Question

The countries of Novara and Elderia are in a dispute over the construction of a dam on the river Nelara – with Elderia bringing the case to the International Court of Justice (ICJ). Novara argues that past ICJ rulings in similar cases should guide the decision, while Elderia insists on a fresh interpretation of the law. Analyze how Articles 59, 38 and 38(1) of the Statute of ICJ would influence the court’s decision-making in this case.

Hint:

ICJ decisions are binding only between parties (Art. 59). Judicial decisions serve as subsidiary sources (Art. 38), allowing fresh legal interpretation in disputes.

Answer 1

The International Court of Justice (ICJ) bases its decisions on the provisions of its Statute. Articles 59, 38, and 38(1) play key roles in guiding how the ICJ resolves disputes such as between Novara and Elderia.
Article 59:
This article states that decisions of the ICJ are binding only between the parties involved in the case and only with respect to that particular dispute. It also clarifies that the Court's decisions do not have binding precedent effect on other cases.
Implication: While Novara wants the court to follow past rulings, Article 59 means that those previous decisions are not strictly binding precedent but may be considered as persuasive authority.
Article 38:
This is the primary article listing the sources of international law that the ICJ must apply when deciding cases. It includes treaties, international customs, general principles of law, judicial decisions, and teachings of the most qualified publicists.
Implication: The Court will apply established sources of international law, rather than being bound strictly by previous decisions.
Article 38(1):
It specifically enumerates the sources that the ICJ uses to decide cases:
(a) International conventions or treaties
(b) International custom as evidence of a general practice accepted as law
(c) General principles of law recognized by civilized nations
(d) Judicial decisions and teachings as subsidiary means for determination of rules of law
Implication: Judicial decisions (past ICJ rulings) are treated as subsidiary or supplementary means and are not binding law. The Court can interpret the law afresh by relying on treaties, customs, and principles, supported by prior judicial decisions.
Conclusion:
In the dispute, the ICJ will primarily apply relevant treaties, customs, and legal principles according to Article 38(1). Past rulings cited by Novara may guide the Court but are not binding due to Article 59. Elderia’s insistence on fresh interpretation is consistent with the ICJ’s role to apply law independently based on the case’s facts and applicable law.