1

PRECEDENT IN CIVIL LAW AND INTERNATIONAL LAW: AN OVERVIEW

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.

muhammadmunir@iiu.edu.pk Dr. Muhammad Munir, PhD, is Associate Professor and Chairman Department of Law, International Islamic University, Islamabad.

Electronic copy available at: http://ssrn.com/abstract=1792415

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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. INTRODUCTION

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 Europe
1

For a very authoritative study of precedent in England see Rupert Cross & Jim W. Harris, Precedent in English Law, Clarendon Press, Oxford, 4th 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. 47-58 and this authors, Precedent in Pakistani Law, Oxford University Press, forthcoming.

Electronic copy available at: http://ssrn.com/abstract=1792415

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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 VIEW FROM CONTINENTAL EUROPE: PRECEDENT CIVIL LAW

IN

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

David Walker, The Oxford Companion to Law, Clarendon Press, Oxford, 1980, p. 233. Foster, German Law and Legal System, Blackstone Press 2nd 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 SCC (Joor), 1987, p. 1.

(Hereafter Biswas, Ratio).

7

See, Cross & Harris, Precedent, pp. 1023. Ibid., p. 10. See David & Devrees, The French Legal System, p. 115.

One of the most significant features of the French caselaw 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. Cross & Harris, Precedent, p. 13. Bodenheimer, Jurisprudence, p. 345. See Darnest Rabel , Civil Law and Common Law, 10 Lousiana L.Rev, 1950, p. 441.

11

12

13

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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 constitute a doctrina binding on inferior courts, though the Supreme Court may latter alter the doctrina.15

III. PRECEDENT IN INTERNATIONAL LAW

(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 Courts judgment, as distinct from the grounds given for such judgment17 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 17

The other subsidiary source is the writing of authors. 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]heir 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 system of 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, 2nd Phase [1966] ICJ 6, the Court ruled that an earlier decision by it upon a 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, 9th edition, Pearson Education, Singapore, 1996, 2nd Indian reprint, Pearson Education, Delhi, 2005, Vol. 1, p. 41. (Hereafter, Jennings & Watts, Oppenheims 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, 6th 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 of previous decisions as such, what it can do is to take them fully into account in arriving at subsequent decisions, and 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 wellconsidered 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 26

Brierly, The Law, p. 64. Lauterpacht, The Development, p. 9; Also see pp. 3-23 for a survey of the practice of the Court in this matter. 27 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, Cambridge University Press, Cambridge, 1986, p. 584. 28 Jennings & Watts, ed., Oppenheims 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 power.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 38

Para 149. 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 in Shahabuddeen, 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 Habana43 and the Scotia44 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) was regarding 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 42

Thirty Hogsheads of Sugar, Bentzon v. Boyle (1815) 9 Cranch 191 at 198. See his judgment in The Maria (1799) 1, Ch Rob, 340, for an affirmation of the universality and impartiality 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 recognition45 and diplomatic immunity46 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 ICTY47 and the latter ICTR48. The same crimes were made punishable when other international tribunals were established for

45 46

Starke, Introduction, p. 47. 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. (Hereafter Marco & 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 50

These tribunals are established for Serialone, Cambodia and East Taimur. A/CONF.183/9, July 17 1998; ILM, vol. 37 (5), 1998, pp. 1002-1069. See Articles 5-8 in particular of the 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 the Red Cross, Damascus, 2002, pp. 12-16. (Hereafter, The International Criminal Court); Iain Scobbie, The Jurisdiction of the International Criminal Court, in The International Criminal Court, pp. 17-37; Valerie Oosterveld, 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 authors Ahkam Al-Madanieen fi Al-Harb: Dirasa Muqarana bain Al-Fiqh Al-Islami wa 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 Articles 11(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 56

It is created by the United Nations Convention on the Law of the Sea 1982. 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 ICJs 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 Recueil des Cours 101 at p. 373. 60 Ibid. 61 Ibid.
62

Benedict Kingsbury, Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem? 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 case67 contradicted the ICJs judgment in the 1986 Nicaragua case68 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 The Proliferation of International Judicial Bodies: The Outlook for the International Legal Order, Speech to the Sixth Committee of the General Assembly of the United Nations, 27 October 2000, available at http://www.icjcij.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: Appeals Chamber, 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 no permanent 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 Understanding 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 specifies 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 covered 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 is given. 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 reported decisions of prior panels is the second important source of law after covered agreements.73 These reports74 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 73

US FSC, footnote 127. 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 are submitted to the DSB, which may adopt them on reverse consensus. The panels or Appellate Body do not have 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 Beverages77 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 that 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 of 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 into account 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.

21
that Court (and its predecessor) of a body of case law in which considerable reliance on the value of previous decisions is readily discernible.83

As a matter of fact, the WTO panel in Japan Taxes case, declined to follow the reasoning in two prior panels, one unadopted, the other adopted. As to the unadopted report, the panel said that it was not persuaded by the reasoning, and, as to the adopted report, that it decided not to follow the interpretation of the term like product as it appears in Article III:2, first sentence, advanced by the 1992 Malt Beverages report in so far as it incorporates the aim-and-effect test which it dismissed.84 This is about adopted GATT reports. The status of adopted WTO reports is identical. In Argentina Footwear, the Appellate Body specified that panels may not go beyond deriving useful guidance from the reasoning employed in unadopted panel reports, criticizing the panel in that case on the ground that it in fact, relies upon the [unadopted] Bananas II panel report.85 Thus, adopted reports are not binding on the subsequent panels but they do take them into consideration. In other words, their status is that of persuasive precedent and not a binding one. The Appellate Body endorsed the view taken by the panel in the Japan Alcoholic Beverages case that unadopted reports have no legal status in either the GATT or the WTO system since they have not been endorsed through decisions by the CONTRACTING PARTIES to GATT or WTO Members.86 The Appellate Body also endorsed the opinion of the panel that an unadopted report could provide useful guidance that could be considered to be relevant. 87

83 84

Ibid., note 30. Ibid., para. 6.18. 85 Argentina-Footwear, at para. 43. 86 Japan-Taxes on Alcoholic Beverages, p. 15. 87 Ibid., p. 16.

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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 Panels 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 different contexts 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.

24
Appellate Body has said about it by virtue of the last sentence of Article 3.2 of the DSU which provides that, Recommendations and rulings of the DSB cannot add or diminish the rights and obligations provided in the covered agreements. David and Palmeter argue that [I]f the recommendations and rulings of the DSB which has the authority to adopt or reject reports of panels or the Appellate body cannot add to or diminish the rights of Members under the agreements, a fortiori, those of panels or the Appellate Body cannot.93 The Appellate Body, being a standing judicial body, is composed of seven members, three of whom sit in a division to hear a particular appeal,94 however, it operates on a collegial basis under which the division responsible for an appeal, while retaining full authority to decide, will exchange views with the other Members before finalizing its decisions. Consequently, Members of the Appellate Body are far more likely to confront their own decisions, or those of their close colleagues, than are WTO panelists. Derogation from ones own previous decision would indeed be very difficult but not impossible. An Appellate Body Member or Members would in such circumstances be reminded about the principle of estoppel.95 The first time the Appellate Body referred to its second opinion, Japan Taxes on Alcoholic Beverages, where it made two references to its first opinion, United States-Standards for Reformulated and Conventional Gasoline , regarding treaty interpretation:

(1)

In United States Standards for Reformulated and Conventional Gasoline, we stressed the need to achieve such clarification by reference

93 94

David & Palmeter, Dispute Settlement, p. 45. Article 17.1 of DSU. 95 A rule of law that prevents a person from denying the truth of a statement he has made or from denying facts that he has alleged to exist. The denial must have been acted upon by the person who wishes to take advantage of the estoppel or his position must have been altered as a result. See Oxford Dictionary of Law, ed., Elizabeth A. Martin, Oxford University Press, Oxford, 5th ed. 2002, reprinted, 2003, p. 181.

25
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 97

Japan Taxes on Alcoholic Beverages, para. 6. 22. United States Measures Affecting Imports of Woven Wool Shirts and Blouses from India, para. 7. 15.

26
Members. The problem is very real and is provided by Article 9 of DSU. 98 This situation happened once and was addressed by the panel in its report on India Patent case. In this case, the panel allowed the EC (complainant) to bring the same claims, against the same Indian measures, as those that had already been decided by a previous panel at the request of the United States. The panel allowed for such repeat claims on the ground of Article 9 of the DSU but noted Indias concern that an unmitigated right to bring successive complaints by different parties based on the same facts and legal claims would entail serious risks for the multilateral trade order because of the possibility of inconsistent rulings, as well as problems of waste of resources and unwarranted harassment.99 The panel agreed that the concern of India is genuine but that the panel is not an appropriate forum to address these issues.100 To sum up the practice of panels and Appellate Body of the WTO, we may conclude that judicial decisions do not constitute a binding legal source themselves. Nonetheless, they are influential in the process of determining what the law is. The same applies in the context of WTO law. The Appellate Body has made it clear that [A]dopted panel reports are an important part of the GATT acquis. They are often considered by subsequent panels. They create legitimate expectations among WTO Members, and, therefore, should be taken into account where they are relevant to any dispute.101 As far as unadopted GATT panel reports are concerned (nonadoption being virtually excluded under the WTOs DSU), the Appellate Body stated that these [H]ave no legal status in the GATT or WTO system but that a panel
98

Article 9 of the DSU provides as follows: 1. Where more than one Members requests the establishment of a panel related to the same matter, a single panel may be established to examine these complaints A single panel should be established to examine such complaints whenever feasible 3. If more than one panel is established to examine the complaints related to the same matter, to the greatest extent possible the same persons shall serve as panelists on each of the separate panels . 99 Panel report on India Patent (EC complaint), para. 7. 22. 100 Ibid. 101 Appellate Body report on Japan Alcoholic Beverages, p. 14.

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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.

102 103

Ibid., pp. 14-15. Argentina Footwear, at para. 43. 104 Rene David, French Law: Its Structure, Sources, and Methodology, Michael Kindred, trans., Lousiana State 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.