Moïse Mbengue, Makane --- "Precedent" [2019] ELECD 232; in d’Aspremont, Jean; Singh, Sahib (eds), "Concepts for International Law" (Edward Elgar Publishing, 2019) 708

Book Title: Concepts for International Law

Editor(s): d’Aspremont, Jean; Singh, Sahib

Publisher: Edward Elgar Publishing

ISBN: 9781783474677

Section: Chapter 46

Section Title: Precedent

Author(s): Moïse Mbengue, Makane

Number of pages: 11

Abstract/Description:

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.