The Killer Whales of The Hague

It was a pleasure to read Gleider’s thoughtful monograph The International Court of Justice and the Judicial Function, which presents a constructivist account of the operation of the International Court and the role of its judges. There is much to commend in this work, which starts squarely from the position that the analysis of international courts should not be based on constitutional expectations drawn from domestic systems. I particularly appreciated the attention he paid to the Court’s deliberative process: like him, I think that this is too often ignored in the analysis of the Court’s jurisprudence. I am, however, less sanguine than he is about the implications of this process for the normative consequences of the Court’s jurisprudence.

Gleider has a robust view of the Court’s role in the development of international law:

Once a general statement on a legal principle or rule has been elucidated by the Court, channelled into the judicial form and given the imprimatur of judicial authority that accompanies the Court, both parties before it and non-parties cannot in good faith contest that principle. The existence of that principle itself becomes part of international legal argument, offering a body of evidence an materials that can be relied on by States, and thus stabilizing their ‘normative expectations’. (p. 90: notes omitted)

While it cannot be denied that the Court refers to its own jurisprudence continuously and is, to say the least, loathe to depart from its earlier rulings, I wonder whether it might not be more appropriate to view the Court’s role as more transactional in nature, as I have argued before. Gleider dismisses this approach as inappropriate, arguing that this would reduce adjudication “to a private function, where the Court is an instrument of the parties before it” (p. 93). But isn’t this the point? In contentious cases, the issues are defined by the arguments of the parties which, in terms of argumentation theory, sets the field of discourse for the Court. But this field of discourse is necessarily incomplete as constraints of time and length are inherent in all pleadings – if nothing else, the Court’s attention cannot be prolonged indefinitely. Not all the relevant material might be placed before the Court, but only those aspects that the parties wish to present and emphasise. In contrast, given the (generally) wider participation in advisory proceedings, should the rulings these contain be seen as more “authoritative” than those in contentious cases? Gleider comments that the Court’s apparent insistence on the essentially inter partes nature of contentious cases is a “fiction” which “sits uneasily with the Court’s robust assertion of its powers in the exercise of its advisory function, where it has seemed prepared to assume functions of a more public character” (p. 93). Increased participation might be a reason for that.

But to turn to the Court’s collegiate deliberative practice, which Gleider argues was “designed precisely to bestow a heightened authority on the collective judgment of the Court”. He also, and in my view correctly, emphasises “the importance of individual opinions in illuminating the reasoning of the judgment” (p. 96). The bargaining inherent in the drafting of the Court’s pronouncements can result in texts that are less candid than they could be, cast in “laconic and elliptic drafting” (Edvard Hambro, the Court’s first Registrar), and expressing only the lowest common denominator of judicial opinion (former Judge and President of the Court, Manfred Lachs). It has been said that the first draft of the collective pronouncement produced for adoption by the Court:

suffers the fate of a whale attacked by a school of killer-whales which tear big chunks of flesh from its body. Sometimes only a skeleton is left for the second reading (former Judge Sture Petren).

Gleider concedes that the text of a judgment or advisory opinion is essentially a compromise, “replete with ellipses and intentional ambiguities deliberately deployed, all to secure maximum possible agreement” (pp. 107-108: note omitted). At times, this can give rise to the impression that the collegiate text proceeds more by assertion than by a reasoned exposition of the issues involved. This has been a criticism made of, for example, the Legal consequences of the construction of a wall in the occupied Palestinian territory advisory opinion, despite the fact that the principal rulings on principle it contains were unanimous. The disagreements and divergences between the judges in that case, as indeed in all cases, were exposed in the individual opinions.

It is commonplace that, in legal reasoning, different lawyers may often use different routes to reach the same conclusion. The rhetorical theorist Chaim Perelman sees cumulation of argument as a specific characteristic of legal reasoning. If several distinct arguments lead to the same conclusion, the value attributed to it, and to each argument individually, will be increased. There is little likelihood that several entirely wrong arguments could lead to the same conclusion (see, eg, Chaim Perelman and Lucie Olbrechts–Tyteca, The new rhetoric: a teatise on argumentation (University of Notre Dame Press: 1969) §99-100, 471-479). Cumulation arises simply because law is value dependent, and values cannot be captured in a formal logical system. The application of law lies not in defining each word, but requires recourse to the values underlying the norms. This aspect is ignored if the process is assimilated to a syllogistic operation. Cumulation is thus required because legal argumentation is not logically compelling.

Accordingly, we should not be surprised that the Court’s process of deliberation and drafting, the internal and extended exchange of views within the Court often leads to a fragmentation of reasoning even between those judges who ultimately arrive at the same conclusion. The problem is that this might end in propositions being adopted by the majority which lack solid underpinning or doctrinal weight. Compromises used to attract a majority around a given issue might prove to be unstable should they arise in subsequent cases because, quite simply, the cracks between the judges’ differing views have simply been papered over and there is no solid consensus. If Perelman is correct, and legal reasoning and interpretation is dependent on the elucidation of values, then can these compromises provide a secure basis for subsequent development and consistent systematic interpretation? As I said, I am less confident than Gleider about the Court’s role in the development of international law. While undoubtedly it does play some role, the texts it produces often do not have the depth or the richness that they might otherwise have.