ASIL Plenary: International Law as Law at the International Court of Justice

Renee Dopplick
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Plenary Session: International Law as Law at the International Court of Justice

Friday, 27 March 2009, 4:30-5:45 p.m.
Co-sponsored by: George Washington University Law School
Featuring:

  • International Court of Justice President Hisashi Owada
  • International Court of Justice Judge Thomas Buergenthal
  • International Court of Justice Judge Bruno Simma
  • Lucy Reed, Freshfields Bruckhaus Deringer US LLP (Moderator)
  • Ralph Steinhardt, George Washington University Law School (Moderator)

Left to Right: Judge Bruno Simma, Judge Thomas Buergenthal, President Hisashi Owada, Ralph Steinhardt, Lucy Reed

Ralph Steinhardt

“I know the danger of being the warm-up band,” Ralph Steinhardt began, to much laughter. He kept his remarks short, humorous, and lively. He stated that the docket increasing involves substantive legal issues inconceivable to the founders of the ICJ. Thus, he raised several questions for the panelists to consider. With new tribunals, is the ICJ “first among equals”? As the sources of international law grow, how do they fit into article 38(4) of the ICJ Statute? What has changed in the Court? He observed that we now see the rise of multinational corporations, the increased political force of least developed countries, and a proliferation of regional actors. How do these impact the Court? With that, he turned it over to the “real rock stars.”

 

President Hisashi Owada first observed that it is easier to criticize the ICJ from the outside. He provided a disclaimer that he was speaking as an individual and not as ICJ President. Cases, he said, increasingly concern individual rights and environmental protection. He specifically mentioned four cases involving the rights of individuals and not just injuries by states: Democratic Republic of the Congo v. Rwanda, Democratic Republic of the Congo v. Uganda, Bosnia and Herzegovina v. Yugoslavia, and Mexico v. United States of America in Avena.

In addition to a change in the scope of topics before the ICJ, there also are more international bodies adjudicating human rights, such as regional human rights courts and the International Criminal Court (ICC). He concluded that the fragmentation of international law could be real. Later, he stated that there was “no such real risks of fragmentation,” but this was in response to Lucy Reed’s question about the fragmentation within the court itself as arising from the judges’ varied legal backgrounds.


ICJ President Hisashi Owada

In addressing the relationship between domestic laws and international law, he observed that, previously, public order within a domestic society was an internal affair. Now, terrorism and other crimes can have a global impact and thus require a global solution. International conventions create, in a sense, universal jurisdiction. Moreover, since the 1972 Stockholm Conference, violations of human rights have become inherent in treaties. He referred to the examples of hazardous waste and climate change. This shift arising from globalization raises a broader question with respect to the scope of the docket. Should states look beyond their own national territorial jurisdictions to other national decisions on the domestic application of treaties and to other states’ practices?

Owada also commented that the judges have “intense discussions” about the standard of proof and what criteria to apply.

In response to Steinhardt’s question about changes to article 38, allegedly taken from Richard R. Baxter’s final exam before his appointment to the ICJ in 1979, Owada responded that he does not believe the text needs changing. He said the question is how to read and apply it, such as what “state practice” means.

He also observed that a “remarkable evolution” of law is changing how the court functions in the context of the “public order of the international community.” Specifically, he mentioned the perceptions of public order with respect to jus cogens and erga omnes. He referred to the 2004 Advisory Opinion on Israel, the Barcelona Traction case, and article 1 of the Fourth Geneva Convention: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” Thus, states must ensure compliance. He stated that there have only been 3 cases of noncompliance with ICJ decisions. Even if the partial compliance cases are included, he asserted, there would be 90+% compliance.

Judge Thomas Buergenthal forgot his initial disclaimer about speaking in a private capacity but rectified that omission after a reminder from Simma. Buergenthal asserted that the world has changed, including the fact that the ICJ is not the only international court. Other international courts include the ICC, the Law of the Sea Tribunal, the European Court of Human Rights, the ad hoc International Criminal Tribunals of the former Yugoslavia (ICTY) and Rwanda (ICTR), and others. The cases are increasing, as are the range of subject matters. Subjects include use of force, consular relations, immunity, environmental issues, and state responsibility. With increased interpretation and application of these topics, the jurisprudence of the ICJ grows and develops.


ICJ Judge Thomas Buergenthal

The ICJ does “make new law” through “normative accretion.” In doing so, the ICJ contributes to the growing corpus of international law. What effect does this have? Does it have a practical legal effect? Do ICJ decisions have a special effect on the normative evolution? In a formal sense, he concludes, they do not. Yet, the decisions are relied upon and referenced by international institutions, arbitral tribunals, and international lawyers. The ICJ is special because it has legitimacy and thus status. The ICJ decisions, in general, represent contemporary international law. These decisions authenticate and validate the law and thus serve a subsidiary function in promoting the rule of law. International law, however, is a larger legal system. The ICJ, in a sense, transforms it into applicable law, with principles that are not to be lost on lawyers or legal advisers.

Assorted other jurisdictions, including the ICJ’s sister courts, have relied on ICJ decisions. For example, the Permanent Court of Arbitration routinely relies on ICJ decisions. The UN Human Rights Committee relied on the interpretation and application of article 2(1) of the ICCPR under the Congo v. Uganda case. This cross-fertilization, he concluded, has law-making significance that has yet to be understood fully in academia.

Judge Bruno Simma began by asserting that “no other audience is in greater need” of this session than this one, referring to the U.S. audience and obliquely to the noncompliance of the United States under Avena, by which the ICJ instructed the United States not to execute any Mexican nationals until a decision could be reached. (see my post on Medellin).


ICJ Judge Bruno Simma

He commented that there have been many proposals but few changes. The ICJ just goes about doing its business. He specifically mentioned two procedural improvements: (a) reduced length of written pleadings (his first case had 5,000+ pages) and (b) changes to the sequencing resulting in shorter oral proceedings, rather than an extended rehash of the written memorials. He reflected that the use of Chambers remains problematic because at least one party usually wants the entire court to hear the matter.

One important innovation, he said, was the increased use of law clerks. Now, there is at least one clerk for each judge. Law clerks have helped with the workload, enabling the Court to handle more cases. The judges, however, still write the opinions themselves.

A second important innovation, he said, was the increased communications with other international courts, as encouraged by former ICJ President Higgins.

During Q&A, he commented in passing that the U.S. Supreme Court clerks on Medellin did not do very good research.

About ICJ President Hisashi Owada

President Hisashi Owada has been President of the Court since 6 February 2009 and a member of the Court since 6 February 2003. Prior to joining the Court, he served as Special Adviser to the Minister for Foreign Affairs of Japan (1999-2003) and Ambassador, Permanent Representative of Japan to the United Nations (1994-1998).

He earned his B.A. from University of Tokyo (1955), his LL.B. from Cambridge University (1956), a D. Phil. honoris causa from Keiwa University, Japan (2000), an LL.D. honoris causa from Banaras Hindu University, India (2001), and an LL.D honoris causa from Waseda University, Japan (2004).

About ICJ Judge Thomas Buergenthal

Judge Thomas Buergenthal has been a member of the Court since 2 March 2000 and was re-elected as from 6 February 2006. He is the only U.S. judge serving on Court. He was a co-recipient of the 2008 Gruber Prize for Justice for his contributions to the promotion and protection of human rights. As a child, he was a formed prisoner in Auschwitz men’s camp and survived a “death march” to the concentration camp Sachsenhausen, near Berlin, Germany. Two of his toes were amputated because of the frostbite. He came to the United States aboard the SS General Greely at the age of 17. Read his book, “A Lucky Child: A Memoir of Surviving Auschwitz as a Young Boy,” to be published in April 2009.

He earned his B.A. from Bethany College, West Virginia (1957), his Juris Doctor from the New York University School of Law (Root Tilden Scholar) (1960), his from Master of Laws from Harvard Law School (1961), his Doctor of Juridical Science from Harvard Law School (1968). He holds honorary Doctorates from Bethany College (1981), University of Heidelberg (1986), Free University of Brussels (1994), State University of New York (Buffalo) (2000), American University Washington College of Law (2002), University of Minnesota (2003), and the George Washington University Law School (2004).

About ICJ Judge Bruno Simma

Judge Bruno Simma has been a member of the Court since 6 February 2003. He previously served as an attorney before the court. He also served on the United Nations International Law Commission since 1996. A Jessup Moot Court Competition supporter, he has judged the Final Rounds multiple times, including the 2009 Final Round.

He earned his Doctorate of Law from the University of Innsbruck, Austria (1966) and holds a Doctorate honoris causa from the University of Macerata, Italy (2006).

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