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When Courts Make Law: How The International Criminal Tribunals Recast The Laws Of War, Allison M. Danner

Vanderbilt Law Review

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 …