About The Survey
Historically, 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. 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 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. 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’. The text of Article 38 of the Statute adopted by the
Committee reflected these concerns.
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. In developing its jurisprudence, the Court may refer to its precedent, but it has no binding character. The rule of stare decisis is ruled out. The Court takes full account of its previous decisions in its judgments. 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’. This jurisprudence was taken up by the International Court of Justice, and it has solemnly confirmed it has no obligation to follow its precedent. Yet the Court refers to itself frequently to ensure ‘consistency of jurisprudence’. It sometimes does this by simply insisting on its ‘settled jurisprudence’ (jurisprudence constante) and sometimes by mentioning judgments previously rendered. In the above background Indian Society for Legal Research aims to find out the patterns and weightage given by PCIJ and ICJ to its previous decision.
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