- Judges — Codification
On 4 December 2006, in commemoration of the Court’s sixtieth anniversary, the UN General Assembly adopted resolution 61/37, by which it ‘solemnly commend[ed] the International Court of Justice for the important role that it has played as the principal judicial organ of the United Nations over the past sixty years in adjudicating disputes among States, and recognize[d] the value of its work’. This commendation, it is suggested, confirms the conclusion to which the preceding chapters point, namely that the Court is making an important and valuable contribution to the settlement of present international disputes, through its decisions when they are submitted to it, and to the settlement of future disputes through the establishment and clarification of international law.1 Of course, not every individual litigant State may have been happy with the decision in a particular case—submission of a dispute for settlement entails that there is going to be a loser as well as a winner, if only as a matter of degree!2—but only in comparatively few cases have there been refusal to appear, or refusals to accept the Court’s verdict.3
Each decision has added also to the general corpus of international law. The Court’s judgments and advisory opinions are treated, not only in academic discussion but, it is understood, in relations between States, as defining or reflecting the state of international law, despite the insistence of Article 59 of the Statute on their non-binding nature for third parties. From this standpoint, the wider the use of the Court, the better; and this also was recognized in the 2006 General Assembly resolution.4
Nor has the picture changed during the intervening years: this was the tenor of a paper submitted by the writer to the 2010 Annual Conference of the European Society of International Law,5 and of an article shortly to appear in the Leiden Journal.6 It is also the picture delineated in a Seminar held by the ICJ in April (p. 200) 2016.7 The problem discreetly referred to in another paragraph of resolution 61/37, one in which the Assembly ‘expresse[d] its appreciation of the measures adopted to operate an increased workload with maximum efficiency’, with the implication that more might be achieved in this respect, is very much less acute, even though the number of cases submitted to the Court each year has been generally higher than in the early years,8 and the time required by even the most devoted and efficient judge to study their often complex facts is necessarily also greater.
There has, of course, been a general development since 1922 of recourse to international judicial settlement, with far more international courts and tribunals now operating.9 Of these, however, only the WTO dispute settlement system and the dispute mechanism established by UNCLOS, including the International Tribunal for the Law of the Sea, share some of the workload that might otherwise be the Court’s;10 and it is difficult to see any other field of inter-State dispute settlement in which a new separate tribunal, on the model of ITLOS, would be appropriate.
Is all well, then?11 As recently as 2012, a distinguished internationalist argued that reform of the Court is urgently needed if it is to keep its place in the world.12 This elicited a response from another well-known scholar;13 without suggesting that perfection had been achieved in the establishment and operation of the Court, he disagreed with the conception advanced of the judicial role of the Court. He suggested that the criticisms expressed were more idealistic than practical; though their author claimed rather the status of ‘judicious reformer’.14
More radical is the approach taken in a study published with the bold title ‘The Failings of the International Court of Justice’.15 This appeared just before the (p. 201) present work went to press; it thus cannot receive as full an attention as it may perhaps deserve, but some basic points will be considered here. The author offers ‘an evaluation of the Court, and thus must focus principally on how well the Court has carried out [its] obligation’, namely ‘to resolve such cases as came before it by applying international law to the issues the parties presented’.16 Much of the book is thus taken up with what are seen as errors, both procedural and substantive, committed by the Court in its judicial decisions. Even if these are correctly so designated, prima facie, they are not here our concern, which is whether it can be shown that the Court has succeeded or failed as an institution, or whether it is to be regarded as a body successfully filling the role it was designed for, but liable, like all human enterprises, to make mistakes.17
But any such errors would presumably affect the Court’s contribution to the development of the law. It is of course the case, as the author states, that ‘the Court lacks the formal authority to determine the content of international law’, that is to say, by defining it for others than the parties to the decision—this is the effect of Article 59 of the Statute. He concedes, however, that the Court might possess ‘very significant de facto authority over international law whatever the limits on its de jure authority’. Most scholars would say that this indeed is what it does possess; but the author considers that ‘the Court has not performed well enough to have earned that type of authority’.18 Thus the contention is that the cumulative, but—as it were—incidental, errors add up to an institutional failure; and this is demonstrated, or buttressed, by the suggestion that in fact States ‘have not relied on the Court to a very great degree either to settle particular disputes or to establish rules of law governing subjects seen by states as involving significant political stakes’.19 The suggestion is, in effect, that the Court is not equipped, on its present constitutional basis, to fulfil the role in the world it was destined for, or, perhaps, the role that has now become required of an international tribunal.20
It is probably correct that, where they can, States prefer to keep out of the hands of the Court issues seen as ‘involving significant political stakes’; but it was always contemplated that this would be possible, at least on an individual basis by limitations imposed on any acceptance of jurisdiction.21 What is arguably the case is that the range of disputes that States might prefer not to see submitted to judicial settlement is now wider than what was contemplated in 1920, or even in 1945. These (p. 202) may include cases where ‘the political consequences of a legally correct decision could well be negative’ or cases where ‘a merits judgment would require the Court to make a policy decision’22—cases which, the author apparently contends, the Court ought to refuse to decide at all.23
Is the Court then not doing what States in general want it to do, or doing what States in general do not want it to do?24 On a general level, General Assembly resolution 61/37 may serve, if not as a rebuttal, at least as an indication that the Court has not failed, or was not, ten years ago, failing the expectations of the generality of States, either as regards the actual settlement of disputes or as to contributing to development of the law.25 In this latter connection, it is universally accepted, if not self-evident, that every decision the Court hands down will have an influence (to put it no higher) on how the law in the relevant field will thereafter be understood; and the Court itself sometimes in effect treats its own earlier decisions as precedents to be followed, and not merely in matters of its own procedures.26
May then States expect the Court, as also part of its function, to exercise that influence consciously, to seek to steer the development of international law? Or is this at least permitted to the Court? This is a question on which much has been written, by authors and by individual judges in opinions.27 As observed by Hernández, the very fact that the Court’s decisions are, and are expected to be, reasoned, implies that the Court ‘claims authority based on the soundness of its decisions and not through any compulsive power it might have’; and he draws attention to what has been judicially referred to as ‘the tradition of using advisory opinions as an opportunity to elaborate and develop international law’.28
The widening of the class of disputes that may be brought to the Court, mentioned above, is relevant to another question raised from time to time,29 namely whether the Court should have wider, or general, compulsory jurisdiction. The ‘optional clause’ of the Statute went as far in the direction of universal jurisdiction for the Court as in 1920 the States were able to accept, but its proponents probably (p. 203) hoped that this was only a stage in the development of the international judiciary. This position did not change in 1945; and there seems at present to be no realistic prospect of moving further toward universality, in the sense that all parties to the Statute would ipso facto accept ICJ jurisdiction over all disputes with other parties.
It has from time to time been suggested that the principle, that the Court only has jurisdiction over a State, or over a particular activity of a State if, and to the extent that, the consent of that State can be demonstrated, might be, or needs to be, tempered in certain circumstances: in particular if the matter is one relating to the application or observance of a peremptory norm. Where a reservation to a treaty excludes the Court’s jurisdiction in a matter of this kind, should it––could it—be declared invalid? A number of judges have raised this question, specifically with regard to the validity of reservations to Article IX (the jurisdictional clause) of the Genocide Convention;30 and apparently felt that international law should develop, or have developed, in the direction of invalidating such reservations.31 One argument is that if a peremptory norm declares certain conduct unlawful, there must exist an equally peremptory norm barring the exclusion of the Court from examining conduct alleged to be of this nature,32 but this is highly questionable, in view of the origins and present status of the concept of jus cogens.33 Nor is it easy to see how such a development could come about since it goes to State consent at a universal level; and even the existence of peremptory norms is not universally and unambiguously accepted.
A separate question is whether more States should accept the Court’s jurisdiction, and in wider terms, than is at present the case. That is certainly to be recommended,34 but outside the Court’s control; nor is it easy to see what the Court could do to encourage it, except possibly by offering more immediate and speedy resolution of cases. This depends on, inter alia, the Court’s workload and its working methods.
The encouragement of States to use the Court, contained in resolution A/RES/61/37, in a sense runs counter to the rest of the text: could the Court cope with more cases than it already has? In this respect, the most valuable reform—if reform were needed—might be the enlargement of the achievable output of the Court. Both in terms of the number of cases dealt with each year, and the number of unresolved cases on the list, the general pattern seems fairly stable;35 but if account is taken also of the complexity of the issues raised, it has been such as to suggest that (p. 204) the structure devised in 1920 may not be adapted to current demands. The nature of the cases that the Court is called upon to decide differs markedly from what was probably contemplated by the original draftsmen of the PCIJ Statute. Furthermore, few international legal disputes turn solely on whether one view or another of the applicable legal rule is found to be correct; thus the resolution of such a dispute will often also involve deciding a disputed question of fact, even if it is not one crucial to the correct application of the law. Yet the sort of factual disputes foreseen in 1920 would probably not have included assessments of the environmental impact of chemical processes (as in the Pulp Mills case),36 or even analysis of the obscurities of the accounts or evidence of events in a situation of hostilities, as in the two cases involving Serbia, or the case concerning the Racial Discrimination Convention.37
While many courts, both national and international, get through considerable work by allocating cases to separate chambers, the full court sitting only (if at all) for cases requiring special treatment for one reason or another, this is not possible under the terms of the ICJ Statute. Nor would States as litigants necessarily be content with the attention of a limited group of judges rather than of the whole bench; and the principle of ‘the representation of the main forms of civilization and the principal legal systems of the world’38 would have to be compromised or tempered.39
Might a solution be to enlarge the membership of the Court? The experience of ITLOS, with its twenty-one members, shows that there is nothing magical about the figure fifteen for efficient working; but nor does it show any gain in efficiency. A larger Court sitting en banc is not to be recommended:40 such a Court might perhaps be planned to operate in two separate chambers, each as widely representational as possible, with cases allocated to the one or the other by the Court, not (or not necessarily) according to the parties’ choice, to ensure division of the total workload.41 However, there must be much doubt whether States would accept such a system.
(p. 205) The time-lag at present between institution of proceedings and the final decision on the merits is usually a matter of years; this, though regrettable, is probably inevitable with a single court with a heavy workload. Moreover, the proceedings are often prolonged as a result of the filing of preliminary objections, which are dealt with in an independent phase of the proceedings; if the objections are rejected, it is only thereafter that proceedings on the merits can be resumed. It is important to preserve the right of the respondent to have jurisdiction (at least) established, before being called upon to plead to the merits;42 and the fact that such objections are from time to time upheld shows that not all applications have a sound jurisdictional basis. However, the resulting delay, and the established practice as to composition of the court where there are successive phases, means that the composition of the Court for the eventual merits may be substantially different from its composition when it dismissed preliminary objections—and if provisional measures were requested at an early stage, probably even more different from its composition then. The principle is clear: judges sitting in the merits phase may not reopen matters decisively settled at the preliminary objection stage, even if they think that the decision at that stage was unfounded. But the examples of the South West Africa and Barcelona Traction cases suggest that a change of the balance of thinking within the Court may nevertheless have its effects.
Whether the long-established system of ICJ deliberation43 is or is not ideal cannot really be judged by those outside the Court:44 it may seem to outsiders to take a long time, but who can say whether this is more than necessary?45 A feature of judicial organization that has been suggested is that of a juge rapporteur, analogous to the conseiller rapporteur of the French Conseil d’État; this is already the mechanism adopted by the European Court of Justice and the European Court of Human Rights. Under the Court’s Resolution on Internal Judicial Practice, every judge takes an equal part in the deliberation up to the moment when the Drafting Committee is elected, and the members of that Committee are concerned only with how best to express what remains, to the fullest extent, a collective decision. A juge rapporteur for each case would, however, be the only judge to study the whole case, and he would present a full report on it, with his own proposals as to how it should be decided. Whether this would in fact save time in a Court with a tradition of full participation by every Member must remain uncertain.
(p. 206) Finally, a more delicate question is the quality of the membership of the Court. In terms of impartiality, the Court ranks high. Judges—both judges ad hoc and elected Members—may occasionally appear to give more weight to the arguments or interests of their national States, but not to such a degree as to suggest unjudicial bias; and there is no example known to the writer in which there has been even a suspicion of a corrupt motive that could be attributed to a judge. As to competence and effectiveness, all that can be said is that there have in the past undoubtedly been Members of the Court whose contribution to its work, or even whose intellectual fitness for the office, have given rise to doubts, among their colleagues46 or elsewhere.47 There have in the past been unsuccessful candidates for election to the Court who might have made a greater contribution than some, at least, of the successful ones. But there is no human institution in which election, as a process of representational selection intended to meet the requirements of democracy, is also one in which the ideal result is also always achieved.
The Court itself is not perfect, either in conception or in operation, but it achieves a great deal in the maintenance of legal stability and international peace, and in the development of international law, and fully deserves the respect it has gained. If the vision of the founders of the PCIJ, from the shadow of the 1914–18 conflict, of a world governed by law, laid down and administered by a judicial body with universal jurisdiction, has not become reality, it is because that is not—or not yet?—a vision universally shared. Justice by consent is no contradiction; how well an international system on that basis has served, will, it is hoped, have been shown by the account given in this book.
2 Or, of course, one of those ‘verdicts … | Which send away both parties to a suit | Nor puffed up nor cast down—for each a crumb | Of right, for neither of them the whole loaf’: Robert Browning, The Ring and the Book, ii. 749–52.
8 See in particular the paper by Dapo Akande at the ICJ Seminar, ‘Selection of the ICJ as a Forum for Contentious and Advisory Proceedings (Including Jurisdiction)’, to appear shortly in JIDS. Since the Seminar was held, no less than three new cases have been brought before the Court: see ICJ Press Releases 2016/16, 2016/18, and 2016/19.
10 Arbitral tribunals under Annex VII of ITLOS, though not permanent bodies, are also competitors. Already the phenomenon of ‘forum-shopping’ has made its appearance: see the ‘Swordfish’ dispute between Chile and the EC, and generally L. E. Salles, Forum Shopping in International Adjudication: The Role of Preliminary Objections (Cambridge: Cambridge University Press, 2014).
11 Mention has already been made of the work of A. von Bogdandy and I. Venzke, In Whose Name? A Public Law Theory of International Adjudication (Oxford: Oxford University Press, 2014), which offers a conception of an international court extremely different from the present institution. This, however, forms part of a rethinking of the whole of international society, and therefore does not call for discussion here.
12 A. Cassese, ‘The International Court of Justice: It is High Time to Restyle the Respected Old Lady’, ch. 19 of A. Cassese (ed.), Realizing Utopia: The Future of International Law (Oxford: Oxford University Press, 2012).
13 I. Scobbie, ‘“All Right, Mr. de Mille, I’m ready for my close-up”: Some Critical Reflections on Professor Cassese’s “The International Court of Justice: It Is High Time to Restyle the Respected Old Lady”’, 23 EJIL (2012), 1071–88.
15 A. M. Weisburd, Failings of the International Court of Justice (Oxford: Oxford University Press, 2016). The book is written from an evident US perspective; by way of contrast, another US scholar has recently argued forcibly that it is in the US national interest to accept fully the jurisdiction of the ICJ: J. D. Ohlin, The Assault on International Law (Oxford: Oxford University Press, 2013), particularly 217–22.
20 The generally favourable conclusion of Yuval Shany as to the effectiveness of the ICJ in meeting the goal for which it was established was qualified with the reflection that ‘[t]he propriety and sufficiency of this goal, however, remains an open question’: Assessing the Effectiveness of International Courts (Oxford: Oxford University Press, 2014), 188.
21 Professor Weisburd considers that the term ‘legal disputes’ in the PCIJ Statute was intended to exclude disputes ‘involving conflicts of interest, a political question, or inalienable rights of states’, unless specifically requested by the parties: Failings of the ICJ, 353–4.
22 Ibid. 363.
23 Professor Weisburd also deplores ‘the absence of any legal mechanism for addressing legal errors that the Court may make’; ‘there is no way to compel the Court to comply with its Statute’: ibid. 357. He does not, however, argue that there should be such an appeal mechanism (and indeed this would merely push the problem back a stage); the suggestion is apparently that the Court should be aware of this finality, and therefore be more careful what it does decide.
24 It is also argued—apparently as a criticism—that ‘the Court will have reason to avoid rendering judgments that will anger significant groups of States’ (ibid. 363), but the author cites numerous decisions that seem to have done just that.
25 However, there seems also to be an unavowed implication in Weisburd’s thesis that what matters is the body of expectations of one or more of the ‘great powers’ (see e.g. ibid. 355–6) and much is made of decisions against the interests of the United States, particularly the Armed Activities case.
27 For a useful and balanced survey, see Gleider Hernández, The International Court of Justice and the Judicial Function (Oxford: Oxford University Press, 2013), ch. III-D, ‘The Court and the Development of International Law’.
28 Hernández, ibid., citing Judge Higgins, Separate Opinion in the Palestine Wall case, [2004-I] ICJ Rep 207, 212–13.
33 See the First Report of the ILC on the subject, mentioned in Ch. 3 sect. D.
34 An excellent UN publication, due to an initiative originally taken by Switzerland, is the Handbook on accepting the jurisdiction of the International Court of Justice: model clauses and templates (A/68/963); this goes further in recommendations than the ICJ itself, or the Registry, would probably feel able to undertake.
35 The average number of cases brought, and the number of cases resolved, in a single (calendar) year seems to be around three in both respects. The number of cases pending at any one time has been around twelve to thirteen; at the time of writing there are fourteen, but three (the Marshall Islands cases) are really one case, and two cases are in fact resolved for all practical purposes (Armed Activities on the Territory of the Congo, and Gabčíkovo-Nagymaros Project).
36 Though the complaints that eventually led to the pioneering 1936 Trail Smelter decision were already the subject of a domestic arbitration as early as 1924. It has been suggested that the Court has not shown itself competent enough in handling complex technical material, in particular relating to environmental protection, and that States may be reluctant in the future to entrust to it disputes of this kind: T. Meshel, ‘The Permanent Court of Arbitration and the Peaceful Resolution of Transboundary Freshwater Disputes’, ESIL Reflection 5:1 (2016).
37 Application of the Genocide Convention (Bosnia v Serbia) and (Croatia v Serbia); Application of the International Convention on the Elimination of All Forms of Racial Discriminaion (Georgia v Russian Federation).
38 Art. 9 of the Statute; the exact meaning of the expression seems never to have been clear: see O. Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (Cambridge: Cambridge University Press, 2005), 68.
40 See Ch. 2 sect. C.
42 Though this right is not always available in certain forms of arbitration: see e.g. the Procedural Order of 15 January 2013 of the PCA Arbitral Tribunal under UNCLOS Annex VIII in the case between Mauritius and the UK, rejecting a request for ‘bifurcation of the proceedings’.
43 Governed by the Resolution on the Internal Judicial Practice of the Court of 12 April 1976, which, however, in broad lines followed the previous resolution, and that employed by the PCIJ: and see Ch. 10 sect. D.
44 There have been some intermittent liftings of the veil: see e.g. M. Bedjaoui, ‘La “fabrication” des arrêts de la Cour internationale de justice’, Le Droit international au service de la paix, de la justice et du développement (Mélanges Viraly) (Paris: UNESCO, 1991), 87; Thirlway, ‘The Drafting of ICJ Decisions: Some Personal Recollections and Observations’, 5 CJIL (2006), 15.
45 What is clearly unnecessary is the kind of judge’s opinion (separate or dissenting) that bears only a tenuous relationship with the case, being essentially an article or lecture published at UN expense: see Ch. 12, in particular text and n. 9.
46 In relation to the PCIJ, some revealing observations in private papers of its Members are mentioned by Spiermann, International Legal Argument. The propriety of citing any corresponding indiscretions relating to the Members of the post-war Court (if such exist) must be doubtful.