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4 - The bases of the system

Published online by Cambridge University Press:  04 May 2010

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Summary

Introductory remarks

The Court's position as the principal judicial organ of the United Nations has been mentioned in explanation of its use of precedents. The argument is that, as such an organ, the Court shares in the responsibility of the United Nations to maintain peace, and that, in order to do so, it has an implied power to ensure consistency in decisions, lest inconsistencies should create tension within the international community. That is a good reason for adhering to the practice; it is less clear that it is the juridical basis. The practical position of the Permanent Court of International Justice did not always coincide with the theory that it was separate from the League of Nations. It was referred to by no less an authority than President Loder in his inaugural speech as ‘one of the principal organs of the League’; others have thought likewise. There can be no doubt, however, that it was constitutionally not part of the League. Yet it observed the same practice. What is the basis of the practice?

The general jurisprudential basis

There are two bases on which the Court's use of precedents rests. The Court itself being a creature of the Charter and its Statute, its use of precedents must likewise find its authority in these instruments. But these speak both expressly and impliedly; it is important to bear this in mind when estimating the legal character of the great judicial institution established by them.

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Publisher: Cambridge University Press
Print publication year: 1996

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