‘Passive’ and ‘Active’ Approaches in the Judicial Policy of the International Court of Justice

In dealing with various cases and circumstances in the international community, international courts and tribunals do not always act in the same way. Rather, they try to perform their judicial function and in so doing they adopt different approaches in order to maintain an equilibrium between the requirements of the international community, on the one hand, and the wishes of the disputing parties, on the other. The choice of these approaches to a large extent depends on the underlying ‘judicial policy’ of each tribunal which can, in turn, be distilled out of the constant jurisprudence of that tribunal. During its life-time, the International Court of Justice has generally strived to stay in harmony with the needs of the contemporary international community in order to perform its judicial function in the best way possible. Thus, in times in which the international community was experiencing crisis or instability, the Court has attempted to adopt a rather passive view and judicial restraint. Conversely, in times of stability, it has tried to adopt a proactive approach and judicial activism. However, due to the special circumstances of each case, the Court has sometimes shown more affinity to one of these approaches.