Introduction
Adjudication is not a word inherent in Common Law, which is the birthplace of International Law; instead, adjudication dates from a distant time, between 509 BC and 149 BCE, when adjudication can be traced back to the phase of the Roman Republic, when the Roman law framework was extraordinarily formal and oral.
So, to understand the origins of “adjudication,” it is necessary to learn about the Roman Empire’s ancient times.
Roman Legal Actions Origins
The Roman Republic (509-27 BCE) started after the preceding monarchy when magistrates arose, and civil law acquired a specific form. The emergence of magistrates denotes, therefore, the time when the power of the Roman State was attributed and exerted with legal constraints, being distributed among different authorities with distinct functions in Roman daily life.
The magistrate was not a judge or judicial authority; that Roman law word had a broader sense as it designated several other Roman authorities, such as urban praetors and quaestors, who were in charge of applying the Law of the Roman Republic to conflicts. However, applying Roman law to conflicts did not amount to settling the dispute with judicial power, which would be carried out by a judge.
Roman Law Professor Sílvio Meira explains that within the first phase of the Roman Law organisation, substantive and procedural laws were not separated into distinct legal branches and organised under proper systems, but concentrated in the so-called Legis Actiones (Legal Actions).
It comes from the first phase of Roman Law, the phase of the Legis Actiones, a plethora of legal words still in full usage in both legal families, Common and Civil Law. Remarkably, some of those words remain in similar original usage today; others, though, had their primitive legal significance altered during the passage from Roman to the French language and from the latter spreading to the Common Law.
At this point, as we address the “significance” of the legal words that traveled from ancient Roman times to today and analyse how they can portray so different meanings when they arrive at our times, it is relevant to emphasise two points along that timeline.
Firstly, the variable semantic effects upon those traveling words, according to distinct cultural and social contexts they are surrounded by after that long historical trip is over, and they are employed in specific destination-country (France, Germany, England, Italy, Brazil); secondly, the notable formal and symbolic character of the Legis Actiones oral patterns claiming that “non-documented legal facts” had to produce “pretty clearly and memorable effects”.
Indeed, considering that Legis Actiones are entirely oral, the lack of documents had to be surpassed by strict formality, which required massive sacramental and symbolic acts to be able to turn them into quite memorable facts and acts. To illustrate it, if two Roman citizens were disputing a piece of land through the so-called SACRAMENTUM (Roman name of the action, also called actio per sacramentum), the disputants had the procedural burden to carry to the judge a handful of the soil ground symbolising the whole disputed terrain.
That procedural requirement was because, before the judge, both disputants had to perform a genuinely scenic performance, consisting of the plaintiff taking a stick (named VINDICTA) and, hitting that fistful of the earth, declaring out loud (formally): “I affirm that this land belongs to me, as I touched it with this stick.”
The contention would result from the respondent taking precisely the same actions.
Looking into that legal word, VINDICTA, it was a stick and played a decisive role in the procedure for claiming the entitlement to something (or even a person). So, in Semiotic terms, in those ancient Roman society times we are talking about, when the Legal Actions were in force, the image of a stick would automatically lead to the idea of “property dispute”!
Nowadays, legally, the word vindicta means the right to claim something, such as a thing, a place, or a right, in quite general terms. It is primarily related to the owner’s right (on something physical or not), although not limited to proprietary rights. Accordingly, the word vindicta (signifier) came from the Legis Actiones times conveying the same “signified” (meaning of claiming a right). Yet, the image of a stick is a signifier that did not bring to our times its ancient Roman legal signifier of a legal claim of something. LAW OF RULE.
The Formula Process
Formula Process, which was less formal and not entirely oral, replaced the system of legal actions. That was at the end of the Republic (509 BCE- 27 BCE), at the beginning of the Roman Empire phase.
The formula process was named in accordance with its central structure founded on “formulas.” Formulas were recipes or requirements that, being previously prescribed by the magistrates, determined the forms and words appropriately designed for an application to be referred to the judge, and followed the correct procedure to obtain the hoped-for judicial decision. Thus, to obtain the needed judicial provision, the claimant had to address it pursuant to that formula, under penalty of losing the case. The Formula Process was introduced by LEX AEBUTIA.
Adjudication was one formula
Adjudication was, then, one of those publication of the action (form of action or type of action as described on the magistrate’s album). So, if the claimant wished to bring a lawsuit against the respondent to recover the possession of something of the claimant’s ownership that was illegally under the respondent’s authority, the claimant had to choose on the magistrate’s Album the correct form of action (Or formula), which was named adjudication. By choosing adjudication on the album of the magistrate, therefore, the case forwarded to the judge was one that allowed a request of the right of possession to be entertained by the judge. Consequently, the remedy hoped by the claimant to be granted by the judge corresponds to the jurisdictional manifestation consisting of “ADDICERE” (or “ADJUDICATE”).
Hypothetically, if the claim was to get a redress, the claimant had to choose another formula, the condemnation (same as Latin “CONDEMNATION”).
Professor Silvio Meira explains that:
“The judge could hold nothing out of the formula (…). The claimant could choose the desired formula (written on the album). That choice should be rigorously correct since if it were inappropriate, the claimant would lose the case.”
Current Meaning of Adjudication (Common Law and Civil Law Systems)
In Civil Law Systems, adjudication retains the same meaning as it had in the Roman procedural formulas. However, in Common Law and, accordingly, in International Law, adjudication also has a pretty well-known meaning equivalent to judgment. To adjudicate is to judge or settle a dispute by a judicially binding sentence.
Meaning of Adjudication (in the domain of International Justice)
In the domain of International Law, in which the dogmatic patterns follow the Common Law principles, adjudication can be defined as:
“The pacific settlement of a dispute through legal or judicial means, thus encompassing both ways, arbitration procedures (“legal means”) and judicial procedures”.
In this sense, adjudication is on one side while all the amicable (diplomatic) means of peaceful settlement of disputes lie on the opposite side: Negotiation, conciliation, mediation, inquiryand “good offices”.
The dividing line between those two sides is the nature of the settlement; when it comes to adjudication, the dispute solution is compulsory for the disputants and they do not take part in the resolution of the case.
So, in International Law, typically, adjudication does not evoke the idea of a specific judgment granting the possession of a thing to the claimant, in connection with the original “procedural formula” of adjudication in Roman Law.
Conclusion
In the 1794-Jay Treaty, adjudication is employed in the sense of jurisdiction.
Academically, adjudication is employed to designate in general the international peaceful settlement of disputes involving not only State-State disputes and State-individual disputes, but also the so-called “international commercial arbitration” between private persons or corporations. So, adjudication embodies judicial and arbitral dispute settlement forms, both on the ground of Public and Private International Law.
Such a general sense of adjudication in the scope of International Justice is anchored in the International Law doctrinal authority1 of Merrills´ International Dispute Settlement lessons, when the professor2 explains differences between negotiation and adjudication in terms that the former may be established in a treaty as a pre-condition for the latter (p. 53), in a type of gradual move of the dispute settlement from the parties´s hands towards third persons´ hands (judges, arbitrators, panelists, commissioners, and the like):
“Negotiation is a process which allows the parties to retain the maximum amount of control over their dispute; adjudication, in contrast, takes the dispute entirely out of the hands, at least as regards the court´s decision”.
Another giant Professor and Lawyer of International Law, David D. Caron (“the prince of International Law”, among his pupils), in his fabulous paper War and International Adjudication: Reflections on the 1899 Peace Conference, refers to adjudication as the general activity of international justice.3
Prestigious judges of important international courts and tribunals also conceive adjudication in a general sense of jurisdiction. We can cite the British international magistrate Gerald Fitzmaurice, along with his separate opinion handed down in the Northern Cameroons Case (48), International Court of Justice, Northern Cameroons v. United Kingdom. Honoured Brazilian (from Minas Gerais) Antônio Augusto Cançado Trindade, who was also an estimable judge of the ICJ, when writing on the Statute of that Court, refers to adjudication as a synonym of jurisdiction.
Further, in the States’ practice on international law, through treaties, which are the main source of International Law (Article 38 of the ICJ´s Statute), historically, adjudication has been employed with that same general sense of jurisdiction, for instance, the 1948-Pact of Bogota, Article XXXV:
If the Court for any other reason declares itself to be without jurisdiction to hear and adjudge the controversy, the High Contracting Parties obligate themselves to submit it to arbitration, in accordance with the provisions of Chapter Five of this Treaty.
It is notable, however, that adjudication is not employed in relevant international law documents, for instance, the 1899-Convention for the Pacific Settlement of International Disputes, the Treaty of Versailles (The Covenant of the League of Nations), 1945-United Nations Charter and in the 1982-United Nations Convention on the Law of the Sea.
Finally, adjudication is sometimes used accordingly to its Roman meaning of attributing the physical power of something to someone, for instance, in the The Guiana Boundary Case (Brazil, Great Britain) 6 June 1904.
So, the conclusion is that adjudication is the same as jurisdiction. Then, international adjudication is the same as international justice.
A final caveat: In the University of London, however, there are two distinct specialisations. International Justice and International Adjudication; the former encompasses state-state and state-individual disputes, while the latter is broader and comprehends all types of international disputes.
1. Merrills, John G. New horizons for international adjudication, THE GLOBAL COMMUNITY YEARBOOK OF INTERNATIONAL LAW AND JURISPRUDENCE (2006), pp. 47–74. Read on Case nº 12: Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures.
2. Merrills, J., & De Brabandere, E. (2022). Merrills’ International Dispute Settlement (7th ed.). Cambridge: Cambridge University Press.
3. The American Journal of International Law Vol. 94, No. 1 (Jan., 2000), pp. 4-30 (27 pages) Published By: Cambridge University Press.
