Precedent as Retrospection: the Practice of the International Court of Justice

Gleider Hernández

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Chapter 21 Precedent as Retrospection: the Practice of the International Court of Justice

In: Time and International Adjudication

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Gleider Hernández

Gleider Hernández
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Type:: Chapter

Pages:: 412–433

DOI:: https://doi.org/10.1163/9789004716377_023

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The so-called ‘rule of precedent’ in every legal system concerns the binding force of previous judgments. Such rules of precedent are a statement on the continuity and coherence of that legal system, with all the temporal dimensions entailed thereby. Strict or flexible, prohibitory or permissive, such rules of precedent are both institutional and thus procedural in their value as they make a substantive contribution to the law. Precedent is, moreover, inherently conservative: not in the ideological sense, but in the retrospective methodology and approach that is demanded by it. In this contribution, the author will re-narrate prevailing debates about the role of precedent within the ICJ, perhaps the sole court of general jurisdiction within the international legal system, to focus on the temporal aspect. Drawing in particular from the Court’s 2022 judgment on preliminary objections in the dispute between The Gambia and Myanmar in relation to the application of the Genocide Convention, some reflections on the nature of precedent-based reasoning and its consequences for the ICJ, and for the international legal system, will be advanced.

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Time and International Adjudication

The Temporal Factor in Proceedings before International Courts and Tribunals

E-Book ISBN:: 9789004716377

Publisher:: Brill | Nijhoff

Print Publication Date:: 09 Dec 2024

Subjects
- International Law
  - International Dispute Resolution & Arbitration
  - International Commercial, Trade & Investment Law

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Chapter 21 Precedent as Retrospection: the Practice of the International Court of Justice

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Time and International Adjudication

The Temporal Factor in Proceedings before International Courts and Tribunals

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