and self-restraint, wellknown to students of the US Supreme Court, has implicationstoday also for international tribunals. The resort to judicialsettlement of international dispute is still predicated upona certain basic homogeneity of legal cultures and values goingwith them. When, however, social and cultural values are infundamental tension or collision with each other, there maybe an inclination towards activism to try to resolve the conflictsor contradictions. Any such activism on the part of the InternationalCourt of Justice, after the way seemed opened by the landmarkadvisory opinion in Nambia in 1971, effectively "overruling"earlier, more static jurisprudence, seems, however, to havebeen tempered by a perceived obligation of judicial respectfor the constitutional role and missions of the other policy-makingUN organs and other main players in the international community.As a result, this tends to lead to a situation in which theCourt may be dealing with no major, high political–legaltension-issues of the day.