Judicial Decisions, Influential Writings

In its decisions, the International Court of Justice may apply it’s own or other judicial decisions and influential writings as a subsidiary means for the determination of applying principles when deciding a particular case (on the workings of the World Court see below). This power is limited in its application by Art. 58 of the Statute, which reads that in this case, “the decision of the Court has no binding force except between the parties and in respect of that particular case (see Appendix below). Wallace (2002: 27) mentions the decisions of the US Supreme Court and the English Prize Courts as the most highly-regarded by the ICJ. Teachings of important figures in international law have been used repeatingly, as in the case of the “freedom of the seas” (Hugo Grotius) or the law of treaties (Lord McNair). Barker (2000) supplements this observation with a claim that only when practiced do these judicial decisions or writings acquire a binding power of a customary law. 2.5 Article 38 and the Workings of the International Court of Justice.

At this point, it would be suitable to elaborate more on the decision-making process of the World Court when settling disputes among states. International Court of Justice (the World Court, or just ICJ) is the principal judicial organ of the United Nations Organization, established in 1945-46 by the United Nations Charter. Its headquarters are in The Hague, The Netherlands. English and French are the its two official languages. The court decides by majority voting out of fifteen judges elected by the UN General Assembly and the Security Council for a nine year term. Today’s judges come from countries as diverse as the United Kingdom (president of the court Rosalyn Higgins), Jordan, Madagascar, Venezuela, Germany, Slovakia, New Zealand, or Russia (there are no two or more judges from the same UN member state). Article 38 belongs to Chapter II: Competences of the Court of the Court’s Statute, and prescribes the ICJ to arrive at its decisions according to the above-mentioned law-creating processes (treaties, custom, general principles, judicial decisions, authoritative writings). De facto, thus, the Art. 38 by delineating the means for the determination of rules of law also stipulates the forms of legalization recognized by the world community – that is; what is regarded as law. Moreover, since there is no code-book of international law, the Court can be said to be based partly also on the precedent principle: Under Art. 38 §1d, the Court in its decision-making may consider its own previous decisions. In reality, the ICJ indeed rarely departs from its own previous decisions and treats them as precedent in a way similar to courts in common law systems. If the parties agree, they may also grant the Court the freedom to decide ex aequo et bono (“in justice and fairness”), providing it with the freedom to make an equitable decision based on what is fair under the circumstances. The Court operating under ex aequo et bono would act in some ways similar to a private arbitrator in national jurisdictions. However, this provision has not yet been used in the Court’s history (according to Wikipedia 2006).

Are there Other Sources?

After explicating all the sources of law on the base of which the ICJ is entitled to decide, one could still ask “is it all?”. Are the legalization processes stipulated in Art. 38 all the possible sources of legitimate law? What about the so-called “soft law” or gentlemen’s agreements? Can the resolutions of international organizations be found to be based on the already-explicated sources of law? I will now address these questions. First, let us think of the resolutions of international organizations, in particular the bodies of the United Nations. United Nations, as almost all international organizations, is based on treaties, that is, member states’ signing and thus agreeing to the UN Charter. This way they agree to respect the resolutions of the Security Council, in which only fifteen members have the voting right. Hence, the source of Security Council resolutions legally binding power lies in the treaty, the UN Charter. General Assembly resolutions, on the other hand, are explicitly not legally binding and thus cannot find their source of binding power in the Charter. Nor in customary law, for coming to a non-binding agreement does not constitute an opinio juris (Barker 2000: 60-61). They can, however, be an indication of a forming customary law, and as such are often considered by the ICJ (Wikipedia 2006). Then there are the gentlemen’s agreements or the “soft law”. An example of this can be the Helsinki Final Act of 1975, where even communist countries agreed to respect human rights of religious and press liberties. The Final Act is, again, explicitly not a binding treaty, however. Therefore, the non-respect for the principles signed by communist leaders, although definitely very disturbing for the dissidents of these countries (for example, the Czechoslovak ones grouped around the Charta 77), was not itself an illegal act in international law. Although themselves not-legally binding, the gentlemen’s agreements can be said to have certain quasi-legal implications if they nevertheless in reality do shape individual behavior by providing certain sanctions for non-compliance (such as bad reputation or adverse domestic public pressure). Van Hoof (1983; in Harris 2004: 61-2) also identifies these implications of legally non-binding instruments (another example is the Rio Conference of 1992). Similar phenomenon can be observed within the spectrum of secondary law of the European Union (EU). The EU’s secondary law ranges from directly binding regulations, and directives (these have to be first implemented), through specific decisions applicable to only certain member states, to non-binding recommendations and opinions. Abbott and Snidal (2003) investigate into the nature of “hard” and “soft” law more theoretically. Similarly to my example of the spectrum of EU secondary law, the authors elaborate on scale of instruments with a certain binding power, from soft informal agreements through “intermediate blends of obligation, precision, and delegation to hard legal arrangements” (p. 74). They argue that even what we regard as hard international law does not approximate what we conceptualize of law in advanced domestic system (with the several times mentioned problem of enforcement, for example). The advantages of soft legalization are, to the authors, lower contracting and sovereignty costs. Soft law can also serve as a tool for compromise, including private actors too. The benefits of hard legalization, on the otherhand, include mitigating commitment and incomplete contracting problems. Abbot and Snidal further argue that this kind of soft “legalization” helps better to balance competing considerations of states in cases where hard law would be unthinkable.

Conclusion or Is the Article 38 Correct and Complete Enumeration of the Sources of International Law? Summing up the overall findings of this paper, one can conclude two trends. One is towards codification of law and increasing reliance on treaties as a source of law (as opposed to customs and general principles). The second trend observed is the speeding up of custom evolution, most prominently connected to the exponential increase in states’ interaction due to globalization (also in Jennings 1995: 1167-8). Judicial decisions, however, remain a very important subsidiary source of law.

From one point of view, the new complexities of globalization add to some disputes over the identification of rules of law in international relations. For this reason, whether the Art. 38 is correct depends on what we understand as international law. In this light, the fact remains that soft law is therefore soft that it is not law proper; it is not legally binding and as such cannot be enforced in court. Moreover, resolutions of international organizations can be subsumed under the paragraphs of Art. 38 for they spring either directly from treaties (§a), or indirectly, when supported by opinio juris, form a practice of customary law. For these reasons, Art. 38 is, with its four paragraphs, a complete enumeration of the sources of international law. International law is a kind of bottom-up (or “bottom-bottom” for that matter) process creating legitimate and binding state obligations, similar to the common law municipal tradition (or “case law”; as in Jennings 1995: 1168). The question of completeness of international law is a matter in particular because anything the law does not explicitly prohibit, it ipso facto permits (Dekker & Werner 2003: 15). Fitzmaurice (2000), as a natural law theorist, tries to undermine the completeness of the sources in a philosophical way. Any rule “to the effect that rules of international law can only come into existence through state consent, […], is itself a rule of international law”, he argues (p. 79). This problem reminds us of the Habermasian democracy problem of constitutional legitimacy (similar to the popular hen and egg dilemma), however, and does not really bring a real contradiction into the system of law sources as portrayed in this essay in my view.

Appendix

Article 38

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

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

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.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Article 59

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

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