Gleider 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.
Chapter II of the book attempts a revised history of the Court’s foundation, focusing on key historical moments in which various aspects of its institutional form and operating procedures came to be understood. Building on this foundation, the Court has established a century of practice through which it has interpreted and explained how that function is to be exercised, at times asserting powers for itself based on its very form as an international judicial institution or as the principal judicial organ of the United Nations. Equally so, the Court has confined its powers through a century of practice, from which a number of observations can be made.
In Chapter III, I sought to systematise a number of themes: how the Court’s enduring preoccupation with the consent of States remains a defining aspect of how it perceives of its contentious function; how the Court has claimed for itself, through reference to inherent features of the judicial proceeding and its character as a court, a number of procedural and substantive powers; and how the Court’s advisory function, as the principal judicial organ of an international organisation with universalist aspirations, reflects an important aspect of its judicial function that needs also to be considered.
These come together in the section on the Court’s role in the development of international law, a section in which I develop the argument further that one ought not merely to look at the formal aspects of law-creation, but equally, to the normative influence that judicial decisions play in the development of law, in particular in an international legal system that lacks a centralised legislative body or process. This is not a formalist argument seeking a new theory of sources, but rather, a call for a different scholarly approach to the contribution of judicial institutions to the development of law than has heretofore been applied in mainstream international law scholarship.
A sensitive part of the book, given my service as Associate Legal Officer at the Court from 2007 until 2010, was on how to elucidate and explore how the Court’s deliberative processes and composition reflect its self-perception as a judicial institution within international law. So as to avoid any problems in relation to confidentiality, I sought to systematise the body of publicly-available materials to illuminate how the Court’s self-perception contributed to an understanding of its judicial function. Through a study of available case law, the Court’s application of its own Rules and other procedural documents, and some extra-judicial statements by its judges and legal officials, I reflect here on two challenges. First, there remains difficulty in arriving at any clear picture of how the Court collectively views its function; secondly, one must define the contours of how the Court, as a collective of individuals working together, constructs its claim to authority.
In the face of this sensitive research, I decided to address three themes: the Court’s deliberative process and debates over the function of individual opinions (Chapter IV), the concerns over impartiality and bias reflected in the Court’s continued retention of the institution of the judge ad hoc (Chapter V) and the Court’s consistent practice of adhering to its previous decisions (Chapter VI). Again, this study was conducted not with a view of which reforms could meaningfully change the Court’s work, but rather, to discern carefully how the Court understands its judicial function within those present parameters.
The Court’s reliance on its previous case law, in particular, reflects a fairly strong theory of precedent, one which demonstrates the authority it attaches to its previous utterances as a material source of international law. This practice possibly reveals an appeal to other actors, primarily States, to ascribe equal importance to the Court’s judgments: to fall under what my friend Ingo Venzke calls the ‘spell’ of the Court’s own precedents (I. Venzke, How Interpretation Makes International Law, OUP, 2012, at eg 139). Such an appeal may very well be successful. One indication of its influence is the manner in which States construct their submissions before the Court, referring copiously to its prior case law. Another is the influence commanded by the Court’s judgments in other international judicial fora, of which evidence abounds. One need not advance a new theory of formal sources of international law to discern the substantive impact of the Court’s claims and practices on the development of international law more widely.
Yet all is not so rosy. The concluding chapters seek, finally, to address two themes on which the Court’s claim to authority might influence the nature of international law more generally. Chapter VII, published in the British Year Book of International Law, sought to address the Court’s understanding of the legal and political community it inhabits, and the extent to which it perceives itself as empowered to defend so-called ‘community interests’.
In this, the Court’s case law and practice are revelatory of a deeply cautious, minimalistic approach. The Court has with great hesitation engaged with legal concepts which might empower it to challenge the claim of States to an exclusive power over the development of international law and international legal obligations. In particular, the Court has barely acknowledged the existence of the concepts of obligations erga omnes and of peremptory norms of international law (jus cogens), It has certainly ascribed them no concrete legal effect. I do not make this argument teleologically, to suggest that the Court ‘ought’ to apply community norms in any particular manner. Rather, I seek to expose, through the Court’s practices, that its understanding of the international community is one rooted in the deep structure of international law as a horizontal legal system based on the consent of its subjects, States. To my mind, this represents a valuable counterpoint to those that presume a robust international judicial function to be a progressive force; the Court’s formalism precludes arriving at such a conclusion.
The final substantive Chapter (VIII) proceeds with the exploration of a topic which is illustrative of how the Court’s self-perception can affect the nature of international law as a system. It addresses the topic of gaps in international law yet again, and with considerably less humour than Roger O’Keefe did on this blog. Why embark on such a well-trod path? I believe the debate on whether international law is complete to be an effective device for understanding the Court’s self-perception of its judicial function. Simply put, the debate on the completeness of a legal order reflects a faith in the rule of law itself. If law and a legal order have the answer to any legal question, the law’s certainty and clarity are much enhanced, thus eventually perpetuating a faith in law itself.
In this light, the Court’s refusal to answer the question posed to it by the General Assembly in the Nuclear Weapons Advisory Opinion is of particular importance. In that singular instance, we saw the Court concede that international law does not always contain the answer to a legal question. More importantly, it acknowledged that its judicial function, particularly in the advisory setting, is not to provide an answer when the international legal order does not contain a sufficiently clear legal rule or norm. The possibility of indeterminacy in such circumstances demonstrates the Court’s modesty concerning its role within the international legal order, as well as its specific view of the nature of international law as a legal order. Rejecting a ‘closing rule’ or a residual principle in this case, the Court also refused to be obliged to contribute in this way to the development of international law.
This book is not a call for specific reforms of the Court. It is certainly possible that this or that change to its jurisdiction or drafting procedure would entail a change in its material contribution to international law. Yet that is not the book’s purpose. Instead, the book is a call for responsibility on a number of fronts:
It calls for responsibility on the part of legal scholarship. Too much academic commentary presumes that a robust international judiciary in the domestic constitutional model will act as midwife to the rule of law and an ipso facto vector of progress for the international legal order. My book, I hope, provides evidence that the Court has proven itself not to be such a vector.
It calls for responsibility on the part of those who use and deploy the Court’s judicial decisions within international legal argument. It argues that remaining aware of how the Court’s institutional form and history have shaped those decisions is indispensable in understanding those decisions, which do not exist in a vacuum.
Finally, and perhaps immodestly, it is a call for continued responsibility to the Court itself. That judicial decisions do not formally constitute a primary source of international law is certainly true; but to ignore the important constitutive role interpretation and application play in the development of legal rules and norms would be unduly formalistic, especially with respect to the Court’s justificatory reasoning, the sources it deploys, and the judicial techniques that it employs in fashioning its judgments. This point is especially true within a relatively indeterminate legal system like international law. Simply put, the Court should not abdicate responsibility to the wider international legal order in which it plays a seminal role.
I very much look forward to the debates that will unfold in the coming days, and to any comments that any of you might have.