Originally from: Precedent in International Arbitration

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The question whether and to what extent judicial decisions constitute a source of law and, therefore, a binding authority upon tribunals, is, as we all know, a difficult and controversial one.

There are competing sociological imperatives at play: the need for continuity of jurisprudence, which is to say stability in the rules of law, without which there can be no predictibility, weighs against the need for the evolution of such rules of law, responsive to an ever changing political, sociological, and economic climate. Permanence and stability serve certain purposes; flexibility and evolution serve others.

This dilemma, to which various domestic laws give different responses, is aggravated in the international context.

This observation is certainly true of inter-state jurisdictions. We are all aware of the Statute of the International Court of Justice’s cautious approach to recognising jurisprudence as a source of international law: according to the well-known Article 38, the Court shall apply “subject to the provisions of Article 59, judicial decisions . . . as subsidiary means for the determination of rules of law”—which establishes a double protection: not only are judicial decisions a “subsidiary” source of law, but, even within this limitation, they only rise to the level of source of law “subject to the provisions of Article 59.”