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Prof. Edward McWhinney

Mr. Edward McWhinney
Professor of International Law
Past President
Institut de Droit International

Biography Biography in PDF

Courts and Tribunals
International Court of Justice
Judicial Activism and the
International Court of Justice
Judicial Activism and its correlative or antonym, Judicial Self-Restraint, entered into scientific-legal parlance in the late 1950s as a by-product of the larger, public political debate in the United States over the proper role of the US Supreme Court in exercising judicial review of constitutionality: whether the Court's judges should restrict themselves, in classical, analytical jurisprudential terms, to deliberately abstract, un-factoriented, grammatical or logical interpretation; or whether, instead, they might opt for a more flexible, historically developmental approach based on identifying claimed rules and precedents in the space-time context in which they had first emerged and then assessing their relevance and capability of creative adaptation to contemporary societal conditions and expectations. The US debate was picked up very early by the judges of the new Constitutional Court [Bundesverfassungsgericht] established under the West German constitution of 1949 with its own obvious intellectual-legal debts to US experience. From the West German judges it entered into general Continental European Civil Law thinking. It was inevitable that it would pass on to the International Court of Justice.

Video   (1 hour, 10 minutes)
Courts and Tribunals
International Court of Justice
Judicial Activism and the International Court of Justice
Outline of Lecture PDF document (17 KB)

Bibliography
Edward McWhinney, The World Court and the contemporary International Law-Making Process [1979];

E. McWhinney, The International Court of Justice and the Western Tradition of International Law [The Paul Martin Lectures] [1987];

E. McWhinney, Judicial Settlement of International Disputes. Jurisdiction, Justiciability and Judicial Law-Making [The Hague Academy Lectures,1990] [1991].

Keenan D. Kmiec "The Origin and Current Meanings of 'Judicial Activism', California Law Review,vol.92, [2004],p.1441 et seq.,pp.1452-1455;

E. McWhinney, Judicial Review in the English-Speaking World,[1st ed.1956;4th ed.1969];

Gerhard Leibholz, "Legal Philosophy and the Federal Constitutional Court", Preface to E.McWhinney, Constitutionalism in Germany and the Federal Constitutional Court [1962], pp.11-20;

Hersh Lauterpacht, The Development of International Law by the International Court [1934; rev.ed.1958];

Shabtai Rosenne, The World Court. What it is and How it works [1962]; C.G. Weeramantry, Islamic Jurisprudence: Some International Perspectives[1989];

C.G. Weeramantry, "The International Court of Justice in the Age of Multiculturalism", Indian Journal of International Law,vol.36, [1996],p.17;

Abdul G. Koroma, "International Law and Multiculturalism", in Multiculturalism and International Law [Sienho Yee/J.-Y. Morin, Eds.] [2009],p.79;

V.S. Vereshchetin, "Cultural and Ideological Pluralism and International Law", in Multiculturalism and International Law [Sienho Yee/J.-Y.Morin, eds.][2009],p.113.

E. McWhinney, Judge Manfred Lachs and Judicial Law-Making. Opinions on the ICJ, 1967-1993 [1995];

E. McWhinney, Judge Shigeru Oda and the Progressive Development of International Law. Opinions on the ICJ,1976-1992 [1993];

E. McWhinney & Mariko Kawano, Judge Shigeru Oda and the Path to Judicial Wisdom. Opinions on the ICJ, 1993-2003 [2006];

J.G. Merrills, Judge Sir Gerald Fitzmaurice and the Discipline of International Law. Opinions on the ICJ, 1961-1973 [1998].
Jurisprudence, Case Law
Permanent Court of International Justice [PCIJ]:
Austro-German Customs Union, Advisory Opinion,Series A/B, No.41 [1931],59.
International Court of Justice [ICJ]:
  1. South West Africa. Preliminary Objections. Judgment,ICJ Reports 1962, p.319.
  2. South West Africa. Second Phase. Judgment, ICJ Reports 1966, p.6.
  3. Legal Consequences for States of the Continued Presence of South Africa in Namibia [South West Africa] .... Advisory Opinion, ICJ Reports 1971, p.16.
  4. Nuclear Tests [Australia v. France]. Judgment of 20 December 1974, ICJ Reports 1974, p.253.
  5. Aegean Sea Continental Shelf, ICJ Reports 1978, p.7.
  6. US Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p.18.
  7. Military and Paramilitary Activities in and against Nicaragua, [Nicaragua v. USA], Merits. Judgment, ICJ Reports 1986, p.14.
  8. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Provisional Measures [Libya v. UK], ICJ Reports 1992,p.3; [Libya v.USA], ICJ Reports 1992, p.114.
  9. Advisory Opinion on the Legality of Kosovo Independence, ICJ Reports 2010.