Joan Donoghue to Fill Vacancy at the ICJ

by Roger Alford

Joan Donoghue, the Principal Deputy Legal Adviser in the Department of State, has been selected to be the next United States Judge for the International Court of Justice, according to reliable sources. Donoghue will replace Thomas Buergenthal, who has ably served as a judge on the ICJ since 2000.

Donoghue is a career State Department lawyer chosen by the US national group of the PCA, which pursuant to Article 4 of the ICJ Statute is tasked with nominating candidates to the ICJ.

Donoghue is a relative unknown outside government circles, but is very respected within the State Department. Indeed, in 2009 she was Acting Legal Adviser prior to Koh’s confirmation. In the early 1990s Donoghue wrote a handful of articles, most of them dealing with sovereign immunity, that have received some scholarly attention, but not much. She graduated from Berkeley Law School in 1981 and has been at the State Department since the early 1980s.

Donoghue was chosen over the two other top candidates, Lucy Reed, Freshfields partner and past president of the ASIL, and David Caron, the current president of the ASIL and professor at Berkeley. There is no doubt that Reed and Caron are higher profile choices and also would have been outstanding judges. Both Reed and Caron would have fit the Tom Buergenthal or Theodor Meron model of appointing superstars in the international field, while Donoghue is closer to the Schwebel model of choosing a State Department insider.

I am biased, but it does not take much imagination to determine how the committee chose Donoghue over Reed and Caron. The US national group that made the decision includes the current Legal Adviser, Harold Koh, and three past Legal Advisers, David Andrews, John Bellinger, and former ICJ judge Stephen Schwebel. Donoghue was an extremely safe choice for the State Department lawyers to make. Indeed, one seriously doubts that Donoghue will be voting against the United States any time soon.

6 Responses

  1. June 20, 2010

    I regret that Roger Alford’s report of Joan Donoghue’s selection does not appropriately credit the respect that she enjoys for her intellect, for her knowledge of international law, her experience in the public (including Treasury as well as State Departments) and private sectors, her independence of thought and her good judgment.   No one who has followed Ms. Donoghue’s career or listened to her over the years would suggest, as Professor Alford’s report unfortunately does, that her appointment reflects an effort to ensure votes for the United States position before the ICJ.  The United States was most fortunate that there were a number of able candidates that the National Group surely considered including several who were not mentioned by Professor Alford.  (Full disclosure, Ms. Donoghue began her career at my law firm but I did not collaborate with her during that period and became familiar with her work only after she first joined the State Department in 1984.)

    Peter D. Trooboff

  2. Excellent choice! I have followed this story closely for days now and could not be more thrilled with the decision!

  3. Response…I have never had any contact with Ms. Donoghue and so was relieved to see Peter Trooboff’s (whom I respect greatly) response to Prof Alford’s comments.  However, neither Alford nor Trooboff mention a fact that appeared in the State Department’s press release concerning  Ms. Donoghue, that she was Associate General Counsel and then General Counsel and Corporate Secretary of Freddie Mac from 2001 tp 2005.  Given what I, as a financial services lawyer as well as an international lawyer, know of Freddie Mac,  I would suggest that Ms. Donoghue may be closer to Prof Alford’s suggestion that she goes along with power.  I only hope that this is unfair and that she will call her votes on the ICJ as she sees the issues.  Cynthia Lichtenstein

Trackbacks and Pingbacks

  1. […] friends over at Opinio Juris report that Joan Donoghue, Principle Deputy Legal Advisor of the State Department, has been nominated by […]

  2. […] put up a couple of posts raising some questions regarding the nomination of Joan Donoghue (see here and here).  Oxford University Press has just published a book dealing precisely with these issues. […]

  3. […] a couple of posts raising some questions regarding the nomination of Joan Donoghue (see here and here).  Oxford University Press has just published a book dealing precisely with these […]