20 Jan International Law as Behavior Symposium: The Sociology of International Precedent
[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law]
The Precedent Puzzle
Every year, the Jessup team at the University of Georgia comes to me for a crash course in international law, and every year, I carefully explain to them that they can’t simply argue from precedents (as they would in their other moot court competitions), even precedents from the International Court of Justice, because precedent is not a source of law in international law as it is in domestic law. Nonetheless, I tell them—they, and their opponents, and the judges, will argue from precedent, from the ICJ and beyond, just as everyone in international law does. The trick, I tell them, is to be able explain why the supposedly irrelevant really is relevant.
This is emblematic. On the one hand, we are taught that as a matter of doctrine, judicial decisions construing international law are not in and of themselves law; they are not generally binding on future parties in future cases, even before the same tribunal. On the other hand, we also know that precedent is ubiquitous—from international arbitration, to international criminal law, to international human rights, precedents are argued and applied.
It’s not just that courts and tribunals cite their own precedent. On the contrary, courts and tribunals regularly cite the decisions of other unrelated ones: The precedents from one regional body are argued to others; precedents from human rights courts are argued to investment tribunals; precedents from ad hoc criminal tribunals are applied to domestic civil judgments. Nor is this phenomenon limited to arguments from, to, or in the shadow of international tribunals. The invocation of tribunal decisions as precedent has become part of the fabric of international legal discourse, structuring everyday arguments over the meaning of international law rules even far outside the shadow of any court. Russian and Crimean political leaders invoke the ICJ’s Advisory Opinion on Kosovo’s declaration of independence as precedent for the legality of Crimea’s secession and absorption into Russia. Advocacy groups like Human Rights Watch invoke ICTY decisions in open letters to governments on the legality of tactics used to fight terrorist groups. Academics invoke ICJ decisions in debates over the legality of the use of force against non-state actors. And perhaps most surprisingly, the Department of Justice responds to decisions of the ICTY, European Court of Human Rights, and the U.N. Committee Against Torture in internal, confidential government memoranda. Together with other interpretations of international law by expert committees, by international organizations, or by states, these decisions vie for status as authoritative statements of what international law requires.
But if this puzzling phenomenon is ubiquitous and even widely recognized, it has nonetheless, remained largely unexplained. Why, in the absence of any doctrinal requirement (in some cases, even permission), do some interpretations of international law by some courts, tribunals, or other bodies take on the force of precedent? Why do some interpretations come to be seen as authoritative, allowing some actors to wield them and forcing others to respond?
Most of the existing accounts of international precedent approach these questions obliquely, focusing on (1) when and why states delegate interpretive authority to tribunals, (2) when and why, strategically, states, courts, or other actors might invoke tribunal decisions as authoritative, or (3) when and why states might follow or rely on particular tribunal decisions. Starting from either positivist or rationalist perspectives, these accounts help explain why precedent might be a desirable or undesirable regime design feature, a useful coordination point, or a useful litigation or adjudication strategy. But all seem limited in their ability to explain uses of precedent that go against self-interest or that are far removed from their original litigation contexts. Some of these accounts suggest that precedents can act as soft law, providing useful predictors of what others actors will believe the law requires or that precedent may exert independent compliance pull on actors – a reality litigants and judges may use to their benefit. But even in these cases, the mechanism – why precedent would be a predictor or how it would exert compliance pull is left somewhat to the imagination.
The problem is that focused on other questions like delegation, compliance, or strategy, these existing accounts focus almost entirely on the inputs and outputs of the legal process. Understanding the role of precedent though requires understanding that process itself. What we need to under precedent is account of the practice of international law.
Precedent as Practice
Law does not simply provide rules to be followed. Law also sets the norm or rules for discerning, interpreting, advocating, and debating the contents of those rules. It provides a set of spoken and unspoken ground-rules that structure an ongoing claim and response over the applicable law. One party argues for one interpretation of the rules; another argues for a different one. The law frames which arguments are better or worse, which arguments will be convincing and which will fail.
It is in this claim-and-response process, this practice, that precedents gain their legal force and play their role. Precedent might best be understood as the burden prior interpretations of a particular rule put on future arguments about the content or meaning of the rule. In its weakest form, precedent simply supplies an argument that one must respond to; one cannot make an argument about the rule’s meaning without some reference to why the prior decision is right, wrong, or distinguishable. In its strongest form, precedent creates a strong presumption that the prior interpretation of the rule is in fact the rule. Thus the question is not why actors do follow or do not follow precedent, but instead when and why prior interpretations place these burdens on arguments about the rule.
Fully understanding how and why interpretations take on weight as precedents thus requires understanding the process of legal argumentation and the practitioners who take part it in it. Elsewhere, I have argued that thinking about international law as the product of specific communities of practice can help explain the differences developing between different areas of international law. But imagining international law as a product of these communities of practice can also help unlock the mystery of precedent.
Precedent is, in essence, in the eye of the beholder. How much weight a prior interpretation of international law should be given in future debates is entirely dependent on how it is perceived by the actors reading it. We should expect actors biased towards the authority of courts to perceive the value of a tribunal decision differently than actors biased towards state consent. Different international law regimes – international human rights law, international humanitarian law, international investment law, international environmental law, or international criminal law – may involve different mixes of actors – advocates, political leaders, diplomats, military personnel, scientists, economists, international lawyers, and domestic lawyers. Each of these different actors will bring their own professional norms and biases to the debate, and different mixes of actors will agree on different norms and operating assumptions. Understanding the relative weight different decisions by different bodies seem to carry in different contexts requires understanding the communities of actors who might perceive them that way.
A Sociological Account
Focusing on the actors participating in international legal process, we can begin to develop a sociological account of international precedent that might complement existing positivist and rationalist ones. We might, for example, focus on these actors’ professional training, asking how training in law, economics, science, or soldiering might construct their views regarding particular sources. Based on their training, we might expect lawyers to be more familiar with judicial opinions and find them more easily accessible. Given rule-of-law principles that suffuse their training, we might expect them to weigh consistency with prior interpretation and adherence to the broader legal regime more heavily. We might expect military personnel to see sources differently, looking to pragmatic concerns of military effectiveness and looking to prior combat actions as more authoritative precedents.
Or we might look at the epistemic communities in which these actors operate, asking who they interact with on a regular basis. We might expect foreign ministry lawyers who deal regularly with diplomats to approach potential sources of precedent differently from military lawyers embedded within the military chain of command. We might expect international criminal law lawyers with one foot in domestic criminal law to approach issues differently from military lawyers. And we might expect private commercial law lawyers, government lawyers, and public international lawyers to value different sources of authority in investment arbitration.
Alternatively, we might want to look at different actors’ social and political capital or incentives. How is success in their job defined and who defines it? Even if they are all trained as lawyers, politicians, bureaucrats, NGO activists, judges, and military lawyers may all respond to different incentives and may look to different audiences for advancement. To the extent they work with other lawyers, particularly domestic lawyers, they may be expected to argue from judicial precedent. Failing to cite precedents that might seem relevant to other lawyers may even result in professional opprobrium or sanction. Within a legal organization, arguments that follow the professional script and reference judicial precedents will be rewarded. Arguments that seek to be overly creative or iconoclastic might not. And these effects should be compounded within subfields of international law, where specific sources – decisions of international criminal tribunals, human rights bodies, investment arbitral tribunals, national court opinions, International Committee of the Red Cross commentaries, UN Security Council resolutions – may be seen as particularly important or authoritative. The ability to invoke the “right” precedents becomes a form of symbolic capital.
Working with non-lawyers, lawyers will face other considerations. In some cases, arguments from judicial precedent may enhance the lawyer’s stature. Lawyers as a professional group have specific sources of political and social capital that they can use to maintain their importance and relevance in relation to other societal actors, including their purported expertise in interpreting and applying legal sources. Lawyers, seeking to maximize their own power and authority vis-à-vis other international actors, may want to emphasize the value of precedents and their unique ability to understand them. In other contexts, however, lawyers may fear being seen as irrelevant by other actors and too easily marginalized. Government lawyers often recount how precedent-strewn arguments made amongst lawyers are shorn of references to international decisions when made to political leaders who might perceive their authority differently (or in some cases, negatively).
Finally, we might group them according to their function and relationship to precedent: Are they advocating, judging, administering, or seeking guidance for action? Depending in the role they are playing different actors may have different reasons to invoke a particular source as precedent. A court or tribunal may have very specific incentives different from those of other actors. It may want to cite high prestige courts they might seek to convince or which may be seen as authoritative by other courts whose enforcement assistance it might need. It might want to cite other courts’ precedent to hide its own creativity or shroud itself in another court’s perceived legitimacy. It might cite its own decisions to enhance its authority over a particular set of rules. Actors performing other functions may have similarly idiosyncratic reasons to cite particular precedents.
(This post is drawn in part from Theorizing International Precedent in Interpretation in International Law (Bianchi, Peat, and Windsor, eds., forthcoming 2015); International Precedent and the Practice of International Law, in The Challenges of Global and Local Legal Pluralism: Mediating State and Non-State Law (Michael Helfand, ed., forthcoming 2015); and Lawyers and Precedent, 46 Vand. J. Transnat’l L. 1025 (2013).)