The Judge as Law-Maker: Thoughts on Bruno Simma's Declaration in the <i>Kosovo</i> Opinion

Armin von Bogdandy and Marc Jacob

in From Bilateralism to Community Interest

Published in print March 2011 | ISBN: 9780199588817
Published online May 2011 | e-ISBN: 9780191725272 | DOI:
The Judge as Law-Maker: Thoughts on Bruno Simma's Declaration in the Kosovo Opinion

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Bruno Simma has always been a forceful advocate for the progressive development of international law, not least by international courts. Throughout many scholarly offerings, he has provided good arguments how lawyers can progressively develop international law without abandoning the enterprise of law altogether. He never made a secret of this modernizing thrust, openly criticizing both the positive law and the conservative attitude of certain institutions. A prominent example is his Declaration in the International Court of Justice's (ICJ) Kosovo Opinion, where he lambasts the Court's adherence to the Lotus principle for being ‘obsolete’ and calls for Advisory Opinions ‘with greater relevance as regards the international legal order’. One would in fact not be startled if his election to the bench of the ICJ occurred with an implicit mandate by the nominating and electing institutions to further his vision of international law through the Court's decisions. This chapter takes this approach as its starting point, but it discusses neither the individual elements of his progressive drive nor its overall vision. Rather, it seeks to provide some conceptual clarifications on the law-making function of the judge, and to examine differences between political and judicial modes of law-creation.

Keywords: international law; law-making; judge; law-creation

Chapter.  8616 words. 

Subjects: Public International Law

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