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.
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.