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Judging Judges: A Reply to Marko Milanovic

(cross-posted from EJIL:Talk)

 This is a reply to the post by Marko Milanovic entitled ‘Judging Judges: A Statistical Exercise’. His starting point is a paragraph by Andrea Bianchi’s post ‘On Certainty’ which speaks about certainty in international law, based on the ICJ’s decision in the Jurisdictional Immunities of the State case. As Bianchi notes in his post, the ICJ is always very considerate of the systemic effects of its own rulings. Indeed, it was highly unlikely that the Court would uphold the claim that international law allows individuals to seek redress against a State before the municipal courts of another State for human rights violations.  However, as Bianchi observes, the problem is that the Court overdid it, by making sweeping statements on the scope of immunities under customary law, by downplaying the right of access to justice under international law and by adding remarks that may have serious repercussions on other related fields. Similar criticism has been leveled at the other immunity decision of the Court rendered in the Arrest Warrant case in 2002.

But the paragraph in Bianchi’s post which triggered Milanovic’s post is the following:

Finally, a word of praise for Judge Cançado Trinidade (who issued a dissenting opinion in this case) is in order. His lengthy opinions and his weltanschauung are often looked down on or frowned at. In fact, Judge Cançado is long engaged in an attempt to acculturate the international judicial bodies in which he seats and, more generally, the epistemic community of international lawyers. Suffice to cast a glance to the background, academic and/or judicial record of his fellow judges to realize how on certain fundamental issues at the ICJ he does not even belong to a minority: he is almost completely isolated. I trust he has realized by now that The Hague is a much colder place than San José. Yet his function remains fundamental. One could paraphrase Voltaire and say that ‘If Cançado did not exist, it would be necessary to invent him’. Not so much for me or for any other more or less established member of the profession, but for all those students who approach the study of international law and want to believe in the redeeming force of human rights and universal justice for a better world. Here is another hand. Of this, I am quite certain.

Taking this as the starting point Milanovic tries to answer the more general question: how exactly should we measure the effectiveness of a judge, particularly a judge on the ICJ? He provides statistics on the three-year work of Judge Cançado Trindade. The criteria Milanovic chooses to measure effectiveness include an inquiry on what is the audience that the judge should seek to persuade and in what manner, a judge’s output in terms of individual opinions, and whether the judge is in the majority or not. From the tenor of his arguments it would seem that for Milanovic an effective international judge (at the ICJ) is one that looks inwards, refrains from writing long individual opinions because that is useless besides being costly, and is a conformist when in the minority!

According to Milanovic, ultimately what makes a great judge is primarily his or her connection to the Court on which he or she sits. According to the statistics, since Judge Cançado Trindade’s appointment, the Court has delivered 15 substantive decisions. In those 15 decisions, Judge Cançado Trindade was in the majority  some  42% of the time, depending on how exactly you count the vote on each point of the dispositif. Judge Cançado Trindade wrote a separate or dissenting opinion in all but 3 of those cases, i.e. 80% of the time. In total, his individual opinions (including those co-written with other Judges) amounted to 532 pages against 608 pages of the Court. So, Judge Cançado Trindade is doing fairly well actually, since he has been in the majority half the time. And the other half concern mainly cases involving human rights issues, a field where the position of Judge Cançado Trindade is consistent throughout his judicial career. So, no surprises there, only consistency.

Milanovic engages in little more than mere speculation when concluding that Judge Cançado Trindade’s opinions are not read either by his colleagues, or in academic circles. Actually, he knows very well, having worked for the Court, that the nature of the decision-making at the ICJ means that judges know the opinions of each-other because of their notes and joint deliberations, so there is no real need to read each-others final opinions. As for the academic world, I believe that Judge Cançado Trindade’s opinions are read widely primarily because they more often than not tend to go further than the Court, to explain and fill existing lacunae. An additional reason for reading those opinions is his academic and rigorous style. And those qualities are independent of whether one agrees with him or not. Through his opinions he contributes, among others, to the process of humanization of international law. And he does not shy away from explaining his judicial philosophy and approach, on the contrary.

There can be no doubt that international judges and their work are important. And we should discuss what makes a good international judge and their work and establish qualification and vetting criteria for their election. But the criteria for assessing the effectiveness of an international judge remain elusive, and we should resist the temptation to just indulge our own preferences or speculate. The work and effectiveness of a judge will depend not only on their intellectual acumen, creativity, dedication and compassion, but also on the institutional constraints of a given international court. As Terris, Romano and Swigart point out in their great book ‘The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases’ (p. xiv),

International judges are neither omnipotent nor toothless. They are, instead, engaged in a process of building institutions, a process that by definition involves moments of strengths and moments of weakness, progress and regression, triumph and defeat. International courts and tribunals are not abstractions; they are profoundly human enterprises. This means, of course, that these institutions are far from perfect.

The effectiveness of international judges and the courts they serve depends largely on the support of powerful states, leaving these institutions vulnerable to the vagaries of international politics (Terris, Romano and Swigart, pp. xiii-xiv). Maybe in the second edition of their book Terris, Romano and Swigart could include a chapter on the effectiveness of the international judge? Or maybe someone should write an article on this topic? Ultimately, the effectiveness of international judicial institutions and their impact depends on the use and trust that States composing the international community place on them. They are not individual enterprises, but collective bodies, where as a principle the whole is greater than the sum of its parts. But that does not need always be the case!

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