Getting to Know the IFLP, Part II: Breadth & Scope of the Index

By Charles Bjork and Mike McArthur

IFLPIn this second installment of our series on Getting to Know the Index to Foreign Legal Periodicals (IFLP or “the Index”), we examine the breadth and scope of the Index.

As its name implies, the IFLP focuses primarily on law journals published outside the U.S.  Casual users of the Index may be surprised at just how broad its coverage is.  The IFLP includes over 365,000 records of articles and book reviews published in more than 500 top law journals from jurisdictions throughout the world.  More than 60,000 of these articles are available in full text on HeinOnline.  Articles from nearly four dozen international, regional, jurisdiction-specific, and subject-specific legal yearbooks also are included.  In addition, the IFLP analyzes the contents of approximately 50 individually published collections of essays, Festschriften, Mélanges, and congress reports each year.  Roughly half of the articles indexed are published in languages other than English.  In total, more than two dozen languages are represented, making the IFLP the only truly multilingual index to legal scholarship worldwide.

Equally impressive is the diversity of subjects covered by the IFLP.  They include public international law, private international law, comparative law, civil law, common law, the law of foreign jurisdictions, and even U.S. law – often analyzed from a non-American perspective.  The Index isn’t just for academic research.  Many of the articles indexed in the IFLP focus on bankruptcy, competition law, international commercial arbitration, investor-state dispute settlement, international trade, regulatory compliance, and other topics that will be of interest to legal practitioners representing multinational enterprises whose operations cross jurisdictional lines.  Bear in mind that some of the English language journals covered by the Index focus on non-English speaking jurisdictions, making the law of those jurisdictions more accessible to students and practitioners whose primary language is English.

Each article indexed in the IFLP is assigned one or more subject headings in English, French, German, and Spanish, making it possible to search or browse by subject in each of these languages for articles published in any language.  An alphabetical list of all the subject headings is available on the IFLP homepage.  Some of the subject headings with the most entries include bankruptcy, civil law, constitutional law, international law, and international trade.  It’s worth noting that the IFLP relies on multilingual human indexers, not machines, to analyze each article and assign these subject headings.  Among the indexers are some of our AALL FCIL-SIS colleagues.

At a time when American law schools are actively recruiting more international JD students, as well as foreign-trained LLM and SJD students, the IFLP enables academic law librarians to better serve the needs of these multilingual students when they are seeking credible secondary sources published in English or in their native languages.  Information professionals employed by international law firms, who support the work of multilingual attorneys practicing in multiple jurisdictions, also can rely on the IFLP to help them identify articles that focus on topics of particular interest to their firm’s practice groups or on the law of a specific foreign jurisdiction.

The breadth and scope of the IFLP continues to evolve. Every year additional titles are selected for inclusion and indexing. We invite each of you to be an active part of this process by recommending titles you think may be of interest. The submission process is simple and available on the IFLP website. Through this type of direct input and other support, the Index will continue to be a valuable finding aid and access point to articles and other content that would otherwise be difficult to identify and utilize.

The next post in the series will offer tips on how to use the IFLP’s multiple search and browse features more effectively.

ASIL 2018 Recap: International Law as a Tool in the Fight Against IUU Fishing and Seafood Slavery

By Jessica Pierucci

The Friday, April 6, 2018 ASIL Annual Meeting panel International Law as a Tool in the Fight against IUU Fishing and Seafood Slavery provided a look at illegal, unreported, and unregulated (IUU) fishing and seafood slavery issues from the perspectives of esteemed panelists who engage with these topics from different vantage points. Nick Renzler, Foley Hoag LLP, moderated the panel.

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Judge Tomas Heidar of the International Tribunal for the Law of the Sea speaks at the ASIL Annual Meeting on Friday, April 6, 2018.


Judge’s Perspective: Background on IUU Fishing

Judge Tomas Heidar, a member of the International Tribunal for the Law of the Sea (ITLOS) since 2014, provided background on IUU fishing issues. Judge Heidar explained there is no universally accepted definition of IUU fishing, but the most widely adopted definition is contained in the IPOA-IUU, 2001. IPOA-IUU contains measures aimed to deter and eliminate IUU fishing through state cooperation.

One way to combat IUU fishing is port state measures blocking vessels engaged in IUU fishing from unloading at a state’s docks. If widely adopted, this can make IUU fishing not profitable by forcing IUU fishing vessels to travel great distances to find a dock that will accept them. This is one of the general purposes of the 2009 FAO Port State Measures Agreement. The agreement broadly defines terms, such as “fishing related activities,” to encourage expansive enforcement. States were initially slow to ratify so the agreement only entered into force in 2016 once 25 parties had ratified, but since entry into force ratification has sped up and there are now 53 parties.

One agreement to keep an eye on is the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. Negotiations just concluded in November 2017 and signature is expected in 2018.

Academic Perspective: ITLOS 2015 Advisory Opinion

Nilufer Oral, Istanbul Bilgi University Law Faculty and United Nations International Law Commission, focused on a major recent development in IUU fishing, the ITLOS 2015 Advisory Opinion. This is a landmark opinion for a couple reasons.

First, this is the first time the full tribunal has issued an advisory opinion.

Second, the opinion clarifies flag state responsibilities under UNCLOS, in particular explaining that flag states must meet due diligence obligations in exercising control over the ships flying their flag. IUU fishing is not specifically mentioned in UNCLOS, but the advisory opinion seeks to include IUU fishing under UNCLOS, although some commentators believe more detail would have been helpful on this point.

While this is a landmark opinion, it is only an advisory opinion. Oral believes it’s time to bring a contentious case to more powerfully use international adjudication to combat IUU fishing.

State Perspective

Alexa Cole, U.S. NOAA, Office of General Counsel, Enforcement Section, spoke about IUU fishing from the state perspective. NOAA is fortunate to have thirteen prosecutors working in this area. This relatively high number allows NOAA to attend Regional Fisheries Management Organizations (RFMO) meetings and be directly engaged in negotiating enforcement measures. This, in turn, better allows NOAA to engage in enforcement. RFMO goals include encouraging management of relevant species; creating monitoring, control, and surveillance (MCS) measures, such as expanding high seas boarding and inspection; and creating compliance monitoring schemes.

In the big picture, Cole believes major international agreements play an important role setting global standards, but they suffer from being tough to negotiate. This challenge leads them to become stale as they are not renegotiated to address new issues. For example, UNCLOS’s discussion of “hot pursuit” does not take into account new technology. As a result, new issues need to be addressed in alternate ways. For example, the Western & Central Pacific Fisheries Commission (WCPFC) coordinates sharing vessel monitoring data, which allows sharing on hot pursuit and other issues.

Corporate Perspective

Anbinh Phan, Director of Global Government Affairs, Walmart Corporation, provided the corporate perspective. Walmart takes a multi-stakeholder approach. The company is a Seafood Task Force member and committed to only selling seafood from sources certified by a third party by 2025. They also supported an International Justice Mission study. Looking to the future they hope to work toward preventing forced labor in the first place, use technology to disrupt the industry, and see the need for international and national law to create solutions.

Litigator Perspective

Agnieszka Fryszman, Cohen Milstein, LLP, provided the litigator’s perspective. As background, Fryszman pointed to the ILO Caught at Sea Report. Fryszman shared frustrations with how trafficking aboard seafood vessels may not be discovered at U.S. ports because of U.S. laws prohibiting those on board from exiting the boat.

Fryszman recently litigated Sorihin and Abdul Fatah v. Thoai Van Nguyen dba Sea Queen II, Case No. 16-5422, in the U.S. District Court for the Northern District of California. In this case two Indonesian men jumped ship in San Francisco, California to escape and then sued the ship’s captain for horrible working conditions. They settled the case and included in the settlement requirements that the captain establish a code of conduct and distribute a help card to employees to prevent similar incidents. The Associated Press is following up on implementation and Fryszman is waiting to hear if the captain has implemented the settlement requirements.

Fryszman noted one of the major challenges with this litigation is jurisdictional. They were only able to assert jurisdiction over the ship’s captain because he’s from San Jose, California, even though there were many other culpable parties. Fryszman sees jurisdiction as a major barrier to successful seafood slavery litigation.

Fryszman located just two other related cases: one in New Zealand and one in Thailand.

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An audience member asks a question to the panel at the International Law as a Tool in the Fight Against IUU Fishing and Seafood Slavery session at ASIL 2018.

Closing

In Q&A, one attendee asked if more international agreements are needed. The panelists generally agreed there isn’t a strong need for more international agreements on this issue right now. Instead they want a focus on domestically implementing the agreements already in place to effectively impose liability. It appears the next frontier for IUU fishing and seafood slavery is finding the best ways to use courts to implement the law in these areas.

Teaching FCIL Research Series: Textual Selection

By Beau Steenken

Of all the decisions that go into designing a course, the selection of textbook perhaps impacts the students’ experience the most. Not only will students (presumably) spend dozens of hours diligently reading the text, but the organization of the text often informs, at least to some degree, the organization of the course. Similarly, the choices and selections made by the authors of texts can influence the choices of teachers adopting the text. (I find that there’s never enough time in a course to cover everything I’d like to in an ideal world, and the coverage of topics by the text helps with the necessary triage when deciding how to apportion limited class time.) Happily, those of us who teach FCIL research benefit from the availability of multiple high-quality textbook options.

When I was finalizing the syllabus for my first FCIL Research course a little over two years ago, I found myself seriously considering two texts, namely: International and Foreign Legal Research: a Coursebook by Marci Hoffman and Mary Rumsey[1]; and International Law Legal Research by Anthony S. Winer, Mary Ann E. Archer, and Lyonette Louis-Jacques[2]. Each text struck me as incredibly helpful and well-written, though the two works differ quite a bit in their coverage. For instance, Hoffman and Rumsey cover both international and foreign legal research, while Winer et al focus solely on researching international law (and mostly public international law at that). Also, Hoffman and Rumsey go a bit further in their coverage by providing topically-specific guidance (e.g. human rights research, international environmental law, etc.). While the inclusion of foreign research, comparative research, and private international law research made Hoffman and Rumsey appealing, ultimately I decided to go with Winer et al as the text for my course. I made this choice primarily because my course is a 1 credit hour course, and I could not envision working through everything covered by Hoffman and Rumsey in my limited class time. Secondary considerations were the fact that I also liked the historical background provided by Winer et al and the fact that Carolina Academic Press publications generally come with smaller price tags than works distributed by Martinus Nijhoff Publishers.

kuehltextEarlier this year I was excited to notice that in the time between when I first taught my course and when I will next teach it in the fall, another excellent textbook has hit the market: International Legal Research in a Global Community by Heidi Frostestad Kuehl and Megan A. O’Brien.[3] Several aspects of the new text appeal to me, and I am planning on using it for my course next semester. First, in addition to covering public international legal research in a thorough and straight-forward manner, Kuehl and O’Brien also include a chapter on foreign legal research under the guise of cultural competence. Second, I like how Kuehl and O’Brien organize their book by introducing the sources of international law before turning to the research process itself to put everything together. As this is the organizational method I use to teach 1Ls, I anticipate this being a good fit with how I tend to design my courses. Finally, I think Kuehl and O’Brien’s tone and pacing will mesh very well with my 1 hour course. (While I personally love the historical background provided by Winer et al, I fear it may have eaten up too much of my limited course time the first time I taught the course, though this was probably due to a personal failing as once I start talking about history I have a hard time stopping and moving on to other things.)

All told, I’m quite excited to be trying out the new text in the fall, and I enjoyed investigating all three of these quality works. In fact, the investigation and comparison of the three texts also helped me think about the choices I am making for my course as I compared and contrasted the choices made by the authors of the three works. After all, a lot of the decisions of what to include in a course are similar to the decisions of what to include in a textbook, and approaching the decisions from other points of view can be enlightening.

If anyone is interested in learning more about the choices that go into creating a textbook or in hearing from FCIL research text authors about the specific approaches they took in creating their work, I encourage you to attend the FCIL-SIS Teaching Foreign and International Legal Research Interest Group meeting during AALL in Baltimore in July. Both Marci Hoffman and Heidi Frostestad Kuehl have agreed to share their experiences in writing their respective texts during the session, which will occur from 3:30 to 4:30 p.m. on Monday, July 16. It promises to be an interesting discussion, and may be of help in course design as well as text selection. I hope to see everyone there!

[1] Marci Hoffman & Mary Rumsey, International and Foreign Legal Research: a Coursebook (2d ed. 212).

[2] Anthony S. Winer, Mary Ann E. Archer, & Lyonette Louis-Jacques, International Law Legal Research (2013).

[3] Heidi Frostestad Kuehl & Megan A. O’Brien, International legal Research in a Global Community (2018).

ASIL 2018 Recap: New Technologies in International Criminal and Human Rights Investigations and Fact-Finding

By Susan Gualtier

On Thursday, April 5th, I attended a panel entitled “New Technologies in International Criminal and Human Rights Investigations and Fact-Finding.”  The panel explored the increasing use of new technologies, such as social media, satellite data, mobile phone apps, and drone technology, in human rights fact-finding, particularly where sites are inaccessible or pose an especially high risk to human rights investigators.

The panelists first discussed their work with various technologies.  For example, Brad Samuels, of SITU Research, works with visual, panoramic, and geospatial representations that must be optimized for use in court. As Mr. Samuels explained, there might be many videos that capture the same moment in time, but from different viewpoints.  Part of his job is to use these videos to create an event reconstruction.  Jonathan Drake, from the American Association for the Advancement of Science, explained that part of the AAAS’s mission is to engage scientists in human rights and to further the use of science in advancing human rights.  The AAAS has performed grave site analysis and environmental analysis, using images to uncover lies by foreign governments.  They are currently considering how to integrate drones into human rights fact-finding and advancement.

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The panel then discussed issues surrounding the use of new and emerging technologies in human rights fact-finding.  For example, the use of smartphones to take videos and post them to social media has allowed more crimes to be exposed.  At the same time, it can be difficult to verify the accuracy of the information contained in the videos.  One way this problem has been addressed is through mobile phone apps, such as the eyeWitness to Atrocities app, which collects location data on the user from three different sources, provides a verified chain of custody for the video, and makes the user’s footage not editable.  However, there are benefits and drawbacks to such app technology.  On the one hand, it helps human rights workers to overcome access issues in situations where on-the-ground fact-finding would be impossible.  It also gives agency to the victims of the atrocities, rather than taking an imperialist, top down approach.  Nonetheless, the panelists all noted the need to be cautious when it comes to use of these apps.  While initial users have acted in good faith while generating evidence, several of the panelists expressed their concern that later users may have less noble intentions than the early adopters.  The panelists also noted the problem of visual bias (the preference for video representations, even in fields like politics where video cannot adequately capture much of the overall picture).  Scientific studies suggest that visual bias and the use of video evidence can introduce a host of problems into the courtroom.  What happens if we move toward mostly visual evidence, but that evidence is not necessarily representative of the situation as a whole?

Despite these and other issues, the types of evidence that can be captured using technology are extremely valuable to lawyers, judges, and other players in field of human rights work.  Technology has led to better results in investigations by providing access to witnesses and to physical documents that would otherwise be impossible to obtain.  It allows judges to see the violence for themselves when travel to the site of an atrocity would be impossible.  It even allows for more complete crime scene investigations.  Nonetheless, the panel urged that we proceed with caution.  There will need to be some guidelines or minimal standards for technology-generated evidence so that it will be admissible in court.  Tech designers are still much more risk-friendly, and perhaps too willing to let technologies fail, than are human rights attorneys, who need to protect witnesses and victims and to meet the demands of tribunals.  Moreover, we must remember that not everyone has access to technology; many of the places where we find human rights offenses are also places where people simply do not have access to mobile phones, apps, and social media.  And some of the worst accountability issues occur where there’s awareness anyway.  Ultimately, it is critical that those using the new technologies remain aware of its limitations.  We should not overemphasize the technological tools just because they are “cool.”  In the end, we should use them to bolster cases that are already based on traditional human rights fact-finding.

ASIL 2018 Recap: Rule-Making By International Organizations

By Caitlin Hunter

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Rule-Making By International Organizations, on Friday, April 6th, explored the key role specialized international organizations play in creating highly influential soft law. A wide variety of international organizations create rules, including:

1. The International Labour Organization (ILO): Tomi Kohiyama (Deputy Legal Adviser, ILO) described how the ILO sets labor standards that protect the basic rights of workers, including their 1998 Declaration on Fundamental Principles and Rights at Work and 2008 Declaration on Social Justice for a Fair Globalization. The ILO standards are routinely incorporated into trade treaties. Additionally, the ILO supervises member states’ reports on their compliance with labor standards. José Alvarez (Professor, NYU Law) said that ILO was also a pioneer in its efforts to challenge state centrality, regulating private organizations and individuals directly through documents such as the Maritime Labor Convention.

2. The International Organization for Standardization (ISO): Mary Saunders (Vice-President for Government Relations and Public Policy, American National Standards Institute) explained that the ISO has developed over 2000 standards, including anti-bribery and social responsibility standards. National standards bodies from over 161 countries participate in creating standards that are designed to function in both mature and developing economies.

3. The World Health Organization (WHO): Both Alvarez and Nicola Bonucci (Director for Legal Affairs, Organisation for Economic Cooperation and Development) noted the influence of WHO guidelines. Although WHO guidelines are not directly binding, they are routinely cited in both national and international adjudication. In particular, WHO guidelines and amicus briefs played a key role in obtaining judgments against Phillip Morris. Fearing a similar negative impact, the sugar industry strenuously attempted to initiate a backlash against WHO sugar guidelines.

4. The Organisation for Economic Co-operation and Development and the International Finance Corporation, which provide guidance on economic and social development issues that include agriculture, the environment, and gender equality.

5. The Basel Committee, which sets widely followed banking standards.

6. The United Nations High Commissioner for Refugees, whose refugee status determinations are binding in all but name.

The panelists made the following points:

1. The distinction between soft and hard law is weakening. Hard law is softening, as treaties increasingly provide non-binding guidelines and allow states to achieve the substantial equivalent of obligations. On the other hand, soft law is hardening due to the increasing organizational obsession with benchmarking. It’s no longer accurate to claim that courts and police are necessary to enforce international law. Monitoring, reporting requirements, peer pressure, and naming and shaming are often (although admittedly not always) effective in ensuring compliance. When advising client or seeking to establish international norms, attorneys must consider both hard and soft law.

2. Inclusiveness is vital to maintaining legitimacy. Many traditional international organizations are not necessarily effective at consulting and informing stakeholders and decisions may be dominated by the stakeholders with the loudest voices. In contrast, ISO strives to include all materially interested affected parties from all of its member states. Standards bodies from developing countries make up the vast majority of ISO members and serve as a key source of ideas. Of course, inclusiveness is not always easy and Saunders acknowledged that some countries were better at getting stakeholder input than others. Likewise, Kohiyama noted that ILO members have a mandate to collaborate but sometimes lack the political will.

3. Responsiveness to change is also vital to maintaining legitimacy. ISO reviews its standards every five years to ensure that they are current. The ILO recently reformed its constitution and standing orders to better reflect the modern world, abrogating obsolete standards for jobs that have not existed since the early 1900s.

4. Coordination between soft law organizations is not always easy. Alvarez noted that international organizations have differing paths and goals and often attempt to defend their turf. He also pointed out that many organizations that create soft law ignore soft norms intended to regulate international organizations. In contrast, Bonucci defended the importance of competition, emphasizing that the free market of ideas creates a wide variety of options.

Clearly, the details of soft law rule-making are continually evolving. Just as clearly, however, soft law is taking on an increasingly important role in international law.

From the Reference Desk: “Can You Strip Mine An Asteroid?”

By Lora Johns

“Can you strip mine an asteroid?”

Last week at my law school, a room full of law students (and at least two law librarians) pondered this question, posed—rhetorically—by a NASA attorney.

It turns out that NASA needs a lot of different kinds of lawyers. Some do the kinds of law you’d expect of a federal agency—government contracts, employment law, administrative law. Some do intellectual property, which makes sense when you think of how many inventions come out of NASA.

And some practice international space law.

(Incidentally, I may need to reevaluate my career choices.)

It’s not just science fiction. Space law is very real—and it’s more relevant than ever. No doubt you’ve heard about SpaceX’s unprecedented successful launch of a Tesla Roadster into orbit. But space law as a field goes back much further. It began in October 1957, when the Soviet Union launched Sputnik, the world’s first ever man-made satellite, into orbit. This astonishing feat accelerated the Space Race—and raised international concerns over the peaceful use of outer space.

Two years after Sputnik, the United Nations created the Committee on the Peaceful Uses of Outer Space. COPUOS helped create the five major treaties that still govern space law today:

  • The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty“).
  • The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the “Rescue Agreement“).
  • The 1972 Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention“).
  • The 1975 Convention on Registration of Objects Launched into Outer Space (the “Registration Convention“).
  • The 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Treaty“).

The history of space law is too rich and fascinating to be covered in one short blog post. But to address the titular question—whether it’s okay to exploit an asteroid’s natural resources—the answer is… maybe. In 2015, the U.S. Congress passed the first law for space mining, the Commercial Space Law Competitiveness Act. But that domestic law arguably conflicts with the Moon Treaty, which attempts to declare the Moon and other celestial bodies the “common heritage of humankind” not subject to ownership. (The U.S.—like every other major spacefaring nation—is not a party to the agreement.) And the Outer Space Treaty contains a “non-appropriation principle.” On the other hand, some countries don’t like the idea that you can’t own space—take the Bogotá Declaration of 1967 for example. In that Declaration, a coalition of equatorial nations attempted to resist the non-appropriation principle, claiming sovereignty over the geostationary orbital slots above their territories under a version of the traditional ad coelum doctrine of property law.

Complicated, right? Nations disagree on the fundamental principles of using and exploring the universe, and the law—like outer space—is far from settled.

As it turns out, foreign and international librarians can learn a lot from looking up to the sky once in a while. Here are some helpful resources to get you started:

ASIL 2018 Recap: 2018 Annual Grotius Lecture

By Charles Bjork

The American Society of International Law (ASIL) began its 112th annual meeting in Washington, D.C., on April 4, 2018, with the 20th annual Grotius Lecture delivered by Judge Joan E. Donoghue, who is serving her second term as a member of the International Court of Justice (ICJ) in The Hague.  After earning her J.D. from the Boalt Hall School of Law at the University of California at Berkeley in 1981, Judge Donoghue worked as an associate attorney at Covington and Burling prior to joining the State Department as an attorney in the Office of Inter-American Affairs.  During her distinguished career at the State Department, she represented the United States before the ICJ in Nicaragua v. the United States and eventually rose to become the Principle Deputy Legal Advisor from 2007 to 2010.  On September 9, 2010, the U.N. General Assembly and the Security Council elected Judge Donoghue to serve out the remainder of Judge Thomas Buergenthal’s term on the ICJ.  On February 5, 2015, she was elected to serve a full nine-year term as a member of the Court.

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Judge Joan Donoghue gives the 20th annual Grotius Lecture at ASIL 2018.

Judge Donoghue’s lecture was entitled “International Adjudication:  Peaks, Valleys, and Rolling Hills.”  She chose this title to make an analogy between the evolution of international dispute settlement and a group of explorers that sets out to discover a previously uncharted territory.  Media coverage of the explorers inevitably focuses on the dazzling images taken from the summits that they scale or on the calamities that they encounter along the way.  Although little, if any, attention is paid to the many days the explorers spend trudging up and down through the rolling hills between the peaks and valleys, it is the day-to-day choices that the explorers make outside of the media spotlight that ultimately determine whether or not their voyage of discovery is successful.

Judge Donoghue discerns a similar pattern in the way in which the practitioners of international law approach international dispute settlement.  Whenever a new dispute settlement mechanism is proposed to remedy the perceived shortcomings of existing mechanisms, the proponents of the new mechanisms are motivated by lofty and ambitions goals, not unlike the peaks that the explorers aspire to climb.  Once a new dispute settlement mechanism is established and begins to operate, shortcomings inevitably emerge, not unlike the valleys encountered by the explorers.  Criticisms are voiced by some who are frustrated by the mechanism’s failure to fully realize their lofty aspirations and by others who are hostile to the new mechanism and wish to destabilize it.   This phenomenon can be seen in the diverging assessments of the International Criminal Court and of the World Trade Organization’s Dispute Settlement Mechanism.

Using the explorer metaphor as the framework for the remainder of her remarks, Judge Donoghue went on to describe the aspirations of those who advocated for the establishment of a world court, to assess the shortcomings of ICJ that have emerged since its establishment, and to examine the challenges and opportunities faced by the practitioners of international dispute settlement as they trudge through the rolling hills between the peaks and valleys, before concluding with a brief overview of the evolution of investor-state dispute settlement.

As Judge Donoghue noted, the origins of the ICJ can be traced to the international peace conferences that were held in The Hague in 1899 and 1907.  The aspirations of those who advocated for the establishment of a world court at these conferences were bold, to put it mildly.  They wanted a tribunal with the following characteristics:  1) a permanent, standing court; 2) with the authority to settle the full range of disputes on all matters governed international law; 3) whose decisions would be binding on the parties; 4) whose decisions would be made public and lead to the development of a body of jurisprudence; 5) one with independent and authoritative adjudicators, whose decisions would be widely adhered to; and 6) one with compulsory jurisdiction that states would routinely use to settle their differences.  Although the peace conferences at The Hague did not result in the immediate establishment of a world court, they did lay the foundations for the establishment of the Permanent Court of International Justice (PCIJ) after the First World War, and for its successor, the ICJ, in the aftermath of the Second World War.

In Judge Donoghue’s view, the Statute of the ICJ fulfills four of the six aspirations voiced by those who campaigned for the establishment of a world court at the turn of the twentieth century.  The ICJ is a permanent court.  The scope of its jurisdiction is broad and does not exclude subjects that might be perceived as “too sensitive” for adjudication.  Its decisions are binding on the parties.  Both the proceedings and the decisions of the ICJ are open to the public, resulting in a jurisprudence that has the potential to influence the behavior of states which are not parties to a particular dispute.

With respect to the aspiration of creating an independent, authoritative bench of adjudicators, Judge Donoghue characterized the ICJ’s record as mixed.  The Statute of the ICJ entrusts the process of nominating qualified candidates for appointment as judges to individuals who are supposed to have expertise in international law and be able to act independently of national governments.  However, it is the member states of the United Nations who elect the judges by means of simultaneous secret ballots cast in the Security Council and the General Assembly.   The Statute of the ICJ also calls for a bench that has a representative geopolitical distribution.  What this has meant in practice is a more or less fixed allocation of seats among geographic regions.

The final goal of establishing a world court that would have compulsory jurisdiction over all states is where the ICJ has most clearly fallen short of the aspirations articulated at the Hague conferences.  U.N. member states are not required to accept the ICJ’s jurisdiction, nor are they required to submit disputes to the Court.  Member states may accept the Courts jurisdiction generally, or they may do so subject to reservations, or only with respect to certain treaties, or only with respect to known disputes, and they may change their consent to jurisdiction over time.  Although critics of the Court tend to overstate its shortcomings in this regard, there is no doubt that those who advocated for the establishment of a world court would be disappointed by the reluctance of states to consent to the ICJ’s jurisdiction and to rely on the ICJ to resolve disputes.

Judge Donoghue then turned her attention to two additional shortcomings of the ICJ that threaten to undermine its effectiveness:  the process of judicial selection and the working methods of the Court.  With respect to judicial selection, Judge Donoghue asserted that the processes in place at the national level for vetting judicial candidates are often inadequate.  As a result, relatively few qualified candidates are nominated.  When it comes to voting, the nationality of the candidates overtakes all other considerations.  For many states, vote trading dominates the process to such an extent that a state’s decision to support one candidate over another often has nothing to do with the candidate’s qualifications.  With respect to the Court’s working methods, Judge Donoghue acknowledged that they are too slow, too passive, and not amenable to change and adaptation. As the late David Caron noted in an article he published in the American Journal of International Law in 2000, the respect accorded to the ICJ and the willingness of states to consent to its jurisdiction depend on the quality of the ICJ’s judges and on the process by which they collectively reach their judgments.

Having acknowledged these shortcomings, Judge Donoghue insisted that genuine progress has been made in the evolution of international dispute settlement over the past century.  Both the PCIJ and its successor, the ICJ, have resolved significant cases of importance to the parties and to the international community.  Some highly respected jurists have served on both courts.  The ICJ currently has a full docket of diverse and important cases.  Thanks to the proliferation of international tribunals during the past half century, coupled with the revival and reinvention of the Permanent Court of Arbitration, states have more options for peacefully resolving disputes than ever before.  A healthy competition among these tribunals can help to allay misgivings about having a single world court and encourage states to submit their claims to adjudication or arbitration.

Turning her attention back to the ICJ, Judge Donoghue offered four suggestions for what practitioners, who work in the “rolling foothills” of international dispute settlement, can do to enhance the Court’s legitimacy and attractiveness as forum for states to resolve their disputes.  First, practitioners must work within the confines the ICJ Statute, despite its limitations, because there is no realistic prospect of the Statute being amended any time soon.  Second, practitioners must not overload the ICJ with expectations for which it was not designed, particularly the expectation that the Court should actively engage in more lawmaking beyond the scope of its mandate to adjudicate disputes and issue advisory opinions.  Such an approach would entail substantial risks for the Court, as David Caron warned in last year’s Brower Lecture.  Third, the members of the Court must be more energetic in improving the ICJ’s working methods and more willing to adapt innovations and reforms that have been successful in other tribunals.  Finally, practitioners of international law throughout the world should take the initiative to re-energize and re-invigorate national group vetting procedures for the selection of candidates to serve on the Court.  Nominating highly qualified candidates with expertise in international law will enhance the Court’s legitimacy and help to dispel the still widely held misperception that judges serving on the Court are merely the representatives of their respective national governments.

Before concluding her remarks, Judge Donoghue offered a brief overview of the peaks, valleys, and rolling hills of investor-state dispute settlement (ISDS).  The perceived inadequacies of litigating investor-state disputes in national courts provided the impetus for the World Bank to create a new mechanism for the direct settlement of such disputes in a neutral forum under the ICSID Convention.  Just as the ICJ Statute does not require U.N. member states accept the Court’s jurisdiction, neither does the ICSID Convention require states and foreign investors to resolve disputes through arbitration.  In practice, most states and the vast majority of foreign investors have embraced ICSID arbitration.  Nevertheless, many observers perceive the current system of ISDS to be entering a valley of doubt, as critics question the system’s infringement of state sovereignty and the right to regulate.

Judge Donoghue concluded her remarks by emphasizing that the proposal to create a world court and the proposal to create a new mechanism for resolving investor-state disputes were both big, bold ideas and remain so.  Nation states do not easily place their trust in third-party dispute settlement mechanisms.  At a time when powerful voices are launching strident attacks on international agreements and international institutions, it is incumbent upon those engaged in the practice of international dispute settlement to fight back against these exaggerated criticisms and, at the same time, candidly acknowledge the need to improve international dispute settlement mechanisms and the institutions that support them.  Instead of abandoning the lofty aspirations that motivated the advocates of a world court, Judge Donoghue urged practitioners to pull out their compasses, make some course adjustments, and continue to work their way forward through the rolling hills of international dispute settlement.