Statute, Article 38, Paragraph 1 (D): Judicial Decisions
(2,558 words)

paragraph 377A in volume 3, chapter 27, The Decision

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By referring to Article 59 of the Statute (see § III.385), Article 38 contains an apparent limitation on the Court’s freedom to employ judicial decisions as a subsidiary means for the determination of the rules of law. Nevertheless, earlier judicial and arbitral decisions are frequently used to identify or elucidate a rule of the law, not to make such a rule, i.e. not so much in the quality of binding precedents as having persuasive influence. T…

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Malcolm N. Shaw, “Statute, Article 38, Paragraph 1 (D): Judicial Decisions”, in: Rosenne's Law and Practice of the International Court: 1920-2015. Consulted online on 17 January 2019 <>
First published online: 2017
First print edition: 20161001

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