The lecture began at 4:00 p.m., Thursday, March 26, and was given by Charles N. Brower of the Iran-United States Claims Tribunal.
THE EVOLUTION OF THE INTERNATIONAL JUDICIARY: DENATIONALIZATION THROUGH JURISDICTIONAL FRAGMENTATION
In 1925, Manley O. Hudson delivered a pair of lectures at Cornell University honoring the 300th anniversary of Hugo Grotius' publication of his works on "The Law of War and Peace," in which he took the international legal community to task for its failures to respond adequately to the chaos and calamities of World War I. He found the international legal order then to be lacking a jurisprudence and methodology of international law that "served the social needs of the time"--ultimately world peace--and was both coherent and devoid of the nationalism with which he felt the then extant sources of international law were imbued. He expressed the hope that with the establishment of the Permanent Court of International Justice, "a new era will dawn for the judicial development of the law along truly international lines." (1)
In 1944, with the world yet again suffering the ravages of global conflict, Hudson wrote in the preface to his monograph, International Tribunals Past and Future, that war once again had emphasized the need to "reexamin[e] the basic institutions of world society," with a view to "reshape many of those institutions for the better serving of future needs," with special attention to be given to the "remodeling and adaptation of international judicial institutions." (2)
In his 1925 lectures, Hudson wisely had cautioned that the evolution of international law would not be the work of a single generation and that its transformation was "not a goal but a process.., not a destination but a method of travel." (3) So in Hudson's estimation, the child's anxious query from the back seat of the car, "Are we there yet?", is not appropriate for this particular journey; we are never "there," rather, we are perpetually en route. The question I therefore pose is not, "Are we there yet?", but rather, how efficient (and comfortable) is our chosen "method of travel"?
In what follows, I propose to offer at least a partial answer, one directed to the focus of Hudson's life's work--international courts and tribunals--specifically, the role now played by the international judiciary in navigating our common course. As a necessary prelude, however, a very brief side trip is necessary into the eternal philosophical debate between Formalism and Realism, a debate historically carried out largely in the municipal context. Following that, I will address the pertinence of that debate in the international context, which adds the element of adjudicators' nationalities. (4) From there I explain how the influence of an adjudicator's nationality, whether actual or only perceived, is diluted in direct proportion to the narrowness of the adjudicator's jurisdiction. Finally, I note that fragmentation of international law is the necessary result of jurisdictional specification and evaluate its consequences.
JUDICIAL LAWMAKING IN THE MUNICIPAL CONTEXT
In September 2005, testifying before the Senate Judiciary Committee considering his nomination to become Chief Justice of the United States Supreme Court, John Roberts declared, "judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them." (5) In other words, judging is, in baseball terminology, just calling balls and strikes.
Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit has retorted to Justice Roberts' testimony with a parable of three different umpires who explain how they perform that task. The first is like a law professor; he calls them as they are. The second explains that he calls them as he sees them. The third maintains that there are no balls or strikes until he declares them so. (6)
In these two pronouncements Chief Justice Roberts and Judge Posner have graphically delineated the ceaseless debate between Formalism and Realism in judging. Chief Justice Roberts' confirmation testimony, characterizing judging as the automaton-like processing of fixed data, is an updating of the Blackstonian notion that judges are oracles. His pronouncement brings to mind the rather trenchant statement of Martin Shapiro--that it is the nature of courts to "deny their authority to make law, even when they are making law." (7) "One may call this justificatory history," Shapiro continues, "but I call it lying. Courts and judges always lie. Lying is the nature of the judicial activity." (8)
While they doubtless would deny that judges ever were congenital liars, Justice Holmes and Judge Cardozo quite some time ago eased us away from Blackstone's view of oracular judges plucking immutable legal principles from the ether as if they were laws of physics. As Holmes famously noted in The Common Law, "[t]he life of the law has not been logic; it has been experience." (9) Cardozo followed, concluding in The Nature of the Judicial Process that the "[o]bscurity of statute or precedent or of customs or of morals, or collision between some or all of them, may leave the law unsettled, and cast a duty upon the courts to declare it retroactively in the exercise of a power frankly legislative in function." (10) Cardozo added that "the process in its highest reaches is not discovery, out creation." (11) Describing the still enduring debate these words of Cardozo unleashed, Grant Gilmore wrote in The Ages of American Law that Cardozo's "hesitant confession ... was widely regarded as a legal version of hard-core pomograpny." (12)
Though Chief Justice Roberts' statement is clear evidence that there are those who still profess to receive the law passively and merely apply it, having no role in its creation, it is by now well beyond serious dispute that judges do make the law from time to time, and when they do so, their decisions are, in the words of one study, "influenced by precedent, but also by ideology and other factors." (13) As F.P. Dunne's Mr. Dooley said more than one hundred years ago, "No matter whether the country follows the flag or not, the Supreme Court follows the election returns." (14) But what are those "other factors" that play a role? To politics and ideology cognitive psychologists add the importance of "cultural cognition," the notion that judges, like all humans, make decisions in part through reliance on their cognitive maps of the world, i.e., the value system that they develop subconsciously, ingrained through life experience that subtly influences how they come to view situations as problems and in what ways they propose to resolve them. Judges, in short, are not automatons or oracles, but rather very human indeed.
THE IDEAL INTERNATIONAL JUDGE
With this brief detour now complete, I return to the question posed and to Hudson's concerns. With the role of politics in judicial decision-making a bit more understood, it is appropriate to reflect on their role in judicial decision-making at the international level. First, as regards whether international judges, too, are, as Shapiro put it, "liars," let us consider the words of the International Court of Justice ("ICJ") in its Advisory Opinion in the politically freighted proceedings on the Legality of the Threat or Use of Nuclear Weapons. (15) The Court there went out of its way to make it clear that it is not a legislator of any sort, stating:
[i]t is clear that the Court cannot legislate, and, in the circumstances of the present case, it is not called upon to do so. Rather its task is to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules applicable to the threat or use of nuclear weapons. The contention that the giving of an answer to the question posed would require the Court to legislate is based on a supposition that the present corpus juris is devoid of relevant rules in this matter. The Court could not accede to this argument; it states the existing law and does not legislate. This is so even if, in stating and applying the law, the Court necessarily has to specify its scope and sometimes note its general trend. (16) I think it fair to say that the domestic tension between the judicial roles of self-abnegating "umpire" and putative "legislator" is alive and well in the international judiciary. (17) That judiciary, however, has the added, and significant, aspect of judges' nationalities.
In fairness to the judges and justices cited, it must be pointed out, as noted by Justice Cardozo, that the tasks they and their successors have faced and will face vary greatly. Where the law is well developed, even precise, the adjudicator necessarily acts in "umpire mode." Where, however, it has not been fully developed, adjudicators necessarily must exercise a more "legislative" function in approaching a decision. (18)
In his 1925 Cornell lectures, Manley O. Hudson had been particularly concerned with the role played by nationality in the international adjudicative process. He decried the "decisions of [international] courts," which he said dealt with questions "from a national point of view, reflecting in large degree the attitudes of particular peoples," (19) and the "formulations by jurists," which according to Hudson "tended to express the national view-points of individuals," with exceptions typically stated "in terms of local emphasis." (20) Doubtless Hudson's concern was enhanced by the fact that in his day the corpus of treaties and conventions was quite modest in comparison to today, hence international judges dealt primarily with customary international law, which inherently entailed a more "legislative" approach and less of the "umpire" function.
Notably, Hudson described the awards of arbitral tribunals, however, to be "generally free from national bias," and optimistically saw the development of the...