Author: Evangelia Linaki, Research Associate
It seems to be a fact that there has been a great increase in the number of specialized international courts ((E.g. International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda, International Criminal Court, International Tribunal for the Law of the Sea, Special Tribunal for Lebanon etc.)), raising, on the one hand, concerns as to whether such evolution will benefit the international legal order and, reinforcing, on the other,the ongoing controversy on several issues, such as the sources of International Law. It is evident, nowadays, that the core of formal sources, namely treaties, custom and general principles of law, is being highly contested by the emergence of new forms that could play the role of a formal source ((E.g. Judicial decisions and soft law instruments (United Nations General Assembly Resolutions, Declarations, Guidelines etc.).)).
Judicial decisions are one of the many elements which have long casted shadow on the monopoly of the established formal sources. Therefore, in the next few pagesa short presentation of the contradicting views on the legal status of judicial decisions, the existence and the role of judicial precedent and the contribution of international judges to the promotion of International Law will be provided. It should be noted that, since it is not possible to cover all international courts and tribunals, the International Court of Justice (ICJ) will be the point of referenceas it is regarded as the most influential forum which is likely to affect the nature and evolution of general Public International Law.
Legal status of judicial decisions and judicial lawmaking
The legal status of judicial decisions and whether international judges contribute to the making of International Law or not seem to be highly interrelated, since there is a tendency to relate the law-making potential of judges with the legal status that judicial decisions should enjoy in International Law.
It is claimed, on one hand, that judicial decisions do not constitute a primary source of International Law, like treaties, custom or general principles of law, but they serve only as subsidiary means for the determination of rules of law. Such claim is derived from Article 38(1)(d) of the ICJ Statute, which states that the Court shall apply judicial decisions as subsidiary means ((Statute of the International Court of Justice (1945) at Chapter II, Article 38(1)(d) available at http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0 (accessed 7/8/2013).)). In reinforcement of this argument, special attention must be paid to the travauxpréparatoires of the Statute of the Permanent Court of International Justice (PCIJ), which was bequeathed to ICJ itself ((Donilenko, G.M., Law-Making in the International Community, at 254 (1993).)). During the drafting of the PCIJ Statute and the determination of the Court’s mission, there was general consensus among the members of the responsible for the Court’s establishment 1920 Advisory Committee on Juriststhat a law-making task should not be appointed to the World Court with its chairman, Baron Descamps noting that “doctrine and jurisprudence no doubt do not create law, but they should serve only as an elucidation ((See id., at 254-255 andvan Hoof, G.J.H., Rethinking the Sources of International Law, at 169-170 (1983).)).”
Evidently, the drafters of the ICJ Statute did not envisage the Court to become a law-making organ but rather one that will only apply existing rules of law for the settlement of disputes ((See Donilenko, supra note 4.)). At this point, attention must be drawn upon Article 59 of the ICJ Statute, which states that a Court’s decision is binding only on the parties involved in the dispute ((See Statute of the International Court of Justice, supra note 3, at Chapter II, Article 59)). Hence, this provision does not create legal obligations for any other State and, subsequently, no precedent necessary for the enrichment of the corpus of International Law ((McWhinney,E.,The World Court and the Contemporary International Law-Making Process, at 2 (1979).)). Oppenheim’s remark that the judges’ role is of inferior importance due to a lack of lawmaking capability ((Swart, M., Judges and Lawmaking at the International Criminal Tribunals for the forner Yugoslavia and Rwanda, at 79 (2006).))has been confirmed by the ICJ itself in the South West Africa Cases by underlining that “its duty is to apply the law as it finds it, not to make it ((South West Africa Cases (Ethiopia v. South Africa, Liberia v. South Africa), Second Phase, Judgmentof18 July 1966, 1966 ICJ Rep. 6, at 48, para.89)).”
On the other hand, there are authors who claim that judges do contribute to the development of International Law and, therefore, judicial decisions should be regarded as a source of International Law ((See Donilenko, supra note 4, at 260, Swart, M., Judicial Lawmaking at the ad hoc Tribunals: The Creative Use of the Sources of International Law and ‘Adventurous Interpretation’, 70ZaöRV, issue 3 (2010), available at http://www.zaoerv.de/70_2010/70_2010_3_a_459_486.pdf (accessed 7/8/2013), Boyle, A., &Chinkin, C., The Making of International Law (2007) and Guillaume, G., Le precedent dans la justice et l’arbitrage international, 137 Journal du droit international, issue 3 (Juillet – 2010).)). Firstly, it is possible that, despite the provisions of Article 59 of the ICJ Statute, a judgment can have an effect on the interests of a Third State and, that fact is confirmed by Article 62 of the ICJ Statute, which provides a Third State with the right to intervene ((See id.,Donilenko,at 256)). Moreover, the Court’s judgments can contribute to the creation of new customary rules through the interpretation process of a treaty; the elucidation of customary rules; the reformulation and application of rules ((See id.,at 256-257 and Swart,supranote 11, at 478)); and the formulation of a new rule which will bring about the indispensable-to-the-creation-of-custom state practice ((See Boyle&Chinkin,supranote 11,at 283)). The same evolution has been observed in the field of jus cogens, since it was the judges and the arbitrators that crystallised such norms ((SeeGuillaume,supranote 11, at 702)). Lastly, judicial decisions are of paramount importance in case of lacunae in the law, such as in International Criminal Law, since judges will have to fill any gaps and respond to the vagueness or ambiguity of certain rules ((See Swart,supranote 9, at 65-66)).
Taking all of the above into account, in the author’s opinion, the subsidiary nature of judicial decisions does not pose a threat to the law-making potential of judges, rather it serves to maintain the balance between courts and States. In other words, it is the States’ sovereign right to develop law at will and it is widely accepted that they would not have accepted a World Court with law-making duties ((See Donilenko,supranote 4)). Nevertheless, the contribution of the judges to the promotion of International Law is evident, should one take into account cases, such as theCorfu Channel Case and the Armed Activities Case ((In the Corfu Channel case the ICJ ruled that every State’s obligation not to allow its territory to be used for acts which will violate the rights of the other States constitutes a well-recognised principle (Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, 1949 ICJ Rep. 4, at 22). In the Armed Activities Case the ICJ characterised Article 2(4) of the Charter of the United Nations on the prohibition of the use of force as “a cornerstone of the United Nations Charter” (Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment of 19 December 2005, 2005 ICJ Rep. 168, para. 148).)), through which customary rules and general principles of International Law have been crystallised.
One could assess the contribution of judges by comparing the impact they have when acting in their official capacity as judges rather than as international lawyers. In other words, judicial decisions have much greater influence exactly because States have recognized the official jurisdiction of the Court, whereas the judgment creates legal obligations for the parties and the “Court’s pronouncements are taken into account by governments arguing before the Court and in extra-judicial contexts ((See Donilenko,supranote 4,at 256)).” Additionally, it is of utmost importance that judges not only seek and apply law but they also exchange views, concentrate on the issues at hand and reach a decision knowing they have a collegiate responsibility ((See Boyle&Chinkin, supra note 11, at 269 and Wickremasinghe, C. (ed.), The International Lawyer as Practitioner, at 137 (2000).)). As Fitzmaurice has put it, “when an advocate before an international tribunal cites juridical opinion, he does so (…) because it contains a particularly felicitous or apposite statement of the point, and so on. When he cites an arbitral or judicial decision (…) hecites it as something which the tribunal cannot ignore, which it is bound totake into consideration and (by implication) which it ought to follow unlessthe decision can be shown to have been clearly wrong (…) ((Jennings,R.Y.,The judiciary, international and national, and the development of international law, 45 International and Comparative Law Quarterly, issue 1, at 9 (1996).)).”
Precedent in International Law?
There has been great controversy on whether a doctrine of precedent exists in International Law, having, on the one hand, those who focus on the constraints imposed to the Court by Articles 38(1)(d) and 59 of the ICJ Statute. It is claimed that since judicial decisions bind only the States involved in the dispute, no obligations are created for Third States or for previous decisions to be applied in future litigations ((See Donilenko,supranote 4, at 253)). Consequently, no doctrine of precedent exists ((See id.))and each case should be treated as special ((vonBogdandy, A. &Venzke, I. (eds.), International Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global Governance, at 40 (2012).)). Moreover, it is claimed that, since judicial decisions are not formal sources of law, they do not bear any real effect on International Law ((See id., at 43)).
It is, nevertheless, believed that previous cases are more influential in reality, since invaluable legal reasoning can be found in older judgments ((See von Bogdandy&Venzke,supranote 24, at 44)), a fact which in turn may contribute to the crystallization or resolve the ambiguity of a customary rule, jus cogens or bring about the existence of an obligation ergaomnes ((See Boyle &Chinkin, supra note 11, at 295-296)). Furthermore, by referring to previous cases, the impression that judges apply and do not create law is created ((See von Bogdandy&Venzke,supranote 24, at 45)), whereas precedent assures that all litigants are equally treated ((See Guillaume,supra note 11, at 703)). Additionally, “precedents can save time and work ((See von Bogdandy&Venzke, supra note 24)),” a fact especially important for the international courts that have to deal with a multitude of cases. Lastly, precedent can also lend a sense of predictability, security and order in a highly decentralized international community ((See Guillaume, supra note 29.)).
From the author’s point of view, notwithstanding the inexistence of a precedential doctrine, judicial decisions influence greatly the international legal order, since many a case constitute a landmark in International Law and have never ceased being cited both by the International Courts and international lawyers ((See Boyle&Chinkin, supra note 11, at 293)). As it has been mentioned, past decisions can have strong law-making potential, since they contribute to the creation of custom, jus cogens or obligations ergaomnes. It should be highlighted, nevertheless, that strong adhesion to past cases is not advised, rather they should be treated with caution so as not to preventfurther development of International Law ((See Guillaume, supra note 29))and the adaptation of law to the needs of the international community.
It has been shown that judicial decisions are confronted in two different ways: they are either considered as subsidiary means for the determination of rules of law, an argument based on the ICJ Statute itself, or as having the potential to be elevated at the sphere of formal sources. This controversy is highly interconnected with and affected by both the force of precedent and the role of international judges as law-makers. It is claimed, on the one hand, that precedent does not exist in the international legal order, since judgments are binding only upon the parties to dispute; on the other hand, practice has shown that past cases are highly cited both by the Courts themselves and the international community and they can have a multiple role to play. Consequently, it is thought, on the one hand, that judges only apply law and, on the other end of the scale, that they contribute to the promotion of law in generating or crystallizing custom,juscogensnorms and general principles. It is incontestable that International Courts have long contributed to the evolution of the international legal order and it is expected that they will continue to do so, a fact that foretells that controversy on the place judicial decisions should have is about to be continued and reinforced