As the Permanent Court of International Justice (PCIJ) represents the first stable international court, a new experience is under way, which will finally prove victorious. All its decisions were executed by the States supposed to carry them out. Everybody agrees that the Court's action was a high-quality feat. Concerning the significance of the law of the Court, particularly important are the following seven points, a sort of general background for individual trials[1]: the Court dealt in its trials solely with the practices of the international particular law; PCIJ chooses deliberately limited grounds in its motivation; going beyond the massive amount of questions on the details approached, the Court finds itself obliged to sometimes attest a general fundamental principle regarding the whole matter; on the recurrent juridical issues, the Court forces itself to highlight a connection between the previous facts and so a certain jurisprudential course; the Court had a very unambiguous internationalist ideological direction; it was probably natural, considering its structure, tasks and function; - presenting the motives, the Court deliberately uses a series of technical and formal rules; the argumentation method of PCIJ is oriented to negation, short formulation and renunciation. In all, the significance of the Court consists in the fact that it is looking for a jurisprudence oriented towards isolate and limited grounds of the international particular law. The solution to this quest consists in highlighting the key principles. The second major point is the general ideological orientation, which is internationalist. Actually, the jurisprudence of the beginnings represents a miracle of balances continually renewed, according to a very intelligible genetic code. The International Court of Justice (ICJ) has been active during a longer period than the Permanent Court, and so its judicial achievements cannot be given a unitary assessment. Instead, it is possible to divide its work into four great stages of differing importance and presenting jurisprudential fluctuations. The first stage, supported by an optimistic and internationalist impetus after the war, was dynamic and original; it was followed by a period of great political and social transformations in the 1960s, and then by a stage of stagnation in the 1970s. Then, after the 1990s, numerous trials with no precedent appeared, although with a certain lag of the Court compared to the very rapid evolutions of the international society. The judicial decisions of the present Court rely on ampler motivations and, thus, they are sometimes less precise than the ones of PCIJ. The decisions also take longer to come after the 1960s, as the issues presented to the Court are very complex. The International Court invokes less often procedural rules or automatic presumptions in its justifications. The presumption in favor of sovereignty disappeared, and the idea of a restrictive or extensive interpretation is not connected to certain inflexible presumptions. The Court prefers to use general interpretation elements, which give it considerable room for argumentation. Besides, in point of sources, the Court uses progressively more the international general law and very diverse juridical acts. All the international law sources tend to turn into motivations, which was not the case for PCIJ. As a result, interpretation becomes more important, since the rules for written texts differ in their functions. Moreover, being really a Court whose activity is not related to any problem in particular, but covers them all, it instrumented trials that have to do with everything from the use of force to maritime delimitations. Yet, perfect continuity is maintained on a different point: the internationalist importance based on protecting and consolidating the functions and competences of the international organs. This orientation will grow after the first activity stage of the new Court, without being ever actually abandoned. Internationalism and multilateralism are going through a period of crisis being under the attack of the powerful States that once pledged allegiance to them. Thus, a return towards too much particularism could have nowadays much more worrying effects than it used to have in the past. The Court seems to rely on some inertia, as the jurisdictions do not adapt the law to the new situations except with a certain lag[2].
The judge makes use of apparently banal formulations and phrases, yet which are highly important in the persuasive effort they accomplish. They often remain unnoticed, being extremely unassuming. Their effect remains, however, that of subconsciously orienting the reader's thinking in a certain direction and getting to convince him easier. The judge suggests because he cannot prove. He
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tries to create a feeling of certainty where the latter is missing. Only an attentive and critical reading of the text reveals the exact amplitude of these benign rhetoric manipulations. If the judge uses a formula such as "it is beyond any doubt that/ it is doubtless that", the feeling automatically showing up in a reader manifesting an average attention is that the respective point leaves no room for doubt; that it could not have been decided any other way except the way the operated that adorned it with this formula did. The only thing beyond any doubt is that the expression "it is beyond any doubt" tends more often than not to mask a reality. The function of the expression quoted above is not therefore to give the reader an image on reality, but rather to hide it from him; to shorten and conceal the real decision process; and to turn the eyes from crucial points of the decisions, which occasion highly significant problems. The result of this approach is generally that of maintaining a margin for choosing in the juridical policy. The rhetoric theme therefore comes on the way an operator can try to limit or extend his powers of judicial policy. These formulas do not mask only crucial points of the judicial reasoning. The doctrine insisted especially on rhetorical formulas coming from the idea of rational obviousness[3]. The aim of these formulas is to give the reader the illusion that the decision made corresponds to the positive law and constitutes the only decision possible and correct from a rational perspective[4]. The international judge makes use extremely frequently of such formulas. This happens, maybe, because, given the incompleteness of international law, the judge is often obliged to develop the law[5].
The judicial interpretation of law is certainly more objective than the one used in self-interpretation by each person for himself. It is not an immovable objectiveness of a positivist type, a kind of exteriorization of a fact, as if all that the judge had to do would be to apply it. In each law branch, two elements come together: the fact and the person. Law results only from the complex interaction between the two, called jurisprudence. Its fusion between objective and subjective elements, positive law and judicial policy leads precisely to a union of the rule with the judicial policy[6].
1. Esser, J., Vorverständnis und Methodenwahl in der Rechtsfindung (Understanding and the Method of Choice in the Process of Legal Discovery), Frankfurt am Main 1970
2. Hambro, E., La jurisprudence de la Cour Internationale (International Court Jurisprudence), Leiden 1952
3. Hudson, M. O., The Permanent Court of International Justice, 1920-1942, New York 1943
4. Kolb, R., Interprétation et création du droit international, Esquisse d'une herméneutique juridique moderne pour le droit international public (Interpretation and Creation of International Law. Brief Modern Juridical Hermeneutics for International Public Law), Collection de droit international, Editions Bruylant, Editions de l'Université de Bruxelles 2006
5. Karl, W., "Vertragsauslegung - Vertragsänderung" (Interpretation of the Contract - Amendment contract), In: Schreuer, C. (ed.), Autorität und Internationale Ordnung (Authority and International Order), Berlin 1979
6. Spiermann, O., International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciarity, Cambridge 2005 ■
NOTES
[1] For instance, see Hudson, M. O., The Permanent Court of International Justice, 1920-1942, New York 1943; Spiermann, O., International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary, Cambridge 2005
[2] Kolb, R., op. cit., pp. 345-351.
[3] See especially Esser, J., Vorverständnis und Methodenwahl in der Rechtsfindung (Understanding and the Method of Choice in the Process of Legal Discovery), Frankfurt am Main 1970. p. 171 and the subsequent.
[4] For instance, see Karl, W., "Vertragsauslegung -Vertragsänderung" (Interpretation of the Contract -Amendment contract), In: Schreuer, C. (ed.), Autorität und Internationale Ordnung (Authority and International Order), Berlin 1979. p. 23.
[5] Kolb, R., op. cit., pp. 390-392.
[6] Ibidem, pp. 364-365.
Lábjegyzetek:
[1] The Author is "Valahia" University of Târgoviste, Romania.
Visszaugrás
