Lawyers and precedent.

AuthorCohen, Harlan Grant
PositionLawyers' role in international law precedent development

TABLE OF CONTENTS I. INTRODUCTION II. THE PUZZLE OF INTERNATIONAL PRECEDENT III. FROM PRODUCT TO PRACTICE IV. PRECEDENT AS ARGUMENT V. LAWYERS AND NORMAL PEOPLE I. INTRODUCTION

What role do lawyers, as lawyers, play in the creation, development, and maintenance of the international legal order? This is an oddly underexplored question. It has become increasingly popular to look at the role various non-state actors--nongovernmental organizations (NGOs), 1 grassroots activists, (2) scientists, 3 insurgent groups, 4 among many others--play in the shaping of international law. It has also become common to talk in terms of the "disaggregated state," (5) and of how various substate actors--central bankers, (6) regulators, (7) judges, (8) and military personnel (9)--shape international law and policy through their interactions with each other. Nor have international lawyers ever been particularly shy about their importance to international law. Oscar Schacter famously described "the professional community of international lawyers ... though dispersed throughout the world and engaged in diverse occupations" as "a kind of invisible college dedicated to a common intellectual enterprise." (10) Martti Koskenniemi has written that "[w]ithout international lawyers, there would have been no international law."(11) The Statute of the International Court of Justice (ICJ) even recognizes the "teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law." (12) And yet, few have focused on the specific and unique role lawyers might play as state, non-state, and substate actors in the international system. (13)

This is an important gap to fill. As Koskenniemi writes, "From Hugo Grotius to the International Criminal Court, international law has been a project carried out by international lawyers." (14) And any account of international law that does not explain the role of lawyers will necessarily be deficient. This is particularly the case with regard to the mysterious power of precedent in international law. Regardless of precedent's formal role in international law, (15) lawyers and judges regularly invoke it, respond to it, and cite it as authority. (16) Can studying lawyers help explain when prior interpretations of international law rules will carry weight, when those interpretations will frame future arguments, and maybe, when those interpretations will burden decisions about compliance?

  1. THE PUZZLE OF INTERNATIONAL PRECEDENT

    Precedent presents something of a puzzle for international law. As a matter of international law doctrine, judicial decisions construing international law are not in and of themselves law. According to Article 38 of the Statute of the ICJ, judicial decisions are merely "subsidiary means for the determination of rules of law." (17) They are not generally binding on future parties in future cases, even before the same tribunal, is In short, precedent, as a matter of doctrine, exerts no special force.

    And yet, precedent is ubiquitous. Reports from international investment arbitration, (19) international criminal law, (20) international human rights, (21) and international trade, (22) all testify to precedent's apparent authority. Across international law, practitioners invoke it and tribunals apply it. This would be remarkable if courts and tribunals simply cited their own precedent--international law doctrine requires no such result. But courts and tribunals go much further (following the lead of international advocates), citing positively or negatively even the decisions of unrelated courts and tribunals operating in different areas of international law and with different mandates. The precedents from one regional body are argued to others. (23) Precedents from human rights courts are argued to investment tribunals. (24) Precedents from ad hoc criminal tribunals are applied to domestic civil judgments. (25)

    To see but one example of the pervasiveness of this pattern, take the landmark Prosecutor v. Tadic case before the International Criminal Tribunal for the Former Yugoslavia (ICTY). (26) Tadic, the first case heard by the ICTY, produced a range of important decisions on the jurisdiction of the court, the interpretation of its statute, and the scope of international criminal liability. (27) Those decisions have, of course, been widely cited in other decisions of the ICTY. (28) Not too surprisingly, other international criminal tribunals have cited these decisions. 29 The ICJ famously distinguished the test for state attribution, "overall control, (30) adopted by the ICTY in Tadic. (31) And the decisions have been cited in dozens of U.S. federal court decisions. (32) More surprisingly perhaps, International Centre for Settlement of Investment Disputes arbitration panels have cited Tadic. (33) It has even made a recent appearance in the U.S. Department of Justice White Paper on the legality of targeted killings. (34) Even this widespread pattern of citation by entities with no obligation to do so vastly understates the Tadic precedent's impact. A search yields ten times as many briefs mentioning the decision to U.S. courts as decisions eventually citing it. (35) Less formal invocations of the decision by NGOs and other actors are impossible (or at least implausible) to count. And, as will be discussed later, the true impact of a precedent will likely be felt in arguments rather than decisions. Even citations in arguments cannot capture all the situations in which actors predict that precedents will carry weight with others and adjust their actions accordingly.

    Existing accounts of international courts and their decisions have a difficult time explaining these patterns. Traditional accounts treat precedent as a deliberate design feature. (36) States decide at the outset how much force precedent should have based on their relative interests in either predictability or control. (37) These accounts look to the constitutive agreements setting up particular courts, tribunals, and other interpretive bodies, and ask how much authority they explicitly or implicitly delegate to these bodies and their decisions. (38) While accounts based on explicit delegation look to a body's mandate, accounts based on implicit delegation look to functional considerations like the open-endedness of the treaty's language or whether the treaty seems to create third-party rights holders. (39) Given that most international law regimes explicitly deny precedent force, (40) this former approach has a hard time explaining the reality of how lawyers argue. The latter do a better job suggesting that some regimes might be designed with precedent in mind but rely more on ex ante normative conclusions about precedent's desirability for a particular regime than on empirical reality. (41) Not surprisingly, their results are highly contested.

    Other rationalist approaches suggest that precedent might emerge because it is useful. (42) In some contexts, states may disagree over a particular rule, each preferring a particular interpretation over others. Nonetheless, they may prefer a coordination point over continued disagreement. (43) To the extent third-party decision making can provide a mutually acceptable rule (i.e., one that provides sufficient benefits to each party), continuing to hew to that rule may be desirable. (44) This explanation treats precedent as epiphenomenal. A precedent's force derives solely from the desirability of the rule reflected in it. Neither its status as the opinion of some body nor its internal reasoning has any independent effect. Although such an account may explain the stickiness of some international precedents, these types of accounts have a hard time explaining precedent in noncoordination games like human rights. (45) They also struggle to explain why arguments from precedent would have any force when the underlying decision goes against state interests. (46)

    More sophisticated rationalist accounts treat precedent as "soft law." (47) As these accounts explain, from an individual state's point of view, its legal obligations are defined by predictions of what others will consider lawful and unlawful, and precedents can be suggestive of that. (48) States creating a regime can thus use a tribunal to create rules or adopt interpretations that they would not have been able to achieve by agreement. (49) States reading a court's views will have to take into account the possibility that that decision will be treated as binding law by other states and adjust their calculus and actions accordingly. (50) This account, though, simply assumes that actors will treat court decisions as predictive of the obligations other states will hold them to. (51) What it does not explain, however, is why. Finally, still other accounts see the use of precedent as strategic. Arguing to a body from its own precedent may make it more favorably inclined to your position. This is true not only for advocates to courts or tribunals but also for courts or tribunals trying to seek the support of other courts, something empirical data regarding the European Court of Justice (ECJ), the European Court of Human Rights (ECHR), and national court precedent seems to bear out. (52) Such accounts bring us closer to understanding precedent's role as advocacy, but they too fail to capture why advocates regularly cite precedents from courts other than the ones they are trying to convince. Perhaps citing other bodies lends prestige, (53) but this only begs the question where this prestige would come from. Why would particular audiences view certain citations in decisions as carrying extra weight?

  2. FROM PRODUCT TO PRACTICE

    Each of these accounts seems to tell part of the story of precedent's emergence within international law, but even together they seem incapable of explaining the utter pervasiveness of precedent's attraction. The main deficiency of these accounts is that...

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