The Judicial Policy of the International Court of Justice towards Human Rights: Oscillation between Judicial Activism and Judicial Restraint

Beigzadeh, Ebrahim; Latifian, Mohammadhossein

doi:10.22034/iruns.2022.143615

The Judicial Policy of the International Court of Justice towards Human Rights: Oscillation between Judicial Activism and Judicial Restraint

Document Type : Original Article

Authors

Ebrahim Beigzadeh ¹

Mohammadhossein Latifian ²

¹ Professor of Public International Law, Faculty of Law, Shahid Beheshti University

² Master of Public International Law, Faculty of Law, University of Paris 11

10.22034/iruns.2022.143615

Abstract

The judicial policy of the International Court of Justice (ICJ or the Court) towards human rights has often oscillated between judicial activism and judicial restraint. The cause of the ICJ’s oscillation is mainly rooted in the structure of international law, which is in the stage of transition from sovereignty (raison d’Etat) to international community (raison d’humanité). The question raised is that in which range of legal issues the Court has often displayed a judicial activism or judicial restraint vis-à-vis human rights. This article will endeavour to respond to this question from a critical perspective. In doing so, we will first examine a range of legal issues such as diplomatic protection and international humanitarian law in which the Court has often displayed a judicial activism. We will then analyze a range of legal issues such as jurisdictional immunities of states as well as the Court’s jurisdiction where it has often displayed a judicial restraint.

Keywords

judicial policy

human rights

methodology of interpretation

judicial activism

judicial restraint

Westphalian structure

international community