Decisionmaking in international courts and tribunals: a conversation with leading judges and arbitrators.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 5:00 p.m., Thursday, March 24, by Chiara Giorgetti, Co-Chair of the Interest Group on International Courts and Tribunals. The panel's moderator, Edith Brown Weiss of Georgetown University Law Center, then introduced the speakers: Charles Brower of the Iran-United States Claims Tribunal and 20 Essex Street Chambers; Rosalyn Higgins, former President of the International Court of Justice; and Theodor Meron of the International Criminal Tribunal for the Former Yugoslavia and the Appeals Chambers of the International Criminal Tribunal for Rwanda.

INTRODUCTORY REMARKS BY CHIARA GIORGETTI

Good evening. It is an honor and a privilege to be here today to introduce on behalf of our interest group, this conversation among leading judges and arbitrator on decisionmaking in international courts and tribunals.

This is one of the first events that the Interest Group on International Courts and Tribunals, which I co-chair, has organized, and I think it attests to the importance of the issue that it has been selected as one of the plenary sessions for this year's Annual Meeting.

When we first proposed this panel, we wanted to explore a process that is fundamental for international law but that is not very much known. I therefore look particularly forward to hearing the panelists' insights and reflections on how decisions are reached in their different institutions and how each of them personally approaches the task of reaching a judgment.

Before handing over to Professor Brown Weiss, I would like to thank the panelists for taking the time from their very busy schedules to be with us today, and I would like to thank Professor Brown Weiss for agreeing to moderate this session. I'm sure it's going to be a most interesting session.

REMARKS BY EDITH BROWN WEISS

It's a great pleasure for me to moderate this "inside the judge's chamber" session. We have a very distinguished panel. In the middle is Judge Rosalyn Higgins, the former president of the International Court of Justice. To her left is Judge Ted Meron, who is the former president of the International Criminal Tribunal for the Former Yugoslavia, and currently an appeals judge on the ICTY and the ICTR. To her right is Charles Brower, who is a member of the Iran-U.S. Claims Tribunal and who has served as an arbitrator in many disputes, including ones before the International Centre for the Settlement of Investment Disputes. Judge Higgins has just been awarded, you might all like to know, the Hague Prize in International Law from the City of The Hague, a very distinguished prize. All three of our panelists to my left are Manley O. Hudson medal winners.

THEODOR MERON

You, too.

EDITH BROWN WEISS

Georgetown Law School is privileged to cosponsor this panel. I bring greetings from William Treanor, the Dean of Georgetown Law, who regrets very much that he cannot be here.

And I bring deep regrets from Brigitte Stern, who sends her warmest greetings from Paris. She had something happen to her that is the nightmare of all of us who travel. She had her passport stolen, so she could not get on the airplane to fly here. She sends her regrets and wanted all of you to know why she is not here.

Now I would like to put a question to all the panelists: how do you go about making decisions within your respective tribunals? What really happens after the pleadings are done? Can you share with us some of the inside knowledge? Judge Higgins.

REMARKS BY ROSALYN HIGGINS

Well, thank you very much, Edie, and I will try and set this conversation going by telling you some things about decisionmaking in the International Court of Justice.

Of course, it depends upon what sorts of decisions we are talking about. One is apt to think the only "decisions" in Court are the published judgments or orders, but in fact every week, there is a bevy of decisions that have to be taken. So there are decisions about the staff to be appointed, about positions to be taken at the UN on financial matters, on lengths of pleadings that the Court will ask the parties to adhere to, sometimes complicated issues about who can and should appear in a case. We have had that in my time at the Court twice, once over Palestine, once over Kosovo, and it was clear to everyone in plenary around the table that those two entities should be there in the cases concerning them. And although the International Court is formally only open to states, we found ways in each case for that to happen.

The dates have to be settled, and how long each party will be given for its pleadings. The parties initially come to the president to talk about that. The president makes some suggestions. Very often there are counter-suggestions, and then it's picked up at the next administrative and judicial meeting of the plenary.

Sometimes we need meetings to handle something unusual. For example, the volume of evidence anticipated in the Bosnia-Herzegovina-Serbia-Montenegro case where, at one stage, Serbia told us they wanted a vast number of witnesses, and a little working group had to be set up to deal with that.

Let me say that I have the impression from talking to my great colleagues and friends, the presidents of the ICTY, Nino Cassese, Ted Meron, and Fausto Pocar, that the president of that Tribunal does a lot more himself or herself on the range of matters I've talked about, without reference back to the plenary Tribunal.

At the International Court, the plenary expects not only to be consulted, but actually to make the decisions on virtually everything. There are two important court committees. One is the Rules Committee, which deals with much more than the rules but with everything to do with the work methods of the Court, and makes proposals to the plenary; that, of course, includes Practice Directions. And then there is a Budgetary and Administrative Committee, which deals with all the staffing matters. Of course, the registrar plays a major role in all of that.

But let me then turn to the formal decisionmaking. In contentious cases, in contrast to advisory procedures, the Court may at any given moment need to make decisions on jurisdiction or make decisions on the merits.

When I came to the Court, it was the practice for a judge's note to be done after a hearing on jurisdiction as well as after a hearing on the merits. That clearly was eating up time in the work calendar, and the Court, as you know, in recent years has been trying to be more efficient in its handling of the cases. It was agreed that on a trial basis (one which I think has become permanent), we would do without judge's notes in jurisdictional matters.

I can only think of one extremely complicated jurisdictional matter during my 14 years at the Court where we did do a note on jurisdictional matters, so I think that saved a lot of time each year.

Before the note is done on the merits or before judges go away to gather their thoughts, there is what we call an Article 3 meeting which is a meeting virtually as soon as the oral proceedings conclude. The judges will meet to decide what are the really key things each one of us must think about and what are the things any one of us may want to think about but are not absolutely so critical. And when that sorting of the wheat from the chaff is done, we all set off to do our work. Of course, that is a solitary process, but we all have been chatting with each other and having a cup of coffee together. In the tea breaks or the coffee breaks during Court hearings, a lot more conversation goes on.

Now, even when you get to that sort of decisionmaking, it can still be quite complex. Sometimes, of course, in jurisdictional matters, the question will be shall we proceed to the merits? That can be a very tough one to handle, i.e., do we have jurisdiction to do it?

On the merits, it's very often not just a question of, is the law X or is the law Y. Very often, it's rather about what submissions we've heard, what can we safely rely on as we begin to formulate our judgment, what issues of law are controversial in the sense that there is not a consensus within the Court about them. If we can leave them aside, would it be prudent to do so? Then, how far can we go in articulating the law or is the law at a sensitive stage where we need to be cautious? That's happened sometimes when something is on the agenda of the ILC, and we've said what we need to, but we want to let the ILC go on and do its work in depth on that particular point.

And a common discussion is: Are we merely deciding the case in front of us, or is there a pedagogical function for the Court to perform? In the Genocide case, I think we answered more than was before us. We hoped that genocide would be so infrequently before the Court that we would try systematically to go through all legal arguments, all clauses in the Genocide Convention, and try and get authoritative views out there. Related to that, some judges on a particular point of law will always want citations of as many as possible of the previous cases where we've decided that point. Others will say, "No. One will do. We're here just to decide a case. Just mention the last one." So those sorts of discussions go on.

Now, the judge will have written a formal note. We call it a "note," but actually it's a judge's opinion but without having to finalize all the footnotes. The style can be a little more informal, and it will be on the basis of what was decided in the Article 3 deliberations as to the points we simply must all reach a decision on.

Let me just incidentally say that although we do have the help of law clerks now and of interns, and that is very, very welcome, it is a point of pride at the Court that we, the judges, write our notes and we the Judges draft the judgment.

Some people think that doing the notes, although valuable, may set a judge in his or her thinking, close your mind to other possibilities. Others think it's just a question of your character; if you're willing to change your...

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