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.international jurispruden-the means used to deter- and show what the courts, national or international, have
mine the content and extent of the law created by treaties, accepted as international law. The customary side of inter-
customs, and general principles. As previously noted, it is national jurisprudence has, like the common law, largely
essential that they be distinguished from the latter in terms developed from case to case, and an increasing number of
of form and purpose. these cases have been submitted to international tribunals
6. Judicial decisions. No rule requires that judicial pre- or have come before the "municipal" courts of various
lcedent be followed in dealing with questions of interna- states.
4onal law. In other words, the principle of stare decisis (3) As noted, the decision of even an international
.does not apply to the International Court of Justice tribunal, such as the International Court of Justice, with
(I.C.J.), which is comprised of judges of many different respect to an international law question is binding, tech-
nationalities--a majority of them representing civil law nically, only on the parties to the dispute. 63 However, the
systems in which the principle, as such, is not recognized. decisions of such tribunals as the Permanent Court of Ar-
7A deeper reason for the inapplicability of any strict bitration, the Permanent Court of International Justice,
*doctrine of #ecedent to international legal decisions is, and the International Court of Justice do have a decided
however, th$+far more individual character of interna- impact on the international community. The opinions of
tional judicial decisions. To a much greater extent than in the latter two courts, if considered as mere evidence of the
'municipal law, where the great majority of decisions con- law, are almost conclusive evidence. Departures by the
>tern typical situations, such as contracts for property, each World Court from its prior holdings constitute an excep-
;dispute between states tends to have an individual tion to the general rule. 64 Thus, a considerable body of
character. Historical and political peculiarities and diplo- "case law" is developing and international tribunals are
matic actions often prevail over the generality of a legal giving more and more weight to their prior decisions.
principle. Moreover, the balance between various national 1-8. Municipal Courts. The decisions of municipal
outlooks and approaches is hardly ever the same in any courts on questions of international law are of great im-
60cases before the I.C.J., with its 15judges of as many portance as precedents to the judges, lawyers, and stu-
different nationalities. dents of the particular state of the court concerned. This is
(1) The strongly political character of many interna- true even in those states where the principle of stare
tional issues accounts for the relatively small number of decisis technically has no legal application. Normally, the
judicial decisions in comtemporary international law. decision of a national court on a question of international
Many issues that could be dealt with as legal matters, such law is binding in common law jurisdictions on the other
as the status of Berlin, Kashrnir, or the Suez Canel, are courts subject to judicial review by the court rendering the
handled on a political basis. Nevertheless, in the great ma- decision. Moreover, a fairly unanimous body of cases
jority of international cases, there are legal issues of abid- from various national courts will usually furnish compell-
ing significance, often intermingled with the particular ing criteria for the ascertainment of a "customary" rule of
facts and circumstances of the case but contributing to the international law. This is particularly true of courts in the
gradual development of legal principles. Because the inter- major countries. Such decisions are even more compelling
national community has no permanent legislative organs, when the decisions are against the interests of the country
and given the strongly individual characer of many inter- in which the court is sitting. The importance of the judicial
national disputes, each international decision tends to opinions of national courts as compared to international
have strong "law-making elements." Any decision by the tribunals should not be overlooked. Such decisions are
I.C.J. or other international tribunal on such matters as entitled to much weight in determining the law in areas
boundary disputes or territorial waters "makes" law. not decided by tribunals such as the I.C.J. As noted
This, then, is a further reason why it was necessary to above, the cumulative effort of uniform decisions of mu-
restrict the binding force of the judgments of the Court, as nicipal courts is the establishment of evidence of custom-
Article 59 does, to the individual case. Any other ap- ary norms of international law.
proach would tend to be resented as an indirect restriction 1-9. Text Writers. a. Because of the relative paucity and
of state sovereignty. 62 vagueness of international legal rules, the place of the
(2) Despite these restrictions and reservations, writer in international law has always been more impor-
however, the persuasive authority of judgments rendered tant than in municipal legal systems. The basic systemiza-
by the I.C.J. can be substantial. Judgments of the I.C.J.'s tion of international law is largely the work of publicists,
predecessor or, depending on the status of the arbitrators from Grotius and Gentili onwards. In many cases of first
as well as the weight of the issue and the reasoning in-
63. "The decision of the court has no binding force except between
volved, of international arbitral tribunals and international the parties and in respect of that particular case.'' Statute of The Internu-
commissions may also carry signif~cant weight. Decisions tional Court of Justrce, Art. 59. See also U.N. CharterArt. 94, para. 1,
of the courts play an important role in the development of which sets forth the established principle of international law that the
customary law. They help to form international custom decision of an international court is binding upon the parties.
64. H. Lauterpacht, Development of Internatronal Law by The Inter-
62. Friedmann, supra note 29, at 82-84. national Court 20 (1958).