Concepts for International Law
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Concepts for International Law

Contributions to Disciplinary Thought

Edited by Jean d’Aspremont and Sahib Singh

Concepts shape how we understand and participate in international legal affairs. They are an important site for order, struggle and change. This comprehensive and authoritative volume introduces a large number of concepts that have shaped, at various points in history, international legal practice and thought; intimates at how the many projects of international law have grappled with, and influenced, the world through certain concepts; and introduces new concepts into the discipline.
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Chapter 46: Precedent

Makane Moïse Mbengue

Abstract

The concept of precedent challenges some of the legal foundations of international adjudication. In particular, it questions the dogma according to which there is no stare decisis within the system of international courts and tribunals. From the birth of third party adjudication to the present day, international courts and tribunals have shaped, progressively and discontinuously, a doctrine of precedent. In that process, precedent has appeared sometimes as a legal necessity, sometimes as a tool for consistency and coherence (that is, as an ‘antifragmentation’ device) and, often, as an ideology. However, the contours of the concept of precedent vary depending on the international courts and tribunals. While some of them are cautious about the use of judicial precedents, others engage in judicial activism and, to a certain extent, judicial legislation in order to legitimize the systematic use of precedents in the peaceful settlement of international disputes. There is no doubt that the concept of precedent is a child of the century – a century marked by the ‘judicialization’ of international law.

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