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factor that gives the jurisprudence of the ICJ a special place of respect, even in the absence
of a formal hierarchical order.
By Thomas Buergenthal*
*
Judge, International Court of Justice.
in character in the sense in which decisions of Common Law courts are binding precedents
within their respective jurisdictions.
But, what of the practical legal effect of such judgments? What is the significance of the
fact that the ICJ is the principal judicial organ of the United Nations? Do ICJ decisions have
a special normative effect on the international plane as a result of its status, even though
Article 38 speaks of judicial decisions in general and does not confer on decisions of the
ICJ a hierarchic supremacy vis-à-vis judgments of other international courts? Of course, in
a formal legal sense ICJ decisions do not enjoy such a preferred status. But does this answer
not overlook the normative effect which states, international organizations, international
arbitral tribunals, and international lawyers—in short, the international community gener-
ally—increasingly attribute to decisions of the ICJ, precisely because it is the principal
judicial organ of the UN and because its decisions have over the years gained legitimacy
and respect commensurate with this special status?
It is therefore not surprising that when it comes to determining what the relevant interna-
tional law rule is, a decision by the ICJ will today, in general, be treated by the international
community as the most authoritative statement on the subject and accepted as the law. Note,
for example, how closely the International Law Commission followed the jurisprudence of
the Court in drafting its Articles on State Responsibility and how frequently this jurisprudence
is invoked as law in diplomatic correspondence and in decisions of international arbitral
tribunals, probably more so than the traditional sources of international law—particularly
custom and general principles—that have not been authenticated or validated by an ICJ
judgment.
It is possible, of course, to view this role of the ICJ merely as reflecting its traditional
function as a ‘‘subsidiary means for the determination of rules of law’’ within the meaning
of Article 38(1)(d) of the ICJ Statute. But this conclusion would miss the significant transfor-
mation that international law as a legal system has undergone and is undergoing as a result,
first, of the increasing number of cases that come to the ICJ, which reflects an ever wider
acceptance of the legitimacy of its expanding judicial role and lawmaking authority and,
second, the comparable lawmaking role that other international and regional courts perform
within their respective spheres of judicial competence.
The ICJ, together with the other existing international courts, make up a rapidly evolving
international judicial system that continues to expand and gain in importance because states
resort to it increasingly to resolve their disputes and because they invoke its jurisprudence
as law with ever greater frequency. As more and more disputes between states are resolved
by international courts, states rely on the decisions of these courts more than ever before to
validate their international legal claims. The lengthy arguments advanced in the past by
governments to prove that a practice has become customary international law, for example,
or that a certain interpretation of a treaty is the correct one, are increasingly giving way to
the simple citation of one or the other ICJ judgment or decision of another international
court as the governing law.
It can be argued, of course, that recourse to these decisions is merely a shorthand form
of citing them as evidence of what the law is rather than as law in its own right—the
subsidiary means argument—but the reality is different. The existence of a functioning
international judicial system with the ICJ at its informal apex, increasingly transforms these
decisions, as a practical matter, into directly applicable law.
Here, it is worth recalling that despite the fact that under Article 59 of the Statute decisions
of the ICJ bind only the parties to the case, the Court treats all its decisions as judicial
precedents from which it will rarely depart, and then only in special circumstances. The ICJ
made that point most recently in Croatia v. Serbia, when it declared that ‘‘to the extent that
the decisions contain findings of law, the Court will treat them as all previous decisions:
that is to say that, while those decisions are in no way binding on the Court, it will not
depart from its settled jurisprudence unless it finds very particular reasons to do so.’’1 This
is not a message about applicable law that is likely be lost on counsel appearing before the
Court or, for that matter, on government legal advisers generally.
The practice of international courts also indicates that they increasingly cite not only their
own decisions but also judgments of their sister institutions, the way American courts cite
decisions from other jurisdictions. While obviously not binding precedents as between them,
these decisions are treated as persuasive authority to be relied upon or not depending upon
the soundness of their reasoning or analysis. That, for example, is how the ICJ looked to
the decisions of the ICTY in the recent Genocide case and how the Inter-American Court
of Human Rights draws on decisions of the European Court of Human Rights and those of
the ICJ. Similar practice can be observed in the context of Permanent Court of Arbitration
and International Center for Settlement of Investment Disputes arbitrations, for example,
where ICJ judgments are routinely relied upon as relevant law in the awards rendered by
the panels of arbitrators. Comparable examples abound throughout the international judicial
system, which includes the case law of international administrative tribunals and that of the
United Nations human rights treaty bodies. A particularly telling example is the reference
of the ICJ to the case law of the UN Human Rights Committee in addressing the question
of the extraterritorial application of Article 2(1) of the International Covenant on Civil and
Political Rights.2 In short, what we have here is international judicial cross-fertilization
that enriches and strengthens contemporary international law. I believe that the lawmaking
significance of this phenomenon remains to be fully appreciated in the teaching of contempo-
rary international law.
Also, not to be overlooked in understanding the importance of this cross-fertilization
process is the normative effect international court decisions are increasingly having on
judgments of national courts. Decisions of the European Court of Human Rights, for example,
are routinely followed by national courts of the States Parties to the European Convention.
Decisions of the Inter-American Court on Human Rights are beginning to have a similar
impact on judgments of national courts in the Americas. ICJ decisions tend also to be followed
by many national courts when called to apply international law, but not Texas, of course,
or the U.S. Supreme Court.
The international judicial system in existence today is not hierarchically integrated in that
no court in the system is formally superior to any of the others. I am not sure that this is
necessarily detrimental to the development of international law. For, to the extent that it
permits greater lawmaking creativity within the international judicial system and by courts
comprising that system, it is likely to strengthen international law. At the same time, let us
not forget that there exists an informal hierarchy which comes into play when one or the
other of these international courts finds it necessary to apply general international law in the
exercise of its functions. In such situations, it will in general look first to the jurisprudence
of the ICJ.
1
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment (Feb. 26, 2007).
2
Armed Activities on the Territory of the Congo (Congo v. Uganda), 2000 ICJ Rep. 111 (July 1).
Moreover, as we have already seen in the recent Genocide Case and in some other cases,
the ICJ is also beginning to draw on the jurisprudence of other international courts. The
absence of an international legislature with general lawmaking power, and the fact that
lawmaking treaties tend to address only a limited number of subjects, means that the ICJ
and the other courts comprising the international judicial system play an ever more important
lawmaking role. This emerging process increasingly resembles the lawmaking role that courts
play in the Anglo-American legal system, frequently relying as authority on a mix of judicial
decisions, both binding and not binding within a particular jurisdiction. A similar type of
judicial cross-fertilization and lawmaking is now also being practiced within the international
judicial system. While this practice does not find expression in Article 38 of the Court’s
statute, it reflects the contemporary reality and the growing importance of international
judicial lawmaking as well as the needs of the international community. Today, as a result,
international law is a more vibrant and mature legal system than ever before, and that is
what makes it more fun to be a part of.
*
Judge, International Court of Justice.