IL/IR Symposium: Reply to Judge Donoghue

by Joost Pauwelyn and Manfred Elsig

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva and Manfred Elsig is Associate Professor of International Relations and Deputy Managing Director of the World Trade Institute of the University of Bern.]

We are extremely grateful for Judge Donoghue’s balanced and thoughtful comments.  We really appreciate the insights from someone who is actually operating from within an international tribunal.

We would like to follow up on the argument that “outside observers can only draw inferences about motivation, based on observable behavior … Lacking direct evidence of motivation, the scholar is left with inference”.

We agree with Judge Donoghue and would like to push this debate a little further. While we observe behavior (e.g. a ruling) arrived at through a type of interpretation (which can be explicitly stated, merely implied or just a “façade”), this behavior is a collective decision of a court and is a result of deliberation and negotiation among a number of individuals. The challenge for researchers is to find out how influential certain actors were and what arguments prevailed. This information remains in the black box of judicial decisions. We know a lot about why courts have been created and we have a fairly good understanding of implementation and compliance. This missing part is in the middle. Our chapter tries to push the research frontier on this part.

From a researcher perspective, it might be of interest to have access to more information, such as minutes of sessions when the members of a court met, draft texts that evolved over time or background notes or issues papers prepared by law clerks or secretariat lawyers advising the tribunal or individual judges.  These would allow us to reconstruct and process-trace the internal debates. Such improved access is of course controversial. It would not only require an official policy to store this type of information and to allow researcher to get access to this data at some later point in time, such ex post transparency obligations may also have unintended consequences on the working of the tribunals (and individual members/staff). At the same time, tribunals and courts are legitimate institutions created by mostly democratic states. They follow democratic principles and the wider public has a right to know how they work. For instance, the WTO has developed a policy to declassify information about negotiations. Improved transparency could be helpful for researchers to uncover patterns and trends (help research to be less speculative and more fact-based). In sum, it would require striking a balance between access to information and sufficient time lags between the deliberation and the release of information so state principals cannot – based on scholarly work – sanction the behavior of serving members of a tribunal.

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