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Home EJIL Analysis Judging Judges: A Reply to Marko Milanovic

Judging Judges: A Reply to Marko Milanovic

Published on March 22, 2012        Author: 

Gentian Zyberi is a defence Lawyer at the International Criminal Tribunal for the former Yugoslavia

This is a reply to the post by Marko Milanovic entitled ‘Judging Judges: A Statistical Exercise’. His starting point is a paragraph by Andrea Bianchi’s post ‘On Certainty’ which speaks about certainty in international law, based on the ICJ’s decision in the Jurisdictional Immunities of the State case. As Bianchi notes in his post, the ICJ is always very considerate of the systemic effects of its own rulings. Indeed, it was highly unlikely that the Court would uphold the claim that international law allows individuals to seek redress against a State before the municipal courts of another State for human rights violations. Especially as regards humanitarian law violations committed during the Second World War. Admittedly, as Bianchi adds, this would have opened the door to a flow of litigation before municipal courts that might have disrupted the whole system. However, as Bianchi observes, the problem is that the Court overdid it, by making sweeping statements on the scope of immunities under customary law, by downplaying the right of access to justice under international law and by adding remarks that may have serious repercussions on other related fields. Similar criticism has been leveled at the other immunity decision of the Court rendered in the Arrest Warrant case in 2002.

But the paragraph in Bianchi’s post which triggered Milanovic’s post is the following:

Finally, a word of praise for Judge Cançado Trinidade (who issued a dissenting opinion in this case) is in order. His lengthy opinions and his weltanschauung are often looked down on or frowned at. In fact, Judge Cançado is long engaged in an attempt to acculturate the international judicial bodies in which he seats and, more generally, the epistemic community of international lawyers. Suffice to cast a glance to the background, academic and/or judicial record of his fellow judges to realize how on certain fundamental issues at the ICJ he does not even belong to a minority: he is almost completely isolated. I trust he has realized by now that The Hague is a much colder place than San José. Yet his function remains fundamental. One could paraphrase Voltaire and say that ‘If Cançado did not exist, it would be necessary to invent him’. Not so much for me or for any other more or less established member of the profession, but for all those students who approach the study of international law and want to believe in the redeeming force of human rights and universal justice for a better world. Here is another hand. Of this, I am quite certain.

Taking this a starting point Milanovic tries to answer the more general question: how exactly should we measure the effectiveness of a judge, particularly a judge on the ICJ? He provides statistics on the three-year work of Judge Cançado Trinidade. The criteria Milanovic chooses to measure effectiveness include an inquiry on what is the audience that the judge should seek to persuade and in what manner, a judge’s output in terms of individual opinions, and whether the judge is in the majority or not. From the tenor of his arguments it would seem that for Milanovic an effective international judge (at the ICJ) is one that looks inwards, refrains from writing long individual opinions because that is useless besides being costly, and is a conformist when in the minority!

According to Milanovic, ultimately what makes a great judge is primarily his or her connection to the Court on which he or she sits. According to the statistics, since Judge Cançado Trinidade’s appointment, the Court has delivered 15 substantive decisions. In those 15 decisions, Judge Cançado Trinidade was in the majority  some  42% of the time, depending on how exactly you count the vote on each point of the dispositif. Judge Cançado Trinidade wrote a separate or dissenting opinion in all but 3 of those cases, i.e. 80% of the time. In total, his individual opinions (including those co-written with other Judges) amounted to 532 pages against 608 pages of the Court. So, Judge Cançado Trinidade is doing fairly well actually, since he has been in the majority half the time. And the other half concern mainly cases involving human rights issues, a field where the position of Judge Cançado Trinidade is consistent throughout his judicial career. So, no surprises there, only consistency.

Milanovic engages in little more than mere speculation when concluding that Judge Cançado Trinidade’s opinions are not read either by his colleagues, or in academic circles. Actually, he knows very well, having worked for the Court, that the nature of the decision-making at the ICJ means that judges know the opinions of each-other because of their notes and joint deliberations, so there is no real need to read each-others final opinions. As for the academic world, I believe that Judge Cançado Trinidade’s opinions are read widely primarily because they more often than not tend to go further than the Court, to explain and fill existing lacunae. An additional reason for reading those opinions is his academic and rigorous style. And those qualities are independent of whether one agrees with him or not. Through his opinions he contributes, among others, to the process of humanization of international law. And he does not shy away from explaining his judicial philosophy and approach, on the contrary.

There can be no doubt that international judges and their work are important. And we should discuss what makes a good international judge and their work and establish qualification criteria for their election. But the criteria for assessing the effectiveness of an international judge remain elusive, and we should resist the temptation to just indulge our own preferences or speculate. The work and effectiveness of a judge will depend not only on their intellectual acumen, creativity, dedication and compassion, but also on the institutional constraints of a given international court. As Terris, Romano and Swigart point out in their great book ‘The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases’ (p. xiv),

International judges are neither omnipotent nor toothless. They are, instead, engaged in a process of building institutions, a process that by definition involves moments of strengths and moments of weakness, progress and regression, triumph and defeat. International courts and tribunals are not abstractions; they are profoundly human enterprises. This means, of course, that these institutions are far from perfect.

The effectiveness of international judges and the courts they serve depends largely on the support of powerful states, leaving these institutions vulnerable to the vagaries of international politics (Terris, Romano and Swigart, pp. xiii-xiv). Maybe in the second edition of their book Terris, Romano and Swigart could include a chapter on the effectiveness of the international judge? Or maybe someone should write an article on this topic? Ultimately, the effectiveness of international judicial institutions and their impact depends on the use and trust that States composing the international community place on them. They are not individual enterprises, but collective bodies, where as a principle the whole is greater than the sum of its parts. But that does not need always be the case!

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7 Responses

  1. Marko Milanovic Marko Milanovic

    Gentian,

    Thanks for your comment. A couple of points:

    (1) Having carefully read your post, I am not actually sure where our disagreement lies, except on the obvious point that you seem to think that Judge Cancado Trindade (note: NOT Trinidade) is an effective judge, while I think he’s not. But you at the same time seem to agree with me that judging (at the ICJ) is a collective enterprise, and that the effectiveness of any particular judge is tied to the authority of the Court as an institution. I would concur both with your quote from Terris et al – judging is most certainly a profoundly human enterprise – and with your general sentiment that this is a topic worthy of further exploration. Yet it is exactly on this very basic level that CT is not particularly effective, and you have not shown why he is.

    (2) On that note, I have never said, nor implied, that a good judge needs to be a ‘conformist.’ I have rather argued that he has to be a strategist, to know which battles to fight and when to let go. And while I do not believe that there can be NO point to specific long individual opinions, I DO think that it is completely counterproductive to write such opinions in 4 out of 5 cases. Put another way, not even a reincarnated Hugo Grotius sitting on the Court would have so many useful things to say – useful in terms of affecting either the outcome of that particular case or of some future case – that he would need to write as much as the Court itself or as all of his other colleagues combined.

    (3) Further to the length issue, I freely admit that the only evidence I can offer that CT’s opinions are generally not read is anecdotal, i.e. flowing from my own experience and interaction with other colleagues, students and so forth. But it of course no more anecdotal than your own impression that they are indeed ‘widely read.’ I suppose we could theoretically organize a poll of the profession to produce evidence which be more reliable, but that would not only be a bit crass but would also be unlikely to be effective.

    So, in short, while my own impression is that the opinions are not widely read is admittedly anecdotal, it is still not mere speculation, and it has a rather obvious logical basis – the longer an opinion, the more time one needs to read and process it, and time is definitely a scarce resource. And the more there is a pattern of such opinions, which are on average ten times as long as those of any other judge, the less likely it is that the opinion will be read.

    (4) Finally, a couple of points as to how CT’s opinions are perceived by his colleagues. These points are necessarily more speculative as they run into the confidentiality of the Court’s deliberations and working processes, but I would nonetheless say that I am able to make an educated guess, having in fact worked at the Court and being familiar with its institutional culture.

    First, you are correct in saying that the other judges will know what CT thinks not from reading his separate opinions, but from reading his written note in any given case or from the deliberations. But you are still only correct to an extent. If I’m not mistaken, notes are now routinely written only for judgments on the merits (and AOs), not for all decisions of the Court. And when they are written, they are often proto-separate opinions, i.e. the note frequently evolves into a separate opinion. If the eventual separate opinion is 88 pages, it is a good guess that the note was of a similar length. And to that I would simply say that you are quite wrong if you think that every judge on the Court in every case actually thoroughly reads the notes of all the other judges. Size most certainly does matter, as does the more general impression whether the argument advanced in a particular note is one that the Court can realistically pursue.

    As for the deliberations themselves, I obviously cannot comment on whether CT is actually listened to by the other judges. But, for what it’s worth, my impression is that judges generally don’t like being constantly pushed in a direction which they don’t want to go to, or have a multitude of issues raised that are only of periferal importance in deciding the case, however important they might be in principle. The point of my pointing out that CT was in the majority in 42% of the decisions was not to say that he needs to conform to the views of the majority, but that he is able to persuade his colleagues to go his way in only a limited number of cases, which is shown not merely by the percentage of him being in the majority, but also by the fact that he almost always feels the need to write separately even when he is in fact in the majority.

  2. @Marko

    Length might not be the reason the students don’t read his opinions. It might be brainwashing. During my study the professors tried to do their best to brainwash the students in believing that International Law should be governed by power, that powerful states should enjoy undeserved privileges. So why should the students read stuff that challenges their dogma’s?

  3. Gentian Zyberi

    Marko,

    thank you for starting the discussion and dealing with an issue which does not get much attention. To start with, it is still too early to judge whether Judge Cancado Trindade is an effective judge or not. If I might illustrate this with an anecdote, in 1949, when the People’s Republic of China was established, Zhou Enlai was asked about the impact of the French Revolution. He answered: “It’s too soon to say.” Judge Cancado Trindade has served only one-third of his mandate this far. The assessment of effectiveness is even more difficult since you do not propose a clear test and criteria to judge what makes an ICJ judge effective.

    The main test for you is a judge’s connection to the Court and that is to be measured by being in the majority and convincing the others of your viewpoint. And if not, follow the others’ thinking. I do not think that a judge has an obligation that goes further than explaining to his or her peers their arguments and in turn hearing their arguments. If they are not convinced that is life. Sometimes we agree to disagree, just like us on this point. And I’m not sure there are that many fights at the ICJ to require one to ‘choose the battles’.

    As Article 20 of the ICJ Statute provides, the judges of the Court are to exercise their duties impartially and conscientiously. Their primary duty is owed to the international community, since they are chosen by it and the Court makes its judgments for the community of States and their citizens, not for the judges. An international judge is an international servant, who uses the institutional framework and colleagues to discuss and refine his or her ideas and shares them with the rest of the world when and how they see fit. That is a privilege that comes with the job and the public opinion (including peoples like us) will be the judge of them.

    About length and readability. Yes, the separate opinions of Judge Cancado Trindade tend to be on the long side, when compared to the judgments, and maybe he should write shorter opinions. But that is a matter of style and choice. Few judges write long individual opinions, some write short individual opinions, and few write no separate opinions at all. And yes, laziness and time pressure play a role in deciding whether to read something or not. But, for the students out there, and not only for them, Judge Cancado Trindade has done the research and the thinking and he is sharing it with everyone. It is a value which is not simply sitting in a drawer at the Peace Palace getting dust. The road to being a learned man or woman is difficult and requires time, effort and reading long texts. And we all are getting used more and more to process large amounts of text. And if you compare with judgments of other international courts I think ICJ judgments and Judge Cancado Trindade’s individual opinions are still on the reasonable/readable side.

  4. @Gentian
    I doubt that being effective should be a very important criterion for the judges. Take for instance the Nicaragua case. According to Lori Damrosch (as interpreted by Dugard at Opinio Juris) the decision in Nicaragua effected U.S.’s “position towards dispute settlement”. U.S. repudiated the Protocol to the Vienna Convention on Consular Relations and did not “ratify the Law of the Sea Convention because of its dispute settlements procedures.” Now let’s say that the judges would have taken such possibility into account. They would have thought something like the following: “Now, if we decide in favor of Nicaragua, the U.S. will stay out of future treaties and will sabotage the dispute settlements. And without U.S. it is difficult to make International Law. If we want to be effective we have to decide in favor of U.S. If Nicaragua does not comply with the decision the U.S. will bomb it to the stone age, so our decision will be enforced. Let’s decide in favor of the U.S.” Thus their decision would be effective. Is that the way they should decide?

  5. Gentian Zyberi

    @Mihai
    We are discussing the effectiveness of an international judge, not of decisions of the Court and their effect on State behaviour. Judgments of the Court are enforced. There is a very book on that issue (COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE, by Constanze Schulte). And the Court fulfils its function by treating all States the same.

  6. @Gentian
    It seems to me that effectiveness of any judge is measured by the behavior of those who should respect her decisions. If a Norwegian judge absolves Breivik and nobody in Norway goes to unlock his cell door, than the judge is ineffective. The same goes for an international judge. If states listen to CT and start allowing individuals to sue other states in their courts, than CT is effective. The other judges are then ineffective.

    This means that the effectiveness of a decision of the court is only a byproduct of the effectiveness of the individual judges. Thus, the Nicaragua example stands. If individual judges want to be effective, they would vote for the decision that has the highest chance to be followed by the states.

    Another example might be the separate opinions of Koroma and Higgins in the Wall case:

    “The Court has also held that the right of self-determination as an established and recognized right under international law applies to the territory and to the Palestinian people. Accordingly, the exercise of such right entitles the Palestinian people to a State of their own as originally envisaged in resolution 181 (II) and subsequently confirmed.”, Koroma, para. 5

    “This is not difficult – from Security Council resolution 242 (1967) through to Security Council resolution 1515 (2003), the key underlying requirements have remained the same – that Israel is entitled to exist, to be recognized, and to security, and that the Palestinian people are entitled to their territory, to exercise self-determination, and to have their own State.”, Higgins, para. 18

    If they wanted to be effective, they would think as follows:

    “What is the biggest chance? Is there a chance that the Palestinians will get their state in the future? If yes, I will write in my separate opinion that the Palestinians have a right to a state. But there is a bigger chance that the U.S. will support Israel unconditionally and there is a big chance that Israel will build the whole West Bank fully and that in due time will make a Palestinian state impossible. Therefore I should shut up and vote accordingly.”

    This is how a judge would think if she wanted to be effective.

  7. J. Summers

    I humbly suggest that Marko start reading about the Inter American Court of Human Rights- specially before and after Cançado Trindade. Then we can talk about effectiveness and whether CT is or is not a leading voice regionally. Indeed, The Hague maybe “colder” than San Jose, but if you start your “poll of the profession to produce evidence which be more reliable” in Latin America, I am pretty sure you’ll be surprised by the results…