Environmental Engineering Reference
In-Depth Information
3.4.1 Stare Decisis and the ICJ
Art. 59 of the ICJ Statute stipulates that decisions of the ICJ do not have a binding
force except between the parties of the dispute. Most authors view this article of the
ICJ Statute as an example that there is no formal stare decisis doctrine within
international law.
117
In addition, most arbitral tribunals also confirm that there is no
doctrine of binding precedents.
118
Due to Art. 38 of the ICJ Statute, regulating
utilization of ICJ decisions as
subsidiary means for the determination of rules of
'
, practice reveals that the ICJ frequently relies on its precedent decisions.
119
However, Art. 38 and 59 of the ICJ Statue illustrate the difficulty to balance the
desire for consistent judicial decisions and the fear of losing state sovereignty.
120
Concerning its own precedents, the ICJ concluded that:
[T]here can be no question of holding (parties) 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.
121
Comparable to the ICJ, the WTO Appellate Body highlighted that:
law
'
[A]dopted panel reports are an important part of the GATT acquis. (
...
). They create
legitimate expectations among WTO Members, and, therefore, should be taken into
account where they are relevant to any dispute.
122
Since there is no comparable regulation like Art. 59 of the ICJ Statute within the
WTO Dispute Settlement Understanding (DSU), some authors must admit that a
stare decisis does exist in practice.
123
At the same time, practical application of
stare decisis is not rejected outright, as it may help to create a coherent judicial
framework instead of patchwork decisions.
124
Despite some arbitral tribunals
highlighting that they judge independently, they sometimes emphasize that pre-
cedents were helpful in reaching the correct decision.
125
117
Alvarez (
2003
), 405 (406-407); No binding precedents in international law, in: Brower
et al. (
2009
), 843 (851); Kaufmann-Kohler (
2007
), 357 (361); cf Sureda (
2009
), 830 (832).
118
Sureda (
2009
), 830 (834).
119
Commission (
2007
), 129 (134); Kaufmann-Kohler (
2007
), 357 (361).
120
Sureda (
2009
), 830 (832).
121
ICJ [1998] Land and Maritime Boundary between Cameroon and Nigeria—Preliminary Objec-
tions Judgment, 275 (292) para 28.
122
WTO Appellate Body [1998] WT/DS58/AB/RW, 30 para 108.
123
Bhala (
1999
), 845 (941-942).
124
Bhala (
1999
), 845 (955-956).
125
Sureda (
2009
), 830 (834).
