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Developing the International Legal Order or Fomenting Doctrinal Confusion? A Comment on The International Court of Justice and the Judicial Function

Published on August 26, 2014        Author: 

In The International Court of Justice and the Judicial Function, Gleider Hernández offers us an insightful historical narrative and theoretical perspective on the judicial function assumed by the ICJ. According to Gleider, many of the controversies on the bench, resulting at times in contradictory decisions and half-way compromise formulas, stem from an ideological struggle between conflicting institutional goals and competing visions of international law. Hence, the tension between the need to resolve specific disputes and the Court’s interest in developing international law may influence the choice of an interpretive theory to fill in normative gaps and address legal ambiguities; the tension between a state-centered and an international community-based understanding of international law may influence the Court’s decisions on the scope of application of the erga omnes principle; and the tension between the need to preserve judicial propriety and the interest in partaking in the project of maintaining the international legal order may explain, for instance, inconsistencies in the Court’s approach to questions of jurisdiction and locus standi.

Collective decision-making

In this comment, I wish to expand upon two aspects of the conflicting goals, competing functions and doctrinal tensions discussed in the book: the manner in which ICJ judgments are formulated and the effects of outside pressures on the Court. The deliberative process is the subject of Chapter IV of the book. Using, no doubt, some insights he was able to develop while serving as a legal clerk for ICJ judges, Gleider presents the process of formulating an ICJ judgment as a collective exercise in which judges “share collective responsibility both for the voting result and the expression of the judgment”. (p. 105) Such a process may have the merits of increasing the probability of getting the correct outcome (on the basis of the Condorcet Jury Theorem). However, it suffers from a “doctrinal paradox”attendant to the aggregation of judgments emanating from different doctrinal premises. That is, it may simultaneously reflect a meeting of judicial minds on the outcome of the case, and a disagreement on the legal basis underlying the said outcome, resulting in judgments lacking in doctrinal coherence or clarity.

Because of its collective decision-making dynamics, the Court’s judgments may actually exacerbate the confusion generated by the existence of competing goals, world visions, role perceptions, etc. The availability of an initial draft formulated by a small drafting committee does not provide a full remedy to the doctrinal paradox problem, as the composition of the drafting committee changes from case to case, and is thus likely to generate doctrinal paradoxes vis-à-vis earlier decisions whose doctrinal premises the new members of the committee do not fully share. Furthermore, the need for attaining a broad-as-possible consensus during judicial deliberations leads to a process of revising the initial draft, which may detract from its coherence and clarity, sometimes resulting in a final text that Gleider describes as characterized by a “lack of intellectual or logical cohesion”, and as “puzzling” and “emasculating”. (p. 108) Such a result may invite serious criticisms and chip away at the Court’s legitimacy in the eyes of important constituencies. International courts whose judgments-drafting processes are driven by powerful secretariats may thus be better situated than the ICJ to generate clear, coherent and persuasive judgments, which form over time a jurisprudence constante. The more focused mandate of certain specialized courts, such as the ECtHR or the ICC, also facilitates the process of prioritizing goals and identifying a constituency. That, in turn, reduces their risk of becoming entangled in the doctrinal paradox. Read the rest of this entry…


Bad Cases Make Bad Law, But Good Law Books!

Published on December 1, 2011        Author: 

Dr. Marko Milanovic’s book on the Extraterritorial Application of Human Rights Treaties (OUP, 2011), which grew out of his doctoral studies in Cambridge, offers an excellent analysis of the jurisprudence of international and national courts and committees on the extraterritoriality of state obligations in the field of human rights. It is by far the most comprehensive book that has been written on the subject, and I have no doubt that it will quickly become the standard reference text on human rights and extraterritoriality, if it has not already become so. As can be expected, especially by those who have followed Milanovic’s earlier works in the field, he reaches the compelling conclusion that the case law on the extraterritoriality of human rights obligations is hopelessly casuistic and unprincipled, and as a result inconsistent and confusing. Furthermore, he argues that the main ECtHR decision on extraterritoriality – Bankovic v Belgium (2001)– is built on erroneous legal foundations, and runs contrary to previous cases, as well to core human rights values.

 Milanovic is correct in diagnosing most of the reasons for this unhappy state of affairs: The debate over the extraterritorial application of human rights is mired up in a Koskenniemic tension between an ideal (the universality of human rights) and political reality (the principle of effectiveness, which militates against normative overreach). In fact, one can identify a parallel tension at play between the need to ensure effective protection of human rights  (e.g., through eliminating legal ‘black holes’) and the continued commitment to territoriality as an organizing principle of the international legal order, notwithstanding the tenuous connections between borders and human welfare.  A third tension, further complicating the debate on the extraterritoriality of human rights obligations, which Milanovic addresses on a number of occasions, involves the institutional relationship of courts to governments, or law to politics. While the extraterritorial projection of state power is not a new phenomenon in itself, regulating it through legal norms and, even more so, by courts applying international legal norms is a relatively novel development. It is therefore not surprising that courts often treat extraterritoriality as a preliminary jurisdictional question (which Milanovic rightly criticizes as a category error) – jurisdiction to adjudicate being a principal tool that courts employ in order to avoid politically undesirable decisions. Read the rest of this entry…

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Know Your Rights! The Flotilla Report and International Law Governing Naval Blockades

Published on October 12, 2010        Author: 

Yuval Shany is the Hersch Lauterpacht Chair in Public International Law at the Law Faculty at the Hebrew University of Jerusalem. The author thanks Prof. David Kretzmer, Adv. Gil Limon and Adv. Rotem Giladi for useful comments to an earlier draft. The usual disclaimers apply.

The Report of the “international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance” (the ‘Flotilla Report” issued by the “fact finding mission”), which was published on 22 September 2010, is a troubling document.

Of course, the Report is troubling in that it suggests that Israel has committed serious violations of human rights and humanitarian law: The Report alleges that the Israeli blockade violated the laws of war, that the interception of the flotilla was therefore unlawful, that excessive force was used during the interception resulting in loss of lives, and that the individuals on board the flotilla ships were mistreated while in Israeli custody.

Still, at a different level, the Report is troubling in its many substantive weaknesses, which cast serious doubts on its potential impact, as well as on the desirability of engaging in such fact-finding exercises in the future. I will deal hereby with one set of problems I find in the Report: the poor quality of the legal analysis leading to identification of the law governing the Israeli interception operation and the application of such law to the facts at hand. I would note however that other problems in the Report exist: For example, one ought to be troubled by the mission’s rush to issue judgment on questions of fact, notwithstanding the unavailability to it of the full Israeli version of events, and without awaiting the outcome of investigations conducted in Israel (the Turkel Committee) and on behalf of the UN Secretary General (the Palmer Committee), which could throw light on some of the events that transpired on board of the flotilla ships and in detention facilities inside in Israel.


Documents such as the Flotilla Report touch upon sensitive and difficult matters and are inevitably bound to generate controversy. However, by failing to acknowledge many of the legal complexities and challenges presented by the circumstances of the flotilla incident, and through committing some serious error of law, I believe that the fact finding mission significantly eroded the Report’s credibility and undermined its potential impact.

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The Forest and the Trees/ The Islands and the Sea: A response to Laurence Helfer

Published on June 17, 2009        Author: 

I find myself in the awkward position of being in full agreement with Prof. Laurence Helfer’s criticism of the “broad brush” approach used in my EJIL article to describe trends in international adjudication (this is not surprising; often I find myself nodding in agreement when reading Helfer’s first-rate academic work). When writing overview articles such as “No Longer a Weak Department of Power?“, the dilemma is always whether to focus on the forest or the trees. Obviously, my choice of the “forest” – the general trends in international adjudication – entailed a superficial, almost caricature- like, treatment of the “trees” – the specific courts. Readers of my article would there be well-advised to remind themselves of the many shortcomings of the approach I have selected.

In particular, Helfer is right in noting that regional courts should not be lumped together as a single category for all purposes:

“Many studies of international adjudication appear to assume either that the legal and political dynamics of global or European courts will apply to tribunals in other regions, or that lesser known courts in Africa, Latin America, and Eurasia have done little to merit the attention of scholars.  A growing body of evidence suggests, however, that both assumptions are unwarranted.”

 Indeed, the recent ASIL article by Alter and Helfer focusing on the Andean Court of Justice is an excellent illustration of the unique nature of some regional courts and of the unpredictable way in which their work and impact develops over time.

 Still, I would defend the following position: While the effectiveness of different courts varies dramatically across regions due to the background “legal and political dynamics” that influence their work, the goals set for regional courts upon their establishment tend to converge. This happens, to a large extent, as a result of the “copycat” motivation that leads law-makers to “implant” models of successful legal institutions across regions and regimes. So, for example, the perceived success of the ECHR, has led to the creation of the comparably structured I/A CHR and fledgling African Court of Human Rights (now part of the African Court of Justice and Human Rights). Although the three courts encounter very different legal and political problems and have widely divergent records of achievement (meaning that the “implant” has been sometimes rejected), they appear to share, as a result of their derivation from a common “prototype”, a strong commitment to promoting respect for human rights and to holding member states accountable. Hence, the I/A CHR and the ACHR, like the ECHR, are illustrative of the new ethoi of international courts – enforcing norms and building an international rule of law.

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No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary

Published on June 10, 2009        Author: 

Professor Yuval Shany is the Hersch Lauterpacht Chair in Public International Law, Faculty of Law, Hebrew University of Jerusalem. His latest EJIL article, summarised in this post, is available here. His publications include The Competing Jurisdictions of International Courts and Tribunals (OUP, 2003) and Regulating the Jurisdictional Interactions Between International and National Courts (OUP, 2007).

The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international disputes settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and non-state parties and the growing inclination of national courts to apply international law. Arguably, these cumulative developments herald a qualitative change in the configuration of the field of international dispute settlement. Whereas international law had been applied in the past by judicial bodies on relatively few occasions, the operation of the new international judiciary has been much more “routinized”, and nowadays increasingly resembles the operation of national courts (and, in the same vein, the application of international law by national and international courts increasingly resembles the application of national law by national courts). At a deeper level, one may claim that the operation of the new international judiciary is governed by new ethoi (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution).

The second part of the article discusses some of the “blind spots” of the present judicial institutional landscape: a) Jurisdictional gaps – the new courts have been concentrated in a relatively limited number of areas of international relations, mostly appertaining to the protection of basic human rights, some economic relations, and maritime interests. Many other areas of international life of critical importance (such as politically-charged conflicts before international courts relating to war and terror) largely remain outside the compulsory jurisdiction of any international court. What is more, the personal jurisdiction of the new international judiciary is less than universal, and sometimes those very states that are most likely to become involved in conflicts falling under the jurisdiction of the new courts tend to withhold their consent to jurisdiction; b) Enforcement gaps – the increase in the jurisdictional reach of international courts has not been met with a comparable increase in their enforcement capabilities, which would enable courts to effectively carry out their missions. While this may be less of a problem in the economic sphere, (where cooperative regimes typically generate their own incentives to comply), it appears to be a serious obstacle to the smooth functioning of international courts in fields such as criminal law.

 While national courts can, in theory, fill some of these remaining jurisdictional and enforcement gaps, their ability to actually do so remains unclear. Perhaps the combined effect of a more robust ICJ, and more international law-minded national courts, could go some way towards closing the existing gaps in international jurisdictional coverage and enforcement.

 The third and last part of the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: a) coordination problems – the uncoordinated manner in which the new international courts were created, and the specialized character of their jurisdictional structures, generates potential jurisdictional conflicts and introduces tensions that threaten the coherence of the international legal system as a whole; b) effectiveness and perceived legitimacy  – the judicialization of dispute settlement may not always produce better outcomes for the relevant stakeholders, particularly where some of the parties deem the applicable norms to constitute an inadequate basis for a just and comprehensive settlement (without some adjustments). Moreover, one may wonder whether the investment of considerable political and financial resources on the part of the international community in establishing new international courts always represents the most cost-efficient investment of resources.

 The expansion of international courts and international jurisdiction without seriously addressing problems related to their jurisdictional limits, enforcement powers, jurisdictional and normative relations with other bodies, effectiveness and perceived legitimacy may result in a political and legal backlash that would, over time, complicate the mission of international courts. Hence, one of the key challenges in the 21st century for the international judiciary (and the international community on whose behalf it operates) will be to develop legal doctrines, best-practices, and institutional safeguards to address such concerns.

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