Mardi 27 mai 2025: Christian Manelic Vidal Leon
Christian Manelic VIDAL LEON soutiendra, en vue de l'obtention du grade de docteur en droit, sa thèse intitulée:
« Reasoning from Precedent in International Adjudication »
Mardi 27 mai 2025 – 14h15
Salle 3050 - UNI MAIL
Jury : Prof. Andreas ZIEGLER, Université de Lausanne, Prof. Makane Moïse MBENGUE, Prof. Gabrielle MARCEAU (directrice de thèse), sous la présidence du Prof. Luc THÉVENOZ, doyen de la Faculté de droit.
Résumé:
It is undisputed that precedent is not legally binding in international law; yet international courts and tribunals (ICTs) have unequivocally expressed their resolve to adhere to their precedent unless – in the words of the International Court of Justice (the Court) – 'there is cause not to follow the reasoning and conclusions of earlier cases'. This has led prominent international legal scholars to view the real value of precedent in the hierarchy of sources of international law as enjoying some form of de facto binding status.
This study thus ascertains why ICTs rely on precedent even though it is not formally binding. It finds that the use of precedent in domestic legal systems does not provide useful elements to inform the research question. It also finds that the historical development of the sources of international law provides inconclusive insights as to the precise value of precedent. This development resulted in Article 38(1)(d) of the Court's Statute, which recognizes that 'judicial decisions' are only subsidiary means for the determination of rules of international law and are not binding – i.e. subject to Article 59 of the Court's Statute. Thus, Article 38(1)(d) does not provide a definitive response to the question of why ICTs rely on precedent.
Against this background, this study explains that the debate about whether precedent is 'binding' in international adjudication does not advance the discussion. Rather, it finds that ICTs reason from precedent because this is a form of legal reasoning whereby they find a solution to an existing legal question based on the solution provided to a previous similar case. This solution will be applied in a subsequent similar case provided that (1) the two cases are relevantly similar and (2) the solution in the previous case carries sufficient authority. Thus, precedent as a form of legal reasoning explains why ICTs have expressed their resolve to adhere to their precedent unless there is 'cause' or 'reason' to depart from it. Moreover, this approach to precedent serves the interests of equality, consistency, legal certainty, and the orderly development of the law.
As a final point, this study addresses the notion of 'cause' or 'reason' that enables an ICT to depart from precedent. It concludes that ICTs may clarify their precedent without changing its scope. In addition, ICTs may modify the scope of their precedent by: 'distinguishing' the facts or legal issues of the case at hand from those in the previous case; creating exceptions to the existing precedential rule; or effectively derogating from precedent without formally doing so. Finally, ICTs may overrule their precedent with a view to departing from the rule governing a previous similar case. This study further explains that, when ICTs modify or overrule their precedent, they are still required to provide reasons for that action to ensure that they are not acting arbitrarily.
27 mai 2025