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World Court Digest

III. The International Court of Justice
4.1. General Questions

¤ Aerial Incident of 3 July 1988 (Islamic
Republic of Iran v. United States of America)
Order of 13 December 1989,
I.C.J.Reports 1989, p. 132

[pp. 157-258 S.O. Shahabuddeen] For the reasons given, it may be contended that the practice referred to is not strictly consistent with the terms of the existing rule, in the sense that it tends to inhibit a respondent in the exercise of a seemingly absolute right available under the strict terms of the rule to file a preliminary objection before the filing of the Memorial. But, however arguable that might be, the possibility of a different interpretation of the rule could not be wholly excluded, and of course the competence to interpret the Rules lay with the Court. It is general experience that formal rules of procedure - at any rate where no conflict with an overriding constituent instrument is involved (a caveat to which I attach importance in this field) - develop through the way in which they are interpreted and applied by the court concerned as evidenced by its practice.
The real question then is, should this Court at this stage overrule the interpretation of Article 79 of the Rules, which is implicit in its practice, on the ground that it is erroneous? The Court is not committed to any doctrine of binding precedent, but it does respect its own jurisprudence. Consequently, though competent to reverse its previous holdings on the law, the Court is not expected to exercise that competence lightly and without good reason (Sir Hersch Lauterpacht, The Development of International Law by the International Court, 1958, p. 19). It may be too general a way of putting the position merely to say that the Court should act cautiously. But what then should be the criteria guiding the prudence of the Court in a procedural matter of this kind? In the absence of any clear guidelines having been adopted by the Court, it seems to me that, in a case of this particular kind, it would be reasonable for the Court to apply something corresponding to the twin tests of clear error and public mischief as known to the upper levels of judicial activity in many jurisdictions. There should, I think, be clear error in the sense that the Court must be satisfied that the opposing arguments are not barely persuasive but are conclusively demonstrative of manifest error in a previous holding. And there should be public mischief, or something akin to it, in the sense that the injustice created by maintaining a previous but erroneous holding must decisively outweigh the injustice created by disturbing settled expectations based on the assumption of its continuance; mere marginal superiority of a new ruling should not suffice.