Safeguarding Global Public Interests: The Strengths and Challenges of International
Case Law
Public International Law – Midterm Paper
Jéssica Aplugi Pinto
s3081303
word count (excl. front page): 1993
Date: 9 October 2024
, 1. Introduction
In recent decades, international courts and tribunals have gained a prominent role in
addressing public interest cases. These are cases that are not directed at the preservation of
individual interests but at the interests of the international community as a whole. 1 For
example, such cases involve human rights,2 climate change,3 and global peace and security.4
The rise of cases like these highlights a shift in the approach of international courts, reflecting
a growing recognition of the need to address the international community's interests on a
global level. However, debate exists on whether judgements of international courts are well-
equipped to protect the public interests of the international community.5
This essay will assess the legal value of case law within the broader framework of
international law, analysing its strengths and weaknesses in enhancing and safeguarding
public interests. This paper will therefore analyse several aspects of judicial decisions of
international courts dealing with such concerns. It will first assess the current legal status of
case law, as stated in the Statute of the International Court of Justice (ICJ Statute).
Subsequently, it will address the strengths and weaknesses of case law to protect and advance
public interests in the international community compared to other sources of international law.
This paper concludes that judicial decisions are important sources of international law,
providing a flexible, interpretive instrument that adapts to evolving public concerns and
serves as a crucial means to safeguard and enhance the common interests of the international
community.
2. Case Law as a Source of International Law
Article 38 of the ICJ Statute is the ‘traditional starting point’ when identifying sources of
international law, even though it only states the types of sources applied by the ICJ. 6 Article
38(1)(d) categorises case law (‘judicial decisions’) as ‘subsidiary means for the determination
of rules of law’. This indicates that judges rely on ‘formal’ sources of law to develop their
1
Jane A Hofbauer, ‘Not Just a Participation Trophy? Advancing Public Interests through Advisory Opinions at the
International Court of Justice’ [2023] 22 The Law and Practice of International Courts and Tribunals 234, 237.
2
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v Serbia and Montenegro), Preliminary Objections [1996] ICJ Rep 595.
3
Obligations of States in Respect of Climate Change (Request for Advisory Opinion) General List No 187 [2023]
<https://www.icj-cij.org/sites/default/files/case-related/187/187-20230412-app-01-00-en.pdf> accessed 9 October 2024.
4
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 66.
5
See eg Hofbauer (2023, n 1) at 236.
6
Gleider Hernández, International Law (2nd edn, OUP 2022) 33-34.
2
Case Law
Public International Law – Midterm Paper
Jéssica Aplugi Pinto
s3081303
word count (excl. front page): 1993
Date: 9 October 2024
, 1. Introduction
In recent decades, international courts and tribunals have gained a prominent role in
addressing public interest cases. These are cases that are not directed at the preservation of
individual interests but at the interests of the international community as a whole. 1 For
example, such cases involve human rights,2 climate change,3 and global peace and security.4
The rise of cases like these highlights a shift in the approach of international courts, reflecting
a growing recognition of the need to address the international community's interests on a
global level. However, debate exists on whether judgements of international courts are well-
equipped to protect the public interests of the international community.5
This essay will assess the legal value of case law within the broader framework of
international law, analysing its strengths and weaknesses in enhancing and safeguarding
public interests. This paper will therefore analyse several aspects of judicial decisions of
international courts dealing with such concerns. It will first assess the current legal status of
case law, as stated in the Statute of the International Court of Justice (ICJ Statute).
Subsequently, it will address the strengths and weaknesses of case law to protect and advance
public interests in the international community compared to other sources of international law.
This paper concludes that judicial decisions are important sources of international law,
providing a flexible, interpretive instrument that adapts to evolving public concerns and
serves as a crucial means to safeguard and enhance the common interests of the international
community.
2. Case Law as a Source of International Law
Article 38 of the ICJ Statute is the ‘traditional starting point’ when identifying sources of
international law, even though it only states the types of sources applied by the ICJ. 6 Article
38(1)(d) categorises case law (‘judicial decisions’) as ‘subsidiary means for the determination
of rules of law’. This indicates that judges rely on ‘formal’ sources of law to develop their
1
Jane A Hofbauer, ‘Not Just a Participation Trophy? Advancing Public Interests through Advisory Opinions at the
International Court of Justice’ [2023] 22 The Law and Practice of International Courts and Tribunals 234, 237.
2
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v Serbia and Montenegro), Preliminary Objections [1996] ICJ Rep 595.
3
Obligations of States in Respect of Climate Change (Request for Advisory Opinion) General List No 187 [2023]
<https://www.icj-cij.org/sites/default/files/case-related/187/187-20230412-app-01-00-en.pdf> accessed 9 October 2024.
4
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 66.
5
See eg Hofbauer (2023, n 1) at 236.
6
Gleider Hernández, International Law (2nd edn, OUP 2022) 33-34.
2
