Any community which does not possess a mechanism for pacific resolution of disputes arising therefrom face the danger of resort to violent conflict resolution. The international community shares in this attribute. In veneration of this thesis, Murthy restates the functionalist political theory which is premised on the assumption that it is possible to establish a world government13 on the model of national governments. It is to be realized that a major pillar of any national government is the adjudicatory function. While acknowledging the fact that a single government for the whole world is not feasible due to the consensual nature of interstate relations, he sees the various inter governmental organizations as a meaningful alternative in engendering a common purpose for all states.
However it remains to be argued whether given the all embracive scope of contemporary international law, the argument against the existence of a world government can still hold sway. While no two models of governments even at the domestic level can ever be the same, it remains moot whether the United Nations with its armada of agencies and
13 B.S. Murthy, International Relations and Organization (Lucknow: Eastern Book Company, 1991) p. 167.
15 responsibilities has not thereby transmuted into a world government. Antagonists of this view may cite the fact that membership of the UN is voluntary. However this view is demolished when it is realized that even non members of the UN are expected to abide by its precepts14 whilst institutions established under its aegis have been known to extend their jurisdictional ambit to persons or parties that have not subscribed to such institutions‘ constituent document.15
Notwithstanding the amount of collaborative activities involving states and non-state groups i.e corporations and individuals, the fact remains that there is always a tendency on the part of states to give their respective national interest priority over the competing national interests of other states in circumstances impelling it to take decisions to protect its interest without looking to others for protection thereby ultimately sowing the seed for disputes. International law in recent times has always felt the need that if occurrence of violence is to be curtailed if not obliterated, there should exist practices, procedures and structures by which disputes and conflicts arising intermittently may be resolved. Thus much efforts has been put in establishing institutional structures and procedure for settling disputes using the instrumentality of law. This cut across both the adjudicative and diplomatic methods.
The adjudicative method which underpins the concept of judicialism has always fascinated the minds of leaders since the nineteenth century culminating in the establishment of the Permanent Court of International Justice (PCIJ) in 1920 as a corollary to the League Covenant. The turbulence of the League era also affected the
14 Article 2(6) UN charter.
15 As exemplified by the International Criminal Court‘s issuance of an arrest warrant on Sudanese president, Omar Al Bashir even though Sudan is not a party to the International Criminal Court statute.
16 effectiveness of the PCIJ. Given the ineluctability of peace in man‘s quest for development, and the raison d‘être for the League of Nations, the fact that the PCIJ statute was not part of the league covenant was a major shortcoming. Ditto to its nomenclature: ―Justice‖ assumed a new hue to wit: ―international justice‖ instead of
―justice‖ simpliciter.
Judicialism as a concept and synonym for the adjudicatory procedure has gained ascendancy and acclaim among legal writers even as the word itself is yet to be formally adopted into everyday English usage.
Thus Nwabueze in trying to analyze the adjudicatory institution in the then emergent commonwealth African Nations aptly termed his work ―Judicialism in Commonwealth Africa‖.16 Though his work is expository of the essentials of the judicial function in its quintessence, its focus was mainly the national or domestic level. Ditto to his other work
―Judicialism and Good Governance in Africa‖.17 In these there was no attempt at discussing the concept even comparatively with similar institutions at the international level. The same trend continued in Ibrahim Tanko‘s ―Judicialim and Judicial Process in Nigeria: What the Supreme Court Did, What the Supreme Court May Do‖18. In this he tries to x-ray the expected role of the judiciary in a constitutional democracy, arriving at the thesis that the concept of judicialism underpins the concept of constitutionalism, it needs stating that this issue of constitutionalism when transposed to the international system calls into question, the appropriate relationship between the charter establishing an international organization and institutions created therein.
16 B O Nwabueze, Judicialism in Commonwealth Africa (London: C. Hurst and company, 1977) p.1 et seq
17 B O Nwabueze, Judicialism and Good Governance in Africa (Lagos: NIALS, 2009) P.I. et seq
18 I Tanko, ‖Judicialism and Judicial Process in Nigeria: What the Supreme Court Did, what the Supreme Court May Do‖ <http://nials-nigeria.org/pdf?judicialism. Accessed on 28/10/2012
17 Udombana19 in his work, ―Shifting Institutional Paradigms to Advance Socio-Economic Rights in Africa‖ follows up by positing that judicialism is the legitimating force on governmental acts on occasions when courts hold challenged governmental measures valid or constitutional. It needs remembering that within the UN system, the argument of using the ICJ as a touchstone to measure the validity of the Security Council‘s action is a recurring decimal.
However internationally the international adjudicatory system has been variously discussed. Hardly, any book an international law or international relations does not have a chapter dedicated to international adjudication. However while some treat it as part of a generalist discourse,20 few others discourse the judicial institutions in their distinctiveness.21 None has however discussed these institutions in one fell swoop as the present writer has done with an inquisition into their prospects and challenges vis-à-vis peaceful resolution of international disputes and the maintenance of international peace and security. Thus while Shaw22 treated some of these courts (especially the ones under the UN system) in great details little was done for the regional courts like the ECOWAS court of justice especially the challenges that dogs international adjudication. Ditto to Harris D J‘s ―Cases and Materials on International law‖.23
19 Unpublished LL.D Thesis, University of South Africa,2007
20 D J, Harris Cases and Materials on International Law (London: sweet & Maxwell, 2004), M N Shaw, International Law, 6th edn. (Cambridge: Cambridge University press, 2008.)
21 H Thirlway the Law and Practice of the International Court of justice 1960 – 1989 69BYL (1998);
S Rosenne The Law and Practice of the International Court: 1920 – 2005 (Leiden: Martinus Nijhoff Publishers, 2006). G Oduntan, The Law and Practice of the International Court of justice (1445 – 1796). A critique of the contentious and advisory jurisdictions (Enugu: Fourth Dimension Publishing Co Ltd 1999), T Elias, United Nations charter ant the world court (Lagos: NIALS 1989); F Falana ECOWAS Court: Law and Practice (Lagos: Legaltex publishing Company, 2010)
22 Shaw Ibid.
23 Harris, op. cit.
18 Elias work24 though apt in title and rich in content ignored treatment of the salient issues that has dogged the International Court of Justice in its adjudicatory functions to wit:
sovereignty and its expected role vis-à-vis other organs of the UN system.
The motivation for this work is owed in part to both Rosenne and Oduntan25who where masterful in their treatment of the law and practice of the ICJ and meager in treatment of other courts. Ladan‘s work26 analyzed and discussed in coherent terms several aspects of the legal frameworks of the ECOWAS community especially on the issues of integration migration, human rights and access to justice peace and security. However its treatment of the ECOWAS Court of Justice is in the area of protection of human rights. Ditto to Falana‘s masterpiece on the ECOWAS Court of Justice.27
Avgerinopoulou28 explored the role of the international judiciary in the settlement of environmental disputes, the potential for improvement of these existing bodies and proposals for the establishment of new institutions.
However, the fact that today‘s international system is buffeted by many challenges that goes beyond environmental issues calls into question his clamour for the establishment of more judicial institutions on environmental issues.
Oji‘s29 work which serves as a perfect complement to other works on international criminal law was quite expository in its analysis of international criminal responsibility
24 See note 8 supra
25 S Rosenne, op.cit, G Oduntan, op.cit
26 M T Ladan Introduction to ECOWAS Community Law,Integration,Migration, Human Rights, Access to Justice, Peace and Security (Zaria: ABU Press, 2009)
27 F Falana,Op.Cit
28 T D Avgerinopoulou ―The Role of the International Judiciary in the Settlement of Environmental Disputes and Alternative Proposals for Strengthening International Environmental Adjudication‖.
Available at www.yale.edu/../Avgerinopoulou.pdf accessed on 15/12/2015
29 E A Oji Responsibility For Crimes Under International Law (Lagos: Odade Publishers,2003)
19 and the workings of the international criminal court; however its occlusion of the AU initiative in international criminal law remains its drawback.
Whilst a vast body of literature might exist on the individual topics under this work, what the researcher has done is to synthesis this welter of literature to bring out a new body of knowledge that one can at a glance have a panoramic view of the major judicial institutions that drives inter-state dispute settlement as well as the prospect they hold and challenges they face in engendering a more peaceful world.