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

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.

Outside pressures

Another possible reason for the relatively low levels of doctrinal coherence in ICJ judgments is the Court’s dependence on states for acceptance of its jurisdiction, referral of cases and enforcement of judgments. This is of course an old problem for international courts. Still, other international judicial bodies have shifted over time from voluntary to compulsory jurisdiction, have nurtured constituencies providing them with steady flows of cases and have developed more robust enforcement mechanisms, including review of judgment enforcement by political bodies and courts.

The ICJ, in contrast, appears to be stuck in a moment in time with regard to its legal powers over states. As a result, the Court still attracts a modest level of compulsory jurisdiction declarations under the Optional Clause (numbering currently 70), is receiving on average 2-3 cases a year, and lacks an effective judgment enforcement mechanism (the Security Council has yet to enforce its first ICJ judgment). This implies that the ICJ may be more vulnerable to unfavorable reactions to its decisions by states and international organizations than other international courts, and might be tempted to consider such possible reactions when formulating its judgments.

To be sure, I have written elsewhere that all courts seeking to maintain their effectiveness (or goal-attainment) must preserve a degree of outcome legitimacy – that is, generate decisions perceived by their relevant constituencies as law-based and consistent with core principles of justice. Furthermore, a chronic gap between judicial outcomes and “client preferences” is likely to generate, as a practical matter, legitimacy challenges and lead to under-utilization of the Court. However, the pressures emanating from the expectations of constituencies on whose support and good will an international court, such as the ICJ, depends are likely to be particularly intensive. Those pressures might push the court to decide cases in accordance with strong ‘client preferences’ regarding outcome, notwithstanding the contrary pull of established legal doctrine.

Hence, one can explain certain of the tensions understood by Gleider as predominantly ideological in nature in more mundane terms, related to concerns by the Court about possible reactions of constituencies to certain outcomes. For example, he discusses extensively paragraph 97 of the Nuclear Weapons opinion as indicative of a clash of views of judges over the non liquet principle. He argues that this clash reflects different policy choices relating to the completeness of international law, on the one hand, and concerns about normative ossification on the other hand. Still, is it not as plausible to speculate that the outcome of the case was also influenced by the need to walk a fine line between the diametrically opposed positions on the legality of nuclear weapons taken by the two main groups comprising the UN General Assembly – the Court’s “client” in advisory opinion cases? Arguably, the outcome’s lack of determinacy might have been shaped as much by what Gleider calls the “Court’s instinct for self-preservation” (p. 275) as by doctrinal disagreements. The radically different approach taken by the Court in the Kosovo case, applying the Lotus principle to deal with a legal lacuna, further supports the possibility that legal doctrine in the Nuclear Weapons case was rendered subservient to legal outcome.

In the same vein, differences between the world views and jurisdictional holdings featured in certain advisory opinions (such as the Wall opinion), where erga omnes norms have been robustly applied, and certain contentious cases (such as the East Timor case), where similar norms were downplayed for jurisdictional purposes, can be explained by the different sets of constituency expectations about the outcomes of these cases. In inter-state cases, the Court may have chosen to invoke in the operative part of the decision sovereignty-friendly inter-state norms emanating from state consent. By contrast, in advisory opinions, it may have chosen to reach legal outcomes corresponding to the common sensibilities of the international community. This may suggest that the Court’s legal doctrine and judicial outcome may be as much influenced by the identity of the ‘client’ as by ideological tensions.

Finally, one may wonder to what extent the Court’s turn to a strict version of res judicata in the 2007 Application of the Genocide Convention (Bosnia v. Serbia) case was the result of an ideological showdown about the proper judicial function and the role of judicial precedent. The legal doctrine espoused in this case deviated from the much looser understanding of the doctrine discussed in Chapter VI of the book and from concerns about normative ossification discussed in Chapter VIII. It is therefore at least plausible that the doctrine was selected for its ability to justify the preferred outcome (and not the other way round), and that such an outcome was perceived as vital to preserving the Court’s relevance as a forum for adjudicating serious atrocities. Here too, the expectations of constituencies may provide a better explanation for the Court’s legal acrobatics than any analysis of the specific ideological tension among the judges of the Court. Those constituencies include states that might consider bringing future cases involving international atrocities to the Court, and general public opinion, which demanded justice for the victims of the Bosnian conflict.

Conclusion

Gleider is correct in observing that the Court serves as the staging ground for ideological battles over judicial goals and functions and the nature of international law, and that studying the Court’s judgments reveals interesting tensions, inconsistencies and compromises. His book thus represents a most valuable addition to the literature on the ICJ, and presents a welcome opportunity to take stock of the Court’s contribution to international legal doctrine. At the same time, it may be observed that, given the nature of the Court’s collective decision-making process, its judgments are sometimes afflicted by the doctrinal paradox. Furthermore, the Court’s structural dependency on States and UN bodies for generating its business and implementing its decisions may exert pressure upon it to generate legal outcomes acceptable to its political constituencies, even at the price of chipping away the Court’s doctrinal guidance function. The result is that the doctrinal positions embraced by the Court may inaccurately reflect the ideological convictions of the judges that compose it. Thus, the contribution of the ICJ’s jurisprudence to the development of international legal doctrine may be an interesting case study not only of the contours of legal theory, but also of its limited power to explain legal outcomes.