Lawyers and Precedent

Article excerpt

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?

II. 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. …