Case Law of Courts and Tribunals

Judicial decisions are the first of two specific other sources specifically mentioned in Article
38 of the Statute as a subsidiary means of determining the content of international law norms.
There is a wide body of case law from international courts and tribunals that can be examined
not to mention the decisions of domestic courts on international matters, including the
identification of general principles of law accepted by civilized nations. In this sense, while
international tribunals do not normally follow the principle of stare decisis, previous judicial
decisions can nonetheless play a significantalbeit subsidiaryrole in developing the substance
of international law.
Teachings of Highly Qualified Publicists
The ICJ Statute specifically recognizes the teachings of the most highly qualified publicists of
the various nations as evidence of rules of law. In short, the writings of international law
academics and practitioners publicists in the language of the Statute can constitute
evidence of international law. In the United States, for instance, Supreme Court, as early as 1820,
indicated that the law of nations. . . may be ascertained by consulting the works of jurists,
writing professionally on public law. . . . United States v. Smith, 18 U.S. (5 Wheat.) 153, 16061 (1820). Such works are resorted to by judicial tribunals, not for the speculations of their
authors concerning what the law ought to be, but for trustworthy evidence of what the law really
is. The Paquete Habana, 175 U.S. at 699 (citing Ware v. Hylton, 3 U.S. (3 Dall.) 199, 226-27
(1796)).
Equitable Principles
Equity is often mentioned as a subsidiary source of international law. To be sure, equity and
fairness is a general principle of law recognized by all civilized legal systems, and would be
incorporated into international law by that avenue.
Many equitable principles have been vigorously employed in international dispute settlement.
One such concept is abuse of right, where an international actor is recognized as having the
freedom to engage in certain conduct, but is barred from pursuing a course of action in certain
circumstances or in a particular fashion.
Likewise, unjust enrichment has been used by international tribunals to give relief to an actor
disadvantaged by a transaction, even though no formal contractual relationship existed.
Finally, the World Court has invoked the doctrine of clean handsa party that seeks equity
must do equity. Thus, in the Diversion of Water from the River Meuse,35 the Permanent Court of
International Justice rejected mutual claims by The Netherlands and Belgium that each had
impermissibly altered the flow of their boundary waters as each had altered the flow of the river.

There are two important caveats to the application of equitable or fairness doctrines in
international law. The first is that equity does not mean reaching a result that is regarded as
balancedi.e., a judicial compromise. Such an outcome is the province of negotiation and
mediation and is not regarded as being a legitimate application of a legal approach to dispute
settlement.
In recognition of this, Article 38 of the ICJ Statute expressly bars the Court from deciding cases
ex aequo et bono (what is just and good) unless the parties expressly agree to that. Similarly,
equity does not mean equality. Despite strong efforts to fashion international law doctrines to
serve the ends of distributional and social justice, international tribunals are not supposed to
place judicial fingers on the scales in this fashion.
The Role of General Assembly Resolutions
There is no central legislature in international law, no World Parliament. While there is a growing
network of international institutions producing a body of international regulatory schemes, these
are all in the form of treaty regimes. Suggestions, therefore, that the resolutions of United
Nations (UN) bodies (particularly the General Assembly, where each nation has one vote)
constitute a binding source of international law are extravagant.
These intimations have been properly construed as an attempt to provide an easy way to make
international law rules, apart from custom and treaty and without states consent to be bound.
This is not to say, though, that the UN is powerless to make binding rules for its own operations.
The question, instead, is whether General Assembly resolutions, which are only
recommendations under Article 10 of the UN Charter, can make law.
One point that has often been made by commentators is that General Assembly resolutions,
precisely because they are recommendations, lack the necessary opinio juris for custom. This is
so even though states may repeatedly vote for a resolution and profess their support for the legal
rule it stands for. States, for example, overwhelmingly voted in the General Assembly for
resolutions condemning state-sponsored torture, yet (as such groups as Amnesty International
have reported) some of these same states actually engage in the torture of their own citizens.
Which do we prefer to believe: the professed position of the state, or the empirical evidence of its
actual conduct? In some instances, international lawyers and judges will take states words at
face value.
Learn More
International Law: A Handbook for Judges, David J. Bederman with Christopher J. Borgen and
David A. Martin, (2003)
David J. Bederman, The Spirit of International Law (2002)

Thomas M. Franck, Fairness in International Law and Institutions (1995)

Hersch Lauterpacht, The Development of International Law by the International Court (rep.
1982)
Mohamed Shahabuddeen, Precedent in the World Court (1996)
(This text has been from excerpted and adapted from International Law: A Handbook for Judges,
2003 American Society of International Law.)