Fixing the ICJ: More Law Clerks is Not the Answer

Last Thursday, ICJ President Roslyn Higgins Q.C. delivered a sort of “state of the ICJ” speech to the U.N. General Assembly along with the Annual Report of the ICJ. As longtime readers of this blog may recall, teasing the ICJ about its self-importance and inefficiency is a favorite hobby-horse of mine. Judge Higgins’ speech and the 2005/2006 Annual Report provides yet another opportunity. So let’s begin:

President Higgins is requesting funding for nine more permanent law clerks so that each member of the Court has one full-time law clerk. Currently, the ICJ has only five full-time law clerks (which may or may not include the one partially funded by a private grant that I blogged about here). She argues that the rise of fact-intensive cases and the complexities of international jurisprudence make “it is simply impossible for it to do so if the judges have no assistance across this range of work. We can no longer scrape by on a small pool of six shared clerks.”

I believe the ICJ, if it is to be taken seriously, needs to make more of an effort to issue judgments in a timely fashion. I seriously doubt adding more law clerks will help very much.

As Judge Higgins notes, the ICJ has issued three judgments for the August 2005-October 2006 period: two final judgments and one provisional measures judgment. The ICJ also held unusually extensive hearings in the Bosnia/Serbia case, which was unusually fact-intensive.

But in recent years, the so-called active period of the ICJ, the ICJ has pretty much averaged three judgments a year, even without unusually difficult cases like the Bosnia/Serbia case.

Let’s face it. The ICJ moves very, very slowly and it can’t all be explained by the lack of law clerks. The ICJ currently has twelve cases on its docket. A number of these cases have been sitting on that docket for years without any action or movement. For instance, the next set of ICJ hearings (Guinea/Congo) will be held about three years after the last written submission (July 2003) and will only discuss preliminary issues. The hearing after that (Nicaragua/Honduras) will be held nearly four years after the parties made their last written submissions (13 August 2003) (see here for the press release).

So let’s get this straight. Each ICJ member-judge, who averages by the way about $315,000 in salary per year according to the p. 74 of the ICJ Annual Report plus about $44,000 a year in travel expenses, participates in three hearings a year and participates in the drafting of three judgments per year. This is an average of $100,000 per judge per judgment, or $50,000 per judge per judgment or hearing. I know it is expensive to live in the Hague these days, but unless I am missing something, this is a pretty sweet deal for ICJ members. (Just as a point of comparison, U.S. Supreme Court judges, who decide about 90 cases a year, are paid about $208,100 a year).

A number of the ICJ members, like President Higgins or Judge Bruno Simma, are former academics who have cranked out dozens of articles and books much more sophisticated and complex than any ICJ judgment. I have little doubt that Judge Simma could personally draft an ICJ judgment in less than a month. I just can’t believe he and the other ICJ members need more research assistants. More likely, there is something deeply and fundamentally SLOW about the ICJ’s internal deliberative processes.

As someone who believes international dispute resolution can serve a useful and important function, this apparent utter lack of urgency among the ICJ’s judges is disappointing. The ICJ may be the “principal judicial organ” of the United Nations, but its continuing lack of efficiency keeps it from doing much to live up to that role.