The International Court of Justice and the Judicial Function: Responses

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. Where my research is different is that, rather than surmise as to the possible factors that may have motivated the Court’s reasoning, I have sought to explore how its judgments can be read differently. By doing so, I have sought to expose various tensions in its function within the wider international legal order.

Response to Mary Ellen O’Connell

Mary Ellen has addressed perhaps the most controversial claim in the book: the Court’s role in international law-creative processes. Before turning squarely to addressing this claim, I wish first to add a caveat in response to a point she has raised. It is absolutely true that I have not explained my views as to the effect that compulsory jurisdiction, abolition of the institution of judge ad hoc, or the discontinuance of the practice of ensuring the representation of the permanent members of the Security Council. These are highly pertinent questions, and in any discussion regarding the amendment of the Court’s Statute and Rules, these have figured greatly. I touched on these issues in Chapter II, where I attempted to sketch out a genealogy of the Court as an institution, and the choices expressed in its current institutional form.

To refrain from exploring the effects of such possible amendments was deliberate. This book aims not to sketch out a grand theory of how to make international adjudication more legitimate, effective, or democratic. The aim was to engage in a careful internal analysis of the Court as it presently stands, and how it understands its function given its present structure, composition, and jurisdiction. I did not wish to engage in counter-factual analysis as to the possibilities engendered by change, but rather, to expose and explain how the Court’s institutional structure shapes its reasoning, its judgments, and its self-perception as a judicial organ within the international legal order. Iain has termed my approach essentially ‘constructivist’, a characterisation which seems fair.

This caveat should help to explain my rebuttal of the central point Mary Ellen points out in my book, that one could read it as suggesting that the ICJ ought to adopt an ‘activist stance’ with respect to the development of international law. In my introduction to this book discussion, I referred to the idea that the Court should comport itself with responsibility for the normative authority of its judicial pronouncements. But I did not for a moment wish to suggest that the Court should abandon its commitment to formalism in favour of a value-oriented jurisprudence.

In fact, nothing further could be the case. This should be suggested by my lament in Chapter VII on the Court’s exceedingly constrained perspective on the international community, and in my final reflections outlined in Chapter IX. I do not wish for the Court to abandon a limpid and robust understanding of the sources and forms of international law. Nor do I wish for the Court to begin to substitute its own values for law. My claim throughout the book has been descriptive, and not normative: it has been that the Court in reality exercises disproportionate authority in the development of international law, and that this is a phenomenon for international legal scholarship to cognise, systematise and address. For if international law, and in particular its sources theory, are to engage with the practice and realities of international practice, to insist dogmatically that judicial decisions do not make law is to ignore the realities of how international legal argument takes place. This claim is grounded, perhaps, in a descriptive sociology of international law; but I am perfectly comfortable with outlining the phenomenon as it stands, identifying the dissonance of this phenomenon with orthodox positivism on the role of judicial decision, and leaving the ground open for further debate instead of proposing a ready-made solution.

I agree, in this respect, with Mary Ellen’s caution against excessive realism, and her description of law as fundamentally ideational. I also agree with the idea that a clear-eyed formalism is an important counterweight to the unfettered politicisation of law; in that, I suppose I am sympathetic to Martti Koskenniemi’s repeated calls for a ‘culture of formalism’. But where I break with Mary Ellen is on the suggestion that recognising the powerful normative influence of judicial decisions somehow makes a choice in favour of realism over formalism. My view is that realism and formalism, much like naturalism and positivism, do not exist in opposition but rather, in a dialectic: one cannot understand the one without a full understanding of the other, and they cease to exist as self-standing concepts when not defined in relation to one another. My understanding of the sources of international law, I hope, seeks to temper doctrinal formalism with a dash of realism. To my mind, this is necessary due to the fundamentally decentralised, indeterminate nature of international law, which I believe is ripe for simultaneously external and internal examination.

Response to Iain Scobbie

I conclude, finally, with my reply to Iain, whose own work on the Court I have followed closely over the years. On the question of the robust role the Court plays in the development of international law, I would make many of the same comments in reply to Iain as I did to Mary Ellen, above, so I will not belabour the points. Iain’s objection to this role is not rooted in the tension between formalism and realism, however; it is rooted in the Court’s institutional place within international law. I will try to address this key distinction in the paragraphs that follow.

Iain addresses head-on my characterisation of the Court’s assertion of near-public functions in advisory proceedings as a reflection of the greater participation of States, whilst in its contentious cases the Court’s caution is tempered by its concern over the consent of the parties, and ought better to be regarded as ‘transactional’. I do not agree, for a number of reasons. The material value of the Court’s jurisprudence has always been considered—by States in their pleadings, by doctrine, or by practitioners—as a collective whole, with little distinction between the two forms of proceedings. That this might be because judgments are only binding between the parties, and thus no more and no less relevant than advisory opinions as a source of law, is beside the point. The Court’s treatment of its own jurisprudence as a material source of law does not distinguish between its judgments and opinions; both are treated as equally authoritative, as might be illustrated in the Court’s opinion in Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, p. 416, para. 30, where the Court’s restatement of its test on the propriety of giving an advisory opinion was justified through copious reference to its previous advisory opinions.

Iain’s point on the deliberative process leading to ambiguity and incompleteness is an important one, much reflecting Yuval’s concern that the Court is ineffective in securing doctrinal coherence. Iain would take this further in suggesting that my argument on reading the Court’s judgments is essentially one of cumulation, through which the individual opinions help to illuminate the conclusion arrived at by the Court, whatever doctrinal or formal coherence is lacking. I agree, and am much obliged to him for synthesising my argument so cogently. I agree wholly with him that fragmented, inconsistent reasoning should lead to serious questions as to whether compromise should be regarded as providing ‘a secure basis for subsequent development and consistent systematic interpretation’.

I would add only that, so far as I am concerned, the Court has taken a robust and coherent position with respect to its own institutional authority. Its self-interest is part of the field of discourse. He is absolutely right to suggest that the issues are fundamentally shaped by the arguments of the parties, which construct a ‘field of discourse’ for the Court. I agree. I add merely—and this, to my mind, is the contribution I have sought to make with the book—that the field of discourse is constructed with reference to a wider normative backdrop, two points of which are determinative. First is the Court’s Statute and all the constraints it brings, such as consensual jurisdiction, the nomination of the Court’s judges and their purportedly representative character (on which I had some critical thoughts: see pp. 130-139 of the book). Secondly, one must bear in mind the Court’s perception of the international legal order, which remains fixated on an essentially consensualist, horizontal view of international law (see Chapter VII), and on which the Court has expressed certain ambivalences as to international law as a system (see Chapter VIII). Although Iain does not address this point, I feel it important to mention that nowhere in the book do I suggest an alternative normative backdrop, such as the public authority/democratic legitimation propounded by Armin von Bogdandy and Ingo Venzke. I have simply sought to define the field of discourse as stretching beyond the parties to the dispute, to encompass the Court as an actor both constrained by its Statute and having a ‘horse in the race’, as it were: its own normative authority.

I am again most grateful to Mary Ellen, Iain, and Yuval for their careful scrutiny of my book, and look forward to further discussions.