The politics of adjudication.

Author:Schwebel, Stephen M.
Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law
 
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The panel was convened at 10:45 a.m., Friday, April 11, by its moderator, Daniel Terris of Brandeis University, who introduced the panelists: Stephen M. Schwebel, formerly of the International Court of Justice; Jacob Wit of the Caribbean Court of Justice; Merit Janow of Columbia University; and Georges Abi-Saab of the Graduate Institute of International Studies in Geneva. *

INTRODUCTION

By Daniel Terris ([dagger])

Under the broad rubric of the politics of adjudication, we are asked to consider the relationship between the work of international judges, arbitrators, and the institutions of which they are a part and the world of politics broadly considered.

This session gives us the opportunity to consider "politics" here on at least three levels.

First, there is the relationship between judges and other adjudicators and the political process. How do individual judges conduct their work within the ebb and flow of the actions, desires, and influence of states and other political bodies? Under what pressures do these individuals find themselves? What resources do they have? To what extent do they consider politics in their work? To what extent can they be insulated from politics? To what extent is such insulation desirable?

Second, there is the nature of judicial institutions as political institutions. International courts themselves operate in the global political realm, conducting their work among other powerful institutional actors, including states, inter-governmental organizations, NGOs, and other bodies. This consideration of institutional politics is distinct from the role of the individual judge, since it considers courts as collective bodies. Of course, there are nevertheless points of overlap.

A third aspect of the politics of adjudication is, perhaps, less frequently considered: the importance of the internal politics of judicial bodies. To what extent do internal considerations of power, prestige, and diplomacy affect the work of international adjudication? Since international judicial bodies are human institutions, these aspects are likely to play a part in their work, as they do in other professional environments. These internal dynamics may sometimes be related to other aspects of politics, but they are generally the least discussed, perhaps because outsiders have few opportunities to examine the closely-held details of the inner workings of the courts.

Public commentary regarding the relationship between politics and international judicial bodies often comes in one of two distinct flavors. On the one hand, critics of international courts unhesitatingly label the work of those courts "politics, not law," making the broad assumption either that international judges are simply performing the bidding of their countries of origin, or the equally broad assumption that states only use and heed international courts when it serves their political interests. Sometimes these critics make both arguments at once.

Some international judges themselves, on the other hand, perhaps bruised by these criticisms, are sometimes heard to fall back on a bland insistence that they simply follow the law, and that they exclude political considerations by mere professional will.

My own experience in listening to international judges suggests that the most reflective practitioners in this field bring a much more nuanced set of considerations to the table. Over the past several years I spoke with an extensive number of judges, along with my co-authors Cesare Romano and Leigh Swigart, as part of the research for our book: The International Judge: An Introduction to the Men and Women Who Decide the World's Cases (Hanover, N.H. and Oxford: Brandeis University Press and Oxford University Press, 2007)

We came to the conclusion that judges are reasonably realistic and sanguine about the idea that politics is not and cannot be removed from their work. The challenge, in their minds, is not to create some artificial isolation between politics and adjudication, but to seek both the strongest protection of judicial independence and the engagement in politics necessary for their courts to be effective as legal institutions.

After all, these judges point out, there are critical circumstances that make politics and adjudication hard to separate. Courts are created, of course, through a political process, which has lingering effects on their work. International judges are nominated and elected by states, and in some cases those judges must undertake re-election campaigns in which their actions are weighed by political actors. Finally, it is apparent that if international courts are to be effective, they need the voluntary cooperation of political actors to accomplish the enforcement of their judgments, to enact required changes in domestic law and practice to comply with their rulings, and to provide vocal support for the legitimacy of international courts among national legal communities and citizenries. In this light, it is hard to imagine that judges can afford to be entirely blind to political considerations.

The four outstanding individuals in this session have examined and experienced the issue of the politics of adjudication from a variety of perspectives. What they share is direct experience as practitioners on the bench, solid terms of service on international judicial bodies. But they can also bring experience as domestic judges, as scholars, as lawyers in service of their national governments, as arbitrators, and as members of the international community, broadly considered. They represent the most venerable of the international judicial institutions, the International Court of Justice; one of the newest members of the club, the Caribbean Court of Justice; and an institution that virtually invented itself as a legal body, the World Trade Organization Appellate Body. Here they offer the clear exposition, keen insights and penetrating candor essential to the success of international adjudication.

* The panel wishes to thank Shahrzad Rezvani of the University of Baltimore, who served as rapporteur for this panel.

([dagger]) Director of the International Center for Ethics, Justice and Public Life and associate vice president for global affairs at Brandeis University.

REMARKS ON THE INTERNATIONAL COURT OF JUSTICE

By Stephen M. Schwebel *

The judicial process should, ideally, be unaffected by political considerations. The judge should decide solely on the basis of the facts of the case and the governing law. A judge of integrity and ability will make every effort to decide the dispute solely in response to the facts and the law. Nevertheless in practice this estimable ideal is not easily realized.

Every judge is a prisoner of his or her own experience. Every judge, just as every man, sees with his own eyes. The judge sees the facts and applies the law to those facts with his own limited vision, a vision inevitably affected by his genetic endowment and environmental influences, his nationality, education, experience, not to speak of more evanescent factors such as his relations with his colleagues. Perfect objectivity is unattainable. Yet a sufficient objectivity is achievable as the workings of many courts have shown. If that were not so, presumably courts would not endure.

The institution of adjudication is entrenched in civilization. Yet in many if not most countries, it may not work well. Jan Paulsson, a leading international arbitrator and advocate, recently published a sobering, even searing, essay on "Enclaves of Justice" showing how dilatory or corrupt are courts in much of the world much of the time. Extra-legal factors, including what may loosely be called political factors, too often debase the judicial process.

This cannot be new, yet courts have been seen as, and have actually been a paramount part of, civilized institutions for centuries. They must be of some genuine value to be so widespread and enduring. Certainly they are of great value, of fundamental importance, in the established democracies, though even in those favored countries, or in some of them, serious judicial shortcomings are not unknown.

Now when judges move from the national to the international plane, can it be expected that they will shed the infirmities that often afflict their domestic brothers? Can it really be expected that an international court will achieve a higher level of objectivity than do domestic courts, or even a level comparable to that achieved by the better domestic courts? Can that...

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