Accessibility

Building up the law through the use of precedents naturally depends on the accessibility of decisions. As remarked by Hersch Lauterpacht, and recalled above, ‘judicial decisions, particularly when published, become part and parcel of the legal sense of the community’. Decisions which remain unpublished can scarcely release their full precedential force. By way of analogy, one may contrast the several references in the jurisprudence to the published rule-making proceedings of the Permanent Court of International Justice with the absence of similar references to the unpublished rule-making proceedings of the present Court. In relation to arbitral decisions, Jennings recalls a series of lectures delivered by Henry Maine in 1887. In the course of 228 pages, the lecturer, though nurtured in the most notable of all case law systems, referred to but one decided case – the Alabama Claims – even though ‘there were quite a lot of decided cases on international law at the time’. Why so sparing in the use of this valuable resource? The reason was that ‘there was until relatively recent times no international lawyers’ apparatus technicus to make cases easily accessible as material for argument’. So publication is important. It has been undertaken continuously from the commencement of the Permanent Court of International Justice, each decision being made publicly available in printed form as soon as possible after delivery.