A ratio decidendi da Corte Internacional de Justiça: uma análise a partir do art. 38 do Estatuto da Corte

Abstract

Introduction: This research will have as its objective the analysis, from the perspective of the International Court of Justice – especially with regard to the sources of International Law – of the Court’s approach when judging cases and, from this, it will seek to verify whether the ratio decidendi of International Law is closer to Common Law or Civil Law. Objective: The questioning about the nature of International Law is recurrent. With theories such as Monism or Dualism and considering the Common and Civil Law regimes, as well as the sources of International Law (art. 38 of the ICJ Statue), the problem remains: what is the ratio decidendi of the International Court of Justice? This ratio approaches Civil Law or Common Law, could it then be arguable that the system of International Law is of one of these two natures? Material and methods: The research will be conducted from the study of cases of the International Court of Justice and literature review on this topic. Result: It is noticed that International Law and the Court adopt a different ratio to any system, in view of the formation of International Law as a system of cooperation between States. Discussion: It appears that, in several judgments, the Court makes extensive use of its established precedents to support its decisions. A relevant example is the precedent already defined and reiterated by the Court that evidence arising from unresolved negotiations between States cannot be accepted by the Court as evidence (Frontier Dispute and Chorzow Factory cases). In this sense, it is noted that the Court adopts a position more related to the Common Law, since its ratio decidendi is formed, in large part, from precedents