The International Court of Justice at 60: performance and prospects.

Author:Taft, William Howard, IV
Position:Includes discussion - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

The roundtable was convened at 9:00 a.m., Saturday, April 1, by its chair, Stephen Mathias of the Multinational Force and Observers, who introduced the commentator, Bruno Simma of the International Court of Justice, and the participants: Daniel Bethlehem of the Foreign and Commonwealth Office, United Kingdom; Vera Gowlland Debbas of the Graduate Institute of International Studies; and William Howard Taft IV of Fried Frank Harris Shriver & Jacobson LLP *

INTRODUCTORY REMARKS BY STEPHEN MATHIAS ([dagger])

Prefacing the remarks of the participants, Mr. Mathias declared that, in view of the centennial conference's theme of "A Just World Under Law," it was appropriate to consider the role and performance of the International Court of Justice (the Court). The creation of the International Court of Justice and its predecessor institution, the Permanent Court of International Justice, were among the most hopeful and ambitious steps taken during the past one hundred years to achieve the goal of a world under law.

Mr. Mathias stated that an initial question about the role of any court concerns the cases that come before it. In its contentious jurisdiction, the Court can hear only the cases that states agree to bring before it, but those cases may be, and frequently are, cases that touch fundamental interests of states, including boundary disputes and use of force, in its advisory jurisdiction, the Court can issue advisory opinions in matters referred by certain UN organs, as was done in the matter concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall opinion).

Setting the stage for an analysis of the Court's contentious jurisdiction, Mr. Mathias queried whether the Court was really the venue of choice for significant cases. Do states and relevant international political bodies refer significant disputes and legal questions to the Court? Mr. Mathias explained that this question has two aspects: (1) whether significant disputes are referred to dispute settlement at all; and (2) if they are, whether the Court is the forum of choice. He then posed the related question of whether there were any steps that could or should be taken to make the Court a more attractive forum for litigants.

Probing further into the Court's advisory' jurisdiction and laying the foundation for discussion by the participants, Mr. Mathias challenged the audience to consider whether the referral of what some view as essentially political disputes, such as the Israeli separation barrier matter, runs the risk of politicizing the Court. He suggested that another means of analyzing the performance and prospects for the Court would be to consider the effects of its judgments and advisory opinions. Do states comply with the judgments directed at them? Are the legal principles set forth in such judgments regarded as declaratory of international law? Do advisory opinions have influence in the resolution of matters they address?

To begin to answer these important questions, Mr. Mathias recommended a study of the Court's jurisprudence. He noted that, even limiting consideration to the past decade, the Court has issued judgments and advisory opinions on fundamental issues of great general significance, including the nature of the fight of self-defense, the legality of the threat or use of nuclear weapons, and head-of-slate immunity under customary international law. The Court has also decided cases that may not be of the same general interest but are of great importance to the litigants, such as the boundary and Vienna Convention cases.

Mr. Mathias noted that yet another means of analyzing the Court's performance and prospects is to analyze the procedure and reasoning behind the Court's judgments. Is it true, as one judge of the Court recently noted, that the Court occasionally reaches a particular conclusion "ex cathedra, and without giving much substantive reasoning"? One might ask whether that observation can be said to have more general relevance, and, if so, whether it affects the quality of the Court's judgments and advisory opinions. Indeed, Mr. Mathias remarked that questions have been raised concerning the manner in which the Court deals with complex factual disputes.

In March 2006 the Court heard witnesses, experts, and witness-experts during the oral proceedings of the Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) for the first time since 1991. To speak to these issues, Mr. Mathias invited the participants--and particularly Judge Simma--to describe their impressions of the effectiveness of the Court's procedures in dealing with witnesses, and evidentiary issues more generally.

* This report was prepared by Bruce W. Klaw. Remarks made by participants reflect their personal opinions and not those of their respective organizations, offices, or governments.

([dagger]) General Counsel, Multinational Force and Observers.

REMARKS BY WILLIAM HOWARD TAFT IV ([dagger])

Echoing Mr. Mathias' remarks, Mr. Taft noted that, as with all institutions, it was important to review the progress of the Court. He indicated that his remarks would locus on the risk of politicization of the Court.

Mr. Taft observed that the Court has a judicial function, which is normally distinct from politics. As such, it is important for the Court to maintain credibility and minimize the risk of criticism that its judgments are based on policy considerations rather than a disinterested analysis of what the law actually is.

According to Mr. Taft, a number of factors in the Court's basic structure make it susceptible to being politicized, including (1) the limited tenure of judges with possibility of election to a new term; (2) the custom of reserving seats for certain states and allocating seats to certain geographic regions: (3) the process of "campaigning" for election; (4) the relatively large number of judges on the Court; (5) the Court's responsibility to provide advisory opinions in response to certain requests from political bodies: and (6) the availability of judges for outside engagements.

Mr. Taft added that another (albeit non-structural) risk of politicization has roots in the fact that international law is relatively underdeveloped and, insofur as it depends in its customary form on state practice, not entirely stable. Thus, the temptation, or indeed the necessity, to develop the law (a political function) rather than determine what it is (a judicial one) is another complicating element. The existence of these factors, noted Mr. Taft, imposes a special burden on the Court's judges to avoid discretionary conduct that invites further criticism of...

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