Tuesday, November 01, 2005

Memo to Critics: Don't Misunderestimate the ICJ

Julian’s recent post on the work of the ICJ is interesting, in part because of its common misperceptions. I think his most recent post on the ICJ and others similar to it are inaccurate in their description of the work of the ICJ and muddled as to any prescription concerning how to ameliorate the institution. Both concerns, I think, stem from a misunderstanding as to the role of the ICJ as a dispute resolution mechanism. I think it is worth taking a little time to consider carefully what the ICJ is and is not.

While the ICJ undoubtedly has numerous problems—when has an attempt to encourage nonviolent dispute resolution among States not had serious institutional flaws?—it may be more useful to focus on the form and function of the ICJ as a method of inter-State dispute resolution rather than falsely analogizing to domestic litigation between private parties. Many critiques of public international law stem from the observation that it is not like a domestic legal system. I agree; it is not. Consequently we must consider the ICJ based on its actual tasks, as opposed to on an inaccurate analogy.

Julian’s argument in his latest post is essentially that the the ICJ has an “unbelievably light workload and… ridiculously low productivity.” Really? Compared to what, exactly?

The issue is not simply the number of cases filed before the ICJ or decided in a given year. Rather, it is important to compare the number of cases filed to the population size of potential litigants. As Dr. Cesare Romano of NYU and the Project on International Courts and Tribunals has argued , when you take into account that there are only 191 potential litigants (the States party to the ICJ Statute), then having approximately 20 cases on your docket per year is actually consistent with the ratio of litigousness of a domestic society such as France. (See Cesare’s comment to an earlier post by Julian here.) Twenty cases on a docket with two or three resolved each year is not “unbelieveably light;” as a ratio of cases to potential litigants it is actually similar to what we can see within States.

While Julian contends that the ICJ President is exaggerating the work of the Court, Julian himself plays fast and loose with the numbers. Consider that Julian concludes that the ICJ has only resolved one case in the last year. That is because he does not count eight other cases that were resolved in the jurisdictional phase. An opinion is an opinion and writing those eight opinions on jurisdictional grounds resolved eight cases, all the same. We don’t look at the work of domestic judges, for example, and say their opinions on jurisdictional grounds “don’t count.” Dr. Pieter Bekker, who chairs Committee on Intergovernmental Dispute Settlement of the American Branch of the International Law Association has noted that Keith Highet (who before he passed away was the U.S. litigator with the most appearances before the ICJ) used to stress in his writings and speeches that the emphasis in ICJ litigation is on jurisdiction and that this explains why decisions on preliminary objections take so long and are so lengthy.
In the year previous to the one Julian considered, the ICJ decided three contentious cases including the long-standing dispute between the U.S. and Iran considering the U.S. destruction of Iranian oil platforms and the more recent dispute concerning the Mexican nationals on various U.S. death rows who had not been given their rights of consular access. The Court also received a request for and issued an Advisory Opinion concerning the security barrier erected between Israel and the Palestinian territories. Three other cases were otherwise discontinued and nine orders were also issued. Does Julian want the ICJ to get involved in a greater number of political disputes or does he think this might be a good amount of judicial intervention in a given year?

In any case, considering the range of issues and their wide-ranging implications, this is not “ridiculously low productivity.” And, given that the Court operates on a budget of only $30 million per year, it is dispute resolution at bargain-basement prices.

Moreover, one should note that the level of litigation before the ICJ has been increasing from the 1970’s when the Court had an average of one to two cases on its docket per year, to the 1990’s where it was around ten cases and then from 1997 through 2004 there were always at least twenty cases on the docket. That number now stands at about thirteen, in part due to the eight cases filed by Serbia against various NATO member States for the Kosovo bombing campaign having been dismissed on jurisidictional grounds. Julian seems perturbed that it took four years to reach this conclusion, but the cause may be other than what he implies. The parties themselves jointly agreed to various extensions on their briefing deadlines. The Judgment was actually rendered about a year and a half after the final brief was submitted (as opposed to four years, as Julian implied). Not great by U.S. standards but actually not bad at all considering the high-stakes of these cases and that there was not a pressing time-constraint on the litigation. Speaking of the merits, I bet Julian actually thinks the decision reached was the right one. So if the delay was due to the common agreement of the litigants—read sovereign States—and the Court reached a just result, is this really an example of the ICJ getting it wrong?

Note that the slow tempo for many of these cases is the speed that is sought by the litigants themselves. As States view these issues as having significant stakes, such as boundary delimitations, liability for military actions, etc., they tend not to want to rush the proceedings. Is Julian actually implying that a bunch of international judges should override the will of the States involved in litigation and order faster timetables? Or should the ICJ proceed instead with dispute resolution at the speed that the member States actually want?

One way to get more cases heard, and heard more quickly, would be to have greater use of special chambers. As it now stands, the ICJ hears all of its cases in en banc hearings, with all the permament judges as well as any ad hoc judges. (Parties who do not have a national sitting on the court may appint an ad hoc judge of their own or another nationality to sit on the Court for their case.) Some have argued that it would be better to use special chambers, benches of 3-5 judges, for the reoslution of many cases. Currently, special chambers may only be used if both parties to the litigation agree. However, even though this would speed proceedings and save time and money, States almost never want to use special chambers. Why? Because the full court is a known quantity, some random sub-grouping of judges is not. The irony is that the lack of efficiency and speed that Julian bemoans can actually be solved by the States themselves, but they do not choose to do so.

Or, keeping in mind Julian’s complaint of the duplicative proceedings in the Kosovo Air Campaign case, some have argued that the proceedings would have been much more efficient if Serbia could simply have filed suit against NATO, rather than the eight suits originally filed against the various NATO member States involved in one way or another in the bombing campaign. Given the changes in the international system and that an increasing number of disputes are between States and international organizations (say, for example, between the U.S. and the E.U.), then the member States of the UN should agree to submit the international organizations to which they belong to the ICJ’s jurisdiction as well. This would of course, require an amendment to the ICJ Statute. But think of the possibilities… duplicative cases that just sap the Court’s limited resources could be consolidated into a single suit… cases dealing with serious concerns in the international community could be heard... If you really want to improve efficiency and efficacy this could be a step in the right direction…

Or maybe not. The point is that if you really want to get into a discussion on the strengths and weaknesses of the ICJ, you have to go beyond just saying “hey, they don’t have a lot of cases, do they?”

There are lots of problems at the ICJ, ranging from serious concerns over judicial ethics to the problem of poor States being priced out of using the ICJ as a forum to hear their cases. And for those interested in learning about the deeper issues in ICJ reform, there is no better place to start than the website of the Project on International Courts and Tribunals. I particulalry recommed the Burgh House Principles on Independence of the Judiciary (available via the PICT homepage).

Also, Dr. Cesare Romano, whom I mentioned earlier, is in the last stages of writing a report under the auspices Bekker’s Committee on Intergovernmental Dispute Settlement concerning ICJ reform. I had the opportunity to read an early draft of the report and it is both clear-headed and enlightening. It does an excellent job describing the major problems of the ICJ, their institutional causes, and possible reforms. I will post a link to it once the final version is released.

In closing, my criticism of Julian’s post is based on two concerns. The first is that Julian uses caseload figures in a manner that leads to an inaccurate conclusion. Shabtai Rosenne, probably the best known living scholar on ICJ practice has pointed out that "in the long run, the bare figures may be misleading as the point of departure for an evaluation of the role of the Court in the international scene today." Yet, when you contextualize the figures the result you get is one that is not as negative as Julian would have it. My second point is perhaps less a criticism than a comment about some of these posts concerning the ICJ, the UN, etc. It is one thing to throw stones, it is another to build with them. 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?

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