The Politics of Precedent in International Law: A Social Network Application

Abstract

There is no formal binding precedent in international law. Yet, as this article demonstrates, countries nonetheless expend considerable resources in seeking to shape legal precedent. Looking at the international trade regime, I show that while some disputes are initiated to gain market access in response to domestic interests, others are filed primarily to build favorable precedent for future cases of greater commercial value. I construct an original dataset consisting of the network of all rulings spanning the WTO period, and the cases they cite. I analyze this network to provide systematic evidence for the existence of "test cases" in international law: countries initiate commercially unimportant disputes to shape legal precedent to their advantage. And wealthy countries with high legal capacity are significantly better able to do so. While the existence of binding precedent in international law remains a point of continuous debate, countries observably behave in a manner consistent with its existence.

Keywords: international relations, international law, precedent, WTO, social networks, trade.