The Theory and Practice of Precedent in International Adjudication: A View from Ukraine

Abstract

This article argues that legal pragmatism and realism are the methodological basis for considering the law-making function of international courts. Classical scientific approaches, the representatives of which view courts only as applicators of the law, do not allow research into the nature and role of international adjudicative bodies. Since there are several positions on the nature, content, and legal force of the precedent decisions of international adjudicative bodies (the are both diametrically opposed and, to some extent, similar), the author takes a position that considers the characteristics of modern international relations. The author proposes to classify international judicial precedents by considering the construction of judicial institutions and the legal force of decisions because these criteria reflect the nature and significance of such decisions. The classification divides precedents into vertical and horizontal (persuasive). The author argues that vertical precedent set by a particular body of international justice can be absolute, i.e., a structurally lower judicial body can, under no circumstances and exceptions, make a decision without taking into account the legal conclusions made by the higher judicial body. Vertical international judicial precedent may also be relative, i.e., in certain circumstances, a higher judicial body may make a different decision in a similar case, which suggests no obligation to be bound by its own previous decisions. Analysis of the decisions of many international courts has led to the conclusion that international courts create judicial precedents of persuasive content. In particular, the author uses decisions of the European Court of Human Rights (ECtHR) that contain citations of the Court’s own legal positions and the International Court of Justice’s legal positions. It is proved that the so-called horizontal precedent is a persuasive precedent, the content of the legal provisions of which is based on the authority of the cited international court’s decisions. Thus, international judicial precedent not only exists but must be recognised legally because only the formal enshrinement of the legal force of such decisions will lead to the recognition of judicial precedent as a formal source of international law.