precedent in civil law and international law

8/12/2019 Precedent in Civil Law and International Law

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P RECEDENT IN CIVIL L AW AND I NTERNATIONAL

L AW : A N O VERVIEW

Muhammad Munir

Abstract

Precedent is one of the main features of common law systems. It is the

practice whereby decisions of higher courts are binding on lower courts in

similar cases. But what is the status of precedent or decided cases of higher

courts in Continental European countries where civil law system is followed?

What is the practice of the International Court of Justice and the Panels as

well as the Appellate Body of the WTO? The findings of this work are that in

Continental Europe, especially France, Germany, and Spain, judicial

decisions are not considered as a source of law in theory but it occurs as a

practical matter. The practice of the International Court of Justice is that

judicial decisions are not binding but are taken into consideration. The

practice of Panels and Appellate Body of the WTO is similar to that of the

World Court.

[email protected] Dr. Muhammad Munir, PhD, is Associate Professor and ChairmanDepartment of Law, International Islamic University, Islamabad.
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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Key Words : Precedent, civil law, common law, France, Germany, Spain, England,

Pakistan, International Court of Justice, WTO, Panels, Appellate Body, practice of

precedent in civil law.

I. I NTRODUCTION

Precedent is one of the main features of common law system. It is the practice

whereby decisions of higher courts are binding on lower courts in similar cases.

This doctrine evolved very early in England from the time of traveling

magistrates (or assizes ) who used to be sent to the country side in the 12 th

century to administer justice. In order to have uniformity and consistency in

their work, they developed the practice of stare decisis or let the decision stand

or stand by what has been decided. The practice gave birth to the modern

doctrine of precedent. With the hierarchy of courts and law reporting, the

doctrine was cemented and reached to its present shape. In England, today, the

House of Lords is free to depart from its previous decision but it rarely exercises

this power. It binds all lower courts in the hierarchy. A complete discussion of

the doctrine of precedent in England is beyond the scope of this work. 1 In

Pakistan by virtue of Article 189 of the 1973 Constitution, the Supreme Court

binds all other Courts and Tribunals but it is free to depart from its own previous

decisions. 2 The important questions that we want to discuss in this work are:

what is the practice of precedent in some countries of Continental Europe1 For a very authoritative study of precedent in England see Rupert Cross & Jim W. Harris, Precedent in

English Law , Clarendon Press, Oxford, 4 th ed. 1991, reprinted 2004; Michael Zander, The Law-Making Process , Butterworths, London, 1999, pp. 194-373. For precedent in general see Precedent in Law , ed. L.Goldstein, Clarendon Press, Oxford, 1987, reprinted 1991.2 For a brief discussion of the operation of precedent in the Pakistani legal system see Martin Lau,Introduction to the Pakistani Legal System with Special Reference to the Law of Contract , 1YIMEL (1994), p. 6. & Fazal Karim, Access to Justice in Pakistan , Pakistan Law House, Karachi, 2003, pp. 47-58and this author s, Precedent in Pakistani Law , Oxford University Press, forthcoming.


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practicing civil law system? What is the practice of higher courts in particular in

France, Germany and Spain regarding the doctrine of precedent? Is there

binding precedent in international law? What is the practice of the International

Court of Justice and other international courts and tribunals such as the panels

and Appellate Body of the Word Trade Organization? These are some of the

questions that are answered in this work.

II. THE V IEW F ROM CONTINENTAL E UROPE : P RECEDENT IN

CIVIL L AW

Before describing the role of precedent in Continental Europe, it is necessary to

describe the characteristics of civil law systems. In France and Germany, for

example, there exist codes that cover large areas of the law and which lay down the

rights and duties of persons in fairly general terms and the use of terminology and

concepts, and frequently of principles, can be traced back to the Roman law. There is

a less strict regard for judicial precedents, and a greater reliance on the influence of

academic lawyers to systematize, criticize, and develop the law in their books and

writings. 3 In the civil law system, statutes contain minute details as an attempt to

present an area of law as a unified whole to contain not only the general rules but

also the specific rules and principles which apply to all of the specific

circumstances. 4 Judges in Continental system are often said to be acting in a quasi

3 David Walker, The Oxford Companion to Law, Clarendon Press, Oxford, 1980, p. 233.

4 Foster, German Law and Legal System , Blackstone Press 2 nd ed., 1996, p. 3.


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legislative capacity and creating law when interpreting codes. 5 In France, for

instance, Article 4 of the Code Civil prohibits a judge from failing to reach a decision

on grounds of the silence, lack of clarity, or insufficiency of the written codified law.

Decisions in individual cases are binding on the parties to those cases only and do

not establish legal rules which may be binding in future cases. Civil law systems, of

which France is a typical case, are influenced by Justinian mandate that requires

judges to decide cases on the basis of laws, not precedents. 6

Sir Rupert Cross and J. W. Harris have described the characteristic of

Continental laws as follows.7

From the standpoint of strict legal theory, French law is not based on

case-law ( la jurisprudence ) at all. The Civil and Penal Codes are

theoretically complete in the sense that they (and other statutory

provisions) are supposed to cover every situation with which the ordinary

courts are concerned. 8 "Under Article 5 of the Code Civil a French judge

cannot lay down general rules when stating a decision, and French

Appellate Court can set aside a ruling founded exclusively on a past

decision on the ground that the ruling lacked an adequate legal basis. 9

5 C. Manchester, D. Salter, & P. Moodie, Exploring the Law: The Dynamics of Precedent and Statutory

Interpretation , Sweet & Maxwell, 2000, p. 82. (Hereinafter Manchester, Salter, & Moodie, Exploring the

Law).

6 See A. R. Biswas, Ratio Decidendi and Common cause v. Union of India in S CC (Joor), 1987, p. 1.

(Hereafter Biswas, Ratio ).

7 See, Cross & Harris, Precedent , pp. 10 23.

8 Ibid ., p. 10.

9 See David & Devrees, The French Legal System , p. 115.


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One of the most significant features of the French case law lies in the fact that the

French lower court judge is not bound by the decision of any higher court or by its

own previous decisions. However, the practice of the courts becomes a source of law when [I]t is definitely fixed by the repetition of precedent which is in agreement on

single point. 10 The French law owes its uniformity to the comprehensive codes in

which it is declared and to la doctrine the opinions of jurists rather than to la

jurisprudence .11 However, as Bodenheimer notes:

[F]reedom of the judge [in Continental Europe] toward previously decided cases obtains

more in theory than in practice. The de facto authority of a court decision, especially of a

court of last resort, is a very high one, and the weight of such precedents increases in

proportion to the number of decisions reiterating and reaffirming the principles

enunciated in them. A series of decisions containing identical statements of legal

propositions carries an authority almost equal to that of an Anglo American court

decision or series of court decisions. 12

The German Supreme Court has held that an attorney disregarding a decision

published in the official reports of the court makes himself liable to his clients for

the consequences. 13 The argument that has gained considerable momentum is that a

judicial decision that has persisted for some time and has found unqualified status

within the legal profession may be transformed into a norm of customary law and

10 Lambert, Case -Method in Canada, 39 Yale. L.J . p. 14.

11 Cross & Harris, Precedent , p. 13.

12 Bodenheimer, Jurisprudence , p. 345.

13 See Darnest Rabel , Civil Law and Common Law , 10 Lousiana L.Rev , 1950, p. 441.


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thereby acquires the full force and effect of law. 14 It is the influence of this practice

that is considered a doctrina in Spain. In Spain, it seems that two decisions of the

Supreme Court con stitute a doctrina binding on inferior courts, though the

Supreme Court may latt er alter the doctrina .15

III. P RECEDENT IN INTERNATIONAL L AW

(a) Judicial Precedents and the Practice of the International

Court of Justice

Article 38 (1) (d) of the Statute of the ICJ describes judicial decisions as

subsidiary means for the determination of rules of law. This means that judicial

precedents are among the subsidiary sources of international law. 16 However,

Article 59 expressly states that an international decision is binding only upon the

parties to the case and in respect of that particular case. According to Starke [S]ince

the expression decision in Article 59 connoted only the operative portion of the

Court s judgment, as distinct from the grounds given for such judgment 17 the

general practice of the Permanent Court of Justice was that it followed its own

similar decisions. 18 The present International Court of Justice seems to follow a

practice consistent with that of its predecessor. However, it cannot be construed that

the World Court purport to bind itself by any expressed doctrine of judicial

14 See Francois Geny, Method dinterpretation et source en droit prive positif , 2nd ed., Translation Lousiana

State Law Institute, Bation Rouge, 1963, pp. 336-338.

15 Neville Brown, The Sources of Spanish Law , 5 ICLQ , 1956, p. 367.

16 The other subsidiary source is the writing of authors. 17 J. G. Starke, Introduction to International Law , Butterworths, London, 1984, reprinted, 1986, p. 45.18 Ibid .


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precedent. 19 Precedents are not therefore binding authorities in international law,

but the English theory of their binding force merely elevates them into a dogma a

natural tendency of all judicial procedure. 20

There is another related question regarding judges at the ICJ, that is,

whether they make law or apply the existing law. Jennings and Watts argue that

[T]he ir role is inevitably secondary since the law they propound has some

antecedent source. 21 According to Akehurst, [I]t is probably true that judges can

also create new law. 22 Judge Mohamed Shahbuddeen has expressed similar views

when he said that, [O]nce standing judicial bodies have come into existence , they

provide an additional mechanism for the further development of the law.23

As

examples of the Court introducing innovations into international law which have

subsequently won general acceptance are the Reparation for Injuries case, the

Genocide case and the Fisheries case. Akehurst argues that, [T]here is a very strong

probability that the International Court of Justice (and other tribunals) will follow

such decisions in later cases, since judicial consistency is the most obvious means of

avoiding accusations of bias.24

Writing in 1954, Brierly argues that when any systemof law reached a stage at which it thought important to report the decisions and

arguments given by judges, it is unavoidable for fellow judges to ignore the decisions

of their predecessors. He points out that precedent was not considered significant in

19 In the South West Africa Cases, 2 nd Phase [1966] ICJ 6, the Court ruled that an earlier decision by it upona preliminary objection could not conclusively bind the Court in deciding a matter to the merits of the case.At pp. 36-37.20 J. L. Brierly, The Law of Nations: An Introduction to the International Law of Peace , ed., Sir Humphrey

Waldock, Clarendon Press, Oxford, 1963, reprinted, 1981, p. 64.21 Oppenheims International Law , ed., Robert Jennings & Arthur Watts, 9 th edition, Pearson Education,Singapore, 1996, 2 nd Indian reprint, Pearson Education, Delhi, 2005, Vol. 1, p. 41. (Hereafter, Jennings &Watts, Oppenheim s International). Also see H. Lauterpacht, The Development of International Law by the

International Court , 1958, pp. 155-233.22 Michael Akehurst, A Modern Introduction to International Law , Routledge, London, 6 th edition, 1987,reprinted 1996, p. 36.23 Mohamed Shahabuddeen, Precedent in the World Court , Grotius, Cambridge, 1996, p.45. (Hereafter,Shahabuddeen, Precedent ).24 Ibid ., pp. 36-7.


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international law because there have been very few cases which were not easily

available. [T]his state of affairs is changing rapidly, he asserts, and judicial

precedents are taking their proper place in the system. 25 These decisions are often

relied upon in argument and decision. This is also the opinion of Judge Lauterpacht

who has stated that the practice of referring to its previous decisions has become one

of the most conspicuous features of the Judgments and Opinions of the Court. 26 Sir

Gerald Fitzmaurice has expressed a similar view with respect to the functioning of

the International Court of Justice:

[I]t would seem that, although the Court is not obliged to decide on the basis ofprevious decisions as such , what it can do is to take them fully into account in

arriving at subsequent decisions, an d that it is mandatory for it to apply judicial

decisions in the sense of employing them as part of the process whereby it arrives at

its legal conclusions in the case. 27

As a matter of fact, the practice of the common law doctrine of judicial

precedent is absent at the International Court of Justice, therefore, decisions of

international tribunals are not a direct source of law in international adjudications. 28

It is true that [T]hey exercise considerable influence as an impartial and well-

considered statement of the law by jurists of authority made in the light of actual

problems which arise before them. 29 Joost Pauwelyn has explained the place of

judicial decisions as follows:

25 Brierly, The Law , p. 64.26 Lauterpacht, The Development , p. 9; Also see pp. 3-23 for a survey of the practice of the Court in thismatter.27 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice , Cambridge UniversityPress, Cambridge, 1986, p. 584.28 Jennings & Watts, ed., Oppenheim s International , p. 41.29 Ibid .


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[M]ore interesting is the case of judicial decisions. Unlike doctrine, they must be

presumed to be the accurate statement of what the law is, based on genuine sources

of law, such as treaties or custom, as between two parties and as applied to a

particular set of circumstances, at a particular point in time. Hence, at that point in

time, and as between those states, there can, in theory, be no conflict between the

judicial decision and the applicable norms of law since the judicial decision is

presumed to apply those norms , not to contradict them. 30

This presumption is fortified by the fact that the judicial decision is binding only

between the parties under Article 59 of the ICJ Statute. Moreover, it is the result of

the fact that both disputing parties have conferred jurisdiction on the adjudicator to

state what the law is in a particular set of circumstances. 31

It is true that the World Court has the power to depart from its own previous

decisions, Judge Shahabuddeen observed, [I]t will not lightly exercise that

powe r. 32 The phraseology used by judges of the World Court is interesting. In the

recent Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) ,33

the Court stated that, [T]he Court recalls that it has recently had occasion to stress

.34 Similarly, the Court stated that it [R]ecalls that, in the Fisheries Jurisdiction

case ;35 [T]he Court will recall in this context that, as it said in the North Sea

Continental Shelf case ;36 [T]he Permanent Court of International Justice stated

in its Judgment or 13 September 1928 in the case concerning the Factory at

30 Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law , Cambridge University Press, Cambridge, 2003, reprinted, 2004, p. 110. (Hereafter,Pauwelyn, Conflict of Norms).31 Ibid .32 Shahabuddeen, Precedent , p. 3.33 1997 ICJ No. 92 (Judgment of 25 September 1997.34 Ibid ., para 53.35 Para 104.36 Para 141.


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Chorzow .37 However, the words we recall, we note or stated are not the

same, in a legal context, as we held, there is an authoritative tone to them which

suggests more than mere persuasion. As we know, the World Court is a Court of last

resort, and [C]ourts of last resort have come to accept that they are not obliged to

follow their previous decisions; within careful bound, they may depart. 38 The words

of former U. S. Supreme Court Associate Justice Robert H. Jackson are relevant:

[W]henever decisions of one court are reviewed by another, a percentage of them are

reversed. That reflects a difference in outlook normally found between personnel

comprising different court. However, reversal by a higher court is not proof that

justice is thereby better done We are not final because we are infallible, but we are

infallible only because we are final. 39

To sum up, the practice of the World Court we must quote the remarks of Shabtai

Rosenne, who put it nicely by saying that, [P]recedents may be followed or

discarded, but not disregarded. 40

Decisions of municipal courts also represent the most frequent form in which

judicial consideration is given to international law. There are two methods in which

the decisions of state courts may lead to the formation of rules of international law:

first, the decisions may be treated as convincing precedents as Marshall CJ (as he

then was) of the United States Supreme Court said: The decisions of the Courts of

37 Para 149.38 Shahabuddeen, Precedent , p. 238.39 Brown v. Allen , 344 U.S. 443, 540 (1953) (concurring).40 Shabtai Rosenne, The Law and Practice of the International Court , 2nd ed. 1985, p. 56, quoted inShahabuddeen, Precedent , p. 131.


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every country show how the law of nations, in the given case, is understood in that

country, and will be considered in adopting the rule which is to prevail in this. 41

One notable example of this is the decisions of Lord Stowell British Prize

Court judge who presided over the court during the Napoleonic Wars and whose

judgments were considered as authoritative declaration of the law. 42 He was

identified with the establishment of important doctrines, such as that blockade to

be binding must be effective, that contraband of war is to be determined by probable

destination, and the doctrine of continuous voyage.

The United States Supreme Court has played an important role in its

judgments in the Paquete Habana 43 and the Scotia 44 to clarify the nature of

international customary law. In the first case, the Supreme Court, after a detailed

investigation of state laws and practices, treaties, writings of publicists evidencing

usage, and decisions of courts, found that they uniformly proved the existence of a

valid customary rule giving immunity to small fishing vessels, honestly perusing

their calling, from belligerent capture in time of war. The second case ( Scotia ) wasregarding collisions at sea. In 1863, the British Government adopted a series of

regulations for preventing collisions at sea. In 1864, the American Congress adopted

practically the same regulations. This was followed by other maritime nations within

a short period of time. Scotia a British ship collided with the Berkshire an

American ship, which was not carrying the lights required by the new regulations.

The Berkshire sank as a result. The question was whether the respective rights and

duties of the two vessels were determined by the general maritime law before the

41 Thirty Hogsheads of Sugar, Bentzon v. Boyle (1815) 9 Cranch 191 at 198.42 See his judgment in The Maria (1799) 1, Ch Rob, 340, for an affirmation of the universality andimpartiality of the law administered by the British Prize Court.43 (1900) 175 US 677.44 (1871) 14 Wallace 170 at 188.


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British regulations of 1863. The Court held that these rights and duties must be

determined by the new customary rules of international law that had developed

through the widespread adoption of the British regulations, and therefore the fault

lay with the Berkshire. The Court said:

This is not giving to the Statutes of any nation extra-territorial effect. It is not

treating them as general maritime laws, but it is recognition of the historical fact

that, by common consent of mankind, these rules have been acquired in as of general

obligation. Of that fact we think we may take judicial notice. Foreign municipal laws

must indeed be proved as facts, but it is not so with the law of nations.

The second method in which decisions of municipal courts may lead to the

development of rules of international law is that decisions of state courts, under the

same principles as dictate the formation of custom, lead directly to the growth of

customary rules of international law. Certain rules of extradition law, state

recognition 45 and diplomatic immunity 46 have been developed by judgments of

municipal courts. The Nuremberg trials have been a turning point in the further

development of international law (also known as the laws of war). The acts that were

made punishable at Nuremberg were, more or less, made punishable when two

International Criminal Tribunals one for former Yugoslavia and one for Rwanda

were established by the United Nations Security Council in 1993 and 1994

respectively. The former was called ICTY 47 and the latter ICTR 48 . The same crimes

were made punishable when other international tribunals were established for

45 Starke, Introduction , p. 47.46 Akehurst, A Modern Introduction , p. 37.47 See S/RES/827 (May 25, 1993). For text see Marco Sassoli & Antoine A. Bouier, How Does Law

Protect in War? International Committee of the Red Cross, Geneva, 1999, pp. 1150-1156. (HereafterMarco & Antoine, How Does Law).48 See S/RES/955 (November 8, 1994). For text see Marco & Antoine, How Does Law , pp. 1314-1318


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punishing atrocities during war. 49 Finally, the acts punished at Nuremberg as well as

Tokyo were further added to and were permanently incorporated into the Rome

Statute establishing the International Criminal Court or the ICC in 1998. 50 The

question whether the rules laid down by the Nuremberg tribunal are binding at all or

not; our answer is that they are binding on the Allied Powers who created the

Nuremberg Statute because of estoppel a legal principle recognized in every legal

system. 51

The crimes for which the Nazi leaders were punished were also put into the

four Geneva Conventions of 1949 as grave breaches.52

Moreover, Convention on the

Non-Applicability of Statutory Limitations to War Crimes and Crimes against

Humanity of 1968 and many other rules of the same nature were the direct

implication of the decisions of the Military Tribunal at Nuremberg and Tokyo. 53

Moreover, some nations have made legislations making some of Nuremberg crimes

punishable. 54

(b) The Risk of Divergent Case Law

49 These tribunals are established for Serialone, Cambodia and East Taimur.50 A/CONF.183/9, July 17 1998; ILM, vol. 37 (5), 1998, pp. 1002-1069. See Articles 5-8 in particular ofthe Rome Statute. For comments see Nicolas Michel, The Main Features of the Rome Statute:Comments, in The International Criminal Court: A Challenge to Impunity , International Committee of theRed Cross, Damascus, 2002, pp. 12-16. (Hereafter, The International Criminal Court ); Iain Scobbie, TheJurisdiction of the International Criminal Court, in The International Criminal Court , pp. 17-37; ValerieOosterveld, The Rules of Procedure and Evidence for the International Criminal Court, ibid, pp. 50 -58;and Herman von Hebel, The Definition of War Crimes, in ibid ., pp. 59-71.51

For details see this author s Ahkam Al-Madanieen fi Al-Harb: Dirasa Muqarana bain Al-Fiqh Al-Islamiwa Al-Qanoon Al-Douwali Al-Islami (Arabic) Non-combatant Immunity in Islamic Law and International

Humanitarian Law: A Comparative Study , unpublished LLM thesis submitted to the Faculty of Shariah &Law, International Islamic University, Islamabad, in 1997, pp . 112-113, note 3.52 See Articles 50/51/130/147 respectively of the Four Geneva Conventions of 12 August 1949 and Articles11(4), 85 and 86 of Protocol 1 of 8 June 1977 Additional to the Geneva Conventions of 12 August 1949.53 See G. A. Resolution 31 of 13 Feb., 1948 (Extradition and Punishment of War Criminals); Also see G. A.Resolution 170 (ii) of 31 Oct., 1947 (Extradition of War Criminals and Traitors).54 An example of this is the Belgium Law of Universal Jurisdiction of 16 June 1993. For text see Marco &Antione, How Does Law , pp. 580-584.


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Beside the International Court of Justice, there are many different

international tribunals in operation in the world. They include, the International

Tribunal for the Law of the Sea, 55 the International Criminal Tribunal for the Former

Yugoslavia, the International Criminal Tribunal for Rwanda, the International

Criminal Court; 56 the most notable are the ad hoc panels and a permanent

international tribunal called Appellate Body for dispute settlement of the World

Trade Organization. 57 With the increasing number of international tribunals, there

is, indeed, a risk that two judicial decisions may contradict each other. For instance,

one tribunal may find that no breach of international law occurred. Another may

come to the opposite conclusion, as between the same parties on the same matter.

Although such a situation of conflicting judicial decisions has not yet arisen and is,

indeed, not likely to arise in the near future. Pauwelyn has given five solutions to

answer a problem in case of conflicting judicial decisions as between the same

parties on the same subject matter. The important solutions given are: first, the

principle of res judicata should avoid such a situation; secondly, other general

principles of law may be used to avoid such situation; thirdly, in case of two

decisions, both judgments, might not address the same cause of actions; fourthly, if

two tribunals have to decide the same general dispute, but under different claims, the

matter may then be examined in the context of all other rules of international law. 58

The question related to the proliferation of international tribunals, is two tribunals

making conflicting decisions in two completely different disputes and at two very

different points in time. Charney examines the risk posed by multiple international

55 It is created by the United Nations Convention on the Law of the Sea 1982.56 It is created by the Rome Statute in 1998.57 It is created by the Marakash Agreement of 1994 and started work on the 1 st of January, 1995.58 Pauwelyn, Conflict , pp. 114-117.


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tribunals concludes that [T]he coherence of international law does not appear to be

significantly threatened by the increasing number of international tribunals. 59 He

opines that [O]n the basis of the available evidence, no substantial breakdown in

this unity of central norms of general international law has developed. 60 For him,

the most promising strategy for success would [R]ely on the ICJ itself to make

optimal use of the historical, financial, intellectual, and reputational strengths it

now holds, as well as efforts by all tribunals that address international legal matters

to recognize their common enterprise and to engage in greater international

dialogue. 61 Kingsbury has a similar conclusion in a foreword to a series of papers on

the same topic:

[I]f a hierarchal judicial system for international law is not to be established, two

factors will work as counter-forces against those centrifugal forces. First, the ICJ

must continue to maintain its intellectual leadership role in the field. If it does so,

the other tribunals will be under pressure to abide by the ICJ s determinations on

international law. Second, the other tribunals and the ICJ should be encouraged to

increase the dialogue that already exists among them. The idea that all of these

tribunals are engaged in a common endeavour would be emphasized. This might

provide strong pressures against the centrifugal forces at work, while still permitting

the independence of these specialized tribunals. 62

Thomas Schoenbaum refers to the possibility of asking for an ICJ advisory

opinion in case a WTO panel decides a matter of non-WTO law, something that in

59 Jonathan Charney, Is International Law Threatened by Multiple International Tribunals? 271 Recueildes Cours 101 at p. 373.60 Ibid .61 Ibid .

62 Benedict Kingsbury, Foreword: Is the Proliferation of International Courts and Tribunals a SystemicProblem? 31 New York Journal of International Law and Politics , 1999, at 707.


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his view [W]ould be extremely cumbersome. 63 Gilbert Guillaume, a former

president of the ICJ, is less optimistic. 64 He refers to divergent case law on the rules

for the interpretation of treaties in particular, in respect of territorial reservations

in declarations of compulsory jurisdiction in the European Court of Human

Rights, as opposed to the ICJ. 65 Shane Spelliscy has given example of Tadic case to

explain divergent case law. 66 She argues that the ICTY Appeals Chamber in the 1995

Tadic case 67 contradicted the ICJ s judgment in the 1986 Nicaragua case 68 on the

question of when a state can be held liable for acts committed by individuals not

official agents of the state. The test in the Nicaragua case has been stricter 69 than in

the Tadic case.70

However, given the ten-years time lag between the two judgments,

it could be argued that the law on state responsibility has developed towards a more

lenient test. Thus the test applied by the ICTY Appeals Chamber is more in accord

with the development of international law on state responsibility. Whatever the case,

both Guillaume and Spelliscy seem justified in sending out a warning signal that the

proliferation of international tribunals is a real problem.

(c) The Practice of ad hoc Panels and Appellate Body of the WTO

63 Thomas Schoenbaum, WTO Dispute Settlement: Praise and Suggestions for Reform, 47 ICLQ , 1998,647, at note 43.64 Gilbert Guillaume, The Future of International Judicial Institutions, 44 ICLQ , 1995, 848; and his TheProliferation of International Judic ial Bodies: The Outlook for the International Legal Order, Speech to theSixth Committee of the General Assembly of the United Nations, 27 October 2000, available athttp://www.icj-cij.org/icjwww/ipress.com/SPEECHES/iSpeechPresident_Guillaume_SixthCommittee_20001027.htm ; Robert Jennings, The Proliferation of Adjudicatory Bodies: Dangers and Possible Answers, 9 ASIL

Bulletin , 1995; and S. Oda, The International Court of Justice from the Bench, 244 Recueil des Cours 9,

1993, at pp. 139-155.65 Guillaume, Proliferation , p. 4. 66 Shane Spelliscy, The Proliferation of International Tribunals: A Chink in the Armor, 40 Columbia

Journal of Transnational Law 143, 2001, at 159-68.67 Prosecutor v. Dusko Tadic , International Criminal Tribunal for the Former Yugoslavia: AppealsChamber, Decision of 2 October 1995, IT-94-1-AR72.68 Nicaragua case ( Case concerning Military and Paramilitary Activities in and against Nicaragua )( Merits ), ICJ Reports 1986, 14.69 Ibid at paras. 110-15.70 Tadic case, at paras. 103-4.
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The dispute settlement of the WTO is the most efficient and effective method

of adjudication at the international level. From January 1, 1995 to November 27,

2007, a total of 359 disputes have been brought to the Dispute Settlement Body

(DSB) of the WTO for settlement. Moreover, the WTO system has compulsory

jurisdiction, unlike the ICJ, whose jurisdiction is optional and depends on the

parties concerned.

It will be interesting to see the practice of the ad hoc Panels and the

Appellate Body regarding judicial decisions. More precisely, is the Panel in a case

bound by the decision of a previous Panel on a similar point and similar subject

matter? Is the Appellate Body bound by its own previous decision if the subject

matter of both decisions is the same? And is the Panel bound by the decision of

Appellate Body in a similar case? Before answering these questions it is essential to

mention the hierarchy within the WTO adjudication system. When disputant

member states in a case fail to resolve their dispute during consultation with each

other, they might agree that the matter should be referred to a Panel. There are nopermanent panelists at present and the DSB will choose three (in some cases five if

the parties agree) member ad hoc Panel, which will decide the matter in six to nine

months period. Both parties to the dispute can appeal to the Appellate Body a

permanent international tribunal of seven members. Three of them have to sit in a

Bench to hear the case.

In fact, no judicial decision of the Panel or the Appellate Body is binding

except on the parties concerned and in that case only. The Marrakesh Agreement

Establishing the World Trade Organization is a particular international convention,

within the meaning of Article 38(1) (a), as are the additional agreements and legal

instruments dealing with trade in goods and services as well as intellectual property


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rights, referred to in the Dispute Settlement Understandi ng as covered

agreements. There is no explicit equivalent to Article 38(1) in the Dispute

Settlement Understanding, known as DSU the main WTO agreement for dispute

resolution within the WTO Members, its terms effectively are brought into WTO

dispute settlement by Articles 3.2 and 7 of the DSU. Article 3.2 specifies that the

purpose of dispute settlement is to clarify the provisions of the WTO Agreements in

accordance with customary rules of interpretation of public international law.

Article 7 specifi es that the terms of reference for panels shall be, To examine, in the

light of the relevant provisions in the covered agreement(s) cited by the parties to

the dispute the matter referred to the DSB and to address the relevant provisions

in any covere d agreement or agreements cited by the parties to the dispute. Article

3.9 of the DSU provides that WTO dispute settlement is without prejudice to the

rights of Members to seek authoritative interpretation of provisions of a covered

agreement through decision- making under the WTO Agreement. But can such

authoritative interpretation by an act of the WTO overrule an earlier WTO panel or

Appellate Body decisions? To make it plain, the example in a domestic context isgiven. Can the decision of the Supreme Court of Pakistan which is binding on all

lower courts by virtue of Article 189, be changed by the an Act of Parliament? The

answer is yes, as Parliament can put an end to any decision of the Supreme Court.

We have also explained above that the decision of the ICJ can be undone by the

parties to the case by mutual consent. The same is true of a judicial decision of Panel

or Appellate Body of the WTO. The WTO Ministerial Conference or General Council

can adopt authoritative interpretation of WTO agreement s by a three-quarters

majority decision. 71 Such interpretations may contradict previous panel/or Appellate

71 Pursuant to Article IX:2 of the Marakesh Agreement.


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Body interpretations in particular disputes. The Appellate Body stated in its report

on US FSC :

[T]he distinction between an authoritative interpretation and an

interpretation made in dispute settlement proceedings is made clear in the

WTO Agreement. Under the WTO Agreement, an authoritative

interpretation by the Members of the WTO, under Article IX:2 of that

Agreement, is to be distinguished from the rulings and recommendations of

the DSB, made on the basis of panel and Appellate Body Reports. In terms of

Article 3.2 of the DSU, the rulings and recommendations of the DSB serve

only to clarify the existing provisions of those agreements and cannot add

to or diminish the rights and obligations provided in the covered

agreements. 72

Let us see the practice of panels and the Appellate Body regarding previous

decisions of their own. Judicial decisions or in the WTO context the reporteddecisions of prior panels is the second important source of law after covered

agreements. 73 These reports 74 include the reports of GATT panels, 75 the WTO panels

and the Appellate Body. 76 Reports may either be unadopted or adopted by the DSB.

72 US FSC, footnote 127.73 See David Palmeter & Petros C. Mavroidis, Dispute Settlement in the World Trade Organization:

Practice and Procedure , Kluwer Law International, Hague, 1999, pp. 37-38. (Hereafter David & Peros,Dispute Settlement).74 Recommendations of panels and Appellate Body are called reports. These recommendations aresubmitted to the DSB, which may adopt them on reverse consensus. The panels or Appellate Body do nothave implementing authority.75 The WTO Agreement specifies that the WTO shall be guided by the decisions, procedures and customary

practices followed by the GATT 1047. See Article XV: 1.76 David & Petros, Dispute Settlement , p. 38.


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In Japan Taxes on Alcoholic Beverages 77 the panel effectively treated adopted

reports as judicial decisions and determined that they are an integral part of GATT

1994 since they are other decisions of the Contracting Parties to GATT 1947. 78 The

Appellate Body disagreed and held t hat a decision to adopt a panel report, is not a

decision within the meaning of Article 1(b) (iv). The Appellate Body considered

adopted reports as an important part of the GATT acquis .79 It is interesting to

note, however, because in its discussion o f the issue, the Appellate Body refers to a

decision and decisions to adopt panel reports. 80 The panel treated adopted

reports as subsidiary sources of WTO law, comparable in status to judicial

decisions in the World Court. It stated that they have t o be taken into account by

subsequent panels dealing with the same or a similar issue. 81 In other words, an

adopted report does not constitute a definitive interpretation of an agreement; but

a decision that has to be considered but not necessarily followed by the panel.

What the Appellate Body explicitly said is not much different from this. It stated that

[Adopted reports] are often considered by subsequent panels. They create

legitimate expectations among WTO Members, and, therefore, should be taken intoaccount where they are relevant to any dispute. However, they are not binding with

respect to resolving the particular dispute between the parties to that dispute. 82 The

Appellate Body went on to compare its practice with that of the World Court:

It is worth noting that the Statute of the International Court of Justice has an explicit

provision, Article 59, to the same effect. This has not inhibited the development by

77 WT/DSB/R, WT/DS10/R, WT/DS11/R (11 July 1996) (Adopted as Modified by the Appellate Body 1 November 1996).78 Ibid ., para. 6. 10.79 Ibid ., p. 15.80 Ibid ., p. 14.81 Ibid ., para. 6. 10.82 Ibid .


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Although adopted reports (to borrow the words of the Appellate Body in

Japan Taxes case) create legitimate expectations, it might not be easy for a

panel to depart from an earlier decision. In an earlier case regarding prior judicial

decision, the panel declined to follow a previous panel decision and said:

In considering the facts and arguments relating to Article XI in particular, the Panel

took note of the fact that a previous Panel, in 1980, had reported on a complaint involving

the same product and the same parties as the present matter and a similar set of GATT

issues. The Panel noted carefully the arguments of the parties concerning the precedent

value of this Panel s and other previous Panels recommendations, and the arguments on the

legitimate expectations of contracting parties arising out of the adoption of Panel reports.

The Panel construed its terms of reference to mean that it was authorized to examine the

matter referred to it by Chile in the light of all relevant provisions of the General Agreement

and those related to its interpretation and implementation. It would take into account the

1980 Panel report and the legitimate expectations created by the adoption of this report, but

also other GATT practices and Panel reports adopted by the Contracting Parties and the

particular circumstances of this complaint. The Panel, therefore, did not feel it was legally

bound by all the details and legal reasoning of the 1980 Panel report 88 [Italics supplied].

Those familiar with the common law practice of avoiding precedent would

argue that the subsequent panel distinguished the case at hand from the prior one.

David and Palmeter argue that [W]hatever word or words they use, however ,

panels are likely to follow the reports of previous panels unless those reports can

be distinguished from the cases before them or unless the panels can be convinced

that the previous panels were in error. 89 Panels, thus, do not seem themselves to be

88 European Economic Community Restrictions on Imports of Dessert Apples, Complaint by Chile (Adopted 22 June 1989) BISD 36S/93 at pp. 123-124, para. 12.1.89 David & Palmeter, Dispute Settlement , p. 43.


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bound by prior panel decisions. However, the problem is that of panels credibility

and consistency. Two simultaneous reports happening within a span of around one

year, both giving conflicting views; the first panel, Cotton and Man Made Fibre

Underwear, dated 8 November 1996, found great force in the argument of a 1985

panel. 90 Two months later, the second panel, Woven Wool Shirts and Blouses , in a

report dated 6 January 1997, dismissed the 1985 report and other similar reports

cited by the parties in support of their arguments:

We do not consider that the reports cited by the parties are relevant to the present dispute

[they] were adopted many years ago and they interpreted different agreements in differentcontexts the ATC has instituted a new regime for textile products and the DSU has

instituted new rules for panels. 91

The subsequent panel [ Woven Wool Shirts ] did not cite the previous panel,

that is, Cotton and Man Made Fibre case and they were probably not aware of

that. In case one party, say the complainant, convinced a panel that the reasoning of

a prior panel report is similar in the present case, the burden of proving that the

earlier reasoning was wrong is on the respondent. 92

We have discussed whether a panel is bound by prior panels adopted and

unadopted reports. Now we examine whether the report of the Appellate Body is

followed by (a) the panel, and (b) by the Appellate Body itself. As stated above,

judicial decisions do not form a source of law in the WTO system and the text of any

WTO agreement is open to legal challenge regardless of what a panel or the

90 United States Restrictions on Imports of Cotton and Man-Made Fibre Underwear , WT/DS24/R (8 November 1996) (Adopted as Modified by Appellate Body 25 February 1997), para. 7.11-12.91 United States Measures Affecting Imports of Woven Wool Shirts and Blouses from India , WT/DS33/R(6 January 1997) (Adopted as Affirmed by the Appellate Body 23 May 1997), para. 7.15.92 Japan Taxes case, para. 6.22.


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to the fundamental rule of treaty interpretation set out in Article 31 (1) of

the Vienna Convention; and

(2) In United States Standards for Reformulated and Conventional

Gasoline , we noted that .

It is true that the Appellate Body was very careful in choosing the words we

stressed and we noted. These words are different from the words we held, there

is, nevertheless, an authoritative tone attached to them which would only mean

persuasion.

In one of the first cases in which a panel referred to an Appellate Body

report, the panel mentioned that The Panel recalled in this respect the conclusions

of the Appellate Body in its report on United States Standards for Reformulated

and Conventional Gasoline where it stated that an interpreter is not free to adopt a

reading that would result in reducing whole clauses or paragraphs of a treaty to

redundancy or inutility. 96 In Woven Wool Shirts and Blouses , the panel stated that

we note that the Appellate Body has made clear The Appellate Body also

concluded that . The words and tone in the second case are different than in the

first one. However, it does not mean that the panels consider the Appellate Body

reports as binding or controlling its decisions in subsequent cases because they

could still distinguish the case before them. 97 To end up the practice of ad hoc panels

and the Appellate Body of the WTO, we want to mention yet another potential

problem regarding conflicting judicial decisions. This problem may not arise

between two decisions in respect of the same parties, but as between two decisions

on the same measure as a result of complaints brought by two different WTO

96 Japan Taxes on Alcoholic Beverages , para. 6. 22.97 United States Measures Affecting Imports of Woven Wool Shirts and Blouses from India , para. 7. 15.


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could nevertheless find useful guidance in the reasoning of an undopted panel

report that it considered to be relevant. 102 Later on, the Appellate Body specified

that panels could derive useful guidance from the reasoning employed in

unadopted panel reports. 103

IV. Conclusion

To end up this work, the main points may be summarized. The common law

doctrine of precedent evolved very early in England from the time of traveling

magistrates (or assizes ) who used to be sent to the country side to administer

justice. For the purpose of uniformity, they developed the practice of stare decisis .

The practice gave birth to the modern doctrine of precedent. With the hierarchy of

courts and law reporting, the doctrine was cemented and reached to its present

shape. In England, today, the House of Lords is free to depart from its previous

decisions but it rarely exercises this power. It binds all lower courts in the hierarchy.

Similarly, in Pakistan, the Supreme Court can overrule its own previous decisions

but binds all other courts in the hierarchy.

In Continental Europe, judicial decisions are not considered as a source of

law in theory but it occurs as a practical matter. 104 The practice of the International

Court of Justice is that judicial decisions are not binding but are taken into

consideration. Judicial decisions at the World Court have developed international

law, nevertheless. Similarly, certain decisions of municipal courts have also caused

international law to develop and clarify.

102 Ibid ., pp. 14-15.103 Argentina Footwear , at para. 43.104 Rene David, French Law: Its Structure, Sources, and Methodology , Michael Kindred, trans., LousianaState University Press, 1972, p. 186.


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The practice of panels and Appellate Body of the WTO is similar to that of

the World Court. Panels can seek guidance from the reasoning of unadopted GATT

reports if relevant. Adopted WTO panel reports can be taken into consideration

because they create legitimate expectations among the WTO Members.

precedent in civil law and international law

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