A. Aspirations for a World Court

Stated most ambitiously, some early advocates of a world court hoped that disputing states would adjudicate instead of going to war.Footnote ¹ More concretely, in the Hague Conferences of 1899 and 1907, the proponents of a world court sought to create a court with six key characteristics:

1. 1. A standing court;

2. 2. Authority to settle the full range of disputes (no subjects excluded as too sensitive);

3. 3. Decisions binding on parties;

4. 4. A court from which jurisprudence would emerge;

5. 5. Independent, authoritative adjudicators; and

6. 6. Widespread adherence and use by states.Footnote ²

The two Hague Conferences did not produce a world court. However, interest in a world court persisted, eventually resulting in the Permanent Court of International Justice (PCIJ), and later, in the ICJ.Footnote ³

The Statute of the ICJ (or the Statute) fulfills the first four of the six aspirations listed above.Footnote ⁴ The fifth and sixth aspirations require more discussion.

B. The Qualities of Adjudicators

At the Hague Conferences, competing visions of ideal adjudicators were among the obstacles to the establishment of a world court.Footnote ⁵ Delegations differed on the qualifications of judges (e.g., whether they should come from the ranks of national courts or from academia). The prospect of truly independent judges was an objective for some and a cause for concern for others.

The Statute of the ICJ attempts to reconcile such differences in perspective. Once elected, the judges of the Court are independent of states.Footnote ⁶ There are two steps to the process of judicial selection—nomination and election.Footnote ⁷

Under the Statute, states do not nominate candidates for election to the Court. Instead, the Statute is designed to put nominations in the hands of international law experts who have some distance from governments (the members of the national group of the Permanent Court of Arbitration).Footnote ⁸ The Statute also specifies the qualifications of candidates: “persons of high moral character” who either are qualified for appointment to the highest judicial offices in their respective states or have “recognized competence in international law.”Footnote ⁹

Judges are elected by simultaneous secret ballot in the United Nations Security Council and General Assembly.Footnote ¹⁰ The Statute contains a specific admonition to states that elect judges, calling for a bench that has representative geopolitical distribution.Footnote ¹¹ In practice, over many decades, this election process has led to traditions of allocating seats among United Nations regions and, with the exception of the 2017 election, to an expectation that the Court will include a judge who is a national of each state that is a permanent member of the United Nations Security Council.Footnote ¹²

Later, I shall say more about the way in which this process of judicial selection has functioned.

C. Adherence and Use of the Court by States

The sixth characteristic sought by world court proponents at the Hague Conferences—widespread adherence and use by states—was not achieved in the Statute of the ICJ. The aspiration was for a court with jurisdiction over all states, and one that states would embrace broadly as a place to settle disputes. However, UN member states are not required to accept the Court's jurisdiction, nor are they required to submit disputes to the Court.Footnote ¹³

The Statute does not leave states with a binary in-or-out choice.Footnote ¹⁴ They may accept the Court's jurisdiction unconditionally or with stated reservations. They may accept jurisdiction in respect of disputes arising under particular treaties. They may accept the Court's jurisdiction in respect of a particular known dispute. They may modify their consent to jurisdiction over time.

As a result, under the Statute, fulfillment of the aspiration that states would be subject to the Court's jurisdiction and would take disputes to the Court depends on future decisions of states. Therefore, we must ask about the extent to which states have demonstrated their trust in the Court, both by consenting to its jurisdiction and by taking cases to it. The answer to this question brings me to what might be seen as a “valley” in which the world court has found itself.

D. The World Court “Valley”

In comparison to the aspirations of the proponents of a world court, state embrace of the ICJ has fallen short. The number of optional clause declarations has been disappointing.Footnote ¹⁵ In certain periods, the docket of the Court has been small. Some powerful states have been hesitant to submit disputes to the Court. At times, states have reacted to disappointment in the Court by distancing themselves from it.

Those who are critical of international adjudication,Footnote ¹⁶ and especially of a world court, would describe the level of state engagement as a deep valley. Speaking to my imaginary band of explorers, these critics would say, “see, we told you it was impossible to scale that peak.”

The situation of the ICJ need not be described as bleakly as these naysayers would have it. Nonetheless, those of us who support the idea of international adjudication must acknowledge shortcomings that may deter states from exposing themselves to the Court's jurisdiction. Today I shall say a bit about two of these shortcomings: the working methods of the Court and the process of judicial selection.

I recognize, of course, that the procedures of the Court and the composition of its bench are not the only considerations bearing on a state's decision about whether to put its trust in the Court. However, as David Caron said in his 2000 American Journal of International Law article on the Hague Conferences: “The quality of the judges as individuals and the process by which they collectively reach a judgment reside at the core of both the respect accorded the Court and the willingness of states to consent to its jurisdiction.”Footnote ¹⁷

As to working methods, the Court is often criticized, for example, as too slow, too passive, and not amenable to change and adaptation.Footnote ¹⁸ It is confident in its own traditions and has been disinclined to borrow innovations from newer courts and tribunals.

The process of selecting international judges, including those of the ICJ, has been the subject of extensive study and has faced justifiable criticism.Footnote ¹⁹ It was perhaps unrealistic to expect that national group nominations would insulate the ICJ nomination process from politics, but that is not the only disappointment. Few national groups have serious processes for vetting the qualifications of candidates.Footnote ²⁰ The number of candidates nominated in each election is usually small.

In the election process at the United Nations, states have been attentive to geopolitical representation, as they should be. However, my impression, having campaigned for election in New York and having observed elections for the ICJ, is that the nationality of candidates overtakes all other considerations. The focus on nationality in New York offers fuel for some of the Court's harshest critics, who claim that nationality is the key determinant in the way that ICJ judges vote.Footnote ²¹

Both in respect of the working methods of the Court and the process of selecting judges, there are opportunities for practicing international lawyers—those of us in this room—to make improvements that can contribute to fulfilling the aspirations of the original proponents of a world court.

E. The “Rolling Hills” of the World Court

In my brief summary of aspirations and disappointments, I have emphasized criticisms of the ICJ, depicting the level of state embrace of the Court as a “valley.” However, the record of the world court can be cast in a far more favorable light than some critics have suggested. Both the PCIJ and the ICJ have made important decisions. There have been luminaries of international law on both courts. In recent years, the ICJ has been busy.

States now have multiple options for settling disputes in a courtroom. Talented individuals within the Permanent Court of Arbitration have reinvented that organization. New ICTs, some development that calls for a recalibration of aspirations for international dispute settlement. Our goal should be to make the ICTs, collectively and individually, attractive as venues for dispute settlement, in healthy competition with each other.

We must also reexamine our aspirations for the ICJ. The drafters of the UN Charter assigned to the Court the function of deciding contentious cases (as well as rendering advisory opinions).Footnote ²² They envisioned that the Court's decisions would also have an impact on states not parties to particular cases through its publicly available jurisprudence.

The Court can meet the objectives of settling disputes and developing a robust body of jurisprudence only if it has a full and diverse docket.Footnote ²³ Thus, to be faithful to the core aspirations for a world court, states must see the Court as a forum in which they are prepared to initiate cases and in which they will consent to be respondents. How can those of us assembled here today contribute? I offer four suggestions.

First, we should focus on improvements that do not require changes to the ICJ Statute. It cannot be amended except by the same process that applies to amendment of the UN Charter, and there is no reason to expect such amendment any time soon.

Second, we must not overload the ICJ with expectations for which it was not designed. Commentary on ICJ judgments frequently reveals a hunger for more judicial lawmaking. The appetite for more development of law is understandable, in the absence of an international legislative apparatus. However, an overestimation of the capacity of courts poses risks, which David Caron vividly described in his Brower Lecture at the 2017 Annual Meeting. Professor Caron observed that international courts are “the only tool available; they are screwdrivers that have been asked not only to place screws but also to hammer nails.”Footnote ²⁴ He cautioned that, if courts are used excessively as hammers, they will cease to function well as screwdrivers.Footnote ²⁵

The ICJ has scope to develop international law and to develop jurisprudence that influences the behavior of states that are not parties to a given case, but it should do so only in the course of performing its assigned functions of settling disputes and issuing advisory opinions. By operating within those limitations, the Court can contribute to the confidence of states, putting it in a better position to fulfill the aspirations that drove the idea of a world court.

Third, the ICJ must be more energetic in improving its working methods, drawing from and adapting procedures that have been successful in other settings. In 2006 and again in 2016, the ICJ held conferences at which participants offered ideas on how to improve the operation of the Court. The outcomes of both conferences were memorialized.Footnote ²⁶ However, the Court's Rules were last amended in 2005. Even outside of these formal Rules, there have been only a few modest changes in the way the Court operates.

Seven members of the ICJ serve on its Rules Committee, on which I sit. This is the forum in which ideas for procedural improvements can be developed for consideration by the full Court. The current chairman of the Rules Committee is former President Peter Tomka, and he and several other members are keen to make progress. Under the guidance of President Abdulqawi Ahmed Yusuf and Vice-President Xue Hanqin, I am hopeful that the Court will act on some of the ideas presented in 2006 and 2016.

My fourth and final suggestion is directed at some of you in this room. About half of the members of the American Society of International Law are not from the United States, so I speak today to an international audience. My suggestion is that you take a more active role in improving the process of nominating and electing ICJ judges.

The capacity of the Court to fulfill the responsibilities given to it in the UN Charter depends on the individual qualities of each judge, including expertise in international law and dispute settlement, an appetite to wade through evidence, and the energy and rigor that is needed to draft the Court's judgments. The busier the Court, the more important it is that each judge has these qualities.

In many states, the process of nominating candidates for election to the ICJ reportedly falls short of the letter and spirit of the ICJ Statute, frequently giving insufficient weight to the candidates’ substantive merit.Footnote ²⁷ We cannot expect the nomination process to be hermetically sealed from national politics. After all, a candidate must count on the support of his or her government in the UN election process. Without suggesting that every nomination process must be the same, I hope that members of this audience will look for opportunities to increase the focus on merit within national nomination processes.

Turning to the election process, geopolitical balance is vital both to the legitimacy of the Court and to its internal operations. There will continue to be debates about how to strike the right balance, but balance there must be.

In other respects, however, the election process needs improvement so that considerations other than nationality are not overlooked. It is unlikely that formal mechanisms for screening candidates for international courts will take hold in respect of ICJ elections.Footnote ²⁸ Of course, I do not expect the people in this room to eliminate practices such as vote trading in the UN. However, you can contribute to the process of judicial selection by engaging informally yet seriously with candidates, by making your assessments of their capabilities known to the representatives of UN member states, and by stressing to your respective governments that the output of the Court inevitably depends on the individuals who sit on it.