Judicial Activism in the Evolution of a Judicial Function for the International Courts: The Role of Competence de la Competence

Judicial activism is a highly controversial term that has given rise to varied debates and discussions. While it remains elusive in legal scholarship on international adjudication, judicial activism features within analyses as anathema to the judicial function, sometimes as a reaction to a particularly unwelcome decision or when the decision may have crossed some alleged boundary or another. It is frequently presented to pinpoint some faulty component of the judicial interpretation with a focus on the end-result of the decision. As literature focuses primarily on a descriptive analysis of the use of activism, the effect of its use on the judicial function itself has been omitted from most discussions. This article seeks to examine how judicial activism, and its contrasting concept of judicial restraint, have allowed international courts and tribunals to shape and evolve their roles as members of an international judicial institution. This is done through an examination of the most innate powers that have been accorded to the international judiciary, namely inherent powers, and more specifically, through the principle of compétence de la compétence. With an emphasis on the public function that the courts seek to fulfil, this article looks towards examining how activism and restraint have been cardinal in the evolution of what is the international judicial function.