Theorizing Precedent in International Law

Interpretation in International Law (Andrea Bianchi, Daniel Peat & Matthew Windsor, eds., Oxford University Press, Forthcoming

UGA Legal Studies Research Paper No. 2014-13

Dean Rusk International Center Research Paper No. 2015-09

23 Pages Posted: 4 Apr 2014 Last revised: 12 Nov 2015

See all articles by Harlan Grant Cohen

Harlan Grant Cohen

University of Georgia School of Law; University of Georgia - Dean Rusk International Law Center

Date Written: April 2, 2014

Abstract

Precedent presents a puzzle for international law. As a matter of doctrine, judicial decisions construing international law are not-in-and-of themselves law. They are not binding on future parties in future cases, even before the same tribunal. And yet, international precedent is everywhere. From international investment to international criminal law to international human rights to international trade, prior decisions are invoked, argued over, and applied as precedents by practitioners and by tribunals.

How and why do certain interpretations of international law take on the weight of precedent, reshaping international law arguments around them, while others do not? This chapter develops a framework for explaining the emergence of precedent in international law that can begin to solve this puzzle. It focuses on three sets of factors relevant to a prior interpretation’s precedential weight, (1) the varied potential sources of precedent, (2) the factors that might imbue a source with authority, (3) and the actors and audiences who might invoke a precedent or respond it, before weaving them into three overlapping accounts of how these factors interact, (1) a rationalist account, (2) a jurisprudential account, (3) and a sociological account. The chapter ends with a couple of case-studies that demonstrate how these factors and accounts can help explain the actual patterns of precedent we observe in international law today.

Keywords: Prosecutor v. Tadic, international law, international tribunals, precedent, delegation, compliance, authority

JEL Classification: K33

Suggested Citation

Cohen, Harlan Grant, Theorizing Precedent in International Law (April 2, 2014). Interpretation in International Law (Andrea Bianchi, Daniel Peat & Matthew Windsor, eds., Oxford University Press, Forthcoming; UGA Legal Studies Research Paper No. 2014-13; Dean Rusk International Center Research Paper No. 2015-09. Available at SSRN: https://ssrn.com/abstract=2419706

Harlan Grant Cohen (Contact Author)

University of Georgia School of Law ( email )

Hirsch Hall
Athens, GA 30602
United States
706-542-5166 (Phone)

University of Georgia - Dean Rusk International Law Center ( email )

100 Herty Drive
Athens, GA 30602-6018
United States

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