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The International Court of Justice and the Judicial Function: Responses

Published on August 29, 2014        Author: 

I am very appreciative to Yuval Shany, Mary Ellen O’Connell, and Iain Scobbie for taking the time to engage so thoroughly with the arguments contained in my book; it has been a privilege to see my words and ideas through their own reactions, and to see the first public reactions to my writing.  The blog forum discussion makes it a challenge to respond fully to the many incisive points raised in their responses. However, with this brief reply, I wish to address some of the comments made, and in particular, to develop further a few arguments drawn from the book, in the hope of eliciting wider discussion. I will try to add address their points in turn.

Response to Yuval Shany

Yuval has chosen to engage primarily with the processual Part of the book (Chapters IV-VI, but also to a point the discussion on the Court’s exercise of certain powers in Chapter III). In that Part, I engaged with the Court’s deliberative process, its commitment to impartiality (and the particular form that such a commitment takes, given its institutional structure), and the justificatory reasoning the Court deploys in support of its conclusions, particularly its fairly strict adherence to its previous judgments. Yuval has pointed out my attempt to discern, if possible, a collective intent on behalf of the Court in drafting its judgments, and has rightly pointed out the ‘relatively low levels of doctrinal coherence’ in the Court’s judgments when taken as a whole, which make such a characterisation difficult.

He is correct that I emphasise the aspiration towards collective authority: it is an aspiration of the Court itself, which controls its own deliberative and drafting procedure, and which is found in its Resolution concerning the Internal Judicial Practice of the Court. The focus of my scrutiny over this particular question is not, however, merely a question of effectiveness: what I have sought to establish has been how the Court’s procedures, composition, and justificatory reasoning have together been tailored to secure the maximum possible authority for the Court qua institution. Given the fragility of certain of the Court’s institutional realities (raised by Mary Ellen, and to which I will turn shortly below), and the Court’s emphasis on its collective, universal and general character within the United Nations framework (and the international legal order, more broadly understood), such a claim represents the abandonment of the idea of the Court as a limited, bilateral dispute settlement organ. And it is precisely the fact that the Court has constructed formal, procedural authority for itself—and has been successful in cultivating support for this vision amongst other international actors!—which is of heightened relevance.

For the Court to make a legitimate claim to such authority requires, equally, a clear vision of the international legal order and the political community to which this legal order belongs. Thus, in the last chapters of the book, I argue that the Court’s interpretation of substantive international law has not kept pace with its claim to institutional authority. Yuval is perhaps correct that some of the tensions in the Court on questions such as the role of judicial precedent, the completeness of international law, and the legal effect of obligations erga omnes and norms of jus cogens may be due less to a complex doctrinal debate than the retention of ideas ‘selected for [their] ability to justify the preferred outcome’, and that the preservation of the Court’s influence depended on the outcome rather than on the reasoning. That is precisely my point: that one cannot parse the Court’s judgments carefully without a heightened understanding of the context in which it operates. Read the rest of this entry…

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The International Court of Justice and the Judicial Function: Introduction

Published on August 25, 2014        Author: 

GHernandezsmlGleider I Hernández is (from 1st October) Senior Lecturer in Law at Durham University.

I am much obliged to the editors of EJIL:Talk! for hosting the online discussion of my recently-published book, The International Court of Justice and the Judicial Function. I am also grateful to Professors Mary Ellen O’Connell, Iain Scobbie and Yuval Shany for taking the time to engage with the book and its arguments in their capacity of discussants. Their reactions will be posted later this week; for now, I wish in the following paragraphs to lay out the principal arguments developed in the book, and to set the stage for the discussion that will follow.

Writing this book, and of course the doctoral thesis on which its foundation rests, was inspired by the desire to explore and better theorise the role of judicial institutions within the actual practice of international law. Certainly, formal sources theory maintains the subsidiary character for judicial decisions as a source of international law, and for doctrinal and policy reasons, this is an important point to retain. However, that legal fiction sits uneasily with the powerful normative role that international lawyers ascribe in practice to judicial decisions of certain international courts, and foremost of all of these, the ICJ (‘the Court’). One may observe such reliance in the practices of States, international legal practitioners, international organisations, and non-governmental actors; and it is perhaps most evident in the textbooks and teaching materials we legal scholars use to teach international law. Rather than up-end sources theory in favour of a purely sociological description of the importance of judicial decisions, I have chosen instead to focus on the normative force of judicial decisions. By applying concretely a legal rule or norm to a given set of facts in an authoritative fashion, judicial institutions can possess a centrifugal character, contributing to the normative content of a legal rule, foreclosing competing interpretations, and influencing future practice. Even if not formally legal sources, the effects described are law-creative under all but the most restrictive definitions of lawmaking.

The book thus proceeds to analyse the Court as a case study of sorts, a heuristic device through which to analyse and consider the manner in which a judicial institution perceives of its own function within the international legal system, and the manner in which it constructs its claim to authority within that system. A part of understanding that claim is to understand how the Court situates itself. The Court finds itself constrained by a number of factors: the United Nations Charter of which its Statute is an annexe; its limited, optional jurisdiction ratione personae over States (and only States); the selection procedures and elections conducted under the aegis of the General Assembly and the Security Council. Rather than conduct a thought experiment over what reforms would engender greater accountability or effectiveness, however, I chose to focus on how these various constraints come to define the Court’s understanding of its role. Read the rest of this entry…

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Obama’s Counter-Terrorism Speech: A Turning Point or More of the Same?

Published on May 27, 2013        Author: 

Gleider I Hernández is Lecturer in Law, University of Durham. The author is grateful to Dr Philippa Webb, Professor Michael Schmitt and Thomas Liefländer for their exchanges of views on this topic.

The 2012 revelation that United States President Barack Obama was immersed in the authorisation and execution of targeted drone strikes by the CIA against suspected terrorists in Afghanistan, Pakistan, Yemen and Somalia was, to put it mildly, important. Shielded from open scrutiny from Congress or the judiciary, and operating on the margins of the public eye, the ‘kill list’ of candidates has resulted in an astonishing number of drone strikes, with the Bureau of Investigative Journalism estimating between 240 and 347 people have been killed in Yemen since 2002, with a further 2541 to 3533 killed by some 278 CIA drone strikes in Pakistan.

As such, three developments in the last fortnight go some way to lifting the veil of secrecy that had heretofore surrounded the US’ weaponised drones program (on which I was asked to comment on the BBC World Service last Friday, linked here):

  1. The 22 May letter from Attorney-General Holder disclosing certain information about the US citizens who have been killed by US counter-terrorism operations outside areas of active hostilities.
  2. President Obama’s 23 May speech at the National Defence University, which has been described as the most important speech on counter-terrorism policy since 2001.
  3. The simultaneous release of a Fact Sheet entitled ‘US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities’ (and referred to by Obama as the “Presidential Policy Guidance” (PPG)). This document sets out a number of principles with respect to the United States’ conduct of counterterrorism operations.

Ben Emmerson QC, UN Special Rapporteur on Human Rights and Counterterrorism, has suggested Obama’s speech ‘affirms for the first time this Administration’s commitment to seek an end to its armed conflict with Al Qaida as soon as possible; it reminds the world that not every terrorist threat or terrorist attack can be equated with a situation of continuing armed conflict; it sets out more clearly and more authoritatively than ever before the Administration’s legal justifications for targeted killing, and the constraints that it operates under; it clarifies, and proposes improvements to, the procedures for independent oversight; and it sets out the steps the President is now resolved to take in order to close Guantanamo Bay’ (for the full press release, see here.)

Although there is much truth to Emmerson’s cautious endorsement of the principles contained in Obama’s speech, there are important policy considerations that have been made public and deserve further scrutiny. Moreover, when taken together, Obama’s speech and the Presidential Policy Guidance represent a claim to the normalisation or even a ‘banalisation’ of the practice of targeting terror suspects at large.

Read the rest of this entry…