Donoghue Confirmed as Choice for ICJ Vacancy

by Roger Alford

Secretary of State Hillary Clinton has confirmed Joan Donoghue as the choice to fill the vacancy on the ICJ left by Judge Thomas Buergenthal. She describes Donoghue as “judicious, fair, an extraordinary international legal counsel, and an excellent choice for the Court.“

Let me also pick up on a comment to my previous post, in which Peter Trooboff defends Donoghue’s independence and intellect. Neither Clinton’s press release nor Trooboff’s comment address my central concern of why Donoghue was chosen over candidates who were clearly more qualified. The most logical answer is political influence of the Obama Administration and/or confidence among the State Department Legal Advisers of the U.S. national group in her future voting behavior.

Incidentally, my concern about the role of politics in the election of ICJ judges is nothing new. The process of election through the national group of the PCA with the approval of the Security Council and the General Assembly was designed to minimize political influence in the nomination process. More recently, former Legal Adviser Davis Robinson expressed such concerns at the 2003 ASIL annual meeting, candidly admitting that most national groups usually “are extensions of their governments.” He did note that the U.S. national group on occasion has displayed streaks of independence, with the choice of Richard Baxter over the Carter Administration’s preferred candidate—former Supreme Court Justice Arthur Goldberg—as the most famous example. But Robinson emphasized that historically U.S. government control is neither sought nor exercised.

With respect to the choice of Donoghue, can one say with confidence that that U.S. government control was neither sought nor exercised? Did Harold Koh display appropriate discretion in pushing for his immediate subordinate at State to fill the ICJ slot? Did the U.S. national group exercise its authority with the same independence as it has in the past? I have no doubt that Donoghue is qualified in the Article 2 sense, but I seriously doubt that a career State Department lawyer who is virtually unknown outside government is the best person for the job, particularly given the alternatives. Or if you wish to do an historical analysis, compare her credentials with those of Hackworth, Jessup, Dillard, Baxter, Schwebel, and Buergenthal at the time of their nominations. It just doesn’t add up.

What could possibly have tipped the balance in favor of Donoghue over more qualified candidates other than the concerns I raised in my previous post? Taking seriously the requirements of judicial independence and impartiality, this choice at a minimum presents an appearance of impropriety.

9 Responses

  1. It is hard to avoid the conclusion that academics believe that academic qualifications equate with the requirement of all jobs. As someone who has worked closely with Joan Donoghue and a career academic, I take strong exception to the assumptions that underlie your analysis. Success in international negotiations as well as in interdepartmental bargaining is a far better indicator of qualification for high international office than publication in journals, especially those that bristle with unexamined normative aspirations and lack serious legal analysis. Donoghue was promoted to Principal Deputy in the Bush Administration, and is being nominated by the Obama Administration. That should indicate something about independence as well as quality.

  2. Paul,

    My analysis does not presume that “publication in journals, especially those bristle with unexamined normative aspirations and lack of serious legal analysis” is a good indication of qualification for high international office.  No one who writes such articles was on anyone’s short list.  My presumption is that better candidates, such as Lucy Reed and David Caron, were passed over and a candidate was chosen based on confidence from both Republican and Democratic State Department Legal Advisers that someone who has faithfully promoted the interests of the United States her entire professional career will be an extremely safe choice as a judge on the ICJ.  Those who have worked with her speak highly of her, but the appearance of partiality will be hard for her to overcome.

    Roger Alford

  3. Roger
    I consider myself a friend and colleague of Lucy Reed, and although I haven’t worked as closely with David Caron, I admire his career. Lucy was a great president of the ASIL, and David will be. David also was counselor on international law to the Legal Adviser back in the day, a position that used to be prestigious until I degraded the office a few years ago. But by what criteria are they “better candidates?” Why is a government insider, less exposed to the general professariat and commentariat, presumptively less qualified? And partial to what? I recall similar caviling when Mike Matheson was nominated by the US for the International Law Commission. Is the argument that anyone who does not embrace European exceptionalism regarding international law (see Bradford and Posner 2010) unqualified and partial to U.S. views? I dissent.
    All the best, Paul

  4. Roger has provoked me into making a comment here.  I am a huge fan of Lucy Reed and David Caron, and I consider David, my first international law professor at Boalt, a very close friend and one of my mentors in international law.  I also worked closely with Joan Donoghue during my time as a lawyer with the State Department.  We should be thrilled with any three of them as the U.S. nominee.  So what I have to say is not to suggest a preference for Joan over any others.
    I’ll not deal with a key point raised by Peter Trooboff and Paul Stephan – ask anyone who knows her and her work and they’ll confirm that, yes, Joan Donoghue is absolutely brilliant, independent and immensely qualified.  Instead, I want to address what you, Roger, say is your central concern that there was inappropriate political influence.  One point you miss, I think, is that all three have long and deep connections with State Department leadership and members of the national group.  Whoever was chosen, you might have the same concern.  It’s actually hard for me to think of any likely candidates who would not have had close connections with members of the national group or State.
    I have no real insight into how the national group made its decision.  But I wouldn’t be surprised if they considered the current roster of ICJ judges, where you see how the Court today is very much a creature of governments.   The Court is really a collection of outstanding government jurists, some of whom are concluding their careers at the Peace Palace: President Owada capped off a superstar career in the Japanese foreign ministry as Japan’s ambassador to the UN (and, by the way, he’s an excellent judge).  Vice President Tomka held the same position for Slovakia.  Judges Shi (China), Abraham (France) and Skotnikov (Russia) held senior positions in their government’s foreign ministries.  Judge Sepulveda, I believe, was Mexico’s foreign secretary.  Many, many other judges, present and past, share that kind of resume.  Of all the sitting members, the most familiar to academics must be Sir Christopher Greenwood, one of his generation’s highest profile international law scholars – and who served as an advocate for Her Majesty’s Government in cases too numerous to mention.
    Maybe this – the make-up of the Court today – is something you regret.  But that’s the way it is, and in that kind of environment, Joan Donoghue will undoubtedly fit in and succeed.  She’s young and energetic and is likely to leave an imprint on the Court, hopefully moving it in modern directions.  I suspect that Lucy (a former L lawyer herself) and David would have similar impacts on the Court, and undoubtedly they would bring depth of learning and experience to the Court, too.  But Joan is equally qualified (if in different ways), and she’ll make a fantastic judge.

  5. Every judge in the ICJ is a state-appointee in a way, that’s the political reality of the Court, and no one makes fuss about it. That is the reason why you always have UN P-5 judges in place. That is also why you have ad hoc judges for states who have no representation on the bench.

    I think the only instance where a judge would vote against his own country was Anzilotti in Wimbledon, back in the PCIJ days. This fact speaks a lot about neutrality of judges in the World Court.

  6. “I think the only instance where a judge would vote against his own country was Anzilotti in Wimbledon, back in the PCIJ days. This fact speaks a lot about neutrality of judges in the World Court.”

    Judge Buergenthal voted with the majority, against the United States, in the Avena case.

  7. “Maybe this – the make-up of the Court today – is something you regret. ” – I like this sentence from David Kaye.

    It’s without doubt that as a leading legal system, the US is expected to provide the ICJ bench with its best legal mind. Indeed, other leading Western countries like UK, France and Germany have fulfilled this moral obligation. Of course, if it’s the intention of this Administration to turn the Court bench into another multilateral forum, a nominee with outstanding diplomatic skills can’t be more suitable.

    But deep inside, I feel the argument to equate American nomination with Japanese or Chinese or Russian judges very bizarre.

  8. David has expressed my concerns well: the appointment of judges who have spent their entire professional careers working to promote the interests of their governments will quite naturally adjudicate disputes through a particular lens. Their training, experience, self-identity, peer-assessment, and reputation will predispose them to favor the position of their government in cases before them. That, to my mind, means that they will struggle to adjudicate claims with independence and impartiality. And even if they do resolve claims with genuine independence and impartiality, any decision they render in favor of their government will be suspect because the appearance of partiality is so self-evident. The practice often appears otherwise, but I believe the high ethical standards of independence and impartiality imposed on domestic judges and international arbitrators should also apply to international judges.

    As for Paul’s question, I believe that Lucy Reed and David Caron are better than Joan Donoghue in two key respects. First, they will not suffer from the same concerns of partiality. Yes, they have had close government relations, but they have spent most of their careers outside government and will not be subject to political pressure to the same degree. Second, Reed and Caron have well-earned global reputations they would carry with them to the bench, including service on international tribunals and arbitral bodies resolving public and private disputes. I think the greatest judges in the history of the ICJ had a reputation of being independent-minded intellectual heavyweights. The majority of ICJ judges have been forgettable political-appointees. As best I can tell, Donoghue has no reputation outside government circles that she can deploy to enhance the prestige and weight of her opinions. She will have to build that from the ground up in the shadow of concerns about her independence.

    I’m not saying Donoghue is unacceptable or unqualified. But from my perspective there are superior candidates who could have better served the interests of the international community and the United States.

    Roger Alford

  9. David Kaye said most of what I wanted to say (except better!) in his excellent comment above.  Like David, I have tremendous admiration and respect for Lucy Reed and David Caron and think either of them would have been an outstanding choice.  But, as someone who has known Joan for many years and worked closely with her, I think she is every bit as well qualified.  (Thankfully I wasn’t required to choose!)  Just one thing I wanted to add:  The repeated reference to Joan as a “career State Department lawyer” may tap into a perhaps unconscious bias among some academics that practitioners (or, as some might say, “mere practitioners”) are less reflective and thoughtful about international law than academics.  This view is I think misguided generally, and it is particularly untrue of Joan.  I’m currently working on a paper on the effectiveness of legal vs. non-legal agreements, and it reminded me of an ASIL panel on the issue that Joan organized and chaired many years ago, long before the subject had become fashionable.  Joan combines immense practical experience with a curious, independent  and incisive mind — exactly what one would want in an ICJ judge. 

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