Investigation into the rule of stare decisis - it is clear that within International Law, tribunals largely agree on the basic foundation that there is no obligation within the Law to follow earlier prior decisions on the nature of what is known as Sta

Closely linked with the Customary international law sub-section of Article 31(1) is the General Principles of law. Manley Hudson stated that it: “...empowers the Court to go outside the field in which States have expressed their will to accept certain principles of law...and to draw upon principles common to various systems of municipal law or generally agreed upon among interpreters of municipal law.” General principles of law can be found in all legal systems. Their function is clearly to assist where written sources of law have failed to provide an answer. The European Court Of Justice (ECJ) has a large role to play in developing General Principles. Due to the function of general principles it is quite probable that, even without the existence of any specific Treaty provisions, the ECJ would apply general principles of law. General principles of law can be divided into three groups, these being, firstly; the economic pillars of the internal market, principles of administrative legality and due process and fundamental rights. However ‘Equality’ is an example of a general principle (of which there are a few) which can be applied to each category. The justification for having general principles of Law was referenced in three articles of the EC Treaty. Namely:

“Article 164 states that "The Court of Justice shall ensure that in the interpretation of the Treaty the law is observed". Since the word "law" was used in this Article, it was presumed that it had to refer to something of a more general application, beyond the Treaty itself.

Article 173 deals with judicial review and specifies the grounds upon which an annulment can be based. The first paragraph of the Article includes the words "... infringement of this Treaty, or of any rule of law relating to its application ..." Therefore, the phrase "any rule of law" must necessarily refer to something other than the Treaty itself. This Article has been used by the ECJ as a basis for the principle that an act of the EC may be quashed for the infringement of a general principle of law.

Article 215 (second paragraph) is concerned with non-contractual liability, or tort, and expressly provides that the liability of the Community is based on the "general principles common to the laws of the Member States."

As a side note the final source which makes up International Law will be discussed, this being ‘Treaties’ it is best summarised as being binding on the party. Upon signing an international agreement, the party agrees to bind itself in good faith to ensure that nothing is done which would go against the purpose of the treaty, pending a decision on endorsement.. Treaty could also be known as a Convention or a Protocol, amongst other things.

Now it must be focused on the main aspect of the question and whether the Judicial Decision in-fact does lead to a ‘De Facto’ rule of precedent emerging. Today’s Statute of the ICJ still holds the same standing as highlighted in the introduction. Nevertheless, they almost all rely on a ‘De Facto’ case-law whereby they rather faithfully tend to follow their earlier decisions, the ICJ in particular is reluctant to over-rule itself and for the majority of its decisions it follows the previous rulings set down. Other courts and tribunals have equally developed a fairly consistent case-law by stating that their previous rulings are not binding precedent but at least a persuasive authority. Other areas and courts under international law, other than the ICJ, have also been developing a consistent and sound body of law of the past few years. Lord Denning’s brief assertion that “international law knows no rule of Stare Decisis” is only a partial truth about the role of precedent in international dispute settlement. In addition to Lord Denning’s statement, Malcolm Shaw (Professor of International Law at the ), re-iterated his acceptance of this, but expanded it by coming to the conclusion that These authoritative decisions may not be binding precedents but they enjoy a highly persuasive authority which is hard to be disregarded. Now this all must be put into perspective with relating case law to strengthen the notion. One of the earliest cases in which such precedent and controversy arose was: Amco v. Indonesia In this case the court showed its support towards the lack of a binding precedent. It was stated by the committee involved in the case: “Neither the decisions of the International Court of Justice in the case of the Award of the King of Spain nor the Decision of the Klöckner ad hoc Committee are binding on this ad hoc Committee” the committee also went on to add that, although as already established, that the lack of a ‘Stare Decisis’ rule of law, it did not stop the committee from sharing the interpretation which had been reached in the previous cases. It is clear that within International law that it is not as simple as following past cases which set the precedent. Each individual case must be examined in respect to its individual circumstances. In the case of AES v Argentina it was stated: “There is so far no rule of precedent in general international law; nor is there any within the specific ICSID system for the settlement of disputes between one State party to the Convention and the National of another State Party.” Further emphasizing the unsure boundaries regarding the ‘De Facto’ rule of precedent, although contrasting to this comment, the court in the above mentioned case assured that there was a factual importance of the cases which had been tried previously. The Tribunal for AES further went on to expand this notion of importance by setting down numerous, rather detailed points on the matter. Should also be noted that when dealing with International Law, the cases tend to be rather different and have specific criteria as mentioned before, so on that note it can be a problematic situation to follow a previous precedent if it does not share the same characteristics. Possibly the best example for a ‘De facto’ nature emerging could be seen in the Gas Natural SDG, S.A. v. The Argentine Republic  from 2005. The tribunal in this individual case summed up how they came to the decision they did by stating: “... it has rendered its decision independently, without considering itself bound by any other judgments or arbitral awards. Having reached its conclusions, however, the Tribunal thought it useful to compare its conclusion with the conclusions reached in other recent arbitrations...” In Saipem S.p.A. v. The People’s Republic of Bangladesh the tribunal clarified the extreme importance for the courts to follow previous decisions to aid in coming to a conclusion for the present case, stopping short of a binding precedent: “The Tribunal considers that it is not bound by previous decisions. At the same time, it is of the opinion that it must pay due consideration to earlier decisions of international tribunals.”

As seen by the bulk of this essay, it is clear that within International Law, tribunals largely agree on the basic foundation that there is no obligation within the Law to follow earlier prior decisions on the nature of what is known as ‘Stare Decisis.’ Nontheless, there is a consistent tendency of tribunals to take into account previous decisions when rendering e current outcome. Thus leading to a kind of ‘De Facto’ case-law system when establishing Customary International law and the general Principles of Law. Tribunals routinely rely upon previous decisions and discuss them as justification for their current decisions. On a final note the positive element to previous decisions being used in ‘De Facto’ is that it allows the Law to progress further and further and become more efficient when analysing cases in the future.

Bibliography:

Hard Sources:

1. Dixon, Martin, and Robert McCorquodale. Cases and Materials on International Law (Paperback). Fourth ed.
2. Harris, D. J. Cases and Materials on International Law (Paperback). Sixth ed. Thomson.
3. Malanczuk, Peter. Akehurst's Modern Introduction to International Law (Paperback).
4. Slomanson, William R. Fundamental Perspectives On International Law. Fifth ed.
5. The American Journal of International Law,. One ed. Vol. 81.

Online Sources:

2. "Summary of Customary International law and jus cogens" International

Justice Project. 09 Jan. 2009 <http://www.internationaljusticeproject.org/juvJusCogens.cfm>.

3. 07 Jan. 2009 <http://topics.law.cornell.edu/wex/international_law>.
4. "Principles." Home Page. 06 Jan. 2009 <http://lawofwar.org/principles.htm>.
5. "Faculty: Prof. Malcolm Shaw." United Nations Treaty Collection/Collection des trait. 09 Jan. 2009 <http://untreaty.un.org/cod/avl/faculty/Shaw.html>.