3.

1 Judicial Decisions and Text Writers

Article 38 of the statute of the ICJ directs it to apply judicial decisions as subsidiary
means of determination of the rules of law but subject to Article 59 which lays down
that a decision of the court is binding only on the parties and in respect of that
particular case.
The court has however treated these decisions with great respect and refers to them
frequently. Although, only a subsidiary means of ascertaining the law, in some cases,
they have proved to be the best of means. Repeated or frequently cited decisions
increasingly become, not merely evidence, but in fact create the law and form part of
international practice.

Decisions of arbitral tribunals are also respected and referred to by the International
Court of Justice. The fact that arbitrators are more flexible and inclined to make a
compromise does not reduce the importance of their judgment. The separate and
dissenting judgments of judges have, at least, the authority of texts. In the execution
of the judgment, ICJ is guaranteed by Article 94 of the UN Charter.

Text writers are subsidiary law, determining agencies. The importance attached to a
text depends upon the prestige of the author and the extent his opinion withstands the
test of time. Because of the impression of international law and the sparseness of its
success in early times, the works of text writers were, if not the only, source of
international law. Thus, writers like Grotius, Vatiel and Victoria exercised unrivalled
influence on the law. They freely drew analogies from Roman law and Natural Law.
After Grotius, text writers broke into Naturalists, positivists and Eclectics or
Grotians. With the swing of the positivism in the 19th century, the influence of text
writers waned to what it is now.