United Nations International Law Commission

The International Law Commission (ILC), during its seventy-sixth session in May 2025, provisionally adopted the first-reading draft conclusions on Subsidiary means for the determination of rules of international law. Among these, Draft Conclusion 6 [7] addresses the use of judicial decisions, provisionally stating: Draft conclusion 6 [7] Absence of legally binding precedent in international law  Decisions of international courts or tribunals may be followed on points of law where those decisions address the same or similar issues as those under consideration. Such decisions do not constitute legally binding precedent unless otherwise provided for in a specific instrument or rule of international law. This formulation reflects a deliberate political compromise. By employing the permissive term “may,” the Commission seeks to respect state sovereignty and acknowledge the textual boundaries of Article 38(1)(d) of the ICJ Statute, which characterizes judicial decisions as “subsidiary means” rather than sources of law. The Drafting Committee’s caution is understandable: states remain wary of anything resembling stare decisis by stealth, particularly where diverse treaty regimes demand…