Global Judicial Activism, Fragmentation, and the Limits of Constitutionalism in International Law

Abstract

Abstract This chapter explores the contours of a judicial philosophy that depends entirely on a municipal law concept to establish something as fundamental as State responsibility for an internationally wrongful act. It considers three separate opinions: pil platforms, armed activities in the Congo, and the Kosovo Declaration of Independence. The analysis suggests that the core of what we call Simma's judicial activism is in fact substantive and functional, and hermeneutically oriented, not constitutionalist and institutional. Once we consider what may be the deepest sources or foundations of Simma's judicial activism in a post-Westphalian, human-rights based vision of international order, the ICJ, as a State-driven court, may be in some ways unsuited as an institution to Simma's activism. In this sense, perhaps these separate opinions are as much ultimately an appeal for the evolution of international judicial machinery as an expression of disagreement with colleagues on the Bench.