International Human Rights Court Hearings: Evaluating The Significance Of Precedence As A Source Of Law

International Human Rights Court Hearings: Evaluating The Significance Of Precedence As A Source Of Law

Soujanya Boxy


This Blog is written by Soujanya Boxy from National Law University, Odisha. Edited by Pranoy Singhla.



Law is derived from variety of sources. Judicial precedents founded on the concept of stare decisis are a source of law as they provide a framework or support on which to rely in instances involving similar facts. The doctrine of stare decisis says that “past decisions must stand”. The fundamental belief upon which the common law systems are built could be the concept that similar cases should be dealt in similar manner. Article 59 of the ICJ (International Court of Justice) Statute says that, “a decision of the ICJ has no binding force except between the parties and in respect of the particular case.” Even though it technically concerns the ICJ only, the Statute is broadly considered embodying principles relevant to international law widely accepted and depicting the complete statement one has regarding the sources of international law.

The function of precedent is seen far more entrenched than in international law, as asserted by an ambitious literature. For instance, Segal and Spaeth concur with Knight and Epstein that the rule of stare decisis is present at the US. However, while it is argued by Knight and Epstein that past decisions constrain judicial positions, it is disagreed by Segal and Spaeth, as they believe past decisions mostly as ex post legitimation of legal positions. Other Supranational and International courts have ambiguity of a similar kind at once refusing the standard authority of precedent while stimulating the desire for judicial consistency.

The article attempts to analyse the significant role of judicial precedents in International Human Rights Court hearings and the dilemma in understanding their use that different courts face through the analysis of cases.


Judicial precedents are in use of Anglo-American, the primary immediate source for municipal law, even after having something else as the ultimate source. Municipal law, here incorporates all the domestic law of the jurisdiction put in question. Even though a rule may have its origins in professional stance, statute, custom, or public policy, once it has been proclaimed in a judicial decision, subsequent cases of similar importance will almost certainly be decided on the authority of previous decisions, which, because they are frequently referred to, have become not only practically but also theoretically nearly as established a part of the law, even like a statute that is interpreted by it. Judicial precedents are given great weight like authorities in international law. Precedents of such a kind, belonging either to international or municipal law, have limitation similar. To those of customary law, as explained below:

They are only intended to make laws in circumstances when the relevant facts are sufficiently similar that there is no compelling reason for them to be regulated by separate rules.

Where analogies are present, usually in the case of any developed system of jurisprudence, they are often referred to as precedents, in order to take the decision ostensibly related to the established principles and not based upon anew rule of law. This is due to the ingrained persistence of the historical fabrication that law is never made by judges and the duties of the judges are restricted to only bringing the previous rules of law in light, to judicial disinclination overtly for assuming the responsibility of law-making that is forced upon the courts by the requirement of deciding as per certain rule all cases presented to them, and usually to the  true hardship of deciding where there are components of adequate novelty in a case for taking it out of the binding force of precedents that are present.

However, the usage and role of precedents at international courts seem to be ambiguous. Mostly all the international tribunals are clearly directed to restrict their focus to the dispute given at hand. For instance: It is proclaimed by Article 59 of the statute of the ICJ that “The decision of the Court has no binding force except between the parties and in respect of that particular case.” Still, the ICJ encourages its resolution of disputes through frequent references its previous stances and recognises these as precedential. Likewise, even though the ECtHR (European Court of Human Rights) has to “confine its attention as far as possible to the issues raised by the concrete case before it,” it relies extensively on its previous decisions, and has no apprehensions in recognising these decisions as “precedents”. It has also prepared an elaborate system for keeping track of its case-laws.

The most direct and apparent goal of citing is to construct an internally persistent framework of law. Citations prove to be helpful in improving the efficacy as they restrict the level to which formerly resolved matters required to be revisited. Additionally, the persuasive nature of precedents may benefit the collegial panel of judges to reach a consensus. Such points are exclusively relevant as problem of enormous stock of cases exists in the ECtHR and many of them include legal matters that are previously dealt. The panels decide the cases and not all the 47 ECtHR judges.

Citations can also be used for serving a different purpose than just intra communication.  Particularly, the literature (primarily on US court) contends that past decisions are cited by judges for legitimizing their decisions to the audiences. Court which resolves disputes between parties should tell the losing party the reason for they lost. In every modern society, it is told by the judges to the losing party that: “You did not lose because we the judges chose that you should lose. You lost because the law required that you should lose.” Such type of justification is necessary to establish the view that a tribunal is impartial. Exhibiting the consistency of decision with previous judgements may alleviate the loser’s possibility to affirm that the decision was arbitrary or influenced by non-lawful consideration.


In truth, the dilemma that each case poses to the Court is whether it should stick to the previously established solutions or not. Such a question rises when one party objects to these solutions, or when the Court believes its jurisprudence requires to evolve.

The ICJ does not find a binding value to its own precedents. Even then, it gives great importance to them. Nevertheless, it is ready for reconsidering jurisprudence if the parties or ex-officio requests. These reviews often lead to confirmation of previous decisions, especially in procedural matters. Yet, developments are not eliminated, especially related to substantive law, based upon changes in international society and law. In fact, there is no obligation upon courts for complying with precedents. While precedent is often referred to by the courts, they do not avoid deviations.

According to Article 46 of the European Convention on Human Rights ‘the High Contracting Parties undertake to abide by the final judgement of the Court in any case to which they are parties.’ In the case of Cossy v United Kingdom (1990), it was deduced by the Court, that ‘it is not bound by its previous judgements.’ Nonetheless, it stated that “it usually follows and applies its own precedents, such a course being in the interests of legal certainty and the orderly development of the Convention case-law.”

However, immediately after this, the Court accepted the possibility of it being deviated from the precedent at the Grand Chamber that might ‘be warranted in order to ensure that the interpretation of the Convention reflects societal changes and remains in line with present-day condition’. Thereafter, in the case of Stafford v United Kingdom the Court delved further by disclosing that “it is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective… A failure by the Court to maintain a dynamic and evolution approach would risk rendering it a bar to reform or improvement.”


It can be deduced that these serve a vital role in filling up the gaps in various statutes and law. These also aid in the maintenance of regional customs, resulting in morally justifiable judgments for the individuals. As a result, their trust in the judiciary grows, which aids legal progress.

Furthermore, these serve to sustain the idea of stare decisis by exhibiting respect for the prior opinions of numerous great jurists. It is a matter of enormous ease that a point that has been determined be resolved and not subject to re-argument in the situation in which it emerges. It will help in saving time and efforts of the advocates and judges. This saves the judges a lot of time, which is a significant difficulty in today’s legal framework with numerous cases that have been waiting for years to be dealt. Law is made more certain by the use of precedents.

The law would become the most unpredictable if courts did not follow precedents and judges began judging and settling problems each time anew without emphasizing on earlier rulings on the subject. Precedents allow the law to be more flexible. Judges’ rulings are impacted by the economic, social, political and other values of their generation. Hence, judicial precedents hold importance in deciding successive cases of similar facts.





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