This Article analyzes the development of a common law for international tribunals through the interpretation of applicable treaties and the interpretation of customary law—a decidedly difficult and amorphous process. The author notes there has been significant development in the common law of the tribunals, but that there is still a long way to go, especially on the issue of when a court should simply interpret or apply exist-ing law and when it should “legislate” or create new law. The Article also examines the less formal rules and practices beyond formal judgments, the “soft” law and practices, which are indispensable to the continued ex-istence of international tribunals. This Article suggests “soft” law and practices may turn out to be more influential in the overall record of these courts than the jurisprudence.
Patricia M. Wald,
Tribunal Discourse and Intercourse: How the International Courts Speak to One Another,
B.C. Int'l & Comp. L. Rev.