Judicial Decisions and the Writings of Jurists

Which decisions count

The International Court of Justice and its predecessor, the Permanent Court of International Justice, whose judgments the present Court cites as its own line of authority.

Other international tribunals: the International Tribunal for the Law of the Sea, arbitral tribunals under Annex VII of the Convention on the Law of the Sea, including the two your syllabus names, the Permanent Court of Arbitration, the World Trade Organization panels and Appellate Body, and the international criminal tribunals.

Arbitral awards, which for much of the nineteenth and early twentieth centuries were where international law was actually made, and which remain important on territory and the sea.

National courts. This surprises students and it should not. A decision of the Supreme Court of India, or of any national court, applying international law is State practice as well as a subsidiary means, and so can help establish custom. That is a double function worth stating: a national judgment is evidence of what the law is, and is also part of the practice from which the law is made.

The writings of jurists

What they were

In the formative period they were the law's main repository. There was no world court, few reported arbitrations and no systematic record of State practice, so a court or a foreign ministry looking for the rule read Grotius, Bynkershoek, Vattel and their successors. Their authority was real and sometimes decisive.

What they are now

Their weight has fallen sharply, for the good reason that better evidence exists. Where there are judgments, treaty texts, published State practice and the reports of the International Law Commission, a court has no need to rely on a professor's opinion.

They still matter in three situations. Where the law is new and no case has arisen. Where practice is scarce or contradictory. And as a way of organising and stating what the sources show, which is what a court is doing when it says the position is settled and cites a treatise.

Whose writings

Article 38 says the most highly qualified publicists of the various nations, and the last three words are doing work: the writings drawn on should not all come from one legal tradition. In practice the Court rarely cites individual writers in its judgments, though individual judges do so freely in separate and dissenting opinions.

Collective writings carry more weight than individual ones, and this is the modern position that matters most. The International Law Commission, established by the General Assembly in 1947 to promote the progressive development of international law and its codification, is composed of persons of recognised competence and its draft articles and commentaries are treated with a respect no individual author now receives. The ILC Articles on State Responsibility of 2001 are the clearest example: not a treaty, not binding, and cited by the International Court as the statement of the law. The Institut de Droit International and the International Law Association occupy a similar, lesser place.

A worked example

State P and State Q are in dispute about whether State P may exercise jurisdiction over a foreign ship on the high seas in a situation no treaty covers. Counsel for State Q wants to argue that a customary rule prohibits it. What may she use, and how?

A judgment of the International Court on the same point in an earlier case between two other States. She may cite it, and it will carry great weight, but she must not say it binds State P: article 59 prevents that, and an opponent will say so. The correct submission is that the Court there stated the customary rule and that the rule, not the judgment, binds.

An arbitral award. The same, with somewhat less weight depending on the tribunal.

A decision of State P's own Supreme Court. This is the strongest material she has, and it does double duty: it is a subsidiary means for determining the rule, and it is State practice of the very State she is arguing against, which may also found an estoppel.

The ILC Articles on State Responsibility and their commentary, if the point concerns responsibility. Not binding, and treated as an authoritative statement.

A leading treatise. Usable, and weakest of all. If the treatise is the only support she has, she should expect the tribunal to notice.

Distinctions table

What it does NOT mean

Article 59 does not mean judgments are unimportant. It means they do not bind non-parties. The Court's jurisprudence is the single most valuable body of material in the subject.

A judgment is not a source even between the parties. It binds them because article 59 says so and because they submitted to the Court, and article 94(1) of the Charter obliges every Member to comply with the decision in any case to which it is a party. That is the force of a judgment, not the force of a rule of law.

"Publicists" does not mean journalists. It means writers on public international law.

The International Law Commission is not a legislature. Its draft articles become binding only if a convention is concluded on them and enters into force, or if their content is or becomes custom.

Limits and criticism

The absence of precedent is a real cost. States and their advisers cannot predict outcomes as confidently as in a domestic system, and the Court's practice of following itself is a convention rather than a rule.

The distribution of writers is uneven. The most cited publicists have overwhelmingly come from a small number of countries, so the phrase "of the various nations" describes an aspiration more than a practice.

The line between (d) and the other paragraphs is thinner than the Statute suggests. When the International Court states a customary rule in confident terms, that statement becomes the thing every later tribunal and every foreign ministry relies on, and the practical difference between finding the law and making it narrows.

Quick revision

Article 38(1)(d): subject to article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Material sources, not formal ones.

Article 59: a decision of the Court has no binding force except between the parties and in respect of that particular case. No stare decisis, and the Court follows itself closely all the same.

Article 60: the judgment is final and without appeal. Article 94(1) of the Charter: every Member undertakes to comply with the decision in any case to which it is a party.

Article 62 intervention with permission; article 63 intervention as of right on the construction of a convention, with the construction equally binding on the intervener.

Decisions that count: the ICJ and the PCIJ; ITLOS, Annex VII tribunals, the PCA, WTO panels; arbitral awards; and national court decisions, which are both a subsidiary means and State practice.

Writings: decisive in the formative period, much weaker now. Collective writings, above all the International Law Commission, carry far more weight than individual authors.

Test yourself

1. Are judicial decisions a source of international law?

Not a formal one. Article 38(1)(d) describes them as subsidiary means for the determination of rules of law, and makes them subject to article 59, under which a decision of the Court has no binding force except between the parties and in respect of that particular case. So a judgment does not create a rule; it states one that already exists by treaty, custom or general principle. In practice the Court's judgments are the most authoritative statements of international law there are, and the Court follows its own reasoning unless there is reason to depart.

2. Explain article 59 and give two reasons for it.

It provides that the decision of the Court has no binding force except between the parties and in respect of that particular case. First, the Court's jurisdiction rests on consent, and it would be inconsistent to bind a State by a judgment in proceedings it was not party to and could not appear in. Second, it makes the intervention scheme coherent: article 62 lets a State with an interest of a legal nature request permission to intervene and article 63 gives a right of intervention where the construction of a convention to which it is a party is in question, in which case the construction is equally binding on it. If judgments bound everyone, those provisions would be pointless.

3. What weight does a decision of a national court carry?

Two kinds at once. It is a subsidiary means under article 38(1)(d) for determining what the rule is. It is also State practice of the State whose court gave it, and so can contribute to the formation and proof of a customary rule and may found an estoppel against that State. A national judgment against the interests of its own State is therefore particularly valuable evidence.

4. Why have the writings of jurists lost weight, and where do they still matter?

Because better evidence now exists. In the formative period there were no reported international judgments, few arbitrations and no systematic record of practice, so Grotius, Bynkershoek and Vattel were where the law was found. Today a tribunal has treaty texts, a large body of judgments, published State practice and the reports of the International Law Commission. Writings still matter where the law is new and no case has arisen, where practice is scarce or contradictory, and as an organised statement of what the other sources show. Collective writings, above all those of the International Law Commission, carry far more weight than individual authors.

5. The ILC Articles on State Responsibility are not a treaty. Why are they cited as if they were law?

Because much of their content is a statement of customary international law, and because their author is a body established by the General Assembly and composed of persons of recognised competence, which gives them an authority no individual writer commands. They are formally a subsidiary means under article 38(1)(d), and their binding force, where it exists, comes from the custom they state and not from the Commission's adoption of them.

6. "There is no precedent in international law." Is that a complete statement of the position?

No. It is accurate as a statement of formal doctrine, because article 59 excludes any binding force beyond the parties and the particular case, and article 38(1)(d) is expressly made subject to it. It is incomplete as a description of practice, because the Court cites its own judgments and those of the Permanent Court constantly, treats settled points as settled, and departs from its reasoning only for stated reasons. The accurate statement is that international law has no doctrine of binding precedent but does have a strong practice of consistency, and that the practical difference between the two is smaller than the doctrine suggests.