This Article argues that states often tacitly delegate lawmaking authority and that the Security Council did so in the case of the Tribunals. Although the historical record cannot definitely prove its validity, this hypothesis is supported by evidence from other international courts that lawmaking by international judiciaries is widespread and accepted by states, even if formally proscribed. The Article suggests that states do not acknowledge this delegation, however, in order both to perpetuate the fiction of state hegemony over international norm generation and to provide a shield behind which international courts can make law without suffering paralyzing political pressure that would negate their ability to do so.
As a normative matter, this Article argues that international judicial lawmaking is most appropriate when the relevant underlying treaties are old, where underlying conditions have changed, and where there is little prospect for the treaties' revision. International judicial lawmaking can usefully modulate the contradictory demands of rule stability and flexibility in the face of changing conditions, a central challenge for all international institutions.
Allison M. Danner,
When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War,
59 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol59/iss1/1