The role of the International Court of Justice and international counsel as agents in the development of international law: A sociological perspective.

Abstract

Whereas the 19th century was characterized by the proliferation of international conventions and organisations such as the ICJ given increased State relations, legal positivism was prioritized over founding or viewing international law from a sociological perspective in light of an apparent urgency to establish international peace and security through the construction of international law and human rights frameworks. It is this relegation of the sociological perspective of international law that this research is concerned with as it seeks to interrogate form a sociological perspective, the role, scope and effect of ICJ decisions as well as the participation of international legal counsel in the development of international law. This is premised on the fact that judges of the ICJ through advisory opinions as well as international counsel, constitute an integral social entity through which the sum of its parts works to influence the development and/or creation of international law. The underlying objectives of this research include: an analysis of the statutory duty of the ICJ to interpret and apply international law within the confines of article 38 of the ICJ Statute; a critical analysis that focuses on the conduct of the ICJ to exceed the statutory parameters set by article 38 of the ICJ Statute by developing and creating international law; an analysis of scholarly perspectives on the development and creation of international law by the ICJ; and an analysis of scholarly perspectives on the role of international legal counsel in developing international law at the ICJ. In seeking to explore these objectives, this research identified that Judges of the ICJ, international counsel and agents fill a critical space within the structural-functional perspective of sociology which emphasises the collective role of social entities to achieve social order and social integration. This research concludes that a sociological appreciation of the role of ICJ and international counsel on the development of international law finds its place within a structural-functional perspective that prioritizes the role and effect brought about by the sum of individual social entities in a society as compared to viewing social entities in isolation.