During the “golden twenties”, US President Woodrow Wilson famously pronounced the 14 points, or requirements, for achieving permanent peace, a doctrine
that relied heavily on the respect for the rule of law in international relations. In such
a pulverized and decentralized ambience as that of interstate affairs, the rule of law
was reserved a pivotal role in the quest for long-lasting peace (just like open and
frank diplomacy between nations). The former President considered the “negotiation
of open covenants of peace”, as well as the “enforcement of international covenants”
crucial steps in the path towards good mutual understanding in the international
stage.
102
Another theoretical cornerstone, amongst others, in the consolidation of the rule
of international law as a key principle to foreign relations was Hersch Lauterpacht,
for whom there was no distinction between legal and political questions. Everything
is legal and therefore justiciable, i.e. susceptible of being brought to court.
103 In a
system with weak legislativeity, such as the international one, the centrality of judges
was the solution found by Lauterpacht to tackle the problem of ineffectiveness of
international provisions. In light with that centrality, he did not admit the non liquet
as an a priori legal principle in international law—in other words, judges must realize
social peace even in light of lacunae in the law.
104 International courts should not fail
to decide the merits of a case for whatever reason. Such a powerful defense of the
international rule of law influenced generations of internationalists, by attaching
great importance to the judiciary and international judges in the study of discipline.
For Lauterpacht, the expansion of the judiciary’s activities would lead to peace,
progress, justice and social order at the international level.
105
That was the macro-context of a move towards the internationalization of
institutions, mainly from 1945 onwards, with the creation of the United Nations, a
glorious moment for the institutionalist school in international relations theory.
106
Within such trend, came the formulation of specialized courts and tribunals, such as
the European Court of Justice and the European Court of Human Rights, InterAmerican Court of Human Rights, Andean Court, Permanent Court of Appeal of the
MERCOSUR, Caribbean Court of Justice, amongst others.
In that context, some of the core reasons which explain the enlargement of
international adjudicative institutions are: (i) faith in the international rule of law
102 Woodrow Wilson, 14 points, Speech to the US Congress, points I and II, 8 January 1918.
Available online.
103 Galindo (2014), p. 397.
104 Lauterpacht (1933), pp. 71–72.
105 Lauterpacht’s views influenced greatly the international legal system adopted after World War II,
with the creation of the ICJ and the drafting of Art. 38 of the Court’s Statute, which included
“general principles of law” as sources of international law, therefore, prohibiting non liquet in
international law.
106 Two of the most known and quoted institutionalists worldwide are Joseph Nye and Robert
Keohane, whose theoretical constructs on the power of institutions in shaping international relations
have inspired several other institutionalist theories and schools. See, generally, Keohane and
Nye (1977).
3.4 Delimiting and Delineating: The International Tribunal for the Law of the Sea
69
that relied heavily on the respect for the rule of law in international relations. In such
a pulverized and decentralized ambience as that of interstate affairs, the rule of law
was reserved a pivotal role in the quest for long-lasting peace (just like open and
frank diplomacy between nations). The former President considered the “negotiation
of open covenants of peace”, as well as the “enforcement of international covenants”
crucial steps in the path towards good mutual understanding in the international
stage.
102
Another theoretical cornerstone, amongst others, in the consolidation of the rule
of international law as a key principle to foreign relations was Hersch Lauterpacht,
for whom there was no distinction between legal and political questions. Everything
is legal and therefore justiciable, i.e. susceptible of being brought to court.
103 In a
system with weak legislativeity, such as the international one, the centrality of judges
was the solution found by Lauterpacht to tackle the problem of ineffectiveness of
international provisions. In light with that centrality, he did not admit the non liquet
as an a priori legal principle in international law—in other words, judges must realize
social peace even in light of lacunae in the law.
104 International courts should not fail
to decide the merits of a case for whatever reason. Such a powerful defense of the
international rule of law influenced generations of internationalists, by attaching
great importance to the judiciary and international judges in the study of discipline.
For Lauterpacht, the expansion of the judiciary’s activities would lead to peace,
progress, justice and social order at the international level.
105
That was the macro-context of a move towards the internationalization of
institutions, mainly from 1945 onwards, with the creation of the United Nations, a
glorious moment for the institutionalist school in international relations theory.
106
Within such trend, came the formulation of specialized courts and tribunals, such as
the European Court of Justice and the European Court of Human Rights, InterAmerican Court of Human Rights, Andean Court, Permanent Court of Appeal of the
MERCOSUR, Caribbean Court of Justice, amongst others.
In that context, some of the core reasons which explain the enlargement of
international adjudicative institutions are: (i) faith in the international rule of law
102 Woodrow Wilson, 14 points, Speech to the US Congress, points I and II, 8 January 1918.
Available online.
103 Galindo (2014), p. 397.
104 Lauterpacht (1933), pp. 71–72.
105 Lauterpacht’s views influenced greatly the international legal system adopted after World War II,
with the creation of the ICJ and the drafting of Art. 38 of the Court’s Statute, which included
“general principles of law” as sources of international law, therefore, prohibiting non liquet in
international law.
106 Two of the most known and quoted institutionalists worldwide are Joseph Nye and Robert
Keohane, whose theoretical constructs on the power of institutions in shaping international relations
have inspired several other institutionalist theories and schools. See, generally, Keohane and
Nye (1977).
3.4 Delimiting and Delineating: The International Tribunal for the Law of the Sea
69