PluriCourts Seminar: Article 38(1)(d) ICJ Statute and the Principle of Systemic Institutional Integration
PluriCourts seminar with PhD candidate Johann Ruben Leiss.
Ruben Leiss will present a draft article he is writing with Professor Mads Andenæs on Article 38(1)(d) of the ICJ statute. The article can be circulated to those attending the event.
This article demonstrates how Article 38(1)(d) ICJ Statute and its application by the ICJ express a principle of systemic institutional integration as natural and logical corollary of the principle of systemic substantive legal integration. In part as a consequence of the default of political action by states to resolve contradiction and fragmentation on the substantive level that would accompany the expanding international legal system, courts were left with the central role at the institutional level. For international law to be an effective legal system, the ever-increasing number of bodies with a role to play in international law must take account of one another, address possible conflicts, including those which cannot be resolved, and in the course of doing so, contribute to the development of custom, general principles and forms of (or substitutions for) hierarchies of norms and institutions.
In our view Article 38(1)(d) ICJ Statute offers a basic communicative framework for the ‘production of communitarian semantics’ that allows for the development of an international judicial system. Litra (d) obliges international courts and tribunals, as a general rule, to take into account the jurisprudence of other judicial bodies when determining international law under the principal sources (litra (a)-(c)). It may not require obedience to other ‘judicial decisions’ but brings about a shift in the argumentative burden. If a court wants to depart from another court’s ruling, it must show the grounds on which it does so. It follows that the departure has to be based on reasonable grounds. Premised on a similar rationale to that of its substantive counterpart, Article 38(1)(d) insofar sets out a basic framework for coordinating and harmonizing international adjudication, while at the same time recognising its heterogeneous and horizontal character.