A conversation with International Court of Justice judges Joan Donoghue, Julia Sebutinde, and Xue Hanqin.

Position:ASIL Annual Meeting - Discussion

This plenary discussion was convened at 4:15 pm, Friday, April 11, by ASIL President Donald Francis Donovan, who made brief introductory remarks, and by the panel moderator, Abiodun Williams, President of the Hague Institute of Global Justice, who introduced the speakers.


I will be very brief. I am going to allow Abi Williams of the Hague Institute for Global Justice to introduce our speakers, but before we start, I want to thank the government of the Kingdom of the Netherlands for its support for this event and for bringing these distinguished judges to us.

Many of you were at the WILIG luncheon yesterday, which was really an extraordinary event, and so we have had the chance to honor Judges Xue and Donoghue and Sebutinde. Now we have a chance for a substantive discussion with them.

So, again, Abi, thank you for hosting this, and thanks to the Dutch government for supporting it.


Thank you very much, ladies and gentlemen, a very warm welcome to what I am sure will be one of the highlights of this year's ASIL Annual Meeting, a conversation with three judges of the International Court of Justice, Judge Xue, Judge Donoghue, and Judge Sebutinde.

As President of the Hague Institute for Global Justice, it is a tremendous pleasure for me to share the stage with three of my most eminent colleagues from The Hague. I very much look forward to what I am sure will be a wide-ranging discussion, engaging many of the issues that the Court is facing today, as well as the effectiveness of international law more broadly. I also look forward to discussing issues of diversity as pertaining to the role and work of the Court, but gender is only one aspect of diversity which I hope we will discuss today, because perhaps more relevant would be the judges' approach to their work, the diverse perspectives, and backgrounds which they bring to the bench, whether in terms of the legal systems in which they were trained or the different parts in their careers, which they charted before coming to the Court.

So I think it is now my distinct honor to introduce today's panelists whose views on these issues we are all very eager to hear. Judge Donoghue was elected to the Court in 2010, prior to which she served as Principal Deputy Legal Advisor at the U.S. State Department. She has also had a distinguished career as a professor at Georgetown University and George Washington University.

Judge Xue was also elected to the Court in 2010, prior to which she served in senior legal and diplomatic posts in China's Ministry of Foreign Affairs. These posts included Director-General of the Department of Treaty Law, China's Ambassador to ASEAN, and China's Ambassador to the Netherlands.

Judge Sebutinde was, prior to joining the ICJ in 2011, a judge on the Special Court of Sierra Leone. She joined that special court following an impressive career in Uganda where she began her career in the Ministry of Justice and ultimately served as a high court judge.

The format for this afternoon's discussion is as follows. I will begin by posing initial questions to the judges, designed to frame the discussion and highlight some of the critical issues that the ICJ is currently facing, and then I will provide an early opportunity for you, the members of the audience, to engage in the discussion. I will take the questions in groups of three to maximize the discussion.

It is striking, I think, that even among the legal community, general knowledge of the ICJ's work seems not always to be as developed as it might be, particularly as controversy surrounding the International Criminal Court takes up much of the oxygen in the debate on international law. So the judges and I therefore thought it opportune to begin today's sessions by speaking first in general terms about the ICJ's role and function.

So let me start by asking Judge Donoghue whether she could remind us briefly of the key features of the ICJ; for example, how the judges actually function.


I'm happy to do that, and thank you to all of you for being here. I often think of myself as an international law nerd, which I am pretty happy to attribute to myself, and you all deserve the same label for being here this afternoon instead of enjoying this incredibly nice weather outside.

You know, The Hague and the American Society of International Law have something in common. The Hague is a national capital, but it is also an international center for peace and justice, and for us, that's where the Peace Palace is located, where we work, in the same way the American Society is a national society, but its membership includes 40 percent of members who are not American. So it's nice and fitting, I think, that we travel with Dutch sponsorship here to talk about our institution in this setting.

I should also say that there are experts in this audience, at least one former judge of the International Court--Judge Schwebel is here--people who have appeared as counsel before our Court, but we really wanted to make sure that those of you who don't have that expertise could participate in this conversation.

So, with that, our Court is the principal judicial organ of the United Nations. We are 15 judges from around the world, representative of the regions of the world and elected by the Security Council and the General Assembly. We hear two kinds of cases. We hear cases in which another organ of the UN asks for an advisory opinion, but the bulk of our work, about 80 percent of our work, is in what we call contentious cases, and that's a case where State A brings a case against State B, usually, and in those kinds of cases, we can get jurisdiction in one of three ways.

So we're the principal judicial organ, but we only have jurisdiction if the states consent to our jurisdiction, in one of three ways: (1) states can consent generally (about a third of the member states of the United Nations have done that); (2) states can consent in respect of disputes arising under a particular treaty; or (3) sometimes two states will come jointly and bring a case to us.

What kinds of cases do we hear? We can hear cases arising under any sort of international law, and they can come from any region in the world. Just to mention a couple of our recent cases, we just recently decided a case that Australia had brought against Japan. Japan was engaged in a program of whaling in the Southern Ocean near Antarctica, and Japan's view was that this whaling was lawful because it was whaling for purposes of scientific research. Australia challenged that and said that that's not the accurate description of that whaling

program, and we agreed with Australia. Japan has indicated that it will not go forward with the full program in light of our decision.

A mainstay for the Court has been boundary disputes, especially maritime boundary disputes. Our most recent maritime boundary case was one that Peru brought against Chile. It involved large areas of water, with significant resources, living resources, and we reached a result that wasn't what either side wanted but also neither of them entirely won or entirely lost. They've gotten together and have announced that they have agreed on the specific coordinates to implement that judgment.

So that gives you a flavor of the kinds of cases we hear and the work that we do.


Thank you very much for the overview, Judge Donoghue.

I said that we are going to touch on the issue of diversity, so let me say that the ICJ Statute requires diversity in terms of legal systems, such as the distinction between common law traditions and civil law traditions, and I was wondering, Judge Xue, whether you could comment on how those different traditions manifest themselves in the work of the Court.


First of all, I would like to say that it is a great honor to be here. When we discuss issues, we like to relate them to the audience. Whenever we start to talk about the Court, we tend to think that we should provide a general introduction of the Court to the audience first, because, although the Court is the longest serving legal institution in The Hague, people still tend to ask us "Are you from the ICC? Are you trying Charles Taylor?" Those are the questions we often receive. When I look at this audience, however, I realize that perhaps our introduction may not be necessary after all.

In terms of Dr. Williams' question of diversity, this time the Dutch government kindly invited three women judges to this session, in a way to show the progress of the Court in terms of gender balance. According to the Statute of the Court, members have to be elected from the main forms of civilization and legal systems of the world. Consequently Judges on the bench are from different countries and regions, with different professional backgrounds. When we work together in a case, even presented with the same facts, evidence, and legal arguments, we may have different appreciation and understanding of the facts and evidence, which directly affects our position on the conclusions drawn by the Court. This can be observed from the Court's Judgments, individual opinions of the Judges, either appended singularly or jointly. The full Court procedure usually takes a longer time, but in most cases State parties would still prefer to use this regular procedure rather than the chamber procedure, which can be chosen by the parties under the Statute.

Diversity for the Court is not something abstract, but tangible, as it is reflected in our daily life and work. This is very important for the World Court.


I was just going to say that, Judge Sebutinde, you come from a different legal tradition from Judge Xue. Would you like to comment on how coming from a different legal tradition manifests itself in the Court?


First of all, I would like to endorse the comments of my two colleagues, thanking the audience...

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