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.
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…