Precedent

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(1)Book Chapter. Precedent. MBENGUE, Makane Moïse. Reference MBENGUE, Makane Moïse. Precedent. In: Jean d'Aspremont and Sahib Singh. Concepts for International Law. Cheltenham : E. Elgar, 2019. p. 708-718. DOI : 10.4337/9781783474684.00051. Available at: http://archive-ouverte.unige.ch/unige:137363 Disclaimer: layout of this document may differ from the published version..

(2) JOBNAME: EE0 d’Aspremont PAGE: 1 SESS: 7 OUTPUT: Wed Jan 30 08:58:14 2019. 46. Precedent Makane Moïse Mbengue In 1836 the French writer Alfred de Musset published The Confessions of a Child of the Century.1 From the point of view of international law, precedent is also a ‘child of the century’. It is the confessions of that child that are revealed here.. 1. TRUTH AT LAST What a frightful weapon is human thought! It is our defence and our safeguard, the most precious gift that God has made us. It is ours and it obeys us; we may launch it forth into space, but, once outside of our feeble brains, it is gone; we can no longer control it.2. From its inception, the international judicial function was inherently linked with the jurisdictio, that is, the power to state the law. Jurisprudence (that is, judicial decisions) served as a receptacle for the statements of law made by international courts and tribunals.3 However, the exercise of the international judicial function was never understood, intrinsically or extrinsically, as likely to lead to stare decisis or to stare rationibus decisis, or, to put it in simpler terms once again, as likely to lead to an era in which jurisprudence would become as important as any other source of international law in the fabric of the rule of international law. In the words of the Permanent Court of International Justice (PCIJ) itself, ‘the judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the direct and friendly settlement of such disputes between the Parties; as consequently it is for the Court to facilitate, so far as is compatible with its Statute such direct and friendly settlement’.4 This statement shows that international courts and tribunals were originally thought of as societal engines and not as formalistic instruments in the process of international law-making. That is to say that international courts and tribunals were primarily 1. This title and the other subtitles are taken from Alfred de Musset’s classic novel The Confessions of a Child of the Century (Aegypan Press 2008) 187. The present contribution uses de Musset’s work to show the different stages in which the concept of jurisprudence has found itself at the international level but also to describe the evolution that has characterized the status and the importance of jurisprudence in international law. 2 ibid 158. 3 Permanent Court of International Justice Advisory Committee of Jurists, Procès-verbaux of the proceedings of the Committee with Annexes (16 June–24 July 1920) 584. 4 ibid 13. 708 Makane Moïse Mbengue - 9781783474684 Downloaded from Elgar Online at 05/27/2020 11:24:16AM via Geneva University (incl Graduate Institute). Columns Design XML Ltd. /. Job: dAspremont-Concepts_for_international_law. /. Division: 46_Precedent_Mbengue_ed. /Pg. Position: 1 /. Date: 25/1.

(3) JOBNAME: EE0 d’Aspremont PAGE: 2 SESS: 7 OUTPUT: Wed Jan 30 08:58:14 2019. Precedent. 709. conceived to respond to the social demands of the international community and not to become photographs of the law in such a way to freeze it or to make it as static as an image. They were not supposed to be concerned with jurisprudence constante (‘settled jurisprudence’, in the words of the International Court of Justice or ICJ5). This traditional view was defended as early as the point at which permanent courts were put in place at the international level. In his dissenting opinion in the S.S. Lotus case, Judge Weiss warned international courts and tribunals against the temptation to ‘find sources of international law in places where they do not exist’6 and emphasized that ‘[i]nternational law is not created by an accumulation of opinions and systems; neither is its source a sum total of judgments, even if they agree with each other’.7 So how did the consensus judiciarium – the jurisprudential consensus between international adjudicators – become more important than the consensus omnium?8. 2. THE BEGINNING OF THE CONFESSIONS I have to explain first how I was taken with ‘the malady of the age’.9. Third party adjudication was born as a new tool of the law of nations – born not in relation to ideology or activism, but with neutrality. Indeed, the Alabama case, which most consider to be the first modern interstate arbitration, was concerned mainly with the effects of neutrality and the rights and duties deriving from a proclamation of neutrality by a state. The Alabama case occurred during a time of judicial dearth, where international courts and tribunals – given their very small number – had room to engage in (hidden or disguised) judicial legislation, and thus to shape the development of international law without relying on each other. This surely explains why the United States, in another early interstate arbitration – the Behring Fur Seals case – claimed that ‘international legislation ought to intervene, and without delay, in this case’. The concept of international jurisprudence was not yet broadly admitted in international practice. There was no idea of a system of international courts and tribunals that could contribute through their decisions to the coherent interpretation and application of the rules and principles of general international law. Thus, it is very doubtful that the drafters of the Hague Conventions of 1899 and 1907 hoped that ‘when a controversial. 5 United States Diplomatic and Consular Staff in Tehran (USA v Iran), Jurisdiction, Judgment of 24 May 1980, [1980] ICJ Rep 3, 18 para 33. 6 The Case of the SS Lotus, Judgment of 7 September 1927, [1927] PCIJ Series A, no 10 (dissenting opinion of Judge Weiss). 7 ibid. 8 ibid 43–44: according to Judge Weiss, ‘In reality the only source of international law is the consensus omnium. Whenever it appears that all nations constituting the international community are in agreement as regards the acceptance or the application in their mutual relations of a specific rule of conduct, this rule becomes part of international law.’ 9 de Musset (n 1) 21.. Makane Moïse Mbengue - 9781783474684 Downloaded from Elgar Online at 05/27/2020 11:24:16AM via Geneva University (incl Graduate Institute). Columns Design XML Ltd. /. Job: dAspremont-Concepts_for_international_law. /. Division: 46_Precedent_Mbengue_ed. /Pg. Position: 2 /. Date: 25/1.

(4) JOBNAME: EE0 d’Aspremont PAGE: 3 SESS: 7 OUTPUT: Wed Jan 30 08:58:14 2019. 710. Concepts for international law. issue has been settled in the same way by several arbitration tribunals, the chosen solution will enter the body of international law’.10 When, in 1920, Article 38 of the Statute of the PCIJ was drafted, jurisprudence was only referred to as a ‘subsidiary means for the determination of the rules of law’, to be used together with the doctrine of the most qualified publicists. As explained by a former president of the ICJ, ‘according to the 1922 Statute, reproduced on that point in 1945, sources of international law explicitly exclude judicial decisions. At best, they can play an “auxiliary” and “indirect” role in the determination of the rule of law … the rule of stare decisis is ruled out.’11 But despite the dearth that has for some time characterized third party adjudication and the prudence vis-à-vis jurisprudence at the international level, international courts and tribunals found some oases where they progressively started to see something more in the decisions rendered by judicial bodies – that is to say, in their jurisprudence. What was that ‘something more’? Jurisprudence was no longer seen as mere res inter alios acta but as precedent. One of the first instances in which the doctrine of precedent was formulated was the ICJ’s exploration of the legal waters in which the Alabama case was baptized: ‘Since the Alabama case, it has been generally recognised, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction.’12 At this time judicial ideology superseded judicial neutrality. International courts and tribunals were increasingly convinced that the ultimate function of jurisprudence was not to embody mere statements of law but to achieve systemic objectives. International courts and tribunals became then the active promoters of new (judicial) ideologies that appear to be more of a ‘meta-judicial’ nature. To use a mathematical metaphor, the said ideologies led to the formulation of a ‘rule of three’ of international jurisprudence: consistency, certitude and continuity.13 Judge Tanaka’s separate opinion in the Barcelona Traction case was perhaps the first time that ‘rule of three’ was embraced. Judge Tanaka explained that respect for precedents and maintenance of the continuity of jurisprudence were ‘without the slightest doubt highly desirable from the viewpoint of the certainty of law which is equally required in international law and in municipal law’. He proceeded by saying that the same kind of cases must be decided in the same way and possibly by the same. 10 A. Lapradelle and N. Politis, Recueil des arbitrages internationaux (1798–1855) (preface by Louis Renault 1956) vii. 11 G. Guillaume, ‘The Use of Precedent by International Judges and Arbitrators’ (2011) 2(1) Journal of International Dispute Settlement 1, 8–9. 12 Nottebohm Case (Liechtenstein v Guatemala), Preliminary Objections, Judgment of 18 November 1953, [1953] ICJ Rep 111, 119. 13 N. Aloupi and C. Kleiner, ‘Le précédent en droit international: Technique pré-normative ou acte normatif?’ (Colloque SFDI de Strasbourg, Pedone 2015) 43.. Makane Moïse Mbengue - 9781783474684 Downloaded from Elgar Online at 05/27/2020 11:24:16AM via Geneva University (incl Graduate Institute). Columns Design XML Ltd. /. Job: dAspremont-Concepts_for_international_law. /. Division: 46_Precedent_Mbengue_ed. /Pg. Position: 3 /. Date: 25/1.

(5) JOBNAME: EE0 d’Aspremont PAGE: 4 SESS: 7 OUTPUT: Wed Jan 30 08:58:14 2019. Precedent. 711. reasoning. In his view, such a perception/function of international jurisprudence was inherent in judicial activities ‘as distinct from purely academic activities’.14 Once the expansion of international law had led to the multiplication or proliferation of international courts and tribunals, the latter became more and more vocal regarding the need to ensure that their jurisprudence would serve as a vehicle for the said ideologies. In particular, consistency became the ‘malady of the age’; it is now perceived as ‘the essence of judicial reasoning’.15 A former president of the ICJ theorized that ‘any system of law requires a minimum of certainty, and any dispute settlement system a minimum of foreseeability’ and that precedent plays an irreplaceable role in this respect and ‘is the guarantor of certainty and equality of treatment’.16 In an era of judicialization of international law, jurisprudence is a ‘gentle civilizer’ of judicial productivity and creativity.17 It plays the role of a tool for ordering the case law of a given court, but also for ordering the relations between different international courts and tribunals in order to ensure consistency and harmonization in the process of law interpretation and law application. Judge Wolfrum, then president of the International Tribunal for the Law of the Sea (ITLOS), declared on one particular occasion: With regard to the developments of the Tribunal’s jurisprudence in respect of the ICJ, the Tribunal, in its decisions, has not hesitated in referring, when appropriate, to the precedents set by that Court. The Tribunal has thereby helped to strengthen the development of a corpus of jurisprudence. In my view, this demonstrates a constructive manner of maintaining consistency in international law and reinforcing the necessary coherence between general international law and the law of the sea. Harmonisation of jurisprudence also offers a response to questions ensuing from the establishment of new international courts and tribunals and the multiplication of special regimes, such as the law of the sea.18. This unitary or harmonizing purpose confers a precedential value on the jurisprudence of international courts and tribunals. But is it really the purpose per se of international jurisprudence to lead to a system of precedent?19 How should we understand the extent and limits of jurisprudence as precedent in international adjudication?. 14. Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Preliminary Objections, Judgment of 24 July 1964, [1964] ICJ Rep 6, 65 (Separate Opinion of Judge Tanaka). 15 Legality of Use of Force (Serbia and Montenegro v United Kingdom and Others), Preliminary Objections, 15 December 2004, [2004] ICJ Rep 1307, 1353 (Joint Declaration of Judge Ranjeva and Others). 16 Guillaume (n 11) 6. 17 L. Boisson de Chazournes, ‘Plurality in the Fabric of International Courts and Tribunals: The Threads of a Managerial Approach’ (2017) 28(1) European Journal of International Law 13. 18 Statement by H.E. Judge Rüdiger Wolfrum, President of the International Tribunal for the Law of the Sea to the Informal Meeting of Legal Advisers of Ministries of Foreign Affairs (United Nations, New York 29 October 2007) 6–7. 19 On the concept of system(s) in international law, see the chapter by Mario Prost in this volume.. Makane Moïse Mbengue - 9781783474684 Downloaded from Elgar Online at 05/27/2020 11:24:16AM via Geneva University (incl Graduate Institute). Columns Design XML Ltd. /. Job: dAspremont-Concepts_for_international_law. /. Division: 46_Precedent_Mbengue_ed. /Pg. Position: 4 /. Date: 25/1.

(6) JOBNAME: EE0 d’Aspremont PAGE: 5 SESS: 7 OUTPUT: Wed Jan 30 08:58:14 2019. 712. Concepts for international law. 3. THE PATH OF DESPAIR The next morning the first question that occurred to my mind was: ‘What shall I do?’20. While the ‘malady of the age’ should have led jurisprudence to foster order in the process of law interpretation and law application,21 it has in reality provoked a certain level of disorder. The disorder is not in se in relation to the legal pronouncements of international courts and tribunals as such; it affects the very concept of jurisprudence understood as precedent. The disorder at stake is, thus, one of Shakespearian dilemma: to be or not to be? ‘What shall I do?’ Precedent is subject to variable geometry. Depending on how it is being used in practice, it might be a mini-/semi-precedent, a precedent per se or a super-precedent. For instance, one author has described the idea of super-precedent as follows: ‘To say a case is a super-precedent means it is judicially unshakeable, a precedential monument which may not be gainsaid, akin to having the statute-like force of vertical stare decisis horizontally.’22 Once again, Judge Tanaka’s separate opinion in the Barcelona Traction case is reflective of that existential dilemma. Despite his praise of consistency and the use of jurisprudence as precedent, he warned international adjudicators that ‘the requirement of the consistency of jurisprudence is never absolute’.23 For Judge Tanaka, consistency ‘cannot be maintained at the sacrifice of the requirements of justice and reason’,24 and therefore international courts and tribunals should not be too preoccupied with the authority of their past decisions. He pointed out: ‘The formal authority of (a court’s) decision must not be maintained to the detriment of its substantive authority.’25 Judge Tanaka’s fears were premonitory. Consistency has today become a pretext for international courts and tribunals to focus more on the form than the substance of their case law, affecting to a certain extent the proper exercise of the international judicial function. This shift in terms of focus has in its turn an impact on the very understanding of the concept of Jurisdictio in itself – the power to state the law. Instead of reflecting on what it is to ‘state the law’, international adjudicators are more concerned with the ‘power’. But as a famous 1990s song titled ‘The Power’ puts it: ‘It’s getting kinda hectic!’26 The shift is perceptible in the emergence of a new type of judicial (non)dialogue, one centred on the formal authority of judicial pronouncements and not on the substantive authority of the jurisprudence produced by international courts and tribunals. The field of investment arbitration is an interesting laboratory for experiments with such a 20. de Musset (n 1) 27. For expansion on these themes, see the chapters in this volume by Duncan Hollis (interpretation) and Patrick Capps (interpretivism). 22 M. Sinclair, ‘Precedent, Super-Precedent’ (2007) 14 George Mason Law Review 365. 23 Barcelona Traction, Judge Tanaka (n 14) 65. 24 ibid. 25 ibid. 26 Snap, ‘The Power’ from the music album World Power, Bookmark/Arista/Ariola Records, 1990. 21. Makane Moïse Mbengue - 9781783474684 Downloaded from Elgar Online at 05/27/2020 11:24:16AM via Geneva University (incl Graduate Institute). Columns Design XML Ltd. /. Job: dAspremont-Concepts_for_international_law. /. Division: 46_Precedent_Mbengue_ed. /Pg. Position: 5 /. Date: 25/1.

(7) JOBNAME: EE0 d’Aspremont PAGE: 6 SESS: 7 OUTPUT: Wed Jan 30 08:58:14 2019. Precedent. 713. judicial dialogue on the authority of jurisprudence.27 However, the various experiments are not based on the same hypotheses and techniques. One relevant type of experiment is the ‘Saipem experiment’, where the Tribunal declared: The Tribunal considers that it is not bound by previous decisions. At the same time, it is of the opinion that it must pay due consideration to earlier decisions of international tribunals. It believes that, subject to compelling contrary grounds, it has a duty to adopt solutions established in a series of consistent cases. It also believes that, subject to the specifics of a given treaty and of the circumstances of the actual case, it has a duty to seek to contribute to the harmonious development of investment law and thereby to meet the legitimate expectations of the community of States and investors towards certainty of the rule of law.28. At this level, the Saipem Tribunal saw its raison d’être – and, by extension, the raison d’être of other investment tribunals – in the building and design of a coherent system of jurisprudence. Jurisprudence is here foreseen as priesthood. Having recourse to precedents is not a choice; it is a duty. A second type of experiment is the ‘El Paso experiment’, in which the Tribunal said: ICSID arbitral tribunals are established ad hoc, from case to case, in the framework of the Washington Convention, and the present Tribunal knows of no provision, either in that Convention or in the BIT, establishing an obligation of stare decisis. It is, nonetheless, a reasonable assumption that international arbitral tribunals, notably those established within the ICSID system, will generally take account of the precedents established by other arbitration organs, especially those set by other international tribunals. The present Tribunal will follow the same line, especially since both parties, in their written pleadings and oral arguments, have heavily relied on precedent.29. In contrast to the Saipem Tribunal, the El Paso Tribunal was not concerned with the building of a coherent system of jurisprudence. Having recourse to precedents is not a 27 See also Appellate Body Report, US – Stainless Steel (Mexico), WT/DS344/AB/R (30 April 2008) para 158: ‘Dispute settlement practice demonstrates that WTO Members attach significance to reasoning provided in previous panel and Appellate Body reports. Adopted panel and Appellate Body reports are often cited by parties in support of legal arguments in dispute settlement proceedings, and are relied upon by panels and the Appellate Body in subsequent disputes. In addition, when enacting or modifying laws and national regulations pertaining to international trade matters, WTO Members take into account the legal interpretation of the covered agreements developed in adopted panel and Appellate Body reports. Thus, the legal interpretation embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the WTO dispute settlement system. Ensuring “security and predictability” in the dispute settlement system, as contemplated in Article 3.2 of the DSU, implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case.’ 28 Saipem SpA (Claimant) v The People’s Republic of Bangladesh (Respondent), ICSID Case No ARB/05/07 (Decision on Jurisdiction and Recommendation on Provisional Measures, 21 March 2007) para 67. 29 El Paso Energy International Company (Claimant) v The Argentine Republic (Respondent), ICSID Case No ARB/03/15 (Decision on Jurisdiction, 27 April 2006) para 39.. Makane Moïse Mbengue - 9781783474684 Downloaded from Elgar Online at 05/27/2020 11:24:16AM via Geneva University (incl Graduate Institute). Columns Design XML Ltd. /. Job: dAspremont-Concepts_for_international_law. /. Division: 46_Precedent_Mbengue_ed. /Pg. Position: 6 /. Date: 25/1.

(8) JOBNAME: EE0 d’Aspremont PAGE: 7 SESS: 7 OUTPUT: Wed Jan 30 08:58:14 2019. 714. Concepts for international law. duty; it is an opportunity – and, as with any opportunity, it should be exploited in an opportunistic way. Therefore, jurisprudence has an inconsistent personality. It is doubtful whether this can truly lead to consistency in the system of international adjudication.. 4. THE SEARCH FOR HEALING Yet I was unwilling to yield.30. Resistance is inherent to any process of change. In 1916, a scholar named James Parker Hall published a piece on ‘The Force of Precedents in International Law’ – perhaps one of the first known scholarly articles dealing in part with international jurisprudence and its potential precedential weight. But what makes Hall’s piece noteworthy is not simply that it was pioneering; it is the fact that it was published in the International Journal of Ethics. Discussing the value of jurisprudence was not considered a positivist concern but an ethical issue. Hall saw an ethical hurdle and maybe even some danger in the acceptance of international jurisprudence as precedent: the danger was that of legitimizing judicial legislation. In his own words: Such precedents, whether of international or of municipal law, are subject to the same limitation as those of customary law: they make law only for succeeding cases whose essential facts are so little different that no substantial reasons can be given or their being governed by a different policy. The courts in deciding cases can exercise no general power of abstract law making for the future … The courts do, of course, truly make law (despite fictions to the contrary), but they do so only as incidental to their judicial function of deciding actual controversies, and have no power to lay down binding rules beyond the fair necessities at the case at hand.31. Hall resisted change way before it occurred, almost one century prior to the judicial voices today resisting the precedential value of jurisprudence and calling for a more neutral perception of the concept. Those voices reject any experiment that would turn international jurisprudence into a source of law. Investment arbitral tribunals have been both the main advocates of ‘precedential experimentation’ in relation to jurisprudence and the strongest opponents of such an approach. What these opposing voices have in common with Hall is fear of judicial legislation. They find it outrageous that some within the same epistemic community of international adjudicators would dare to see in jurisprudence another source of law, as was the case in ADF v USA, where the Tribunal stated a propos prior jurisprudence: ‘We understand Mondev to be saying – and we would respectfully agree with it – that any general requirement to accord “fair and equitable treatment” and “full protection and 30. de Musset (n 1) 41. J.P. Hall, ‘The Force of Precedents in International Law’ (1916) 26(2) International Journal of Ethics 152. 31. Makane Moïse Mbengue - 9781783474684 Downloaded from Elgar Online at 05/27/2020 11:24:16AM via Geneva University (incl Graduate Institute). Columns Design XML Ltd. /. Job: dAspremont-Concepts_for_international_law. /. Division: 46_Precedent_Mbengue_ed. /Pg. Position: 7 /. Date: 25/1.

(9) JOBNAME: EE0 d’Aspremont PAGE: 8 SESS: 7 OUTPUT: Wed Jan 30 08:58:14 2019. Precedent. 715. security” must be disciplined by being based upon State practice and judicial or arbitral case-law or other sources of customary or general international law.’32 Against the Saipem and El Paso ‘experiments’, they place the AES and Romak ‘experiences’.33 Both AES and Romak envision jurisprudence as allowing for judicial comfort and contributing to judicial inspiration – nothing more, nothing less. Jurisprudence should reflect the judicial sovereignty of each international court and tribunal. In other words, they refuse to see in jurisprudence a tool that would permit international courts and tribunals to experiment with the precedential value of their decisions. Jurisprudence is simply the product of the experience that each court and tribunal is developing when dealing with international disputes. It contributes to judicial knowledge; it does not create a system based on judicial precedents. The AES Tribunal emphasized this need for judicial sovereignty in the shaping of international jurisprudence as follows: An identity of the basis of jurisdiction of these tribunals, even when it meets with very similar if not even identical facts at the origin of the disputes, does not suffice to apply systematically to the present case positions or solutions already adopted in these cases. Each tribunal remains sovereign and may retain, as it is confirmed by ICSID practice, a different solution for resolving the same problem; but decisions on jurisdiction dealing with the same or very similar issues may at least indicate some lines of reasoning of real interest; this Tribunal may consider them in order to compare its own position with those already adopted by its predecessors and, if it shares the views already expressed by one or more of these tribunals on a specific point of law, it is free to adopt the same solution … One may even find situations in which, although seized on the basis of another BIT as combined with the pertinent provisions of the ICSID Convention, a tribunal has set a point of law which, in essence, is or will be met in other cases whatever the specificities of each dispute may be. Such precedents may also be rightly considered, at least as a matter of comparison and, if so considered by the Tribunal, of inspiration.34. For its part, the Romak Tribunal theorized as to why jurisprudence is a mere source of judicial comfort and inspiration: With respect to arbitral awards, this Arbitral Tribunal considers that it is not bound to follow or to cite previous arbitral decisions as authority for its reasoning or conclusions. Even presuming that relevant principles could be distilled from prior arbitral awards (which has proven difficult with respect of many of the decisions cited by the Parties in these proceedings), they cannot be deemed to constitute the expression of a general consensus of the international community, and much less a formal source of international law. Arbitral awards remain mere sources of inspiration, comfort or reference to arbitrators … Ultimately, the Arbitral Tribunal has not been entrusted, by the Parties or otherwise, with a mission to ensure the coherence or development of ‘arbitral jurisprudence.’ The Arbitral Tribunal’s mission is more mundane, but no less important: to resolve the present dispute between the 32 ADF Group Inc (Claimant) v United States of America (Respondent), ICSID Case No ARB (AF)/00/1 (award, 9 January 2003) para 184. 33 M.M. Mbengue, ‘Brèves réflexions sur quatre visage du (non?) stare decisis en arbitrage d’investissement’ (Colloque SFDI de Strasbourg, Pedone 2015) 341–45. 34 AES Corporation (Claimant) v The Argentine Republic (Respondent), ICSID Case no ARB/02/17 (Decision on Jurisdiction, 26 April 2005) paras 30–31.. Makane Moïse Mbengue - 9781783474684 Downloaded from Elgar Online at 05/27/2020 11:24:16AM via Geneva University (incl Graduate Institute). Columns Design XML Ltd. /. Job: dAspremont-Concepts_for_international_law. /. Division: 46_Precedent_Mbengue_ed. /Pg. Position: 8 /. Date: 25/1.

(10) JOBNAME: EE0 d’Aspremont PAGE: 9 SESS: 8 OUTPUT: Wed Jan 30 08:58:14 2019. 716. Concepts for international law. Parties in a reasoned and persuasive manner, irrespective of the unintended consequences that this Arbitral Tribunal’s analysis might have on future disputes in general. It is for the legal doctrine as reflected in articles and books, and not for arbitrators in their awards, to set forth, promote or criticise general views regarding trends in, and the desired evolution of, investment law. This is not to say that the Arbitral Tribunal will simply ignore awards rendered by distinguished arbitrators. The Arbitral Tribunal may and will examine them, not for the purposes of extracting from them rules of law, but as a means to provide context to the Parties’ allegations and arguments, and as to explain succinctly the Arbitral Tribunal’s own reasoning.35. Comfort is relative. What might constitute comfort for some might be considered discomfort by others. Yet, both those who find comfort in not conferring any precedential value to judicial decisions and those who feel discomfort when the precedential value of judicial decisions is denied have in fine the same love: jurisprudence.. 5. THE THORNS OF LOVE I have now to recount what happened to my love, and the change that took place in me. What reason can I give for it? None, except as I repeat the story and as I say: ‘It is the truth.’36. Lauterpacht’s attempt to rebuke the ICJ for its behaviour with respect to its own decisions is illustrative of the ‘thorns of love’ that could result from jurisprudence. Lauterpacht summarized the ICJ’s behaviour as follows: [T]he Court follows its own decisions for the same reasons for which all courts – whether bound by the doctrine of precedent or not – do so, namely, because such decisions are a repository of legal experience to which it is convenient to adhere; because they embody what the Court considered in the past to be good law; because respect for decisions given in the past makes for certainty and stability, which are of essence of the orderly administration of justice; and (a minor and not invariably accurate consideration) because judges are naturally reluctant, in the absence of compelling reasons to the contrary, to admit that they were previously wrong.37. This passage in itself reveals that beyond the ICJ, and at the end of the day, all international courts and tribunals follow de facto prior judicial decisions. The difference is in the labels used to refer to jurisprudence or in the figures developed to explain the perception of jurisprudence. But what is even more noteworthy about the quoted passage is, paradoxically, what Lauterpacht envisaged as ‘a minor consideration’, that is, that international courts and tribunals give weight to their previous decisions ‘because judges are naturally reluctant to admit that they were previously wrong’. Such a reason is not that minor when. 35 Romak SA (Switzerland) (Claimant) v The Republic of Uzbekistan (Respondent), Permanent Court of Arbitration (Award, 26 November 2009) paras 170–71. 36 de Musset (n 1) 109. 37 H. Lauterpacht, The Development of International Law by the International Court (Cambridge University Press 1982) 14.. Makane Moïse Mbengue - 9781783474684 Downloaded from Elgar Online at 05/27/2020 11:24:16AM via Geneva University (incl Graduate Institute). Columns Design XML Ltd. /. Job: dAspremont-Concepts_for_international_law. /. Division: 46_Precedent_Mbengue_ed. /Pg. Position: 9 /. Date: 25/1.

(11) JOBNAME: EE0 d’Aspremont PAGE: 10 SESS: 8 OUTPUT: Wed Jan 30 08:58:14 2019. Precedent. 717. considering the actual practice of international courts and tribunals. Jurisprudence is followed because it is first and foremost seen as a reflection of judicial truth: ‘If international judges say, it must be true’, as one author has ironically put it.38 As the International Criminal Tribunal for the former Yugoslavia (ICTY) commented: Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been ‘wrongly decided, usually because the judge or judges were ill-informed about the applicable law.’39. Jurisprudence is thus in reality an instrument of domination, in particular in an era of multiplication of international courts and tribunals. It allows international courts and tribunals to put themselves, consciously or unconsciously, into a nexus of hierarchical relations. The posture of the WTO Appellate Body with respect to WTO panels is selfexplanatory. In US – Oil Country Tubular Goods Sunset Reviews, the Appellate Body held that ‘following the Appellate Body’s conclusions in earlier disputes is not only appropriate, but is what would be expected from panels, especially where the issues are the same’.40 The WTO Appellate Body did not hesitate, on certain occasions even referring explicitly to the notion of ‘hierarchy’ in order to legitimize the weight of its jurisprudence: In the hierarchical structure contemplated in the DSU, panels and the Appellate Body have distinct roles to play. In order to strengthen dispute settlement in the multilateral trading system, the Uruguay Round established the Appellate Body as a standing body … The creation of the Appellate Body by WTO Members to review legal interpretations developed by panels shows that Members recognised the importance of consistency and stability in the interpretation of their rights and obligations under the covered agreements … The Panel’s failure to follow previously adopted Appellate Body reports addressing the same issues undermines the development of a coherent and predictable body of jurisprudence clarifying Members’ rights and obligations under the covered agreements as contemplated under the DSU.41. The same posture of ‘jurisprudential hierarchy’ has been adopted by the ICJ in its relation with the ICTY and with respect to the general international law of state responsibility: The Court has given careful consideration to the Appeals Chamber’s reasoning in support of the foregoing conclusion, but finds itself unable to subscribe to the Chamber’s view. First, the Court observes that the ICTY was not called upon in the Tadić case, nor is it in general called upon, to rule on questions of State responsibility, since its jurisdiction is criminal and extends 38 J. d’Aspremont, ‘If International Judges Say So, It Must Be True: Empiricism or Fetishism?’ (2015) 4(9) ESIL Reflections. 39 Prosecutor v Zlatko Aleksovski, Appeal, Judgment of 24 March 2000, Case IT-95-14/1 paras 105–08. 40 US – Oil Country Tubular Goods Sunset Reviews, WT/DS268/AB/R (29 November 2004). 41 US – Stainless Steel (Mexico) (n 27) para 162.. Makane Moïse Mbengue - 9781783474684 Downloaded from Elgar Online at 05/27/2020 11:24:16AM via Geneva University (incl Graduate Institute). Columns Design XML Ltd. /. Job: dAspremont-Concepts_for_international_law 25/1. /. Division: 46_Precedent_Mbengue_ed. /Pg. Position: 10 /. Date:.

(12) JOBNAME: EE0 d’Aspremont PAGE: 11 SESS: 8 OUTPUT: Wed Jan 30 08:58:14 2019. 718. Concepts for international law. over persons only. Thus, in that Judgment the Tribunal addressed an issue which was not indispensable for the exercise of its jurisdiction. As stated above, the Court attaches the utmost importance to the factual and legal findings made by the ICTY in ruling on the criminal liability of the accused before it and, in the present case, the Court takes fullest account of the ICTY’s trial and appellate judgments dealing with the events underlying the dispute. The situation is not the same for positions adopted by the ICTY on issues of general international law which do not lie within the specific purview of its jurisdiction and, moreover, the resolution of which is not always necessary for deciding the criminal cases before it.42. These instances show that in fine, the issue is not coherence (or its cousin, consistency) but coexistence. International courts and tribunals have a Benthamian (utilitarian) perspective of precedents. Precedents are useful as long as they allow each court and tribunal to keep its position in the international legal system and to preserve its own identity. They are, thus, a pretext. Judge Treves highlighted this idea in relation to the United Nations Convention on the Law of the Sea (UNCLOS), which provides for a variety of international courts and tribunals to adjudicate maritime delimitation disputes. According to Judge Treves: [T]he framers of the Convention would seem not to have been concerned about the danger of fragmentation that decisions on the same body of law by different courts and tribunals might entail, a danger that some, but certainly not all, scholars and practitioners consider grave. In order to avert such danger and to prove that the possibility of decisions by different courts and tribunals on the same law may be a source of richness and not of contradiction, all courts and tribunals called to decide on the interpretation and application of the Convention, including its provisions on delimitation, should, in my view, consider themselves as parts of a collective interpretative endeavour, in which, while keeping in mind the need to ensure consistency and coherence, each contributes its grain of wisdom and its particular outlook. The coexistence of a jurisprudence on delimitation of the International Court of Justice with awards of arbitration tribunals augurs well … With the present judgment the Tribunal becomes an active participant in this collective interpretative endeavour. While it has adopted the methodology developed by the International Court of Justice and recent arbitral awards, the Tribunal has also contributed its own grain of wisdom and particular outlook.43. De Musset would have called this last point ‘satiety’.44. 42. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, [2007] ICJ Rep 43, 209 para 403. 43 Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, [2012] ITLOS Rep 4, 141 (Declaration of Judge Treves). 44 de Musset (n 1) 75.. Makane Moïse Mbengue - 9781783474684 Downloaded from Elgar Online at 05/27/2020 11:24:16AM via Geneva University (incl Graduate Institute). Columns Design XML Ltd. /. Job: dAspremont-Concepts_for_international_law 25/1. /. Division: 46_Precedent_Mbengue_ed. /Pg. Position: 11 /. Date:.

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