Principle of Continuity - Applicability in International Court of Justice

The Dichotomy in the International Court of Justice: the Principle of Continuity Vis - a - Vis Article 59 of the Statute of the International Court of Justice Submitted by: Pranav Menon V Year Student, NALSAR University of Law, Hyderabad – 78.  The Dichotomy in the International Court of Justice: the Principle of Continuity Vis - a - Vis Article 59 of the Statute of the International Court of Justice Abstract The International Court of Justice as the chief adjudicatory organ of the United Nations has been instrumental in the development and progressive codification of international law. However, there has been inconsistency by the court in recognizing its past decisions as precedents for present disputes. Despite the caveat expressed under Article 59 of the Statute regarding the applicability of the stare decisis rule in international law, the practice of the court indicates widespread usage of prior decisions. The author would like to analyse this dichotomy in detail through the course of the paper through various examples and provide for a justifiable explanation for the principle of continuity practised in the world court. Introduction Prior to the establishment of an international forum, states would often engage in ad hoc arbitration mechanisms to resolve contentious disputes between them. James Crawford & Tom Grant, International Court of Justice, 125, in Thomas G. Weiss & Sam Davis (Eds.),the Oxford Handbook on the United Nations, Oxford University Press (2007) However, for nearly a centenary, nation states have enjoyed access to a World court, be it the Permanent Court of International Justice Hereinafter referred to as PCIJ. or the International Court of Justice, Hereinafter referred to as the ICJ. for amicable settlement of international legal issues. Further, as per Article 93 of the Charter, all members of the UN are ipso facto parties to the Statute of the ICJ. Statute of the International Court of Justice, Oct. 24, 1945, 832 U.S.T.S. 993 [hereinafter “the Statute”]. Once the jurisdiction of the court is established under Article 36 of the Statute, The court hears both contentious as well as advisory cases and only states are parties to the contentious cases after consenting to the jurisdiction of the Statute. Consent for the jurisdiction of the court can be given if parties themselves refer it to the court or through a special agreement or any matters in the UN Charter or treaties in force. Other means of jurisdiction available is the compulsory jurisdiction clause, forum prorogatum jurisdiction and kompetenz kompetenz jurisdiction. the ICJ relies upon Article 38 to highlight its adjudicatory function through a complete statement of sources of international law. See Hudson, The Permanent Court of International Justice, 601ff (1943). These sources include a) international conventions and treaties, b) custom as evidenced by practice of states, c) general principles of law recognized by civilized states and d) judicial decisions and juristic works of most highly qualified publicists. The provisions are not stated to represent a hierarchy, but the draftsmen intended to give an order and in one draft the word ‘successively’ appeared. Castillo v Zalles, ILR 22 (1955), 540. In practice the court may be expected to observe the order in which they appear: the first three sources are considered as formal or primary sources, whereas judicial decisions and the teachings of most highly qualified publicists of the various nations with its reference ‘as subsidiary means for the determination of rules of law’, relates to material sources. Ian Brownlie, ‘Principles of Public International Law’, 7th Edn., Oxford University Press (2008). The text of article 38(1)(d), which enunciates judicial decisions, imposes a caveat that the provisions can be applicable only subject to article 59 of the Statute. As per article 59, contains a negative statement, that every decision of the ICJ has no binding force except between the parties and in respect of that particular case. Thus, on strictly relying on the text of the statute, international law does not recognize a binding force of precedents, nor is a Court decision, even a decision of a World Court, as a binding source of international law. However, the ICJ, like every Court hesitates to overrule former pronouncements; quite to the contrary, it often refers to previous decisions and to reasons developed in such decision, whether these reasons have been essential for that decision or are only obiter dicta. Similar practices are also present in courts of community setups such as the ECJ as well as other international tribunals such as the WTO Dispute Settlement Body, Permanent Court of Arbitration, War tribunals. It may be thought that any theories regarding the future trend of the method of precedent which will be followed by the World Court in its decisions can only be the vaguest speculation, but a closer examination of the subject reveals that there are certain definite guiding influences which can enable a forecast, having, at any rate, a strong semblance of probability, to be made. Because, with the exception of treaties, the decisions of the ICJ are now the most powerful influence in the development of international public law, the question is not without importance and it certainly provides an interesting subject for legal speculation. John C. Gardner, Judicial Precedent in the Making of International Public Law, Journal of Comparative Legislation and International Law Third Series, Vol. 17, No. 4 (1935), pp. 251-259 This paper seeks to analyze this dilemma in the text of the Statute and the practice of courts in light of the applicability of precedents in International law. In order to substantiate on the research question, the Author would like to divide this aspect into five parts: first analyse the historical practice of following precedents in international law; second elaborate upon the role of precedents as per the Statute of the ICJ; second, principle of continuity and the adjudicatory function of the ICJ with respect to judicial decisions; third provide a suitable critique on this practice of the court, while analyzing the existing dichotomy and last highlight the views of the Authors and provide for a suitable conclusion. Historical Perspective on use of Precedents in International Law The creation of the Permanent Court of International Justice was surrounded by significant disagreement about the legal principles and rules to be utilized by the newly established court. In addition to differences governing the laws of naval warfare, there was also believed to be a difference between the ‘Anglo-Saxon’ approach to international law and the ‘continental’ approach to international law. Lloyd, A Springboard for the Future: A Historical Examination of Britain’s Role in Shaping the Optional Clause of the Permanent Court of International Justice, The American Journal of International Law 79 (1): 28–51 (1985). The crux of the problem was a potential clash between opposing legal orders with judges of divergent legal traditions serving on the Court. Such a concern was expressed by numerous English judges and politicians involved in the formation of the international court: “It was inevitable that the majority of judges on the Court would be ‘continental’ lawyers or would follow that school . . . By virtue of sitting at the Hague they would be exposed to the pernicious influence of extreme German doctrines”. Ibid. The winning influence of the continental approach to international law produced many similarities between the Romano- Germanic legal tradition embodied in civil law systems and the rules and procedures adopted by the PCIJ (and later ICJ). 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 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, in the words of Louis Renault, that “when a controversial issue has been settled in the same way by several arbitration tribunals, the chosen solution will enter the body of international law”. Louis Renault, Preface in Albert Lapradelle & Nicolas Politis, Recueil des arbitrages internationaux (1905) 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 permanent international court as distinguished from the Permanent Court of Arbitration’. Hersch Lauterpacht, The So called Anglo American and Continental Schools of Thought in International Law, British Yearbook Int’l L. (1931) 59. 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 do not create law’. Permanent Court of International Justice Advisory Committee of Jurists, Procès-verbaux of the proceedings of the Committee, June 16th – July 24th, 1920, with Annexes (1920), 584. 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’, implying that it is not a direct source unlike the others. However, these precautions seemed insufficient to Balfour and Leon Bourgeois Ibid at 592–93, 745–46, 754. and the Council of the League of Nations added Article 59 to the text, whereby ‘The decision of the 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’. Ibid. 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 precedent was rejected. Ibid at 94. 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. Jennings & Watts (eds.), Oppenheim’s International Law, Longman Publishers (1992). The rule of stare decisis is ruled out as there is only one world court. According to one strand of thinking, the binding force of precedent depends entirely on the hierarchy of courts. Where there is no hierarchy, there is no binding force. From the outset, the Permanent Court had indeed recalled in 1926 that ‘the object of Article 59 of the Statute is to prevent legal principles accepted by the Court in a particular case from being binding upon other States or in other disputes’. Case concerning certain German interests in Polish Upper Silesia (The Merits) PCIJ Rep Series A No 7, 19 (25 May 1926); See also Case Concerning the Factory at Chorzów (Claim for Indemnity) (Jurisdiction) PCIJ Rep Series A No 9, 20 (26 July 1927). This jurisprudence was taken up by the International Court of Justice, and it has solemnly confirmed it has no obligation to follow its precedent. Continental Shelf (Libyan Arab Jamahiriya/Malta) (Application to Intervene, Judgment) [1984] ICJ Rep 3, 26, s 42. Value of judicial precedent under the Statute of the International Court of Justice As most legal scholars agree, the object of article 59 is simply to prevent legal principles accepted by the Court in a particular case from being binding on other states or in other disputes. Supra note 8. The ICJ is, therefore, forbidden from formally introducing jurisprudential continuation by invoking its previous judgments. Supra note 18. It can be inferred from the above observation that as far as applicability of precedents are concerned and relying on the major institutional differences between civil, common, and Islamic law domestic systems, it is arguable that the practices of the ICJ are very similar to those employed in civil law systems. Further, judge Shahabuddeen claims that, having been set up as a court of justice, it is legitimate for the World Court to construe the U.N. Charter and the statute that created the Court as also accepting that the decisions of the Court would, in some measure, inevitably have the precedential effect normally associated with judicial decisions. Mohamed Shahabuddeen, Precedent in the World Court, pp. 222 - 223, Cambridge University Press (1996). This could be the case even if previous decisions were not treated as binding. The Court first repeatedly confirmed that it was not its role to create 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 down’. Fisheries Jurisdiction (United Kingdom v Iceland) (Merits) (Judgment) [1974] ICJ Rep 23–24, s 53. 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 survival of a State would be at stake’. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 266, s 105(2)(E). 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 being able to substitute its assessment for the will of sovereign States.’ See opinions and statements of Judges Weiss (The Case of the S.S. Lotus, Publications of the PPCIJ, Series A, No 10, 43 (7 September 1927), S Krylov (Reparations for injuries suffered in the service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 219), Gilbert Guillaume (separate opinion) (Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 293). Further in order for a decision to be binding, it requires a presupposition on the part of the organization to be bound that the decision is binding, otherwise, it could be freely withdrawn or overruled with the result that the court is not truly bound. John C. Gardner, Judicial Precedent In The Making Of International Public Law, 49 Stevens & Sons, Ltd., London, 1934. Therefore, it follows that the rule of precedent cannot be the source of its own authority. One view taken is that invoked previous judgments do not, however, constitute a binding precedent, but are merely treated as “a statement of what the Court regarded as the correct legal position”. Shabtai Rosenne, The International Court of Justice: What It Is and How It Works 123 Oceana Publications (1962). In addition, section 102 of the Restatement (Third) of the Foreign Relations Law of the United States indicates that there is no stare decisis within the international body of law. Olav A. Haazen, Precedent in the World Court, 38 HARV. INT'L L.J. 587, 587 (1997) Principle of Continuity in the ICJ The ICJ although at present regulated by its statute and officially every decision of the Court is only a decision in that particular case and does not constitute a binding precedent, in view of the present vagueness of international law it is almost inevitable that the judgments and opinions of this Court are forming, and will continually form, precedents (even though not binding ones), which will to some extent be founded on and serve as a factor in the development of international law. Professor Goodhart, Precedent in English and Continental Law, 23 Stevens & Sons, Ltd., London, 1934. It does not follow, either, that the present rule of the Court regarding its decisions may not in time become modified by a subsequent change in practice, and it would appear as if in some instances the decisions of the Court must constitute something very nearly resembling a binding precedent. Although the need for a tribunal ensuring, through its continuity, the development of international law was one of the main reasons for the creation of a permanent court of international justice, it is possible that the lawyers and statesmen who in 1920 drafted the Statute did not fully appreciate all the possibilities, in this direction, of the activity of the court about to be established. This explains the widely drafted clause under article 59, which can be reminiscent of the French Code Civil, which forbids judges to lay down general principles in connection with the cases submitted to them on the theory that the determination of legal principles going beyond a particular decision is reserved for the legislature. Hersh Lauterpacht, The Development of International Law by the International Court, 15 Cambridge University Press, 1st Edn., (2000). The Inter-Allied Committee on the Future of the PCIJ when dealing Article 59 noted that it does not mean that the decisions of the Court have no effect as precedents for the Court or for international law in general. Emilia Justyana Powell & Sara McLaughin Mitchell, The International Court of Justice and the World’s Three Legal Systems, The Journal of Politics, Vol. 69, No. 2, May 2007, pp. 397–415. Just that they do not possess the binding force of particular decisions in the relations between the countries who are parties to the Statute. It further noted that, the provision in question in no way prevents the Court from treating its own judgments as precedents. Thus despite the injunction of article 59 of the Court’s statute, ostensibly restricting the binding force of judgments to the disputing parties, every ICJ judgment is subject to minute examination by the judges in other cases, as well as others for legal and factual determinations. Jonathan F Charney, The Impact on the International Legal System of the Growth of International Courts and Tribunals, 31 NYU J. Intl. L. & Pol. 697, at 705 (1999). It is to be expected that in a society of states in which opportunities for authoritative and impartial statements of the law are rare, there should be a tendency to regard judicial determination as evidence or, what is in fact the same, as a source of international law. Above all for reasons which are even more compelling in the international sphere than within the State, reliance on precedent is not only keeping with the ever present requirement of certainty in the administration of justice, but with the necessity of avoiding the appearance of any excess of judicial discretion. Jose E Alvarez, International Organisations as law makers, 243 Oxford University Press, 1st edn. (2003). In such a case he will contrive to do what he considers to be justice through the elastic process of ‘distinguishing’ and in other ways, thereby not making it easy for him to disregard a previous decision. He is bound to adduce reasons for departing from the obligation of consistency and of observance of settled principles. These considerations are of particular urgency in relation to international jurisdiction, which is essentially voluntary in character. Some authors opine, while stressing on the advantage of the continuity of a judgment, that precedential value of decisions is the general practice of all courts and the decisions of the ICJ should not be and cannot be an exception to the universal rule. Supra note 8. Notwithstanding the express provision in Article 59 of the Statute (which seems to be an imperfection), therefore, the jurisprudence of the Court forms a continuous body of law applicable to the relations of states. It is closely linked with a century of development which preceded the Court's creation, and it constitutes a repository of principles, rules and standards which cannot be ignored in future decisions. Dr. Lauterpacht points out that the extensive development of international law by the Permanent Court, resulting from the lack of codification, means that the decisions of the Court, almost inevitably accepted by the States immediately concerned, will possess the value of precedents, in spite of the terms of Article 59 of the Statute of the Court. Supra note 29. He recognizes that the English doctrine of the binding force of precedent is no part of international law, but observes that, on the other hand, no tribunal can with due regard for its own authority habitually neglect its own previous decisions. The phrases that the ICJ's case law is in “an acceptable sense … authoritative” and that it has “precedential effect” are then just another way of expressing that:(i) under Article 38, paragraph 1(d) of the Statute of the International Court of Justice, the Court must at least take account of any relevant judicial decision; ii) the Court has a strong tendency to adhere closely to its previous holdings. As a practical matter, it follows its own case law, advisory opinions and decisions, as well as those of its predecessor, the Permanent Court of International Justice. Ibid. To say that the rule of stare decisis does not apply to the ICJ means that the Court really is not bound by its own precedents and is thus, as a matter of law, entirely free to depart from its prior holdings. That no sensible Court will ever exercise that freedom excessively, is, of course, a different matter. Realizing that in practice a judicial policy of consistency exists, may make the absence of stare decisis much more acceptable. This jurisprudence has been prominent in the way in which the ICJ has relied upon or indirectly between cases decided by the PCIJ and those by the ICJ; many PCIJ judgments have been highly influential for the development of international adjudication in the ICJ as they have been cited by the court on numerous occasions. Malcolm N Shaw, International Law 960 Cambridge University Press 5th edn, (2005) Sometimes this rule has also been used to distinguish between the case at hand and the previously decided case which may be superficially similar. The ICJ distinguished the Eastern Carelia case from the PCIJ decision i.e. the Advisory Opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania on the issue of refusal of the parties to participate in the proceedings. The ICJ in the Admissions case ICJ Reports 1947 - 48, p. 63. clearly followed this practice of continuity as practiced in the PCIJ since it was in accordance with the travaux prepratoires. Similar view was taken in the Advisory Opinion on the Competence of the General Assembly for the Admission of a State to the United Nations. In the Corfu Channel case the court referred to its decisions of its predecessor in support of the principle of securing the effectiveness of undertaking submitting disputes for adjudication by the court. ICJ Reports 1949, p. 24. In the Nottebohm case, the court referred to the jurisprudence of the permanent court, in particular in the Losinger and Phospates in Morocco cases, as showing that the withdrawal of the Acceptance of the jurisdiction of the court under article 36(2) of its statute has no pending effect before the court. ICJ Reports 1953, p. 121. As seven judges aptly put it in a joint declaration to the Court’s judgment in the Kosovo case, Legality of Use of Force, Yugoslavia/Belgium, ICJ Rep 2004. that the Court must ensure consistency with its own past case law in order to provide predictability and consistency is the essence of judicial reasoning.” Practice of the ICJ in accordance with the Principle of Continuity The Court has referred to itself frequently to ensure ‘consistency of jurisprudence’. Legality of Use of Force (Serbia and Montenegro v Portugal) (Preliminary Objections, Judgment) [2004] ICJ Rep 1160, 1208. It sometimes does this by simply insisting on its ‘settled jurisprudence’ (jurisprudence constante) United States Diplomatic and Consular Staff in Tehran (Judgment) [1980] ICJ Rep 3, 18, s 33; Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73, 87, s 33. and sometimes by mentioning judgments previously rendered. Case of the Readaptation of the Mavrommatis Jerusalem Concessions [1927] PCIJ Rep Series A No 11, 18 (10 October 1927). Numerous legal scholars have pointed to the fact that the practices of common law and the ICJ have become increasingly similar over time. Basil Markesinis, Judicial Style and Judicial Reasoning in England and Germany, 294-309 The Cambridge Law Journal Vol. 59 Issue 2 (2000). The jurisprudence of the World Court has developed over time in the direction of a powerful inclination to adhere strongly to its previous decisions. The practice of referring to its previous decisions has become one of the most conspicuous features of the judgments and opinions of the court. In the practice of the Court departures from precedent necessary as they are maybe on occasions, constitute an exception the general rule. That practice has assumed various forms and ranges from mere illustration and distinguishing to a form of speech apparently indicating the authoritative character of the pronouncement referred to. On occasions the court merely says: ‘as the court has said in Judgment no. 12,’ Chorzow Factory case (Indemnity; Merits), Series A, No. 17 (1928), p. 37. or ‘as the court has had occasion to state in its previous judgments and opinions’. Jurisdiction of the European Commission of the Danube, Series A, No. 14 (1927), p. 36. While that form of reference may be regarded as being in the nature of mere illustration, frequently the manner is much bolder. In German Interests in Polish Upper Silesia (Merits), Series A, No. 7 (1926), p. 31, the court said: Nothing has been advanced in the course of the present proceeding calculated to alter the court’s opinion as expressed in Advisory Opinion No. 6 on this point. Similarly in Greco - Turkish Agreement of December, 1926, Series B, No. 16 (1928), p. 15, the court simply stated that: Following the precedent afforded by its Opinion No. 3. The ICJ in the case concerning the United States Nationals in Morocco the court referred, ICJ Reports 1952, at pp. 196, 200 and 206. as a matter of course, to its Opinion in the Interpretation of Peace Treaties (Second Phase) case in support of the statement that ‘it is a duty of the court to interpret treaties, not to revise them’ ICJ Reports 1950, p. 229.; to the Asylum case on the requirements of custom Ibid, p. 276.; and to the Free Zones case on the technical point of the distinction between fiscal duties and custom duties. Series A/B, No. 46 (1932), p. 172. Similarly the court in its Advisory Opinion on Awards of the United Nations Administrative Tribunal took the view taken in the previous Opinion on Reparation for the Injuries Suffered in the Service of the United Nations ICJ Reports 1949, p. 182. for answering the critical issue considering the implied power of the UN to establish a judicial tribunal to adjudicate upon contractual problems between the UN and its employees. ICJ Reports 1954, p. 56. The principle that treaties must be interpreted not only in accordance with ordinary words but also in the context and objects of the treaty, as laid down in the case concerning the Polish Postal Service in Danzig has been followed in subsequent decisions. On occasions the court attaches importance to explaining an apparent inconsistency in relation to a previous pronouncement. In the Mavrommatis Palestine Concessions the court relied on Advisory Opinion concerning the Tunis and Morocco Nationality Decrees for the issue of jurisdiction, which can be presumed to exist on the basis of a provincial decision as to the international character of the grounds advanced by the parties. See Sorensen, Les sources du droit international (1946), pp. 166 - 176. The court has followed this practice in several decisions such as the Serbian Loans case Series A, No. 20 (1929), p. 16. (issue of jurisdiction under the compromise), Treatment of Polish Nationals in Danzig Series A/B, No. 44 (1932), pp. 24, 25, 28, 30., Advisory Opinion relating to the Interpretation of the Convention of 1919 concerning Employment of Women during the Night case Series A/B. No. 50 (1932), p. 375. (relied on the Advisory Opinions No. 2, 3 and 13 bearing upon the International Labour Organifsation), Advisory Opinion on Minority Schools in Albania Series A/B, No. 64 (1935), p. 20. (applied the principle of equality provided for in the Treaty must be one of both fact and law). Some of these pronouncements were not in pari materia but the court said that the principles underlying in these earlier decisions throw light on the question whether there is any solid foundation for the suggested rule of interpretation. The court in its Opinion on Acquisition of Polish Nationality Series B, No. 7 (1923). lent emphasis to the element of continuity in the court’s jurisprudence by relying not only on what it said on the subject but also on what could be relied upon. In Kasikili/Sedudu Island case, ICJ Rep (1999) para 50. it cited 7 previous cases in order to make the rather obvious point that the subsequent practice of the parties is relevant to interpreting treaties and in only 3 printed pages of Israeli Wall Opinion, ICJ Rep (2004) para 21. the Court made not less than 278 cross-references to its previous decisions. Critique of the rule of precedents practiced in the ICJ For the beneficence of adherence to precedent is not unqualified. When the precedents vary - and they have in fact varied on such questions as the admissibility of recourse to preparatory work for the interpretation of treaties or the restrictive interpretation of limitations of state sovereignty - there may be an inclination to rely upon one set of precedents and to disregard the others without an attempt being made, in the wording of the decision, to explain the choice thus made. Hersh Lauterpacht, The Development of International Law by the International Court, 15 Cambridge University Press, 1st edn., (2000). When, for instance in the Admissions case, Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Admissions Case), ICJ Rep (1947), para 145. the court invoked the rule previously enunciated in some decisions that there is no reason to have recourse to preparatory work when the terms of the treaty are clear, it may have created the impression of simplifying a problem which precedents pointing to a different solution made appear less straightforward. Recently the court in the Bosnian Genocide case, Eric Rosand, The Right To Return Under International Law Following Mass Dislocation: The Bosnia Precedent? 19 Mich. J. Int'l L. 1091. relied blindly upon the effective control test laid down in the Nicaragua case and negated the overall control test laid down in Tadic case simply on the ground that the latter was not the decision of the ICJ and was not governed by public international law but by international criminal law. Judge Shahabuddeen mentions three grounds where the ICJ can depart from the rule of precedent: (i) the legal rule or principle has undergone a subsequent modification; (ii) the Court is of the opinion that the original decision was wrongly decided, and (iii) the original decision no longer corresponds to the requirements of the international community. Mohamed Shahabuddeen, Precedent in the World Court, pp. 225 - 227, Cambridge University Press (1996). Several other factors include absence of argument, standing of a particular bench, unanimity of the decision and changes in composition of the court. It must be understood that 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. Panevezys-Saldutiskis Railway Case PCIJ Rep Series E No 16, Sixteenth Report of the PCIJ Rep 190 (15 June 1939 to 31 December 1945); See also Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) (Judgment) [2007] ICJ Rep 659, 745, s 281. Also, judgments or advisory opinions adopted as a full Court, unanimously or by a very large majority as well as often 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. Everything is case by case, and the famous obiter dicta on erga omnes obligations inserted in the Barcelona Traction judgment have enjoyed a long popularity. Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 3, 32, s 33–34. In reality, the question that arises in each case to the Court is whether it should retain the solutions it previously adopted. This question arises when one party challenges these solutions, and sometimes when the Court considers that its jurisprudence must evolve. Two topical examples can be provided: one a confirmation of jurisprudence, the other a departure from precedent. The first case was between Cameroon and Nigeria concerning the delimitation of their border. Nigeria had in 1965, accepted the compulsory jurisdiction of the Court by unilateral declaration, as stipulated in Article 36 section 2 of the Statute. In March 1994, Cameroon lodged such a declaration and, a few days later, filed an application before the Court. Nigeria opposed this application by objecting to the jurisdiction of the Court, arguing that Cameroon had acted prematurely, leaving Nigeria no opportunity to react, a breach of good faith and an abuse of law. Cameroon, in turn, opposed such objection by arguing from a decision rendered by the Court in similar circumstances in the 1957 case of the Right of Passage over Indian Territory. Nigeria then invoked Article 59 of the Statute, arguing that this decision could not be relied on against it, that in any event it was obsolete, and that, as a consequence, the objection that it had formulated should be maintained. The Court first recalled the conclusion it had reached in 1957, somewhat expanding upon it. It then pointed out that, contrary to the contention of Nigeria, the ruling in the case of the Right of Passage was not an isolated judgment. It added: ‘It is true that, in accordance with Article 59, the Court’s judgments bind only the parties to and in respect of a particular case. There can be no question of holding Nigeria to decisions reached by the Court in previous cases. The real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases’. Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) (Judgment) [1998] ICJ Rep 275, 290, s 21. Having considered at length the relevant arguments presented by Nigeria, the Court decided that the Court’s previous solution should be maintained. In contrast, the law of maritime delimitation, as fixed by the Court, has experienced such developments over the last 40 years that it is difficult not to see a departure from its jurisprudence. We know two methods that have been recommended to produce such delimitations. Some looked to the ‘equidistance method’, pursuant to which the maritime boundary between States must follow the median line every point of which is equidistant from the nearest points on the coasts. Others have argued for the application of equitable principles or the search for equitable results. In 1969, in the North Sea Continental Shelf case, the Court ruled for a delimitation of the continental shelf in accordance with the ‘equitable principles, and taking account of all relevant circumstances,’ including geological factors. North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3, 53, s 101. It had stepped away from the equidistance method. It again embraced such principles in 1982 for the delimitation of the same shelf between Tunisia and Libya, Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep 18. then again in 1984 in the Gulf of Maine case, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Judgment) [1984] ICJ Rep 299–300, s 112. but refusing to take account of too an uncertain geological situation. In this latter case, the Chamber of the Court specified that each was a unicum delimitation. The law appeared increasingly uncertain and even arbitrary. The Court became aware of and progressively reversed its jurisprudence. In Libya/Malta, Continental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment) [1985] ICJ Rep 13. it took the 1985 equidistance line as the starting point of the delimitation of the continental shelf, then moved it northwards, having regard to the equitable principles to be applied in the case, the general configuration of the coasts and their different lengths. Then, in the case between Denmark and Norway regarding the maritime delimitation between Greenland and Jan Mayen, Maritime Delimitation in the Area between Greenland and Jan Mayen(Judgment) [1993] ICJ Rep 38. it unified the law of maritime delimitation, whether the continental shelf, territorial sea or the exclusive economic zone, in holding that in all these cases it was necessary to first draw the line of equidistance, then adjust it to take account of relevant factors related mainly to the coastline. Finally, it generalized this solution in 2001 in Bahrain/Qatar, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits) (Judgment) [2001] ICJ Rep 40, 111, s 230. and resumed it in the 2009 case of Romania/Ukraine. Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61. The solution adopted in 1969 was thus abandoned and the law of maritime delimitation was unified and specified. However, we observe that to do so, the Court did not explicitly reverse its jurisprudence. It proceeded by successive strokes without recognizing its original mistake. Some experts on the other hand argue that any expectation that the adoption by the World Court of the English method of precedent would give international law a more rigid and determinate character would almost certainly be doomed to disappointment. So long as international public law remains in its present vague and immature condition the judges of the ICJ would never adopt a system which would involve them in the immediate declaration of binding rules of international law which they could not subsequently modify. The stare decisis effect on the interpretation of a multilateral treaty is intriguing due to the fact that some member states may operate under civil law systems while others may operate under a common law system. Louis F. Del Duca, Review of Shahabuddeen Mohamed, Precedent in the World Court 81 AM. J. INT'LL. 465,466 (1987). Moreover while the court may be powerless, without embarking upon the hazardous course of judicial legislation, to effect changes in customary or conventional international law, it is not so hidebound in relation to its own previous decisions. In the international sphere, where no such legislative process is normally available, there is no room for rigid veneration of precedent. To that extent the emphatic language of article 59 of the Statute which limits the formal authority of the decision to the case actually before the court is not without usefulness or significance. Hersh Lauterpacht, The Development of International Law by the International Court, 17 Cambridge University Press, 1st edn., (2000). Subject to the overriding principle of res judicata, the court is free at any time to reconsider the substance of the law as embodied in a previous decision, which is either done by distinguishing or by showing that a similar position is not tenable. Mohamed Shahabuddeen, Precedent in the World Court, pp. 226 - 228, Cambridge University Press (1996). To give a concrete example, it cannot be asserted with any justifiable assurance that if the issue decided in the Lotus case - an issue which was determined by a court equally divided and whose purport has not yet met with general approval on the part either of various maritime states or of legal opinion - were to present itself before the court in any subsequent case, the court would feel itself precluded from considering it afresh on its merits. Conclusion and Opinion of Author The reference to article 59 of the Statue in article 38 Para 1(d) sounds like a warning: the Court is not bound by the common law rule of stare decisis, at the same time, this reference clearly encourages the Court to take into account its own case law of determining rules of law. The authors take the view that this practice by the ICJ can be described as the aspiration of actually rendering consistent judgments but does not wish to justify the applicability of the rule of stare decisis. The ICJ seeks to promote a custom based theory which seeks to reconcile the existing dichotomy between the propositions that the Court does not make law and that its case law reflects a welcome development of international law over time. If there is no jus scriptum, the generally accepted doctrine will replace it; because that is one of the means by which the legal consciousness expresses itself. The customary law theory recognizes that decisions of the Court may generate new law, but it can do so only through the processes through which customary international law is developed. In other words, custom serves as a source of law; custom is the jurisprudential basis for calling the Court's decision “law.” The Author however believes that the court’s practice - not enjoined in any absolute terms by the Statute - of invoking its own decisions is not only an instructive phenomena in the field of administration of international justice and jurisprudence generally. It has resulted over a prolonged period of years, in the formulation - or clarification - of an imposing body of rules of international law, resulting in the representation of varying degrees of crystallization. There are rules and principles which the court has had occasion to apply repeatedly, with the consequence that there has established itself a kind of fixed jurisprudence with regard to matters covered by them. The outcome of this general recognition of the persuasive force of judicial precedent has been the development of a comprehensive body of law which, in proportion to its intrinsic merit can be used not only as direct evidence of specific rules of law as understood by the Court, but also as indicative of the method and the spirit which the court may be counted upon to approach similar cases. This applies, in particular, to questions with regard to which the instruction to be derived from the activity of the court is due not only due to uniformity but also to hesitation and a measure of inconsistency - for, perhaps fortunately, these are not absent from its Judgments and Opinions when surveyed in their entirety. The Author also agree that even if international law is ultimately codified and an international legislative body established, it does not seem probable that the method of precedent in international law will ever go so far with the doctrine of stare decisis as the English method does. It also becomes necessary to reflect upon the difference between the voluntary and compulsory following of precedents. There is little risk that the freedom and independence of decision provided for in Art. 59 of its statute will lead to a confusion of conflicting decisions and a lack of continuity of judgment. A far greater risk of injustice would exist if the Court were compelled to follow its previous decisions in every case. This dual analysis clarifies a lesson: 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.