Fixing the ICJ: More Law Clerks is Not the Answer

by Julian Ku

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.

2 Responses

  1. I humbly submit that the request for more clerks has nothig to do with speeding up cases. The reason why the ICJ is slow are very well known (and I wont repeat them here. Some depend on the way the court works and other on the parties) but I never heard any judge say that it is because of lack of clerks.

    Clerks are needed essentially for 2 reasons: a) to make sure judges have access to in-depth research (even Bruno, trust me, needs that. Did you consider he might have been able to crank out dozens of articles exactly because of good RAs?) and b) to get some competent legal help to help them organize their files, notes etc. Keep in mind they have 20 something cases on the docket, which means theay are all at some level active cases (secretaries can’t do this). Think of a solicitor more than a clerk.

    Judges without clerks have basically to do all the research by themselves, and you know that becuase the way the ICJ works, every judges writes a whole judgment (the so-called notes, which is a reason why the ICJ is slow).

    So, I submit the request for clerks is to enable them to write better judgments and keep their minds focused on substance and not organization and clutter. Is that a waste?

    The question of salaries is beside the point. Moreover, you omit to mention that US Supreme Court judges are for life, ICJ judges are not. ICJ judges do not have pensions, and do go into retirement, hence the extra compensation.

    Finally, I answered to your point about caseload long time ago. For the benefit of those who did not read it: the ICJ has only 192 potential clients (ie sovereign states). Now picture the world as a village with 192 inhabitants. How many cases do you expect a village of justy 192 people to generate? 90? That would be a highly disfunctional village and a hell of a litigious place. 3-5 per year is more likely, If you look at the average number of cases litigated in a developing country and you divide by the populations, surprise surprise you’ll find about the same ratio the ICJ has (I did it, you should try yourself too).

    Julian, criticizing is always good. Criticizing the ICJ is very good, but at least do consider all elements before you throw a punch. Do not let your hatred blind you. You do a disservice to yourself and the Court.

  2. I concur with Cesare on every point. And just to make some facts straight here – the pool of clerks to which President Higgins is referring to are the lawyers in the Registry of the Court.

    Additionally, the Court has for some years now had a program with several top universities through which nine people come to work in the Court for a year as law clerks/ university trainees. At this time, these clerks are paid by their universities or through other sources of funding, and the one clerk you are referring to, Julian, is one of these.

    If you really want to know how the Court works, and why its decision-making process is so time-consuming, I cannot commend this article by Prof. Thirlway in too strong a way.

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