HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

PUBLIC INTERNATIONAL LAW PROJECT ON

THE FORCE OF PRECEDENTS IN INTERNATIONAL LAW

Submitted to:

Ms. Vinita Tripathi

(Asst. Prof. of Law)

Submitted by:

Atul Kumar Agrawal

B.A.LL.B (Hons.) Student
Semester – IV , Section – A , Roll no. – 37

Date of Submission – 18th March, 2019

 I

DECLARATION

I hereby declare that this research work titled “The Force of Precedents in International
Law” is my own work and represents my own ideas, and where others’ ideas or words have
been included, I have adequately cited and referenced the original sources. I also declare that
I have adhered to all principles of academic honesty and integrity and have not
misrepresented or fabricated or falsified any idea/data/fact/source in my submission.

Atul Kumar Agrawal

B.A.LL.B (Hons.) Student
Semester – IV , Section – A , Roll no. – 37
 II

ACKNOWLEDGEMENT

I feel highly elated to work on the topic “The Force of Precedents in International Law”.
The practical realization of this project has obligated the assistance of many persons. I
express my deepest regard and gratitude for MS. Vinita Tripathi . Her consistent
supervision, constant inspiration and invaluable guidance have been of immense help in
understanding and carrying out the nuances of the project report. I would like to thank my
family and friends without whose support and encouragement, this project would not have
been a reality. I take this opportunity to also thank the University and the Vice Chancellor for
providing extensive database resources in the Library and through Internet. I would be
grateful to receive comments and suggestions to further improve this project report.

Atul Kumar Agrawal

B.A.LL.B (Hons.) Student
Semester – IV , Section – A , Roll no. – 37
 III

LIST OF CASES

1) Fisheries Jurisdiction (United Kingdom v Iceland) (Merits) (Judgment) [1974] ICJ

Rep 23–24

2) Lotus Case, France v. Turkey, PCIJ Reports, Series A, No. 10, 1927

3) Panevezys-Saldutiskis Railway Case PCIJ Rep Series E No 16 and Barcelona

Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment) [1970]

4) Case No 10843/84 Cossey v United Kingdom [1990] (27 September 1990)

5) Case No 46295/99 Stafford v United Kingdom [2002] (28 May 2002)

6) Chapman v United Kingdom (2001) 33 EHRR 399

7) Case No 17488/90 Goodwin v United Kingdom (2002)

8) Case No 30210/96 Kudla v Poland (2000)

 IV

TABLE OF CONTENTS

Research Methodology 1

Introduction 4

Chapter 1: Precedent & International Law: 5

Meaning & Basic Concept

 Precedent 5

 Nature of Precedents 6

 International Law 6

Chapter 2: Articles 38(1)(d) & 59 of Statute 8

of ICJ: A Critical Analysis

 Significance of Article 38(1)(d) of the 8

ICJ Statute

 Article 38(1)(d) of the ICJ Statute: 9

Analysis

Chapter 3: Judicial Precedents in 12

International Law: A Detailed Study

Conclusion 17

Bibliography 18
 1

RESEARCH METHODOLOGY

Objectives

The objectives of this study are:

 To get a brief overview of the concept of Precedents and International Law.

 To critically analyse Articles 38(1)(d) and 59 of Statute of the International Court of

Justice.

 To study and analyse the applicability (force) of Precedents in International Law.

Data

Only secondary sources of data have been used in this project. They include legal
dictionaries, legal encyclopaedias, etc.

Research Method

The research conducted is doctrinal in nature. Books & other references (including various
websites) as guided by faculty of Public International Law were primarily helpful for the
completion of this project. Footnotes have been provided wherever necessary.
 2

Hypothesis

According to Article 38(1)(d) of its Statute, the ICJ is also to apply "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". The decisions of international and municipal
courts and the publications of academics can be referred to, not as a source of law as such, but
as a means of recognizing the law established in other sources. In practice, the International
Court of Justice generally does not refer to domestic decisions although at times, it does
1
invoke its previous case-laws. There is no rule of stare decisis in international law, as in
Common Law. The decision of the Court has no binding force except between the parties and
2
in respect of that particular case . Nevertheless, often the Court would refer to its past
decisions and advisory opinions to support its explanation of a present case.

Research Questions

Questions for research in this project study are:

1) How Article 38(1)(d) of Statute of ICJ, influences the use of Precedents in the
International Court of Justice?

2) How does the Judicial Precedents fare in the International Law?

1 Stare Decisis is a common law rule according to which the judgments

have to be in accordance with the judicial precedents
2 Article 59 of the Statute of ICJ
 3

Chapterisation

This project is divided into three chapters. They are:

1) Precedent and International Law: Meaning and Basic Concept

2) Articles 38(1)(d) and 59 of Statute of ICJ: A Critical Analysis

3) Judicial Precedents in International Law: A Detailed Study

Mode of Citation

th
The method of citation used in this project is Bluebook (19 ed.).

Scope and Limitation

Force of precedents in International law is a very wide topic for research, this project does not
cover the entire topic and deals only with the basic concepts and ideas. Further, only
secondary sources have been used in the research.
 4

INTRODUCTION

In a national judiciary, precedents occupy a very important position and the judges heavily
rely on them. Most of the time, judges hew closely to precedent for purposes of legal
certainty and for fear that their decisions might be challenged before higher instances. This
practice translates into the stare decisis rule in Common Law.

But as a matter of traditional international law doctrine, precedents exert no special legal
3
force and the stare decisis rule has been excluded . Since at least the establishment of the
Permanent Court of International Justice in 1922, judicial decisions have been relegated to the
4
status of “subsidiary means for the determination of rules of law. ” This understanding,
carried into Article 38 of the Statute of the International Court of Justice and reified by
casebooks and treatises as part of international law’s “doctrine of sources,” has meant that as
a matter of international law doctrine, judicial decisions construing international law are
generally not-in-and-of themselves law, i.e. decisions are not binding on future parties in
future cases, even before the same tribunal.

Despite of this, precedents, at times, are used by judges and arbitrators in the International
law. From the matters of International investment arbitration to international human rights,
5
precedents are used . Across international law, practitioners invoke it and tribunals apply it.

In fact, rather than citing their own precedents, courts and tribunals go much farther citing
even the decisions of other unrelated courts and tribunals emanating from different areas of
6
international law, with different mandates . The precedents from one regional body are
argued to others; precedents from human rights courts are argued to investment tribunals;
precedents from ad hoc criminal tribunals are applied to domestic civil judgments. The
invocation of tribunal decisions as precedent has become part of the fabric of international
legal discourse, structuring everyday arguments between international actors over the
meaning of international law rules.

3 Article 38(1)(d) of the Statute of ICJ

4 Ibid
5 Harlan Grant Cohen, The Sociology of International Precedent
6 Laurence R. Helfer, Over legalizing Human Rights: International Relations Theory and the
Commonwealth Caribbean Backlash Against Human Rights Regimes
 5

CHAPTER 1- PRECEDENT & INTERNATIONAL LAW:

MEANING & BASIC CONCEPT

Precedent:
In general English, the term precedent means,

‘A previous instance or case which is, or may be taken as an example of rule for subsequent
cases, or by which some similar act or circumstances may be supported or justified.’

According to Gray,

‘A precedent covers everything said or done, which furnishes a rule for subsequent practice.’

According to Keeton,

‘A judicial precedent is judicial decision to which authority has in some measure been
attached.’

According to Salmond,

‘In loose sense it includes merely reported case law which may be cited & followed by
courts. In strict sense, that case law which not only has a great binding authority but must
also be followed.’

According to Bentham precedents are ‘Judge’s made Law.’

According to Austin precedents are ‘Judiciary’s Law.’

Thus it can be inferred that precedents are:

 Guidance or authority of past decisions for future cases.

 Precedents must be reported, maybe cited and may probably be followed by courts.
 Precedents must have opinio-juris, i.e., an opinion of law.
 These must be followed widely for a long time and must not violate any existing
statue law.
 6

7
Nature of Precedents :
 They must be constitutive and not abrogative in nature. This means that a judicial
decision can make a law but cannot alter it.
 Where there is a settled rule of law, It is the duty of the judges to follow the same.
 They cannot substitute their opinions for the established rule of law.
 The function is limited to supplying the vacancies of the legal systems, filling up with
new law the gaps that exist.

International Law:

International law is the set of rules generally regarded and accepted as binding in relations
between states and between nations. The term “International Law’ was first used by Jeremy
Bentham in his Introduction to the Principles of Morals and Legislation in 1780. International
Law serves as a framework for the practice of stable and organized international relations.
International law differs from state-based legal systems in that it is primarily applicable to
countries rather than to private citizens. National law may become international law when
treaties delegate national jurisdiction to supranational tribunals such as the European Court of
8
Human Rights or the International Criminal Court .

9
Much of international law is consent-based governance . This means that a state member is
not obliged to abide by this type of international law, unless it has expressly consented to a
particular course of conduct. This is an issue of state sovereignty. However, other aspects of
international law are not consent-based but still are obligatory upon state and non-state actors
such as customary international law and peremptory norms (jus cogens).

Since international law has no established compulsory judicial system for the settlement of
disputes or a coercive penal system, it is not as straightforward as managing breaches within
a domestic legal system. However, there are means by which breaches are brought to the
attention of the international community and some means for resolution. For example, there
are judicial or quasi-judicial tribunals in international law in certain areas such as trade and

7 Priyan Garg, Precedents as a source of law (2015)

8 Harlan Grant Cohen, The Sociology of International Precedent
9 Ibid
 7

10
human rights . The formation of the United Nations, for example, created a means for the
world community to enforce international law upon members that violate its charter through
the Security Council.

However, there are numerous international bodies created by treaties adjudicating on legal
issues where they may have jurisdiction. The only one claiming universal jurisdiction is the
United Nations Security Council. Others are: the United Nations International Court of
Justice, and the International Criminal Court (when national systems have totally failed and
the Treaty of Rome is applicable) and the Court of Arbitration for Sport.

Now, below we are going to analyse that how a precedent fare in case of International law. As
studied above, precedents are very important when it comes to national judicial system but
what in case of International law? How do the above mentioned international bodies interpret
judicial precedent, while deciding matters? Below given is a detailed study in this regard.

10 Ibid
 8

CHAPTER 2- ARTICLES 38(1)(d) & 59 OF STATUTE OF ICJ:

A CRITICAL ANALYSIS

According to Article 38(1)(d) of the Statute of ICJ,

1. The Court, whose function is to decide in accordance with international law such disputes
as are submitted to it, shall apply:

(d) Subject to the provisions of 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.

According to Article 59 of the Statute of ICJ,

The decision of the Court has no binding force except between the parties and in respect of
that particular case.

Shahabuddeen observes that, although in the past Article 38(1)(d) of the Statute of the
International Court of Justice may not have presented any special difficulty of interpretation,
11
that view is not generally shared today . Various viewpoints have been put forward on the
proper role of judicial decisions in the context of debates on sources of international law.

12
Significance of Article 38(1) of the ICJ Statue
The principle of legality, enshrined in Article 15 of the International Covenant on Civil and
Political Rights (ICCPR), to a large extent necessitates the formal approach adopted by the
international criminal courts and tribunals with respect to sources of international law. These
sources are authoritatively listed in Article 38(1) of the ICJ Statute. Although, in principle,
Article 38(1) of the ICJ Statute professes only to provide a direction to the ICJ, authorizing it
to consider various materials when deciding disputes submitted to it, this Article has come to

11 M. Shahabuddeen, Precedent in the World Court (1996)

12 Aldo Zammit Borda, A Formal Approach to Article 38(1)(d) of the ICJ Statute
from the Perspective of the International Criminal Courts and Tribunals, The European
Journal of International Law Vol. 24 no. 2
 9

constitute the foundation stone for any credible discussion on sources of international law,
and an inquiry into this subject inescapably has to begin with it. The ad hoc Tribunals have
regularly had recourse to Article 38(1) of the ICJ Statute in this manner. Moreover, where
newer international criminal courts and tribunals have incorporated their own provisions on
applicable law, their lists have broadly followed the approach to sources enshrined in Article
38(1) of the ICJ Statute.

In view of the above, although this Article has been criticized, inter alia, for being under-
inclusive or for including aspects which are not genuine sources, it would be a mistake to
underestimate the enduring significance of Article 38(1) of the ICJ Statute.

Article 38(1)(d) of the ICJ Statute: Analysis

There are considerable divergence over the proper interpretation of Article 38(1) of the ICJ
Statute. One view is that that Article, in effect, lays down one, global list of sources of
13
international law . From this perspective, the judicial decisions referred to in sub-paragraph
(d) may constitute as much a source of law as any of the other sources listed in sub-
paragraphs (a) to (c) of Article 38(1). Jennings, for instance, asserts that, ‘I see the language
of Article 38 as essential in principle and see no great difficulty in seeing a subsidiary means
for the determination of rules of law as being a source of the law, not merely by analogy but
14
directly’ .
15
Another view, however, is that Article 38(1) of the ICJ Statute establishes two distinct lists .
From this perspective, the first list (sub-paragraphs (a) to (c)) lays down exhaustively the
formal sources from which legally valid rules of international law may emerge. The second
list (sub-paragraph (d)) lays down some of the means by which such rules of law may be
determined. This approach, which is supported by a consideration of the drafting history, also
closely reflects the formal approach to Article 38(1)(d) of the ICJ Statute consistently adopted
16
by the international criminal courts and tribunals in their judgments .

13 Ibid
14 Jennings, ‘The Judiciary, International and National, and the Development of International Law’, 45 ICLQ
(1996)
15 Supra note 12
16 G.J.H. Van Hoof, Rethinking the Sources of International Law (1983)
 10

Turning to the specific wording of Article 38(1)(d) of the ICJ Statute, first, although the
phrase ‘rules of law’ in this sub-paragraph does not specify which law is intended – whether
national or international – it is clear from the chapeau to this Article, which provides that the
Court is bound to decide ‘in accordance with international law’, that this phrase refers to
17
‘rules of international law’ .

Article 38(1)(d) of the ICJ Statute specifies not only the end, namely ‘for the determination
of rules of law’, but also the status of the two law-determining agencies as ‘subsidiary means’
to this end. The question is, therefore, which are these principal means?

Further, the verification process is generally undertaken by a court or tribunal by way of a

first-hand determination of the existence, state, and proper interpretation of the relevant rules
18
of law . For instance, a court or tribunal may verify the state of a rule of customary
international law at the relevant time by means of an inductive review of state practice and
opinio juris. It may also verify the proper construction of a treaty provision by means of
direct interpretation. These first-hand means for the determination of rules of law may be
19
characterized as ‘principal means’ .

However, the court or tribunal (or other agency) could cast its net wider and supplement these
principal means of verification with ‘subsidiary means’, namely judicial decisions from other
courts and tribunals (‘external judicial decisions’) and the teachings of publicists, who may
have considered the same or similar legal issues, and whose reasoning may therefore inform
the court or tribunal’s own analysis. These means would be characterized as ‘subsidiary’
because they would not have issued directly from the court or tribunal itself. Rather, they
would have been undertaken, as it were, by ‘third parties’ and, in relation to the court or
tribunal, would constitute second-hand (or ‘subsidiary’) means. It should be evident that
‘principal’ and ‘subsidiary’ means for the determination of rules of law are not mutually
20
exclusive. On the contrary, they could supplement each other .

The characterization ‘subsidiary’ in Article 38(1)(d) of the ICJ Statute should not therefore be
seen as an assessment of the relative importance of judicial decisions (or teachings of
publicists) in the determination of rules of law. It should not be interpreted as meaning that

17 Supra note 12
18 Ibid
19 Ibid
20 Ibid
 11

21
such judicial decisions are of ‘lesser importance’ . Indeed, some authors have cautioned that
‘the practical significance of the label “subsidiary means” in Article 38(1)(d) is not to be
exaggerated’ because ‘the authority and persuasive power of judicial decisions may
22
sometimes give them greater significance than they enjoy formally’ .

21 I. Brownlie, Principles of Public International Law (4th edn, 1990)

22 Ibid
 12

CHAPTER 3- JUDICIAL PRECEDENTS IN INTERNATIONAL

LAW: A DETAILED STUDY

Historically, the issue of precedent in international law was carefully considered for the first
time at the time of the creation of the Permanent Court of Arbitration in the Hague
23
Conventions of 1899 and 1907 . The drafters of these agreements were certainly aware that
the Court they had created was a court in name only, and was not permanent. But they hoped,
that ‘when a controversial issue has been settled in the same way by several arbitration
24
tribunals, the chosen solution will enter the body of international law ’.

These hopes were disappointed in the years that followed and, as Hersch Lauterpacht
observed shortly thereafter, ‘the necessity of providing for a tribunal developing international
law by its own decisions had been the starting point for the attempts to establish a truly
25
permanent international court as distinguished from the Permanent Court of Arbitration’ .

In this perspective, questions necessarily arose as to the value of precedent.

The drafters of the Statute of the Permanent Court of International Justice did not intend to
give this Court authority to create law, and on this point the British experts were in agreement
with the continental experts. Indeed, before the advisory committee of jurists responsible for
the preparation of the statute, Lapradelle declared it would be useful to specify that ‘the
Court cannot act as legislator’ and Lord Phillimore added that ‘judicial decisions state, but
26
do not create law’ .

The text of Article 38 of the Statute adopted by the Committee reflected these concerns. It
provided in paragraphs (a) to (c) that the Court applies international conventions,
international custom and general principles of law recognized by civilized nations. Then it
specifies, in paragraph (d), that judicial decisions and teachings of the most qualified
publicists are only a ‘subsidiary means for the determination of rules of law.’

23 Gilbert Guillaume, The Use of Precedent by International Judges and Arbitrators, Journal of
International Dispute Settlement, Vol. 2, No. 1 (2011)
24 These are the words of Louis Renault in the preface to the book Recueil des arbitrages internationaux,
1855
25 Hersch Lauterpacht, ‘The So-called Anglo-American and Continental Schools of Thought in International
Law’, British Yearbook of International Law (1931)
26
Supra note 23
 13

However, these precautions seemed insufficient to Balfour and Leon Bourgeois, and the
Council of the League of Nations added Article 59 to the text, whereby ‘The decision of the
27
Court has no binding force except between the parties and in respect of that particular case. ’
Furthermore, the Council amended Article 38 (d), which now enabled the Court to refer only
to judicial decisions ‘subject to the provisions of Article 59’.

Nevertheless, during the debates in the Assembly of the League of Nations, an Argentine
amendment to prevent the Court’s decisions from acquiring the authority of judicial
28
precedent was rejected .

Thus, according to the 1922 Statute, reproduced on that point in 1945, sources of
international law explicitly exclude judicial decisions. At best, they can play an ‘auxiliary’
and ‘indirect’ role in the determination of the rule of law. In developing its jurisprudence, the
Court may refer to its precedent, but it has no binding character. The rule of stare decisis is
ruled out.

The Permanent Court of International Justice, like the International Court of Justice, has over
the last century developed a jurisprudence according to the rule thus stated.

The Court first repeatedly confirmed that it was not the role of the Court to create the law.
Thus, in the Fisheries case, it clarified in 1973 that ‘as a court of law, it cannot render
judgment sub specie legis ferendae or anticipate the law before the legislator has laid it
29
down’ . Similarly, in the 1996 advisory opinion on the Legality of the Threat or Use of
Nuclear Weapons, the Court refused to replace a failing legislator, and consequently decided
that, in view of the state of international law, it could not rule on the legality of the threat or
use of nuclear weapons in ‘an extreme circumstance of self-defence, in which the very
30
survival of a State would be at stake’ . On numerous occasions, members of the Court in
various statements or opinions have also recalled that ‘that it is not the role of the judge to
take the place of the legislator. It must limit itself to recording the state of the law without
31
being able to substitute its assessment for the will of sovereign States .’

The Court nevertheless takes full account of its previous decisions in its judgments. From the
outset, the Permanent Court had indeed recalled in 1926 that ‘the object of Article 59 of the

27 Ibid
28 Ibid
29 Fisheries Jurisdiction (United Kingdom v Iceland) (Merits) (Judgment) [1974] ICJ Rep 23–24
30 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996]
31 Opinion and statement of Judges Weiss in the case of S.S. ‘Lotus’
 14

Statute is to prevent legal principles accepted by the Court in a particular case from being
32
binding upon other States or in other disputes’ . This jurisprudence was taken up by the
International Court of Justice, and it has solemnly confirmed it has no obligation to follow its
precedent.

33
All these judgments, however, do not have the same value . There are first of all the extreme
cases where the Court, adopting a decision, states that the solution does not create precedent.
Also, judgments or advisory opinions adopted as a full Court, unanimously or by a very large
majority as well as oft-cited decisions naturally carry more weight than isolated judgments,
adopted by Chambers, or decided by a narrow majority. Similarly, the reasons behind the
operative paragraphs will weigh heavier than obiter dicta inserted to address one judge’s
concerns. However, it is difficult to generalize in this area.

In reality, the question that arises in each case to the Court is whether it should retain the
34
solutions it previously adopted . This question arises when one party challenges these
35
solutions, and sometimes when the Court considers that its jurisprudence must evolve .

The International Court of Justice does not recognize any binding value to its own precedent.
However, it takes it into great consideration. It is nonetheless prepared to reconsider
jurisprudence on the request of the parties or ex officio. These reviews usually result in
confirmation of earlier decisions, particularly in procedural matters. However, developments
are not excluded, particularly with regard to substantive law, based on changes in the law and
international society.

Also, for other international jurisdictions this is true. The courts have no obligation to comply
with precedent. While they frequently refer to it, they do not exclude deviations. Two
36
observations, however, must be presented .

The first concerns the courts whose decisions are subject to internal review mechanisms. In
this case, the question arises whether the judgments after appeal to higher authority are not
only mandatory in the case in question, but if, more generally, their rationales are binding
upon chambers or courts subordinate to it. This issue was resolved in the affirmative by the

32 Supra note 23
33 Panevezys-Saldutiskis Railway Case PCIJ Rep Series E No 16 and Barcelona Traction, Light and
Power Company, Limited (Belgium v Spain) (Judgment) [1970]
34 Supra note 23
35 Ibid
36 Ibid
 15

Appeals Chamber of the Tribunals for the former Yugoslavia and Rwanda in Aleksovski. It
also seems to invoke a positive response to the judgments given by the Grand Chamber of the
European Court of Human Rights, given the wording of Article 30 of the European
37
Convention on Human Rights . A negative answer seems to be called for in respect of the
decisions of the Appellate Body of the WTO. The situation, however, is uncertain for the
International Criminal Court and the European Court of Justice. But of course, in all cases,
subordinate organs are courteously invited and naturally inclined to respect the decisions
rendered at a higher level.

Moreover, if the legal situation is the same for the courts of a global nature and those of
regional character, the practice of these courts is very different. In both cases, precedent is
often invoked. In the first, it is rarely abandoned. In the second, evolutions or even outright
38
changes in jurisprudence are more frequent .

The example of the European Court of Human Rights is revealing in this connection. Article
46 of the European Convention on Human Rights presents in a classic manner that ‘the High
Contracting Parties undertake to abide by the final judgment of the Court in any case to
which they are parties.’ In its 1990 Cossy v United Kingdom decision, the Court deduced,
39
that it ‘is not bound by its previous judgments ’. It then added that nonetheless ‘it usually
follows and applies its own precedents, such a course being in the interests of legal certainty
and the orderly development of the Convention case-law’.

However, immediately thereafter, the Court admitted the possibility for it to depart from the
precedent in the Grand Chamber, which could ‘be warranted in order to ensure that the
interpretation of the Convention reflects societal changes and remains in line with present-
day conditions’. Later, in the Stafford v United Kingdom decision, the Court went even
further by revealing that ‘it is of crucial importance that the Convention is interpreted and
applied in a manner which renders its rights practical and effective. . . A failure by the Court
40
to maintain a dynamic approach would risk rendering it a bar to reform or improvement .’

37 The Convention as amended provides in effect in art 30 that ‘Where a case pending before a Chamber
raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the
resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered
by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of
the Grand Chamber, unless one of the parties to the case objects.’
38 Supra note 23
39 Case No 10843/84 Cossey v United Kingdom [1990] (27 September 1990)
40 Case No 46295/99 Stafford v United Kingdom [2002] (28 May 2002)
 16

On this basis, in the past 10 years the European Court of Human Rights has several times
explicitly declared that it was reversing its case-law, with the goal of either creating new
rights (for example, for the benefit of prisoners, minorities and transsexuals) or to abandon
41
the rule of judicial economy in order to more fully determine the rights of litigants .

Therefore, we see that all the international jurisdictions distance themselves in principle from
the rule of stare decisis. We also see that they construct an entire jurisprudence based on their
own precedent. But those global jurisdictions, concerned about legal certainty, only do this
with prudence, while the European jurisdictions do not hesitate to overrule precedent.

41 Chapman v United Kingdom (2001) 33 EHRR 399, Case No 17488/90 Goodwin v

United Kingdom (2002) and Case No 30210/96 Kudla v Poland (2000)
 17

CONCLUSION

This research article has been written looking into the approach of international criminal
courts and tribunals to the use of judicial decisions in deciding matters. In this respect, it has
been observed that the International Court of Justice does not recognize any binding value to
its own precedent. However, it takes it into great consideration.

This article has tried to critically analyse Article 38(1)(d) of the ICJ Statute based on the
formal pronouncements of international criminal courts and tribunals, distilled from their
judgments. This understanding, carried into Article 38(1)(d) of the Statute of the International
Court of Justice has meant that as a matter of international law doctrine, judicial decisions
construing international law are generally not-in-and-of themselves law – decisions are not
binding on future parties in future cases, even before the same tribunal.

As Guillaume puts it, Legal precedent in international dispute settlement is neither to be

worshipped nor ignored.
 18

BIBLIOGRAPHY

Statutes and Conventions

 Statute of the International Court of Justice

 International Covenant on Civil and Political Rights, drafted in 1954, signed in 1966,
rd
effective from 23 March 1976
 European Convention on Human Rights, signed in 1950, effective from 3 September
1953

Books

 Sally Wehmeier, Oxford Advanced Learner’s Dictionary (Colin McIntosh Joanna

Turnbull eds., 7th edition 2005).
 British Yearbook of International Law (1931)
 I. Brownlie, Principles of Public International Law, Clarendon Press (4th edn, 1990)
 G.J.H. Van Hoof, Rethinking the Sources of International Law, Kluwer Law and
Taxation Publishers (1983)
 Jeremy Bentham, Principles of Morals and Legislation, 1780
 M. Shahabuddeen, Precedent in the World Court, Cambridge University Press (1996)

Articles and Journals

 Aldo Zammit Borda, A Formal Approach to Article 38(1)(d) of the ICJ Statute from
the Perspective of the International Criminal Courts and Tribunals, The European
Journal of International Law Vol. 24 no. 2
 Harlan Grant Cohen, The Sociology of International Precedent, London School of
Economics Collection Archive (2015)
 19

 Laurence R. Helfer, Over legalizing Human Rights: International Relations Theory

and the Commonwealth Caribbean Backlash Against Human Rights Regimes, Duke
Law Scholarship Repository (2002)
 Gilbert Guillaume, The Use of Precedent by International Judges and Arbitrators,
Journal of International Dispute Settlement, Vol. 2, No. 1 (2011)
 Jennings, ‘The Judiciary, International and National, and the Development of
International Law’, 45 ICLQ (1996)
 Hersch Lauterpacht, ‘The So-called Anglo-American and Continental Schools of
Thought in International Law’, British Yearbook of International Law (1931)
 Priyan Garg, Precedents as a source of law, Academike: Articles on legal issues (May
7, 2015)

Websites

 http://opiniojuris.org/2015/01/20/international-law-behavior-symposium-sociology-
international-precedent/
 https://www.lawctopus.com/academike/precedents-as-a-source-of-law/