International justice on a crossroads: judicial discretion as a form of political power

One of the ideas shared by prevailing majority of the expert community is the conclusion about coming crisis of the legitimacy of international law. This conclusion is the understandable reaction to new regressive developments: the growing methodological challenge of legal relativism; obvious prevalence of the legal fragmentation over unification in the globalized world, degradation of international relations and legal communications. The international consensus formed after the World War II, which became the basis of human rights theory and practice, today seems to be expired, but a new one is still not achieved. A part of the problem is the decomposition of the whole system of international justice as a powerful, effective and neutral instrument of international conflict-solution and non-partisan mediator between different international actors. This results in a growing level of the legal uncertainty; open controversy between international, transnational and national courts over jurisdiction, influence and power; competing doctrines and interpretations of the international treatises and human rights, promotion of judicial activism as reaction to political power vacuum. All these developments make it important to pinpoint the changing place of judicial discretion and interpretation as a form and component of political power in relation to such key topics as methodology of legal interpretation, proportionality principle, European consensus, margin of appreciation, principle resistance, and their changing judicial treatment in a very complex political atmosphere of different global regions. That function of judicial activism in different areas of the world obviously plays compensatory role and fills in political power vacuum on international level, the absence of common understandings, rules and strategies of legal treatment, providing, thus, more disproportions to universal interpretation of the adopted international standards, while using political arguments dressed as law. This does not mean, of course, that international judicial interpretation is the same as political interpretation, but it makes it clear how necessary it is for important international players to reach a renovated consensus on the meaning of norms, their etymologic framework and methods of cognitive disputes solution. International courts are the most important institute in achieving this goal. This target-oriented approach, as author believes, demonstrates the acute importance of a new policy of law — coordinated judicial activity of international courts in search of the lost common sense of values, treatises and norms, capable to inspire renaissance of global constitutionalism ideal in legal diplomacy and international jurisprudence. Among important author’s conclusions is an idea of a need to form a new international consensus in order to create common legal agenda, which would be capable of giving new life to old principles. That underlines importance of a new program of the international legal politics, which is critical in order to establish a common target-oriented international justice.