GUIA DE ESTUDOS / STUDY GUIDE / GUIA DE ESTUDIOS - Faap

Previous judicial decisions are a good type of source as
they show in which way a Tribunal tends do decide. Judicial
decisions, also known as jurisprudence, contain
the relation between the cases and decisions made
by Tribunals. Teachings of qualified specialists are also
called doctrine, and are the positions of people that
understand the subject they are referring, in this case,
international public law.
The Statute named a few sources that can be applied
to the cases submitted to the Court, but as mentioned
before, the article is merely exemplificative, and therefore,
other sources may be used to decide disputes between
States, such as decisions of International Organizations.
The Statue was written many years ago (1946),
at a time when International Organizations were not
as important as they are today. This is the main reason
why this source of International Law is mot listed in the
Statute. Nowadays, the decisions of International Organizations
are extremely important. 32
There is a divergence on whether the decisions of International
Organizations are truly valid to be adopted
as an International Law source. 33 No rules or principles
have been written to solve the matter, so it is up to
each person, judge, Tribunal, International Courts to
decide whether to use these decisions or not.
Legal Precedents of the ICJ
The International Court of Justice is the most important
judicial organ of the United Nations and it has already
ruled over important and controversial matters.
States submit their cases and the Court has to reach
a decision on such case. The ICJ may decide legal disputes
between States (contentious cases) or give an
opinion on a matter (advisory opinion). 34 Either so, the
Court’s work is of great importance and always has the
best intentions of the international community and international
law when attempting to solve issues in a
peaceful manner.
One very interesting case in which an advisory opinion
was requested was the “Legality of the Threat or Use
of Nuclear Weapons”, 35 submitted to the Court by the
United Nations General Assembly (GA). In 1996 the
Court reached an opinion based on the question sub-
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mitted and so, it handed down its advisory opinion towards
that matter. The Court replied that:
a. Unanimously, There is in neither customary nor
conventional international law any specific authorization
of the threat or use of nuclear weapons;
b. By eleven votes to three, There is in neither
customary nor conventional international law any
comprehensive and universal prohibition of the
threat or use of nuclear weapons as such;
c. Unanimously, A threat or use of force by means
of nuclear weapons that is contrary to Article 2,
paragraph 4, of the United Nations Charter and
that fails to meet al1 the requirements of Article 51,
is unlawful;
d. Unanimously, A threat or use of nuclear weapons
should also be compatible with the requirements of
the international law applicable in armed conflict,
particularly those of the principles and rules of international
humanitarian law, as well as with specific
obligations under treaties and other undertakings
which expressly deal with nuclear weapons;
e. By seven votes to seven, by the President’s casting
vote, It follows from the above-mentioned requirements
that the threat or use of nuclear weapons
would generally be contrary to the rules of
international law applicable in armed conflict, and
in particular the principles and rules of humanitarian
law; However, in view of the current state of international
law, and of the elements of fact at its
disposal, the Court cannot conclude definitively
whether the threat or use of nuclear weapons
would be lawful or unlawful in an extreme circumstance
of self-defence, in which the very survival of
a State would be at stake;
f. Unanimously, There exists an obligation to pursue
in good faith and bring to a conclusion negotiations
leading to nuclear disarmament in al1 its aspects
under strict and effective international control.” 36
A contentious case that has become quite known
around the world is the “Avena and Other Mexican Nationals”,
37 a conflict matter between Mexico and the
United States of America. The Mexican State instituted