Under Article 38 of its Statute, the International Court of Justice can apply judicial
decisions only as a ‘‘subsidiary means for the determination of rules of law’’.
However, there are many reasons to believe that international courts and tribunals
do play quite an important role in the progressive development of international
law. There are a number of decisions which are inevitably recalled as the first step,
or a decisive step, in the process of the formation of a new rule of customary
international law. Can, in these cases, the judge be considered as a subsidiary of
others? Are these cases compatible with the common belief that a judge cannot
create law? Is this a peculiarity of international law, which is characterized by the
existence of several courts but the lack of a legislator? Do decisions by different
courts lead to the consequence of a fragmented international law? This volume
aims to provide the reader with an elaboration of various questions linked to the
legislative or, depending on the preferences, quasi-legislative role of courts.
In their choices of subjects, the contributors have taken into account both the
general aspects of the development of international rules through court decisions
and the instances of specific sectors of international law, such as human rights,
international crimes, international economic law, environmental law, and the law
of the sea. Others have chosen the subject of rules on jurisdiction and the procedure
of international courts. The question of the courts’ role, mutatis mutandis,
in the development of areas of law different from public international law, namely
private international law and European Union law, has also been considered.
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