Friday, April 22, 2005

UN Reform: How about the ICJ?

While we are thinking about U.N. reform, maybe we should think about reforming or even gutting the U.N.'s chief judicial organ: the International Court of Justice.

The ICJ announced this week that it has undertaken certain re-shuffling of its chambers. This appears to be pretty minor stuff (I never even knew they had a chamber for "summary procedure"), but it does make me wonder whether the ICJ has considered more aggressive reorganization to make themselves a bit more efficient and effective. The measures the ICJ announced last July seem almost hilariously minor because they are all directed at state-parties rather than the Court itself.

After all, the ICJ has 15 judges and they hear a ridiculously few number of cases a year. If you look at their docket, for instance, there are currently 12 cases pending or under deliberation. But this way overstates the amount of work they are doing. Last year, they issued exactly three judgments, and one was an advisory judgment. They held public hearings in four cases. Whew! What a busy year!

And not all the blame goes to the states for not filing cases. A number of the ICJ's pending decisions have been "pending" for over 5 years! (See here and here for examples). Now maybe the states themselves have held up the resolution of those cases, but this means that the ICJ's current workload is even lighter than it appears. It appears, in fact, that there is a job out there with better hours than being a law professor. Where do I apply?

All of this suggests that the ICJ (like the UN Human Rights Commission (thanks to Peggy for pointing out my original post's acronym of UNHCR is inaccurate)) is one of those fancy-sounding international institution that doesn't really matter very much. As Prof. Eric Posner argues here, it mattered little in the past, and even less today. Trends in U.S. legal scholarship, especially the Anne-Marie Slaughter inspired movement to shift attention away from formal international institutions to "networks of global governance" reinforce this feeling that formal internationalism is increasingly irrelevant today, even among international legal scholars.

I suppose if this is true, then perhaps UN reform should focus on those institutions that appear to matter more (I trust Kenneth Anderson or Peggy will tell me which ones) and junk the ones that don't seem to serve much useful purpose. Now that would be ambitious reform.


Anonymous Aaron Ostrovsky said...

I have to take some issue with the presentation of Slaughter's assertions in ANWO as being about shifting attention away from international institutions. I agree that Slaughter advocates a moving away from "traditional" internationalism, but mainly in the sense of thinking of international law as exlusively law between nations. Indeed, Slaughter recognizes that international tribunals are vital to networks of global governance as they are the best forum for giving meaning to international treaties and custom and that they can communicate this meaning to national courts. Ann-Marie Slaughter, A Global Community of Courts, 44 HARV. INT’L L.J. 191, 194 (2003)(this article was the source of the chapter on international judiciaries in NWO).

In addition, it must be pointed out, in defense of the ICJs docket, that State parties, unlike parties in U.S. courts, are given vast leeway in proceeding with their case. Oral arguments can take days or sometimes weeks as there is no limit on the time a State party has to present its case before the justices. In addition, parties submissions can be thousands of pages long. Considering the importance and gravity of many of these cases (sometimes meaning the difference between war and peace) we should not judge so harshly the ICJ simply because they don't seem to be moving fast enough.

4/24/2005 10:33 AM  
Anonymous Cesare Romano said...

You are making a very common mistake, which is the fact that you are judging (no pun intended) the ICJ by the standards of a common domestic court. The number of cases on docket, or processed, per year cannot be the only standard to determine the relevance of a judicial institution. Hasty comparisons between the number of cases litigated before domestic courts and the workload of international courts and tribunals, and the ICJ specifically, are misleading.
Obviously, the former outnumber the latter by tens of thousands. But this does not tell anything about the relevance of the institution. Consider these very basic facts. The number of judgments rendered in 2003 by the French judicial system (all grades of jurisdiction) on civil and commercial cases was 2,231,088 (check this: At the time, the French population (i.e. the potential users of the judicial system) was about 59 million. This is a ratio of about 0.03 judgments per inhabitant, or, to put it in other terms, one person every 26 litigated a case in 2003 before a French court. You can use this as a very approximate “index of litigiousness” of the country (there is no reason to think this figure might be significantly different for any other developed country, although there might be some differences),
If the same ratio were applied to the international system as presently composed of 190 something sovereign States (remember, only States can bring contentious cases to the ICJ), one would discover that for the international community to be as prone to go to court as the French people it would require about seven cases per year (one every 26 States), which is about the caseload of the ICJ! Thus, if litigation before the ICJ is sporadic, it is not much due to the alleged reluctance of States to submit themselves to binding third-party procedures, or the irrelevance of the institution, but rather because of the relatively small number of potential plaintiffs and defendants making up the international system. The ICJ matters and is useful to a State out of seven, as much as French courts matter to a French out of seven.
The question of the relevance of an international jurisdiction like the ICJ, which was conceived almost a century ago for a society that is rapidly changing, is much more complex than that.

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