Wednesday, November 02, 2005

Assessing the ICJ: Getting Off the Merry-Go-Round

Julian doesn’t want us to keep arguing about the same point. I heartily agree; I wouild like the conversation to move forward rather than around in circles. That's why my previous post on this topic challenged Julian to get past complaining about what he didn't like and actually suggest what, if anything, should be done.

First, though, let's keep track of what we are actually saying. Julian wrote that I had an
"odd suggestion that in order to analyze and study an institution effectively, I have to subscribe to some normative internationalist agenda, e.g. that in order to have something useful to say about the ICJ or the U.N., I have to first admit that I support their existence or legitimacy."

What I actually wrote was this: “Does Julian attack the ICJ because he does not like the idea of such a Court? If so, fine, we can disagree on that. But, if that is not the case, then what does he think we should do to make the institution work better?” I never said or even implied that you need to take an oath to "believe in the ICJ" (as Julian also implied) or anything along those lines. And I am somewhat amazed that Julian could read my post and think that. Nice straw man maneuver, but let's stick to the actual issues.

My question remains: to what end are Julian’s arguments? There are many possible criticisms of the ICJ from the left, right, and center. For example, some may argue that the ICJ takes on too many politically contentious issues (like the Israeli Security Barrier case), while others criticize it for not taking enough. Both are criticisms, yet both are based on profoundly different views of the role of the ICJ in international relations and are mutually exclusive.

My concern is that some critics of the ICJ will criticize it for anything they can think of: too many cases, too few, too political, too legalistic, etc., regardless as to whether their criticisms taken together are in any way coherent. To criticize something is to say that it should be somehow different. That inherently has a normative view attached to it. Julian has been deft in criticizing the ICJ for a whole host of reasons without ever explaining the result of his critiques. He even calls his post “Why I Don’t Hate the ICJ or the UN But Why that Shouldn’t Matter” and never even mentions why he doesn’t hate the ICJ or the UN. To paraphrase Cat’s comment to Julian’s post, does he think the ICJ should be eliminated, reformed, or replaced?

If he does not think the ICJ is a useful institution, that is a perfectly valid point and, as I did say, we can disagree on that in good faith. If that’s the case, Julian can just say so. But if he thinks it should survive but be reformed, my question was (and still is): how? We all know that the ICJ has many problems (although we may not agree on what those problems are) but, at then end of the day, just what is Julian’s point?

I’ve put my cards on the table from the beginning: I think the ICJ, although flawed, plays a useful role in the international system not only in resolving disputes but, as I’ve said before, especially in the elucidation of norms. What this implies as far as a critique of the ICJ I’ll get to in a moment.

Yet, rather than setting out the role he thinks the ICJ should or should not play in international relations, Julian goes back to citing stats on numbers of cases heard, etc. In part, I think this shows some of the weakness in how “empirical” research is sometimes deployed: if one is not careful, one can cite to a lot of numbers but not really say much that moves the debate forward. That is how discussions can turn into merry-go-rounds. And, depending on what you (de-)emphasize, you can make numbers say almost anything you want.

For example, Julian claims that the ICJ is decreasing in importance because, even though the number of cases is increasing, so have the number of States, therefore the importance is really decreasing. Well, except that Romano’s work has shown that the levels of litigation, as it now stands, is at the level we would expect of a stable litigation system. If there were more cases, one may have reason to be concerned.

We need to stop slinging numbers and actually look at substance for a minute. Why were there more cases than one may have expected in the early day of the ICJ? Because the international system was in crisis: in particular many of these early cases dealt with the problems faced due to decolonization around the world. There were many cases because there were many problems of the type the ICJ was particularly suited to deal with (boundary delimitation and self-determination being two main issues). In deciding these cases, the ICJ clarified the relevant norms and, by the time you got to the end of the Cold War and another spate of boundary issues, there was much greater certainty as to the norms the international system espoused; the diplomatic pronouncement of States (especially those of the US and the EU) in the 1990’s were able to point to fairly stable sets of norms that they could then apply in unstable times. There were some new ICJ cases on these topics but you did not need to have as many.

This is part of the criticism I lay on those who cling to empiricism as if it is a security blanket: empiricism can be an important and incisive tool, but to properly analyze your findings you need to then apply normative or historical analyses. You need to see beyond your data set. Otherwise, you’re just churning numbers.

Julian also noted that the fraction of the number of States on the Security Council that have accepted the ICJ’s compulsory jurisdiction has dropped. Well, that’s because the size of the Security Council has increased, thus making the fraction smaller. However, the number of treaties that specify the ICJ as its method of dispute resolution has increased, although the rate of that increase, as Julian noted, has decreased. This is just one more time around on the merry-go-round.

In any case, the number of States that use the ICJ’s compulsory jurisdiction is just not something that as I see as a problem since I think the ICJ’s special function is one of norm elucidation and you simply don’t need to have every possible case haled into the ICJ for it to be effective at that function. Does Julian think it is an important problem? If so, why?

Moreover, new specialized tribunals handle dispute resolution in many areas of international law. The International Tribunal on the Law of the Sea is likely to become the main tribunal for Law of the Sea issues, the European Court of Human Rights and the Inter-American Court of Human Rights handle the majority of human rights related litigation that stem from those two regions, the WTO handles trade law disputes, etc. There are simply more possible fora today than fifty years ago. Thus, the ICJ doesn’t need to take on every possible case, but rather those for which it has the confidence of the States’ members to define the rights and responsibilities of the litigants and, by analogy, other similarly situated States. Note how the rulings of the ICJ form much of the caselaw that these specialized tribunals refer to. The Court’s function of norm-elucidation provides these specialized tribunals with a basic framework of caselaw and norms.

OK, enough of the tit-for-tat. Let me try to get off the merry-go-round and encourage Julian to step off with me. I’ll set out three supposed problems of the ICJ that I think are not important and four that are. I come to these conclusions because I think that a key function of the ICJ is actually norm elucidation moreso than thinking of the ICJ as some sort of district court for States. As such I come to these results:

Three supposed problems that I do not think are especially important:

Number of Cases per Year. As a norm-elucidator the ICJ can hear relatively few cases but still make legal pronouncements that re-frame basic concepts in the international legal system. Too many cases can actually lead to normative confusion if they cause too much change. In short, I am not concerned about the number of cases the ICJ currently hears and decides per year.

“Slow” Tempo. Most of the cases before the ICJ do not require immediate decisions, rather the States are more concerned about a definitive statement of their rights and responsibilities. As such, taking a year or so after briefings to write a final opinion is not a big concern, in my eyes. What is in the final judgment is of greater importance.

Few States Submit to Compulsory Jurisdiction. As described above, I am not so concerned with whether a State has to go to the ICJ, as there are many methods of peaceful dispute settlement (other tribunals, mediation, standard diplomacy, etc.). Rather, I am more concerned with the results of the processes for the States that actually use the ICJ.

Four problems I think are in need of greater consideration:

Overpoliticization of the Bench. As one person commentated to an earlier post I had where I set out the ICJ as quasi-legislature, this means that the ICJ shouldn’t here cases that are highly politically contentious, such as issues dealing with the Palestinian question. With some qualifications, I agree. I do not think the ICJ is at its best when dealing with hot-button political issues. Two recent example: (a) the Israeli Security Barrier process, which gave short-shrift to Israel’s legitimate security concerns and (b) Judge Bruno Simma’s opinion in the Oil Platforms (Iran v. U.S.) case in which he invited himself to rewrite the law on use of force and chiding his fellow judges for “inappropriate restraint.” The issue then is not simply the political nature of the dispute but rather when politicization is allowed to overtake legal craftsmanship. Consider by contrast, the experience of the European Court of Justice. Judges from that court have stated that the incredible increase of the ECJ’s usage by parties and in referrals from domestic courts was due in part to the carefully crafted “lawyerly” opinions that they wrote which caused the ECJ to become respected in domestic courts. The ICJ can learn from this example.

Access Problems for LDC’s. If the ICJ is critical as a norm clarifier, then, although it does not need to have many cases, it should have cases in which a wide variety of issues are argued. Consequently, it is as important that voices of poor States have effective representation before the ICJ as it is for poor individuals to have effective representation before national courts. The ICJ has attempted to address this situation with the Trust Fund, a sort of legal assistance fund for lesser developed countries. However, as Cesare Romano has pointed out, donations to the Fund are voluntary and the funds can only be tapped when both parties to a dispute have agreed ahead of time to give the ICJ jurisdiction to the dispute at hand. Consequently, there are inherent weaknesses one concerning whether the Fund will have adequate respurces and the other as to whether many important, but contentious cases, will not come within its purview. Whether the Trust Fund actually addresses the problems it has been built for is thus an issue that needs monitoring.

The Role of International Organizations. International organizations have become central actors on the world stage. The activities of NATO, the E.U., the African Union, ECOWAS, the OAS and other international organizations have significant impact on international practice. They can also neither file a claim nor have a claim filed against them before the ICJ. If the ICJ wants to be effective in norm-setting, that is a significant problem. As I mentioned in my previous post, this is an issue worthy of consideration. More generally on theme of international organizations and international law, Jose Alvarez of Columbia Law School has a new book, International Organizations as Law Makers, which builds on his seminal article “The New Treaty Makers,” 25 Boston College International and Comparative Law Review, 213 (2002), which would be of interest to anyone who wants to learn more about this issue.

The Relation of the ICJ to the Specialized Tribunals. Although the many new specialized tribunals have relied on the ICJ until now as a means of providing underlying legal norms and coherence, will that relationship persist? Or will these new tribunals actually cause legal fragmentation and, if there is a risk of that, can or should the ICJ do anything about it? Jonathan Charney handled this question in his 1998 Hague Lectures. (He thought that concerns of fragmentation had not been borne out in practice at the time.) There is also an excellent set of articles published by NYU Law’s Journal of International Law and Politics and available here. The International Law Commission, by the way, currently has a study group assessing the fragmentation of international law.

I’ll leave a longer consideration of each of these points for another time.

For now, I simply ask Julian what he thinks are the key problems of the ICJ and which are not and, most importantly, what does he think should be done? In sum, what role, if any, does the ICJ have in the international system?

I look forward to our ongoing conversation.

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