Swinging between Finding and Justification: Judicial Citation and International Law-Making

Abstract

Based on the ever increasing interpretation and application of international law by domestic courts, this paper illustrates the practices of the judicial citation of international and domestic jurisdictions while adjudicating international criminal law related matters. The paper considers selected instances of judicial citation and operates a distinction between judicial citation as a finding device and as a justification exercise. I argue that domestic courts rely on international judicial decisions primarily as a finding device whilst international case law deals with domestic judicial decisions primarily in the realm of justification. The analysis of this material triggers reflections on the relevance of judicial citation for the doctrine of sources of international law, inasmuch as it adds to the formation of normative expectations on subjects of international law, as well as for a scholarly conceptualization of contemporary international law-making.

Keywords: judicial citation; judicial decisions; domestic courts; international law making