Realizing Utopia: Reflections on Antonio Cassese's Vision of International law

• Scobbie, Iain

Abstract

In his essay, ‘The International Court of Justice: It is High Time to Restyle the Respected Old Lady’, Professor Cassese argues that in order to maintain its position as the principal international tribunal and be attractive to potential parties, lest it lose business to others, the practice and procedure of the ICJ should be reformed in order to make it a true court of law fit for the 21st century. He sets out various changes which he thinks should ensure this result. His principal suggestions encapsulate a view of the function of the International Court and the role of its judges with which I profoundly disagree. Rather than constitute a programme for a 21st century renovation of the International Court, I believe that, at core, these suggestions are a reversion to early 20th century conceptions of the aims of international adjudication which have rightly been discarded in the Court’s practice. On the contrary, I believe that the implementation of some of Professor Cassese’s suggestions would act as a disincentive to potential parties, and doubt whether it is legitimate for the Court to pursue a policy of law creation by way of precedent. On the whole, this is a secondary and marginal function of the Court which principally speaks to the parties, and not to the world.