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Home EJIL Analysis Judging Judges: A Statistical Exercise

Judging Judges: A Statistical Exercise

Published on March 12, 2012        Author: 

Andrea Bianchi’s excellent, thoughtful post on the perceptions of certainty in response to the ICJ’s Germany v. Italy judgment provokes many questions. What, exactly, created the certainty both within the Court and outside it as to how the Court would decide the case? Is it the determinacy of the law, as the positivists among us would argue? Or is it the structural biases of the Court as an institution and of its individual judges that we were out of experience simply able to assess and predict, as would be the view of the more critically minded? But I was particularly struck by Professor Bianchi’s praise of Judge Cancado Trindade, who found himself in the smallest of minorities, dissenting alone on the jus cogens not overriding immunity point:

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 [sits] 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.

One could take issue with some of Bianchi’s points. Today’s ICJ is perhaps not as devoid of human rights-minded judges as it once was. And while challenging orthodoxy is a good thing, a judge who allows himself to become isolated within his court is perhaps not pursuing the wisest or the most effective course of action, even assuming the general validity of his own worldview. But I am really interested here in a broader and more fundamental point: how exactly should we measure the effectiveness of a judge, particularly a judge on the ICJ? If legal argument generally and judging specifically is an exercise in persuasion, what is the audience that the judge should seek to persuade and in what manner? Is the judge to be the harbinger of utopia, writing for those who “want to believe in the redeeming force of human rights and universal justice for a better world,” or a realistic, pragmatic apologist of the world as it stands today? Your mileage, I imagine, may vary.

These broader questions aside, perhaps it would be useful – or at least interesting – to evaluate the performance so far of Judge Cancado Trindade, now sitting on the ICJ for some three years. I wish to do so through a rather trivial statistical exercise, and leave it up to the readers to draw their own conclusions, if any. The table below was compiled by an excellent LL.M student of mine at Nottingham, Tilman Dralle, to whom I’m grateful for his assistance. The table is I think fairly self-explanatory:

 


Decision of the Court

Size of majority on all claims

Judge CT in the majority?

Page length of the decision v. length of CT’s separate opinion, if CT is writing separately

How many other judges write separately in addition to CT?

Combined page length of all other judges’ sep. op. v. length of CT’s op.

Germany v. Italy, Judgment of 3 February 2012 12:3, 14:1 No 54:88 5 41:88
Germany v. Italy, Order of 4 July 2011 (Application by the Hellenic Republic for Permission to Intervene) 15:1 Yes 12:21 1 1:21
Germany v. Italy, Order of 6 July 2010 13:1 No 12:50 3 6:50
Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Request for Advisory Opinion), Advisory Opinion of 1 February 2012 Unanimously Yes 40:33 1 3:33
Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Judgment of 5 December 2011 14:2, 15:1 Yes 52: none 5 43: none
Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Order of 18 July 2011 (Request for the Indication of Provisional Measures) 11:5, 15:1 Yes 22:33 7 25:33
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 4 May 2011 (Application by Costa Rica for Permission to Intervene)  9:7 No 29:10 (Joint dissenting opinion of Judges CT and Yusuf) 6 (including Yusuf) 25:10 (Joint dissenting opinion of Judges CT and Yusuf)
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 4 May 2011 (Application by Honduras for Permission to Intervene) 13:2 Yes 28:4 (Joint dissenting opinion of Judges CT and Yusuf) 5 (including Yusuf) 32:4 (Joint dissenting opinion of Judges CT and Yusuf)
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Judgment of 1 April 2011 (Preliminary objections) 12:4, 10:6 Yes, No 69:65 9 93:65
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Order of 8 March 2011 13:4 Yes 23: none 7 31: none
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of 30 November 2010 8:6, 13:1, 12:2, 9:5 No, Yes, No, No 53:63 8 56:63
Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), Advisory Opinion of 22 July 2010 9:5, 10:4 Yes 45:71 8 61:71
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010 13:1, 11:3 Yes 85:58 8 79:58
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009 9:5, 13:1, 12:2 Yes 63: none 3 30: none
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Order of 28 May 2009 (Request for the indication of provisional measures) 13:1 No 21:36 5 16:36

 

To crunch some of these numbers a bit, in the past three years since Judge CT’s appointment, the Court delivered 15 substantive decisions, shown in the table above (excluding completely routine orders, e.g. on the setting of time limits for the filing of written pleadings).  In those 15 decisions, Judge CT was in the majority  some  42% of the time, depending on how exactly you count the vote on each point of the dispositif. Judge CT wrote a separate or dissenting opinion in all but 3 of those cases, i.e. 80% of the time. The combined length of all of these decisions of the Court is 608 pages (counting one official language only), while Judge CT separately wrote a total of 532 pages. If we were to exclude from this tally the 3 decisions in which CT did not write separately and the 2 decisions in which he wrote jointly with Judge Yusuf, when doing an individual opinion Judge CT writes 1.25 pages for every page written by the Court (518/413), on average writing 51.8 pages per opinion (518/10). In all of the 15 decisions, the other judges (and judges ad hoc) combined wrote 542 pages of separate opinions, dissents or declarations, on average writing about 6 pages per opinion (542/89), while Judge CT wrote a total of 532 pages. In other words, Judge CT’s output in terms of his individual opinions over the past three years is practically equal to that of all of the other judges and judges ad hoc of the Court combined. No mean feat that.

Again, I leave it up to the readers to draw their own conclusions. My own impression, for what it’s worth, is that Judge CT’s perceived isolation from his colleagues is less due to the substance of his arguments and more due to their style and manner. The problem is not necessarily in his human rightist, judicial activist, utopian worldview (if I have to resort to such unfortunately simplistic labels), or in the supposed ideological inability of the other (‘statist’, conservative, apologist) judges to process the arguments coming out of this worldview, but more in the way in which these arguments are presented. I doubt his current colleagues think it is particularly useful for him to write a 50-page separate opinion in 4 out of 5 cases, totaling more than 500 pages in the ICJ Reports over the past three years (and printed at public expense, mind you), and I equally doubt his former colleagues in more temperate San Jose thought it particularly helpful to read separate opinions that, for example, engaged in extensive comparisons between the real and present victims of  human rights violations to Sophocles’ Antigone and Electra.

I have little doubt, on the other hand, that Judge CT’s fellow judges have long since stopped reading his opinions, and this is a problem for any judge who seeks to persuade his colleagues. Nor do I think that his opinions are really much more widely read in the academia, least of all by students. Coming back now to the broader questions, while different judges can certainly have different styles and indeed see their own role in different ways, what in my view ultimately makes a great judge is primarily his or her connection to the Court on which he or she sits. Not the heftiness of his or her footprint in the ICJ Reports, not the uncompromising ‘progressiveness’ of his or her views, but the ability to think strategically, persuade colleagues, build coalitions and majorities, produce tangible results and outcomes within the Court, and lay firm foundations for future developments even when in the minority. Of this, I am quite certain.

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23 Responses

  1. NK

    You already suggested the answer in the first paragraph: unlike everyone else at the ICJ (or at legal academia?!), CT is not a positivist – he is a Dworkinian (fit/justify – which explains the gargantuan opinions), and no measure of persuasion and coalition building could possibly work, since their legal philosophies are incompatible (positivism / anti-positivism), and he knows it. He would, however, benefit from more concise opinions [but not for reasons of "public expense"].

    It would be interesting to compare him to the late Antonio-Gentle-Civilizer-Cassese, who was “progressive positivist” if there ever was one. And a very persuasive one at that.

  2. Salamanca

    Just to ad more input to this debate, I think that only time will tell us how persuasive CT can be. His opinions may be totally ignored today, but who knows how PIL scholars -and even some courts- will assess his “utopian” views in the future in times of skepticism or desperation? (together with Tanaka’s opinions)

    I completely agree with the Cassese comparison. And also with the critics to the lenght of his opinions that almost nobody has time -and willingness- to read. It remembers me of a Spanish proverb: “lo bueno, si breve, dos veces bueno” (what is good, if brief, twice good). Supposing, of course, that CT’s opinions are “good”.

  3. I prefere Cancado Trindade as he is now. Because he honestly tells what he believes of the defects in the International Law, showing that the Keizer is naked. I cannot say that about your book. You know very well that the human rights treaties do not apply extra-territorially because the powerful states want to commit their crimes with impunity. Otherwise they would lose power. There is no other reason whatsoever. But you did not dare tell the truth in your book, because you fear for your reputation and your current position. You want to be published in American journals, not in the Sri Lankan or the Chinese one. In fact you do what people did in Eastern Europe under communist regimes, they sold their souls for privileges. Cancado Trindade by contrast, tells the truth whatever the consequences. I guess I am as undiplomatic as he is. Sorry.

  4. Marko Milanovic Marko Milanovic

    NK and Salamanca,

    Thanks for the comments. I obviously agree that the final test for these things is always time. I also agree that the comparison with Nino Cassese is particularly apt – but it does not come accross favourably for CT, at least in my view. Cassese was a ‘judicial activist’ if there ever was one, and was much criticized for being one. But he was never an activist that just went about doing it alone. What he managed was to push the entire court on which he sat towards the direction he prefered, whether it’s the ICTY in Tadic or the STL in the terrorism decision or what have you. It was through such collective action that he achieved so much, and this collective action exerted a normative pull that engaged the other relevant actors.

    Of course, not all of his projects have been or will ultimately turn out to be successful. But for instance the ruling that int law recognized individual criminal liability for war crimes during internal armed conflict is certainly a landmark achievement, one which was later taken upon by states, e.g. when drafting the Rome Statute. And Nino pushed and pushed even outside the courtroom proper – his interviews, e.g. the one with Joseph Weiler that was published in the EJIL and here on the blog, are very illuminating as to how he led the ICTY through its early years, influenced the prosecutorial strategy, lobbied states, and so forth. In short, he was the antithesis of a lone judge sitting down and writing dissenting opinions on and on and on.

    Mihai,

    I don’t know exactly what inspired your critique of my book, but if you think that the book’s whole topic can be boiled down to a one sentence statement that extraterritorial application of HR treaties does not happen because powerful states don’t want it so they can commit their crimes, well, I really don’t know what to say. And as for me supposedly being afraid of telling the truth and selling my soul for some (unidentified) privileges, again, you’re perfectly entitled to your opinion, sprinkled as it is with a healthy dose of smug and oh-so-comfortable self-righteousness. For what it’s worth, I’d just caution you that the ‘truth’ is far more difficult and complicated than you seem to realize, and that imputing dishonest motives to those you disagree with is not the best way to have a healthy and reasoned discussion.

  5. Tamás Hoffmann

    Marko,

    Having analyzed the strategy used by Cassese to create new law, I completely agree with you. I would only add that Cassese was also particularly good at spotting the right occasion to present hitherto radical innovations. He simply knew when the time was ripe to change the world (mind you, I dont’t think that applies to his last big decision at the STL).

    If we want to compare Judge Trindade with somebody, I think that should be Judge Weeramantry. Both of them were in permanent dissent, both of them wrote endless pages of dissenting opinions and both have the dubious honour of not having achieved anything on the bench and not read by anybody (at least I definitely don’t read their opinions)…

  6. Salamanca

    Dear Marko and Tamas Hoffman (and nuancing my previous comment):

    I think you are partially wrong on understimating CT’s achievements (at least Tamas Hoffman), and your discomfort with his attitudes lead you to ignore his remarquable achievements in Costa Rica. Just remember what Prof. Bianchi’s post said: “Costa Rica is a much colder place than The Hague”. This affirmation contains an implicit but clear recognition of his previous work. CT may be completely isolated in the ICJ, but he got a remarquable success in the ICtHR. Indeed, you may like it or not, he is viewed a kind of “Cassese” by many Latin-american lawyers (an authorised activist judge).

    Just to put an example, there you have the example of Goiburú and others vs. Paraguay (2006), where the ICtHR granted ius cogens status to the right to a judge (or the right to justice, as CT had denominated it), following the views CT had been defending in a number of previous (extremely long) dissident opinions. Examples like this are multiple (crimes of State, obligations erga omnes, etc.). You will find a good analysis in the work of Elise Hansbury: “Le juge interaméricain et le «jus cogens”, Collections électroniques du Graduate Institute for International Studies of Geneva.

    Nuancing again what I said in another comment, I realise comparing CT with Cassese’s strategies is a very delicate exercise. CT got a great success at Costa Rica, and Cassese at The Hague (ICTY). But I am not so sure, for example, that Cassese’s opinions in matters such as effective control/global control (art. 8 DASR) or the customary status of the crime of terrorism (SCLibanon, 16 February 2011 decision) would have been much appreciated by an ICJ presided by Judge Higgings.

    Now you might reply that some of Cassese’s views have been followed by many States. But comparing decisions in matters such as International Criminal Law and the interpretation of the Inter-american Convention on Human Rights is an exercise entailing a certain degree of speculation. And when it comes to speculation, it is easy to argue following your own personal sympathies (as Mihai Martoiu Ticu does).

    Public International Law in Latin-American countries is particular in many areas (non-intervention, diplomatic asylum, human rights, etc.). CT’s attitudes are highly influenced by the extremely harsh reality he has had to face as a human rights judge and the peculiarities of the politics of those countries (US interventionism, endemic corruption, guerrillas or fascists governments whose crimes were not in the agenda of the Security Council, unlike those of the former Yugoslavia). His aggresive strategy may not be what is needed at The Hague, but one cannot condemn him for trying to follow the same steps that in the end worked so well in Costa Rica, as Hoffman’s comment does.

    I reiterate my general preference for Cassese’s strategies anyway and the overall reasoning presented by Marko. But one has to remember that the diversity of views inside the ICJ is an indicator of all the regional traditions that all the judges sitting there consciously or unconciously defend. CT is just a manifestation that diversity.

    Best regards,

  7. @Salamanca

    CT did much more at ICtHR than he’s credited for in this discussion. For instance, because of his efforts, ICtHR declared the self-amnesty laws in some states as null and void. These decisions reverberate in the posterior decisions in national courts, like the recent Guatemalan judge that rejected the claim that a former dictator is protected under an amnesty law from being tried on genocide charges.

    Another example is the fact that ICtHR changes its rules in order to accept direct individual access to the court, like in the European Court. These changes bare the CT’s stamp.

    CT might be the most important factor in the transition from dictatorship to the rule of law in South America.

  8. AGD

    Dear Mihai,

    That last sentence of yours is quite an overstatement… As a South American I can certify that CT was NOT “the most important factor in the transition from dictatorship to the rule of law”. I can assure you that the people who were actually responsible didn’t base their decisions on IACHR precedents nor did they read CT’s opinions for inspiration.

    And while he may still be very popular within certain leftist sectors of Latin American society, CT’s opinions at the IACHR were quite often divisive and controversial and that, regrettably, has done little to foster the image of the IACHR as a neutral, trustworthy forum, because he generated a lot of suspicion from people who didn’t see kindly that a Judge in San Jose compared Shining Path terrorist to “21st Century Joan of Arcs”.

  9. Yokato

    I think the best way to summarize this is discussion is by acknowledging that while Judge Trinidade’s methods have, albeit not without challenges and difficulties, made an influence in the South American region, these same methods do not seem to be working well in the ICJ, where it seems that, at least at the present moment in history and without prejudice to the possible future directions and views international legal scholars might take.

    I did find the question concerning what created the certainty in the minds of the judges intriguing. I would tend to lean towards a more positivist answer to this question, at least in the present case. There was, indeed, not much state practice in order to find any new customary rules had emerged. While the Court theoretically could have found the current state practice “sufficient”, that would have been a stretch. It could have happened, I would argue, only if the judges had prior determination for it to happen. Such determination was clearly lacking in the present case.

  10. @Yokato
    It does not matter that his methods don’t work. What is important is that there is someone that shows that it is possible to think differently. He is like Antonio de Montesinos revolting against the Spanish practices in the colonies. It was one voice in the desert, but if there is no voice, everybody believes that it’s impossible to think differently. In the same way is CT.

    I remember how my professors explained the rules of International Law. It was like an balloon. If there was some strange bubble they gently massaged it away, but the bubble appeared on the other side. It did not look like law, but like a great Nigerian scam, it was like someone invited me to play a new game of cards, he was 1,80m tall, blue eyes, driving in a Toyota. At the first site the rules were not strange, but after a couple of games one discovered that whatever one did the rules would make any guy 1,80m tall, blue eyes, driving in a Toyota to win in 95% of the games. The same was with international law. Whatever one did, the powerful states always won the game.

    Somehow the professors did not seem to be aware of this, or they knew some secret natural law that it made it necessary that the law it was like that. For them it was just the way it was and there was no other possible way. And if one asks questions about this, they change the subject.

    The students seemed to absorb this anomaly uncritically like someone had put some drug in their food and as if they were brainwashed by a sect.

    Only when I have found CT and some other minorities I had the certainty that there was nothing wrong with me, but there was something rotten in the kingdom of International Law. Take for instance para 150:

    “The concept of rule of law moves away from the shortsightedness of legal positivism (with its characteristic subservience to the established power), and comes closer to the idea of an “objective” justice, at national and international levels, in line with jusnaturalist legal thinking.”

    Here comes an ICJ judge that acknowledges that the legal positivism has a subservience to power, and it tells us that it is not something good, normal or necessarily so, unchangeable. Like Antonio de Montesinos, someone has to tell it how it is. Otherwise it will never change.

  11. Yokato

    @Mihai Martoiu Ticu

    I see where you are coming from and I can appreciate that point of view. There is, however, a big debate as to what part morality and justice should play in terms of law.

    The ICJ has acknowledged in, for example, paragraph 49 of the South West Africa case, that morality is not a source of international law and while sometimes seemingly going against morality, the Court must follow the letter of the law.

    While, as you suggest, Judge Trinidade seems to be going against this statement, that raises the question whether he should be really doing it in a Court of law, as opposed to in a political forum.

  12. @Yokato
    There are two kinds of law: law and no-law. International Law is no-law under way to becoming law.

    Wat is law?
    Think John Rawls-like. Law are the rules that you would put in a contract, before you are born, not knowing as which person in the world you will be born. Imagine that like a debating room in the sky, where the spirits of the future humans debate and negotiate which rules should govern the world.

    The more the rules existing in this world look like this heavenly contract, the more binding they are. The less they look like it, the less binding they are. At one point in time, the difference is big enough as to consider the law as inexistent, giving you the freedom to do whatever you want. This includes using violence against others. Think Hobbes and the law of nature.

    For this reason – the difference between the existing law and the heavenly contract – the revolutions in the Arab states or in the former communist dictatorships are legitimate.

    Why is the international law no-law yet? Because the weak cannot sue the powerful in any international court, without the consent of the powerful. Because individuals cannot sue states in international courts. People like El-Masri cannot sue U.S. in any court, especially not in an international one. (The IACHR and ECtHR are exceptions.) I would not sign a contract to give some other guys absolute power over me, without having any form of legal system giving me the chance to sue the other guys. Therefore IL is no-law yet.

    This fact is neither accidental, nor necessary. The powerful did all they could to prevent the weak and the individuals from having a legal standing in international courts.

    Technological advancements make terrorism a piece of cake.

    At the same time the powerful demand from individuals not to commit acts of terrorism. This contradicts their efforts from keeping the weak out of courts. One cannot say that Johny is free to kill Jimmy, but Jimmy is not allowed to do anything back. It is absurd that U.S. can abduct, torture and rape El-Masri, but El-Masri should not have a day in court and at the same time to demand from him not to park a fully loaded Boeing in an American skyscraper.

    Now, if International Law will not address this problem timely, we will have only more conflicts and more terrorists attacks. This means that we need to transform the international law from no-law in law, before the violent revolution takes place. It is preferable that judges are the first to revolt and that they do it with their peaceful instruments.

    In fact that is what also happened in other courts as ECtHR. In the first 51 years of the court, only states and the commission could start procedures. This resulted in only 19 cases, 16 of which were politically motivated. Then the judges revolted and have gradually admitted individuals through the back-door. Eventually the states had to swallow this revolt and change the rules. Now individuals can sue states and it turns out this is very popular. More than 150.000 cases are pending before the court.

    The same kind of revolt took place within IACHR and CT organizes now the revolt within the ICJ. Like any revolt, the results are unpredictable. But this is not a reason not to start it.

  13. Thomaz Santos

    If I may just a little bit more to the discussion, I would just like to recall that the judge’s last name is “Trindade”, which is portuguese for “Trinity” (as in the Holy Trinity) not “Trinidade”.
    That being said, I tend to agree with Mihai on a few points, specially on Cançado Trindade’s more south-american stance towards International Law and his honest commitment to human rights.
    And, in the issue of whether or not he’s making a difference in the ICJ, it took him a bit of time to convince the majority of the IACtHR in several cases. But by his second mandate he had not only been elected president, he had also a profound effect on changing the Court’s regulation as to allow victims to appear before the Court, even though not as full parties, like in the ECtHR.
    Anyway, even if the post was not directed as a personal criticism or attack on Judge Cançado Trindade, I think some of the issues raised should simply be discarted, such as the comparison of the length of his opinions and their apparent ineffectiveness, while others should be taken into account, such as the value of the strategy of strong dissent. Of that, I am certain.

  14. Marcos

    What if it was an European name in the signature after the judge’s opinion? Would Marko write this post differently? If this judge in question was a lecturer in, let’s say, Cambridge, would he be analysed in such harsh terms? Some passages of this post and some comments seem to portrait Cancado Trindade as if he was just ‘not learned the right – european/ and maybe american – way of doing public international law’. As if he could not have a dissenting opinion just because everybody else disagree on his peripherical view of international law. After all, he would be just be a “a lone judge sitting down and writing dissenting opinions on and on and on” while the others really talk about what is important. And the comparison with Nino Cassese in the end just confirms this…

  15. J. Summers

    Just a small note: while studying the Tokyo Trial, the only separeted/ dissenting opinion I remember that really mattered was the one from dissenting Judge Pal. And, if I am not mistaken, he was the only critical voice regarding the court – with comments that were truly interesting and well made. I just don’t think see how an isolated opinion from a judge is a bad thing for its own. It only shows me he can think for himself – and a lot of people (maybe not where you teach, Marko) agree with him.

  16. Marko Milanovic Marko Milanovic

    I must say that the last two comments are somewhat odd, to say the least, and not just in implying that I somehow have a discriminatory animus towards Judge Cancado Trindade on account of him being Latin American, or not being European. What a positively strange thing to say. My criticism was indeed directed at his individual performance at the Court, but was in no way personal, and I would have applied it regardless of his nationality. He is a public official, and like any public official can be criticized in a reasonable and reasoned way, as I hope I have done.

    To add a measure of unintended irony to these comments, judge CT inter alia did both his LLM and his PhD at Cambridge and has published with Cambridge University Press etc. He is most certainly NOT an international lawyer from the ‘periphery’, however one might define that exactly. Nor does anyone (least of all me) argue that judge CT does not have the RIGHT to write separate opinions. My argument was rather that it is a BAD IDEA for a judge to be in perpetual dissent (and at such length!), as he thus effectively becomes an observer rather than an active player on his own court, ultimately even hurting rather than advancing the causes which he champions (some of which I actually sympathize with).

  17. J. Summers

    I am stil not convinced it is really a “bad idea”, Marko. I particularly met a lot of people who agree with his positions – and actually that think he is the only one writing interesting points regarding international law at the ICJ. Points well made to advance certain causes that go beyond the discussion in that court. Now, these conversations I had are probably not the same as the ones you’re probably having, and by that I don’t mean to imply that you’ve a “discriminatory animus towards Judge Cancado Trindade” – I am just stating that his opinions are not marginalised where I study. By all means, I don’t see him being ignored by the academia. On the contrary, he’s raising a lot of debate. Probably a different debate in Europe or, better put, in the traditional way of interpreting international law, but certainly he is not being unheard.

  18. Shouldn’t the argument concentrate on the law, rather than the form? Imagine that you defend your state at ICJ and lose. In their decision the judges write:

    “The other party wins. Their memorial was only 10 pages, in comparison with your 100 pages. 10 pages saved us a lot of time. We did not even read your memorial. See you next time.”

  19. Marko Milanovic Marko Milanovic

    J Summers,

    I feel we are still talking past each other, so let me try to clarify this a bit. It is not the substance of CT’s opinions that I have an issue with, or at least not generally. It is in the way in which he conveys this substance in a particular institutional setting, which is not successful either within the existing framework of that institutional setting, or (if that is thought desirable) in reforming that framework.

    To put it differently, I don’t think that ‘raising debate’ should be a primary goal for a judge, nor do I think for that matter that CT is particularly avant-garde in that regard. Take as an example the issue of jus cogens and immunities – this is something that has been discussed over and over in the academia for many years now. We know all the arguments. There really is nothing new to say on the matter. No purpose is served, even in terms of advancing the debate, by rehashing these arguments in an 88-page dissenting opinion, since that particular way of doing an opinion will not change anyone’s mind. If you were not convinced that jus cogens just overrode all conflict immunities, you are not going to be convinced now after reading that opinion, whether you’re sitting on the Court and you read the judge’s note (i.e. his draft opinion) or you’re outside it.

    So again, it’s not about whether there are people out there who substantively agree with CT’s views. I know there are. It’s that preaching to that particular choir outside the court is a less fruitful exercise – and one that could just as easily be done outside the court – than carefully seeking to persuade your colleagues, making a compromise here and there, and picking the battles you want to fight. Judicial opinions are simply a different genre than academic papers. Just look at, for example, the Court’s recent advisory opinion on an ILO AT judgment – http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=ad&case=146&code=fida&p3=4 , one of those boring cases that hardly anybody reads. You’ll see that CT wrote a 33-page separate opinion, and that Christopher Greenwood wrote a 3-page opinion (the decision itself was unanimous btw). Please read them if you have the time, and then tell me in what way exactly is CT’s opinion more persuasive, useful or helpful than Greenwood’s.

    In short, it is a missed opportunity to act like an academic when you are sitting on a court. And the ICJ is certainly NEVER going to become what CT would want it to be – a court composed of philosopher-guardians that will lead, rather than follow states, towards a better and brighter future in each and every case. One can and should push the Court only when there is a chance that this might produce some actual results. NOT all the time, as all that pushing simply becomes tiresome and ineffective and easily ignored. And this was the point of the Cassese comparison – he knew when to push, and how.

  20. @Marko
    Your claim is that CT has a bad technique. But what are your other claims?

    Should CT try to change IL or not?

    Should the states be free to do with impunity whatever they want to individuals?

    If CT should try to change IL, what is the best way?

    You say that his long separate opinions will not convince anyone. Would a 3 page separate opinion convince anyone?

    You say that his technique will not convince the other judges. So how he should convince them? Bribe them? Offer sexual services? Hypnotize them? Voting the same way as the other judges?

    == I don’t think that ‘raising debate’ should be a primary goal for a judge,==

    Nobody said that ‘raising debate’ should be a primary goal for a judge. But a judge should do something about manifestly wrong law. No South African judge has confessed before the Truth and Reconciliation Commission. That is scary. They should have tried to oppose the apartheid laws.

    On the other hand we have a marvelous example where judges revolted against bad law, the ECtHR.

    In the begin phase it was only the European Commission of Human Rights that could start a procedure at the ECtHR, and not individuals. Individuals had no access to the court. The Commission revolted during the very first case, Lawless v. Ireland, passing the court the individual complainant’s written arguments.

    The Irish government protested, claiming that the Commission “attempts by a subterfuge to bestow on the individual the quality of a party before the Court,” admitting that refusing the individual complainant the chance to communicate with the Court created inequality, but “[t]he inequality, such as it is, is… deliberate, not in the sense of States wishing to place individual citizens at a disadvantage, but because in agreeing to the limited, I concede very limited, jurisdiction of the Court created by the Convention, States went as far as it appeared to them that they would be warranted in doing at present in recognising, for individuals, a status of any kind in international law.”

    The court rejected that argument and admitted the remarks of the individual complainant, stating that “it is in the interests of the proper administration of justice that the Court should have knowledge of and, if need be, take into consideration, the applicant’s point of view”

    Ten years later, we see a new revolutionary revolt; the Court admits the pleadings of the lawyer representing the complainants. The regulations were changed and, on 1 January 1983, the legal representatives of the individual complainants have been admitted before the court.

    The states had to swallow the revolt and changed the treaty. In 1990, Protocol 9 gave individuals themselves legal standing before the court. Finally, in 1998, Protocol 11 gave individuals the right to sue states themselves.

    “Contrary to what skeptics predicted, in a relatively short time all the States Parties to the European Convention, in an unequivocal demonstration of maturity, have also become parties to Protocol No. 11.”, A.A. Cançado Trindade, “The consolidation of the procedural capacity of individuals in the evolution of the international protection of human rights: present state and perspectives at the turn of the century,” 30 Colum. Hum. Rts. L. Rev. 1-27. (1998)

    If the ECtHR-judges would not have revolted, the whole court might be dead by now, not having cases to adjudge.

  21. Thomaz Santos

    Dear Marko,

    Your original post has turned out to be a very interesting discussion on the nature of the judicial function in International Law. In this sense, maybe a new post should be written on this subject.

    That being said, I would like to highlight and briefly comment on two sentences you used in your last comment:

    “In short, it is a missed opportunity to act like an academic when you are sitting on a court.”

    “I don’t think that ‘raising debate’ should be a primary goal for a judge.”

    By what you wrote I understand that your view of any jurisdiction is to uphold the very latin root of the term: to say the law, to “dictio” the “juris”, so to speak. Wouldn’t that be too conservative? Specially in International Law, where, let’s face it, in some cases it’s hard to know the law, let alone say it.

    I’m currently finishing my PhD/SJD on the crime of aggression, and I was reading Judge Pal’s dissent in the Tokyo trial, also mentioned by J. Summers in his comment (by the way, congratulations for Robert Cryer and Neil Boyster for having gathered all the Tokyo Trial materials in one single volume, it’s a great help to researchers: http://ukcatalogue.oup.com/product/9780199541928.do) and it’s 1250 pages long, or something around that number. And to this day it is still seen as an important document that highlights several legitimacy problems in that trial, even greater than the ones faced by the IMT at Nuremberg. Was Judge Pal criticized by the excessive length of his opinion? Well, let’s just say that the publication of his opinion was prohibited in Japan for several years. But that opinion is of an extreme value to those of us who research, interpret and criticize to law not just for what it is, but also for what it should be.

    So, Marko, my criticism to your position and arguments is that they tend to agree with the view that the judge should only be “la bouche de la loi”, and refrain from comments and discussions, specially the long ones, because they are not as “strategic” or “persuasive” as, let’s say, a 3 page opinion by a judge which may not add much to the discussion. Because, in the end, the law is not always certain, crystal-clear, and dissents, even long ones, are necessary to make sure that the debate doesn’t just die with the final decision.

    So, again, I think a future post on the nature of judicial function in International Law, focusing on the form and substance of a judge’s work, as well as strategies for persuasion, is most welcome.

    Kind regards to all taking part in this important and interesting discussion,

    Thomaz Santos

  22. Salamanca

    Dear Thomas Santos:

    With all my respect, I think you have taken Marko’s phrases out of context. A person who praises judge Cassese’s labour cannot consider the judicial function as an static confirmation of the existing law, “la bouche de la loi”, as you say.

    As I interpreted Marko’s comment, it has more to do with CT’s overall strategies based on “this-is-my-opinion-not-based-on-written-law-but-I-never-yield-because-my-aims-are-legitimate”. From my point of view, this is a right strategy to follow in some specific cases, but permanent dissent can be counterproductive, at least at The Hague (maybe not in Costa Rica, as other comments contended). It belongs to a Judge’s sense of justice and strategic intelligence to assess when he/she has to dissent and when not.

    To be sincere, I did never read Judge Pal’s opinion. But if Judge Pal wrote in each and every judgment where he participates a 1250 page separate opinion (dissenting or not), I would stop very early reading his comments, or at most I would only read the shortest summary officially published. Specially if they usually delight in historical, literary or mythological comparisons, as CT’s opinions do (I underline the word usually). As Marko rightly points, a Court of Law is not an academic position.

    Best regards,

  23. Thomaz Santos

    Dear Salamanca (great nickname, by the way),

    Thank you for your reply, although I was expecting Marko to respond to my comments. Anyway, I believe we all agree with at least some of the content of CT’s dissent, while the major problem here is the format. And, again, I’m not saying that Marko BELIEVES that a judge should be “la bouche de la loi”, but supporting that a judge should refrain from certain discussions and debates may, in some cases, lead to that conclusion.

    But, the way I see it, if we analyze some of the historical decisions by the ICJ, there were several long judgements and dissenting opinions, such as in the Nicaragua Case (as we can see in this interesting article by Peter Koojimans on Schwebel and Weeramantry levang the ICJ: http://journals.cambridge.org/action/displayAbstract;jsessionid=4A7407538F077596F384AE33A1CA3725.journals?fromPage=online&aid=207855).

    The thing is that, recently, the ICJ has delivered somewhat short and, even, disappointing decisions, as in the Kosovo case, for instance. And, compared to the length of these recent judgements, CT’s opinions, clearly long, appear to be of biblical proportions. So, I think the interesting analysis carried out by Marko and his PhD student should try to include, at least for reasons of comparison, how well people like Weeramantry and Schwebel actually did in terms of convincing their fellow judges of their positions with their lenghty opinions.

    Anyway, just trying to add more flavor to the discussion.

    Best regards to all,

    Thomaz Santos