'Mirages of an Intellectual Dreamland’? Ratio, Obiter, and the Textualization of International Precedent

Abstract

In recent years, various actors — states, judges, and commentators alike — have taken issue with the way international adjudicators have approached precedent. Criticism has been levelled, in particular, to the phenomenon of ‘obiter dicta’ (observations that, though not necessary for the decision, are nonetheless included in it), which have been found to amount to a symptom of bad decision-making or, from the perspective of the adjudicator using them, bad precedent-following. This article addresses this debate by resituating the issue within a more grounded discussion of the theory of precedent in international adjudication, providing an in-depth theoretical and empirical analysis of the practice, and seeks to frame it within in the broader phenomenon of ‘textualization’. By doing so, it strives to clarify the use, authority, and ultimate function of obiter dicta, as well as of precedent in general, in international adjudication.

Keywords: Precedent; Obiter; International adjudication; Judicial minimalism; citation analysis

JEL Classification: K33, K40