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H. Vern Clemons

Abstract

This Comment argues that the Court's practice of unofficially applying precedent, contrary to actual statutory authority, negatively impacts the Court's authority. Specifically, the absence of an official doctrine of stare decisis diminishes the Court's ethos and the rhetorical clout imputed to the Court's decisions. 28 Part I discusses the Court's character in providing states with a consistent, statutorily authorized rhetoric to refer to in their compromissory interactions, the Court's acknowledgment of the written rules, and its subsequent use of precedent. Part I also examines the past under-utilization of the ICJ to settle treaty disputes, and the recent increasing trend in states' reliance on the ICJ as the potential interpreter of treaties. Part II analyzes the ICJ's statutory authority, and their interpretations and practices regarding that authority. Part III argues that without binding the Court statutorily the effect of precedent on later decisions of the ICJ undermines the rhetoric of the Court, thereby undermining the ethos, or authoritativeness, of the Court to decide conflicts between disputing states. Part III also argues that if the authoritativeness of the Court's rhetoric is questionable, the increased reliance on the ICJ as the adjudicator of potential treaty disputes could be reversed, causing a return to under-utilization of the Court. Part III further argues that in order to prevent a return to under-utilization of the Court, the written statute that defines the Court should reflect the Court's practices. This Comment concludes that binding the Court to its past decisions by amending the ICJ statute would increase the ICJ's rhetorical ethos, thus adding more precedential weight to the Court's decisions and authoritative use of its service.

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