The Judiciary, International and National, And the Development of International Law

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The Judiciary, International and National, and the Development of InternationalLaw

R. Y. Jennings

International and Comparative Law Quarterly / Volume 45 / Issue 01 / January 1996, pp 1 - 12DOI: 10.1017/S0020589300058632, Published online: 17 January 2008

Link to this article: http://journals.cambridge.org/abstract_S0020589300058632

How to cite this article:R. Y. Jennings (1996). The Judiciary, International and National, and the Development of International Law. International andComparative Law Quarterly, 45, pp 1-12 doi:10.1017/S0020589300058632

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2 International and Com parative Law Quarterly [VOL. 45

probably the best documented public institution in the world andHudson's own splendidly comprehensive and convenient World CourtReports.

So it was clearly the municipal courts part of the Digest which in itsquality and quantity exceeded even the editors' sanguine expectations.One of them, Hersch Lauterpacht, had already examined municipal law inhis 1927 Private Law Sources and Analogies of International Law. But thisis a very different matter from the municipal courts ' decisions, directly onquestions of public international law; and Hersch Lauterpacht produced aseminal article in the British Year Book for 19292 which clearly reflected

the Digest experience, significantly entitled Decisions of MunicipalCourts as a Source of International Law ; and in which he refers to theoth er e ditor 's 4th edition of Oppenheim as a textbook in which copiousreference to case law will be found . Lauterpacht in his article is able tosay that there is, apart from judgm ents of prize courts, hardly a branch ofinternational law which has not received judicial treatment at the hands ofmunicipal tribunals . At first sight this looks a surprisingly large claim.There are parts of international law which one would expect to findtreated even primarily by municipal courts: sovereign immunity, diplo-

matic privileges, piracy and of course prize. B ut the copious references tomunicipal decisions found in the body of the article show that Lauter-pacht's broad generalisation is no exaggeration. One remembers, too, thatthe argum ent in the Lotus case3 before the Permanent C ourt contains sev-eral references to municipal decisions in collision cases; and the judgmentof the Court relies on some of these cases, including the great English casethe Franconia

Two further matters in this extremely important article by Lauterpacht

are to be m entioned: first

here is towards the end of it a penetrating dis-cussion of municipal court decisions as a source of customary inter-national law; in this connection it is interesting to note that Professor KarlZem anek, in a recent article,5 points out that domestic courts may play arole in transform ing codification conventions and oth er multilateral law-making trea ties into customary law by applying them in non-party S tates.Thus, it has been argued that the U nited States should ratify the V iennaConvention on the Law of Treaties (V CL T) since US courts were alreadytreating its conten t as customary law.

Second, in his article Lauterpacht suggests that it might be made poss-ible for municipal courts to refer to the Perm anent C ourt of InternationalJustice for an opinion on difficult o r unsettled questions of international

2. Vol .X, pp.65-95.3. France v. Turkey, P C IJ Rep . Ser.A, N o. 10.4 . R v . Keyn (1876) 2 Ex. Div. 63 .20 2.5. Festschrift fur Rud olfBemh ardt (1995), pp.28 9-306, at p 294 (notes om itted).


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JANUARY 1996] The Judiciary and International Law 3

law which do not involve national interests : and the article even containsthe suggestion that eventually this might evolve into a right of appeal. This

idea has had a number of resurrections in recent years in relation to theInterna tional Court of Justice and treated as a rather daring suggestion. Itis interesting that Lauterpacht's imagination was equal to making it evenas early as 1929. In the important final sentence, he says of this suggestionfor references from municipal courts to the world court: But it is believedthat such an innovation would bring into relief the deep significance of thefact that international law is the only branch of law containing identicalrules administered as such by the courts of all nations. Thus Lauter-pacht's own thinking about municipal law and courts had undergone achange of direction: instead of thinking of municipal decisions as a sourceby analogy for the developm ent of international law, those decisions havebecome a direct source of international law; a source, moreover, of bothcustom and of the interpretation of treaties. For many multilateral andlaw-making treaties fall continually to be interpreted and applied bymunicipal courts. Indeed, to echo again Lauterpacht's own words, hardlya branch of international law escapes from this processing by municipalcourts. A review of the first volume of the Annual Digest by A.P.F.6 notes

about these reported municipal law cases: Speaking broadly, and subjectto certain notable exceptions, it is the consistency of decisions, bothnational and international, ra ther than conflicts or contradictions that im-presses one, and this emphasises the value and assistance that are to bederived from municipal decisions in elucidating the principles of inter-national law.

Perhaps this is the point w here, having spoken of municipal decisions asa direct source of international law, I should explain that I ha ve not forgot-ten that Article 38 of the Hague Court's Statute speaks of judicialdecisions as a subsidiary means for the determ ination of rules of law .This provision I understand as a necessary recognition that judges,whether national or international, are not empowered to make new laws.Of course we all know tha t interpretation does, and indeed should, have acreative element in adapting rules to new situations and needs, and there -fore also in developing it even to an extent that might be regarded aschanging it. Nevertheless, the principle that judges are not empowered tomake new law is a basic principle of the process of adjudication. Any

modification and developm ent must be seen to be within the param etersof permissible interpretation . For otherwise the judges lose their one ulti-mate source of authority. Litigating parties do not resort to judges becausethey are wise or statesmanlikevery often they are manifestly neitherbut because they know the law. A ccordingly, I see the language of A rticle38 as essential in principle and see no great difficulty in seeing a subsidiary

6. Fachiri (1930) XI B.Y.I.L. 244.
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means for the determ ination of rules of law as being a source of the law,not m erely by analogy but directly.

What we have been examining thus far is the place of municipal judicialdecision on questions of international law, mainly as it was seen by HerschLau terpacht in 1929 as a result in no small measure of his participation inthe great experimen t of creating the Annual Digest. What then is the pos-ition today? For in the meantime there has developed a very great deal ofnew international law of the kindespecially multilateral law-makingtreatieswhich looks even primarily to its being interpre ted and appliedby municipal courts. There was always a part of international law which,since it was directly concerned with individuals, had to be recognised,applied and enforced by municipal courts. The rules of internationa l lawabout the position of accredited diplomats, or visiting heads of State , needby definition to be known and respected by the local cou rts.

Today the examples of rules of international law which require to belikewise know n and applied by the local courts are legion: to m ention onlya few very familiar examples, there is much of the law of human rights, agreat deal of the rules concerning the environment and conservation ofresources, much of air law, space law, and maritime law; including navi-

gation, the extent of maritime territory and of jurisdiction beyond terri-tory; fishing; the resources of the continental shelf; much of the law abouttaxation and about foreign investment; governmental and non-governmental organisations (think of the massive litigation in variousfora, including municipal courts, resulting from the demise of the TinCouncil, or the relations of the Arab Organisation for Industrialisationand Westland Helicopters). In fact the place of international law inmunicipal cou rt cases amounts today to a quiet and often unno ticed revol-ution in the nature and content of international law. It means that thestrictly dualistic view of the relationship between international law andmunicipal law is becoming less serviceable and the old well-definedboundaries between public international law, private international lawand municipal law are no longer boundaries but grey areas. By way ofillustration one need only mention tha t large and thriving new grey area oflitigation which goes under the tag of commercial a rbitration.

It is true that the change in the nature of international law and of itsrelationship with municipal law is not always sufficiently apparent to

either interna tional or municipal judges. This is partly because so much ofthis interna tional law is transformed into municipal statute and its inter-national character is not always apparent.

It should also be mentioned here that the Internationa l C ourt of Justiceis largely insulated from this new and very impo rtant kind of internationallaw, at any ra te in its contentious jurisdiction, in consequence of A rticle34.1 of its Sta tute by which only States may be partie s before the Court;


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this, we may remind ourselves, is a provision dating from the internationallaw of 1920.

II. INTERNATIONAL T R I B U N A L S

I we now turn away from the municipal court decisions, we also find at thepresent time big changes in the international tribunals applying inter-national law; that is, their sheer num ber and variety. A glance at many ofthe recent volumes of the International Law Reports strikingly demon-strates the contem porary phenomenon of the proliferation of such inter-national tribunals applying international law, but there are many that donot appear in the International Law Reports. T here are all the administrat-

ive tribunals; the human rights courts; probably eventually the new Law ofthe Sea Tribunal; the ad hoc international criminal law tribunals; the pro-posed permanent one; the regional tribunals of various kinds, such as theBadinter Com mission; the Iran-U S Tribunal at The Hague; the very largenumber of ad hoc arbitration tribunals, both international and mixed; thenew trade organisation tribunals; and very many others. But how manyothers? And what do they all do? And where do they sit? It is not easy tofind out.

There is no kind of structured relationship between most of them.There is not even the semblance of any kind of hierarchy or system. Theyhave appeared as need or desire or ambitions promoted yet another one.In this particu lar respect, contemporary international law is just a dis-ordered medley. Suffice it to say that it is very difficult to try to make anysort of pattern, much less a structured relationship, of this mass of tri-bunals, whether important or petty. It is sometimes difficult to find outwhat is going on, much less to study it.

As Professor Thierry, discussing this proliferation of tribunals, hasrecently put it: each of them has the opinion that it is specific and thus,that it has its own problems . This is well illustrated by a recent decision ofthe Strasbourg Court of Human Rights in a case against Turkey,7 whichhad accepted the jurisdiction of the Court only subject to a reservationconcerning happenings in the Turkish-controlled part of Cyprus. Theclause of the Protocol providing for declarations of acceptance of jurisdic-tion was modelled almost verbatim on the optional clause (Article 36.2)of the Statute of the International C ourt of Justice. It has been argued that

the decisions of the Permanent Court of International Justice and of theInternational C ourt of Justice on the meaning of this clause, and of reser-vations to it, were at least cogent precedents. The Court would have noneof this, holding that the Turkish reservation was not permissible in la w andthat the World Court precedents were inapposite to the wholly differentStrasbourg Court, which had different purposes and functions. I feel

7. Loiiidou v. Turkey Ser .A, No.310 (23 Mar. 1995).


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bound to say that I find this insistence on separateness disturbing; andwonder w hether this is what the parties to the treaty intended when they

took over the wording of the International C ourt of Justice Statute . In anyevent, this decision adds a whole new dimension to the art of distinguish-ing. These tendencies to fragmentation in international adjudicationthreaten to give an ironic modern twist to McNair's belief that there ismore international law in existence than this world dream s o f .

III. P R E C E D E N T

THE International Law Reports are an influential addition to the li teratureof international law. But they must also be considered in their role as a

source of precedent. This is not at all the same thing, even though Article38 of the Sta tute of the International Court of Justice trea ts writings andjudicial decisions as it were in the same breath. Somewhere Pound, dis-cussing the way in which the French law of Louisiana became neverthelessa case law system, remarks that this always happens w hen you have lawreports.

As soon as one mentions the question of precedent in the World C ourtthere will be murmurs about the old, but readily rejuvenated, debate

about the meaning of Article 59 of the Co urt's Statute; and w hether it wasintended to prevent any system of binding precedent besides referring asit obviously must to the dispositifof a decision as res judicata . (In speakingof the dispositify/e are already using language that is unknown to the com-mon lawyer.) But I cannot conceive that the classical debate about Article59 has very great practical significance, for as far as I know nobody hasever seriously suggested that there ought to be, or indeed could b e, a sys-tem of binding precedent in the World Court.

Article 59 has, of course, been dealt with by Judge Shahabuddeen in acharacteristically thorough, penetrating and elegant manner;8 but he hasone observation which is so deliriously final that I feel I must share it withyou. H e points out that, despite the Cour t's practice, Article 38, paragraph(l)(d ) of the Statute refers to judicial decisions in general and unquali-fied terms. This must include decisions of tribunals othe r than the Inter-national Court of Justice. It is equally clear that the provisions of Article59 relate only to the International C ourt of Justice. Now if the purpose ofArticle 59 were to prevent decisions of the Court from exerting pre-

cedential effect with binding force , it would follow that the decisions ofothe r courts and tribunals presumably stand on higher ground, not beingcaught by the A rticle 59 limitation. Th e consequence of this is so improb-able as to suggest that the interpretation on which it rests cannot becorrect.

8. In his recent Lauterpacht Memorial Lectures, shortly to be pub lished by CambridgeUniversity Press.


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The main point I want to make about the language of Article 59 is, how-ever, a different one. There is indeed an element of ambiguity. It is easyenough, and indeed important, to distinguish in theory between the resjudicata and the precedent; it is not always so easy to do so in a particularcase. There is often a grey area where choices have to be madeand thisgrey area is more extensive, given a system of consensual jurisdictionwhich nevertheless has imposed upon it a possibility of third-party inter-vention, and in Article 63, a right of intervention; and given also that incontemporary international relations it will be more and more commonfor a third State to find that it has indeed an interest of a legal na ture

which may be affected by the decision in a case between other States.It is perhaps unfortunate that this question has come to revolve round

the Monetary Gold case,9 which arose from a third State omitting to inter-vene. I still think, though I seem to be lonely in this position, that PresidentSir Arnold McNair, in his very short declaration, said all that needed to besaid in relation to the facts of that particular case:10

Th e Court is asked to adjudicate upon an Italian claim against A lbania aris-ing out of an Albanian law of January 13th, 194S. Albania is therefore an

essential respondent. But these proceedings are not brought against Alba-nia, nor does the Application nam e Albania as a respondent, although thereis nothing in the Washington Statement which could preclude the ItalianGove rnm ent from making Albania a respondent. I cannot see how State A ,desiring the Court to adjudicate upon its claim against State B, can validlyseize the Court of that Claim unless it makes State B a respondent to theproceedinghowever many other States may be respondents.

We must, however, resist the temptation to divert into this fascinatingand very important legal problem of third-party intervention, or non-intervention; except perhaps just to mention that the decision of theChamber in the El Salvador/Honduras: Nicaragua intervening case hasloosened things up considerably in discovering the possibility of a newkind of partial intervention where the intervener is not a non-party; whichdevice mitigates the jurisdictional link problem , though at the expense ofthe application to the intervener of Article 59.

But whatever solution is employed to solve the problemwhetherallowing intervention, of developing a new kind of intervention, or as inthe Libya Malta case,12 refusing intervention yet paring off large parts ofthe main case for non-decision and thus allowing to the would-be inter-vener more than it would have dared to hope for if it had been perm itted tointervene there is usually involved some compromise of the pure con-

9. I .CJ. Rep. 1954,19.10. Idem, p.35.11. I .CJ. Rep. 1992,351.12. I.C J. R ep. 1985 , p.13, paras.21 ff; see also Judge Schweb el at pp.172 ff.


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sensual p rinciple of jurisdiction. There is a valuable gene ralisation of thispoint, in Professor Ge org es Abi-Saab's reflections on the evo lution of theInternational Cou rt. H e points to the tend enc y of the Court from thebeginn ing to m ov e to its own institutionalisation by affirming its auto n-om y vis-a-vis the parties in the way it works and in its procedure ofdecision. This he very rightly says is the crucial difference of the Courtfrom arbitration, which depends upon a mandate from the parties; andwh ere , for exam ple, third-party interven tion is not con ceiva ble w ithout anew agreement and a new mandate.

There is another aspect of this subtle and elusive relationship between

the resjudicata and the precedent which becom es apparent as soo n as on ebegins to ask to what extent judicial decisions are properly speakingsources of international law. Here one immediately turns to that magis-terial treatmen t by Fitzmaurice hidd en aw ay in the Festschrift for Verzijl. 14

There Fitzmaurice illustrates the problem from the Anglo-NorwegianFisheries case.15 Of course the decision of the Court in the dispositif is only binding on the parties to the dispu te, and binding on them only forthe purp oses of the particular dispute . Furtherm ore, no othe r country isboun d by the decision . This, says Fitzm aurice, is technically correct, butis it true as a practical reality? H e give s the answer to his own question:16

In practice, it is obvious that neither the United Kingdom nor any othercountry could now successfully contest the general principle of straightbase-lines, at any rate in any legal proceedings, even (in all probability)before a tribunal other than the International Court.

Certainly, the process by which this result has be en brought about ow essom ething to practice and general opinion as well as to the judgm ent of the

Cou rt. But there is no gainsaying the practical authority and po we r of thatprec eden t of the International Court. It wo uld b e wro ng, of cou rse, to tryto treat all judgments, even of the International Court, as being of equalauthority. It dep end s upon a num ber of factors; and on e is that on e m ustlook to see how they wear in later practice.

It is interesting to note again that the provisions of the Statute of theInternational Court of Justice are singularly unhelpful in the matter ofexploring that shadow y area betw een precede nt and resjudicata. For bothArticle 3 8 (l )( d ) and Article 59 use the sam e word, decisions ; and it isprecisely that word that is responsible for the am biguity of A rticle 59. (Foron ce, the French version does not help.) A s to A rticle 3 8 (l) (d ), it is diffi-

13 . De I'Evolution de la Cour (1992) 96 R.G .D.l.P. 273.14. Som e Problems Regarding the Formal Sourc es of International Law , in Symbolae

Verzijl PrisenUes au Professeur J. H. W. Verzijl Voccasion de son LXXiime Anniversaire(1958), pp. 153-176.

15. I .CJ. Rep. 1951,116.16. Op. til supra n.14, at p. 170.


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cult not to agree w ith Fitzm aurice, who says that it errs in placing judicialdec isions on the sam e footing as the teachings of the m ost highly qualifiedpublicists .

The judgm ents of the International Court of Justice accept this distinc-tion b etw een writings and judicial decision s; for there is a strong draftingconvention that publicists, however eminent, are not cited at all in theCourt's judg m ents or advisory opinions. (They are, of cou rse, frequentlycited in separate opinions.) The main reason for this convention is, onesuspec ts, not so m uch based upon any principle concerning a source of lawbut, rather, to avoid invidious distinctions between publicists cited andpublicists not cited .

Fitzmaurice, how eve r, in a well-known passage in his article on sourc es,m akes another d istinction be twee n writings and decisions:' 7

When an advocate before an international tribunal cites juridical opinion,he does so because it supports his argument, or for its illustrative value, orbecause it contains a particularly felicitous or apposite statement of thepoint involved, and so on. W hen he cites an arbitral or judicial decision hedoes so for these reasons also, but there is a differencefor, additionally, hecites it as something which the tribunal cannot ignore, which it is bound totake into consideration and (by implication) which it ought to follow unlessthe decision can be shown to have been clearly wrong, or distinguishablefrom the extant case, or in some way legally or factually inapplicable.

There are two w ays of referring to a previous judgment: as w ith juridicalopinion it can be used in order to quote a passage which seems to putsom ethin g rather well; but this is quite different from citing the decision assomething having those other qualities which make up a precedent. It isimportant to be able to distinguish these two com pletely different uses ofreported c ases; for ev en a casual acquaintance with alm ost any judgm entof the International Court of Justice will reveal that the Court itself usesreported cases in bo th thes e different w ays. H ow then are we to identifythis precedential decision from mere felicitous drafting?

Here I suggest that international law has som ething to learn from thecommon law. And in common law terms, the question we are posing ishow to establish the ratio decidendi of a case and distinguish it from obiterdicta? This may seem a bold suggestion because the international lawbooks hardly if at all mention the term ratio decidendi; though I am

reminded by Judg e Shaha bu dd een's lectures that m yself did use the termin my dissenting opinion in the 1987 case about a Review of Judgm entNo.333 of UN AT;I8 wh en I drew what I still regard as a useful distinc tionbetween the ratio decidendi and many different ideas that are highlyadumbrated but not pursued . In any event, international lawyers talk

17. Idem.p.m.18. I.CJ. Rep. 1987,65-66.


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about an obiter dictum; and that implies the existence in international lawdecisions of something that the common lawyer calls the ratio decidendi.In fact I fail to see how you can have the one w ithout the other.

The m aking of this distinction seems to me to be no more than a ques-tion of p roper intellectual discipline in the use of precedent. For it must besaid that the Court's judgments are not above sometimes citing passagesfrom previous judgments almost as if any pronouncemen t by the Courtmay be cited, not because it embodies the decision in the case but becauseit is a passage tha t has become hallowed into som ething akin to Holy Writ.Let me give you an example which any international lawyer must comeacross.

In the jurisdiction phase of the Mavrommatis Concessions ca se in1924, the following astonishing, but constantly cited phrase occurs: Adispute is a disagreement on a point of law or fact, a conflict of legal viewsor of interests between two persons. Read ing this curious pronounce-ment one sees immediately tha t a dispute is not at all the same thing as adisagreement and also that a dispute can be between more than two per-sons. There is no need to pursue the criticism, however, for ProfessorMorelli20 and, more recently, Professor Cassese21 have done that mostthoroughly. Yet th e C ourt cites this passage still, the most recent examplebeing the judgment in the East Timor case;22 though here significantlybowdlerised to avoid the reference to two parties.

Now why is this unfortunate passage so much cited? Surely not becauseit represented the decision in the case. The issue in that case was whetherthe dispu te regarding the interests of Mr Mavrom matis constituted a dis-pute between the Mandatory and another member of the League ofNations; and whether, if so, it was a dispute th at could be settled by nego-tiation. No one had any doubt that there was indeed a dispute; or about

what a dispute was. In short that definition of a disp ute is an obiter dic-tum. It can hardly be cited, on the othe r hand , for be ing particularly felici-tous or apposite; at least not after Morelli finished with it. I believe it ismuch cited just because it makes for the draftsman an easy initial run in forintroducing any argument about disputes.

How then do we set about finding the true decision, the precedent, theprinciple of decision in a case? It is clearly not the same as the dispositiffor the d ispositif ought not to include argum ent, though argum ent some-times erroneously creeps in. This purity of the dispositiffrom argumentreflects the like purity required of the p art ies ' submissions, which accord-ing to Article SO of the Court's Rules, should be set out distinctly from the

19. P.C.IJ.Ser.A,No.2,p.ll .20. See his dissenting opinion in South West Africa Preliminary Objections) I .CJ. Rep.

1962,560 etseq.21 . Essays in Honour of Professor M orelli (1975), p.179.22. I.CJ. Rep. 1995, p.90 at p.99.


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arguments presented ; though again this requirement seems sometimesnot to be noticed by parties.

So the ratio decidendi will com prehend the decision in the dispositifbut also the determinative argument which led to tha t decision.

Perh aps the handiest definition is the one by Cross and Harris, that itmeans any rule of law expressly or impliedly treated by the judge as anecessary step in reaching his conclusion .23 Of course , it may well be thata sentence of a judgm ent may indeed digest a determining principle of thecase. One finds an excellent and famous example in that same M avrom-matis Concessions judgment:24

By taking up the case of one of its subjects and by resorting to diplomaticaction or international judicial proceedings on his behalf a State is in realityasserting its own i g h t s i ts ri ht o ensure, in the person or its subjects,respect for the rules of international law.

I offer these ideas on the im portance of scientific discipline in the treat-ment of international precedents with diffidence because authorities whomust command respect have felt that the idea of finding the ratio decidendiof a decision has no place in the international sphere. No less an authoritythan Anzilotti, dissenting in the Chorzow Factory case, is quoted by JudgeShahabuddeen as coming near to that in the passage of Anzilotti's opin-ion where he rejects any attempt to distinguish between essential andnon-essential grounds, a more or less arbitrary distinction which rests onno solid basis and which can be regarded as an inaccurate way of express-ing the different degree of importance which the various grounds of ajudgment may possess for the interpretation of its operative part .25 B utwith great respect, this has little to do with precedent. Th e question in thatcase was, what was the binding pa rt of a judgm ent for the purposes ofArticle 6 of the Statute , where there has been a dispute between the par-ties over the meaning of the binding part . In fact it was concerned withArticle 59 and the res judica ta. And yet we have already noticed that thatdistinction is sometimes a shadowy one.26

Judge Shahabuddeen also cites Hersch Lauterpacht: It is not con-ducive to clarity to apply to the work of the Court the supposedly rigiddelimitation between obiter dicta and ratio decidendi applicable to a legalsystem based on the strict doctrine of precedent.27

23. Cross and Harris, P recedent in E nglish Law (4th edn, 1991), p.178.24. Supra n .19, at p . 12.25. P. C . I J . S e r. A , N o . l 3 ,p . 2 3 .26. Judge Shah abud deen also cites the PCIJ in Postal Services to Danzig Ser.B, No .l 1,

pp.29-30: It is certain that the reasons con taine d in a decisio n, at least in so far as they gobeyond the scop e of the operative part, have no binding force as bet we en the Parties con-cerned. But are any reasons binding on th e parties as res judicata in the sense of Art.59?

27 . Lauterpacht, The Development of International Law by the International Court (2ndedn, 1958), p.61.


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Bu t strictness is a matter not of a difference in kind but of d egr ee, and Ido not understand why a technique found essential in a system of strict

preced ent sho uld thereb y be disqualified from assisting in a less strict sys-tem; indeed, I would have supposed it even more useful in a systemfounded on the idea of a jurisprudence, which I take is a system that loo ksfor a run of like decision s. Yet, Am bassad or R osen ne also thinks there isno place for the d istinction in international law. So ther e is indeed formi-dable authority for that view.

Bu t Hersch Lauterpacht had a quite particular view of the prop er sco peof the pron oun cem ents of international tribunals when h e said that there

are com pelling consid erations of international justice and of the d ev elo p-m ent of international law which favour a full m easure of exhau stivene ss ofjudicial pronouncements of international tribunals . 28 This passage, asyou w ill rem em ber , was cited with approval by Judge Jessu p in the op en -ing paragraph o f his separate o pinion in the Barcelona Traction case.24 Ofmore direct interest to us here, however, is that, in the same case, thatsame passage from Lauterpacht was used by Fitzmaurice in his separateopin ion, as the reason, one might almost say the exc use , for the view thatit is incumbent on international tribunals to bear in mind this consider-

ation , which places th em in a different position from d om estic tribunals asregards dealing with or at least com m enting on points that lie outsidethe strict ratio decidendi of the case . In the same paragraph, ho we ver , hesays, of his ow n opin ion, these com m ents can only be in the nature ofobiter dicta, and cann ot have the authority of a judgm ent . 30 This state-men t do es, therefore, give very high authority for the pro pos ition that thedistinction between res judicata and obiter dicta is applicable to inter-national judgments; and if judges are indeed supposed by some author-

ities to be m orally oblige d to write mono graph s rather than op inion s, thisdistinction had better be kept well honed . Never theles s, an obiter opinioncan of course be valuable and important even though not part of theprecedent.

Bu t when ever jud ges or publicists talk abou t obiter dicta the point of thedistinction from the ratio decidendi is con ced ed by imp lication. So in spiteof the weight of contrary opinio n, remain unrepentant in my b elief that aproper intellectual discipline in the use of international d ecision s as prece-dents cannot avoid endeavouring to distinguish that part of the decisionwhich should be regarded as the preced ent and the parts that should not;whether the common law terminology be used to indicate the process isnot so important.

28. Idem, p.37.29. l.CJ. Rep. 1970,3,162.30. Idem, p.65.

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The Judiciary, International and National, And the Development of International Law