Jurisprudence (Judicial Law-Making)

by

Jorge Antonio Quindimil López

• LAST REVIEWED: 24 July 2013
• LAST MODIFIED: 24 July 2013
• DOI: 10.1093/obo/9780199796953-0081

Introduction

Jurisprudence (used herein as a synonym for judicial law-making) is at the center of a perennial debate, almost secular, at the core of the sources of international law. Indeed, since its incorporation into Article 38 of the Statute of the Permanent Court of International Justice—added afterward to its correspondent in the Statute of the International Court of Justice—several scholarly theories are still open as to whether judicial decisions are or are not a source of international law. In other words, the debate is about whether international courts and tribunals can create international law or not, and hence, if they can fill up gaps in international law—non liquet. The intensity of this doctrinal debate increased markedly over the last half of the 20th century and during the 21st century alongside the proliferation of international jurisdictions. Its universal expansion in a growing number of subjects, such as its compulsory jurisdiction in certain regions, places jurisprudence in a position of particular strength, but it also appears quite destructive to those who fear for the unity of international law. Beyond this irresolvable debate, opinions turn unanimous, although variable in intensity, to stress the important contributions made by jurisprudence in both the formation and the development of international law. In fact, on one hand, jurisprudence contributes to the creation and development of international custom, because continuous and constant repetition of acts may constitute the material element of the creative process of a customary rule. On the other hand, it has influenced the development of concepts such as jus cogens, obligations erga omnes, and international crimes. However, the authority or influence of jurisprudence in international law is deeply bounded by state consent. Jurisprudence is a concept with many ramifications, which could lead us from the general theory of sources of international law, to the role of international judge, to the proliferation of jurisdictions or to the debate on the unity and fragmentation of jurisdictions. All the above requires the hard work of conceptual definition and bibliographic selection in order not to get lost in these other key issues, which, however, will be inevitably alluded to the extent necessary for the purpose of the work.

General Overviews

In the absence of any treatise on international jurisprudence, the best references to achieve a general approach to the matter are those addressing its main aspects as comprehensively as possible. From the general study dealing with the international judgment, El Ouali 1984, to complete, wide-ranging works on judicial precedents such as Shahabuddeen 1996 or Guillaume 2011, as well as Siorat 1958 about lacunae and judicial function, all of these constitute basic references, as do Oellers-Frahm 2011, on law-making by advisory opinions, and Ortega Carcelén 1988, about the theories on the position of jurisprudence among the sources of international law. Nevertheless, the classical studies in this area are Lauterpacht 1958 and Schwarzenberger 1945.

• El Ouali, Abdelhamid. Effets juridiques de la sentence internationale: contribution à l’etude de l’exécution des normes internationales. Paris: Librairie générale de droit et de jurisprudence, 1984.

  On the assumption that jurisprudence is integrated by a plurality of jurisdictional acts, this professor of the University of Casablanca analyzes the juridical nature and effectiveness of international judicial decisions as individual acts.

• Guillaume, Gilbert. “The Use of Precedent by International Judges and Arbitrators.” Journal of International Dispute Settlement 2.1 (2011): 5–23.

  DOI: 10.1093/jnlids/idq025

  The French member of the Institut de droit international, and former president of the International Court of Justice, makes a complete overview of the use of precedents both in international judicial and arbitral tribunals. Available online for purchase or by subscription.

• Lauterpacht, Hersch. The Development of International Law by the International Court. London: Stevens, 1958.

  This classic book of worldwide popularity is the second edition of the 1934 work The Development of International Law by the Permanent Court of International Justice. While the work has five parts, Part Three, titled “Judicial Legislation” and discussing the issue over more than seventy pages, is especially relevant for our purpose.

• Oellers-Frahm, Karin. “Lawmaking through Advisory Opinions?” German Law Journal 12 (2011): 1033–1055.

  This complete article offers, on one hand, a general overview of the different international tribunals, courts, and international institutions endowed with advisory competence and, on the other hand, explores their specific contributions to the international judicial law-making process.

• Ortega Carcelén, Martín. “Análisis del valor de la jurisprudencia en el derecho internacional.” Revista Española de Derecho Internacional 40.2 (1988): 55–87.

  One of the most complete, analytical works dealing with the principal theories and authors around the discussion about whether judicial decisions are a source of international law or not.

• Schwarzenberger, Georg. International Law. Vol. 1, International Law as Applied by International Courts and Tribunals. London: Stevens, 1945.

  The first part of this classical, three-volume work is dedicated by this relevant British jurist to giving a complete, systematic survey of international jurisprudence in its more than 600 pages, 25 of which are dedicated to useful tables of cases and treaties.

• Shahabuddeen, Mohamed. Precedent in the World Court. Cambridge, UK: Cambridge University Press, 1996

  DOI: 10.1017/CBO9780511720840

  This is an essential book from the eminent jurist from Guyana, a former judge of the International Court of Justice, the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda as well as a member of the Permanent Court of Arbitration since 1998.

• Siorat, Lucien. Le problème des lacunes en droit international: Contribution à l´étude des sources du droit et de la fonction judiciaire. Paris: Librairie générale de droit et de jurisprudence, 1958.

  This book is a classical dealing with an ancient problem of international law, namely, the lacunae and the question of non liquet. The French author dedicates two of the three parts of the book to the competence and methods of international judges to rule on both questions through decisions.