Judicial Lawmaking: Understanding Articles

38(1)(d) and 59 of the Statute of the International

Court of Justice

Amos O Enabulele*

I. Introduction
The International Court of Justice (ICJ) is established under article 92 of the Charter
of the United Nations (‘UN Charter’) as a principal organ of the United Nations
(UN). The Court is established to perform two main functions. The first is to decide
disputes submitted to it by States which have accepted its jurisdiction in accordance
with international law – articles 34, 36 and 38(1). The second is to answer legal
questions submitted to it by a body authorised to do so under article 65 of the Statute
of the International Court of Justice (‘Statute’) and article 96 of the UN Charter.1
Importantly, under article 38(1) of its Statute the Court shall discharge these
functions in accordance with ‘international law’.
Article 38(1) itemises the ‘international law’ in accordance with which the Court
shall perform its functions. The article provides:
1. The Court, whose functions is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
(a) International conventions, whether general or particular, establishing rules
expressly recognised by the contesting states;
(b) International customs, as evidence of a general practice accepted as law;
(c) The general principles of law recognized by civilized nations;
(d) Subject to the provisions of article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations as subsidiary
means for the determination of rules of law.2
These provisions have been trailed by controversies. The main controversy
centres on article 38(1)(d). The controversial question has been whether judicial
decisions are a source of international law, in accordance with which the Court is
duty-bound to render decisions and opinions. The question is particularly
complicated by the incorporation of article 59 into article 38(1)(d). Article 59

* PhD (Brunel University, London), LLM, BL, Associate Professor, Department of

Jurisprudence and International Law, Faculty of Law, University of Benin, Nigeria;
Visiting Scholar, School of Law, University of Reading, United Kingdom.
1 It is important to point out from the outset that, though these are the functions expressly
given to the Court, they are by no means the only functions the Court performs. As an
undeniable corollary of its explicit functions, the Court also functions as a developer of
international law. This function has been widely acknowledged by both the Court and
legal scholars, though sometimes denied.
2 Statute of the International Court of Justice art 38(1).

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provides that ‘[t]he decision of the Court has no binding force except between the
parties and in respect of that particular case’.3
The importance of this question is emphasised in the role decisions of the ICJ
play in the emerging international judicial system. Its importance lies, not just in the
fact that judicial decisions reflects the practical application of the other items in
paragraphs (a)–(c), but also because of its norm-creating value. Indeed, it is safe to
assume that every practising lawyer goes to court with the understanding that cases
do not rest only on the written law but also (and most importantly) on the manner in
which a court applies the written law. This provides foresight on how a court would
most likely apply the law in future, given that principles previously adopted by a
court often control the outcome4 or constitute an ‘obstacle to the Court in choosing
reasons’ in a subsequent case’.5
It is pertinent to explain that this discussion does not draw any difference between
the contentious and advisory jurisdictions of the ICJ in seeking to understand the
value of judicial decisions. This is because the Court itself does not draw any
distinction between principles arising from either jurisdiction when applying its case
law. This is encouraged by the fact that article 68 of the Court’s Statute empowers it
to graft its contentious jurisdiction procedures into its advisory jurisdiction, ‘to the
extent to which it recognizes them to be applicable’.6 Besides, the Court has
persistently maintained that, though its advisory jurisdiction ‘represents its
participation in the activities of the Organization’, 7 it participates in the activities of
the organisation ‘as a court of justice’,8 and therefore bound to remain faithful to the
requirements of its judicial character.9
From the standpoint of the Court as reflected in its case law — arising from both
its contentious and advisory jurisdictions — the Court considers itself bound to
perform both functions judicially and in accordance with international law,
notwithstanding that a political undertone may sometimes colour questions
submitted to its advisory jurisdiction. It therefore follows that a consideration of the
approach of the Court towards its previous decisions should involve a consideration
of principles arising from both jurisdictions for the discussion to be complete.10

3 Ibid art 59.

4 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria)
(Preliminary Objections) [1998] ICJ Rep 275, 380 (Judge Koroma).
5 Barcelona Traction Light and Power Company Ltd (Belgium v Spain) (Preliminary
Objections) [1964] ICJ Rep 6, 69 (Judge Tanaka).
6 Statute of the International Court of Justice art 68.
7 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory
Opinion) (First Phase) [1970] ICJ Rep 65, 71.
8 Applicability of Article VI, Section 22, of the Convention on the Privileges and
Immunities of the United Nations (Advisory Opinion) [1989] ICJ Rep 177, 213 (Judge
Shahabuddeen).
9 Judgments of the Administrative Tribunal of the ILO upon Complaints Made Against the
UNESCO (Advisory Opinion) [1956] ICJ Rep 77, 84.
10 This is more so as there are instances of autonomous treaties permitting the court to
resolve contentious matters and render binding decisions in its advisory jurisdiction. See
Convention on the Privileges and Immunities of the United Nations, opened for signature
13 February 1946, 1 UNTS 15 (entered into force 17 September 1946) art VIII s 30;