Why I Don’t Hate the ICJ or the U.N., But Why That Shouldn’t Matter

Many blogs start fights with other blogs, but Opinio Juris has to be unique in that we continually have knock-down battles among our regular contributors. Chris and I (to take just one example) have been fighting about international institutions like the U.N. and the ICJ since we initiated this blog almost a year ago and our disagreements show no signs of abating.

I have some substantive defenses of my posts about the ICJ’s “slowness” and some new criticisms of the ICJ’s general ineffectiveness. But I also have a response to Chris’s odd suggestion that in order to analyze and study an institution effectively, I have to subscribe to some normative internationalist agenda, e.g. that in order to have something useful to say about the ICJ or the U.N., I have to first admit that I support their existence or legitimacy. Let me start with a substantive defense of my ICJ post.

Chris has three main responses to my claim that the ICJ is slow: (1) Given the number of potential litigants, the size of the ICJ docket is more than respectable; (2) Resolving two or three cases a year is not bad, as a percentage of such a docket; (3) State litigants want a slow process, and they are often responsible for the delays in issuing judgments.

(1) With respect to the size of the ICJ’s docket, I think Chris overlooks the fact that the ICJ docket has actually been declining steadily in recent decades, especially cases invoking the ICJ’s full chambers. As Professor Eric Posner at U.Chicago has noted in his article here,

• There were 36 filings during the ICJ’s first twenty years (1946-65); there were 53 filings during the ICJ’s last twenty years (1985-2004) (including 10 filings emerging from essentially the same event, the intervention in Kosovo). But the number of UN member states increased by more than three times during this period (from 55 in 1946 to 191 in 2004). Thus, the number of filings per state dropped quite substantially.
• The fraction of states that are subject to compulsory jurisdiction has dropped from about 2/3 to about 1/3.
• The fraction of permanent members of the security council that are subject to compulsory jurisdiction has dropped from 4/5 to 1/5.
• During the ICJ’s first twenty years, states entered treaties that provided for ICJ jurisdiction at a rate of almost 10 per year; today the rate is less than 2 per year.

(2) Given the actual decline in its docket, it strikes me as odd that the ICJ is not eager to move a little more quickly on the cases it does have. Even Chris points out that the ICJ took 1.5 years since its last filing deadline to resolve the Serbia cases. I accept that resolving 2 or 3 cases a year is not bad, but it is not great either.

Let’s put it this way: If I am one of fifteen ICJ judges, I attend two or three public hearings per year and decide two or three cases a year. I draft (maybe) one opinion a year. I ask (maybe) one question at a public hearing per year. Let’s be honest, if I’m that ICJ judge, I am not doing a whole lot of work. (This is only slightly mitigated by the fact that I am not being paid a whole lot of money either).

(3) State litigants sometimes want a slower process, but not always. Sometimes, one side wants speed, the other doesn’t. Certainly, prior to a litigation occurring, most states would say they want speedier dispute resolution. It is only afterward that they start dragging their heels. And the ICJ is certainly free to adjust its procedural rules to require speedier briefing, especially on jurisdictional issues, where there is almost no fact-finding. (While we are at, can we dispense with the oral argument process, since litigants travel all the way to the Hague to simply read their briefs into the record and the judges almost never ask questions?).

I don’t think ICJ judges are lazy. I think the ICJ as an institution is probably slow for institutional reasons. If the ICJ cleared its docket, it would look even worse than if the Court has a long docket. They want to look like they are doing something and that they are continuing to be busy. This is just a theory, but one that fits more with the evidence, I think, then the alternative explanations.

In any case, Chris offers a more fundamental criticism of my approach. He suggests that if I don’t support having an ICJ (or an U.N.), then my criticisms of the ICJ or U.N. aren’t really in good faith or at least aren’t very useful. But this can’t be right. Scholars or analysts surely have normative views on institutions they study, but they don’t have to adopt a supportive normative view in order to have something useful to say. I don’t have to first take an oath to “believe in the ICJ” before I can criticize it. Such a view would further insulate the international law community from its critics, reinforcing that community’s already regrettable tendency to dismiss all criticism from those outside their “enlightened circle.”