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Lawmaking by the ICJ and Other International Courts

Author(s): Thomas Buergenthal


Source: Proceedings of the Annual Meeting (American Society of International Law) , Vol.
103, International Law As Law (2009), pp. 403-406
Published by: Cambridge University Press on behalf of the American Society of
International Law
Stable URL: https://www.jstor.org/stable/10.5305/procannmeetasil.103.1.0403

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International Law as Law at the International Court of Justice 403

factor that gives the jurisprudence of the ICJ a special place of respect, even in the absence
of a formal hierarchical order.

Lawmaking by the ICJ and Other International Courts

By Thomas Buergenthal*

Although the proliferation of international courts as a subject has received considerable


attention in recent years, the same has not been true of the ever more important role these
courts play in the international lawmaking process. This is the topic I propose to deal with
this afternoon, with special emphasis on the International Court of Justice (ICJ).
When Article 38 of the current statute of the ICJ was adopted, it was the only permanent
international court in existence. That, of course, was also true with regard to the comparable
provision of the statute of the Permanent Court of International Justice. After identifying the
three principal sources of international law—international conventions, custom, and general
principles of law—Article 38 declares that, subject to the provisions of Article 59 of the
Statute, the subsidiary means for the determination of rules of law are ‘‘judicial decisions
and the teachings of the most highly qualified publicists of the various nations.’’ Thus, while
under Article 59 decisions of the ICJ are binding between the parties to a case, judicial
decisions generally, whether rendered by national or international courts, merely serve as
‘‘subsidiary means for the determination of rules of law.’’
The world has changed rather dramatically since the ICJ Statute was adopted. For one
thing, the ICJ is no longer the only international court in existence. It has been joined by a
growing number of important international and regional courts and tribunals, among them
the International Criminal Court, Law of the Sea Tribunal, European Court of Justice, three
regional human rights tribunals, and various ad hoc international criminal tribunals, including
the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International
Criminal Tribunal for Rwanda. During the past decade, furthermore, more cases have been
referred to the ICJ than ever before, and more keep coming. These cases deal with an ever
greater number of international law subjects than in the past. In addition to its traditional
fare of territorial and maritime disputes, the Court is today increasingly being called upon
to decide a whole range of disputes, including cases concerning the illegal exploitation of
natural resources, human rights and humanitarian law, the use of force, treaty interpretation,
self-determination, consular rights, different types of immunities, international environmental
law, state responsibility, the law of international organizations, and so on. The jurisprudence
which these cases generate, together with important earlier ICJ decisions, cover an ever
broader range of international law topics.
And as the number of new cases grows, so does the international law the Court is called
upon to interpret and apply. In the process, it clarifies existing law and of necessity makes
new law, not with the broad brush strokes generally employed by legislatures, but by what
might be called normative accretion. Other international and regional courts also render more
and more judgments in their fields of judicial competence, thus further expanding the existing
corpus of international law.
It should, therefore, be asked what the legal effect of this case law is. It is clear, of course,
that the doctrine of stare decisis is not part of international law. For states not parties to a
case, judgments of the ICJ and of some other international courts are formally not lawmaking

*
Judge, International Court of Justice.

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404 ASIL Proceedings, 2009

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

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International Law as Law at the International Court of Justice 405

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).

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406 ASIL Proceedings, 2009

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.

Remarks by Bruno Simma*


Judge Bruno Simma primarily discussed the process, and likelihood, of institutional change
at the International Court of Justice (ICJ). More specifically, he predicted that the Court
would undergo minimal change in the coming years, despite various proposals currently up
for review, due to issues of institutional resistance. As he put it, courts are generally sedentary
institutions and tend toward preserving the status quo, as evidenced by the fact that the rules
governing the ICJ have hardly changed since their original drafting in the early 1920s.
Nonetheless, Judge Simma observed that the Court has been successful in implementing
several incremental changes to promote efficiency such as restricting the length of briefs
and imposing time limits on oral proceedings. Moreover, efforts to increase the number of
law clerks at the ICJ and to improve coordination with other international courts have been
important developments. He further explained that renewed attention needs to be directed
at reforming the process of asking questions before the Court and reevaluating the use of
chamber proceedings.

*
Judge, International Court of Justice.

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