Symposium: Transplanting International Courts–An Andean Tribunal Judge’s Perspective

[Luis Diez Canseco Nùñez served as a judge and then President of the Andean Tribunal of Justice, ending his tenure in 2017.]

Alter and Helfer’s book Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice constitutes an important contribution to the study of the international dispute settlement system. It honors me, as a former Judge and President of ATJ, that two prestigious researchers have devoted their time to evaluate our court and its work. I want to highlight my absolute agreement with their analysis and conclusions and offer sincere congratulations!

But there are things that an academic book, no matter how laudatory, cannot capture. I will use my contribution to highlight some missing elements, including some new developments that from the perspective of a judge are significant.

Being an international judge is a certainly an honor, but also a challenge. Representatives of governments often erroneously assume that our position on a case should be aligned with that of our respective countries. This misperception has its origins in two factors. Firstly, the structure of the Andean Tribunal, which includes one judge for each Member Country. Secondly, some judges have backgrounds as diplomats, senior government officials, and even connections that make them close to a government.

Before my election, several colleagues asked me why I wanted to become a Judge at the ATJ. They suggested that the appointment was for people either aspiring for an international legal career or seeking a golden retreat into retirement. Others suggested that it was not worth joining an entity that was in the course of disappearing and in perpetual crisis (for the reasons that Alter and Helfer discuss in their book, namely the disagreement among member states over the direction of economic and trade policy). Indeed, I later participated in several meetings in which government representatives spoke out loud about the need to restructure the Andean conflict resolution system, conversations in which some officials actually suggested abolishing the ATJ and instead recreating the panel system used by the WTO. Those who questioned why I would want to be an ATJ judge also noted what Alter and Helfer discuss: the ATJ is a cut in paste institution that merely replicates previous decisions, particularly with respect to intellectual property. The job would therefore, they suggested, lack creativity.

These comments were precisely the reason why I decided to advance my candidacy, and if elected, to try to make a difference. It was a sort of new challenge in my life. I wanted the ATJ to be more externally engaged, yet to also issue judgments as quick as possible. Moreover, I wanted the decisions to be more precise and friendly to those who read them, and I wanted to promote more scrutiny and awareness. Working within, first as a judge and then as President of the Tribunal, I crafted solutions for some procedural issues such as tied votes and allowing access to administrative bodies of Member Countries to request for Preliminary Rulings. A number of these changes are mentioned by Alter and Helfer, who express surprise that reforms and expansion of the caseload and jurisdiction came despite crises in the Andean Community. The answer is simple: innovative judges may be focused on the institution in which they work, rather than the larger never ending political crisis that surrounds the institution.

For judges, procedural changes are significant. I want to briefly discuss two changes that from the perspective of the judge are important in adjudication politics. Both of these receive scant attention in an analysis as comprehensive and encompassing as that of Transplanting International Courts.

Dissenting opinions

For many lawyers, dissenting opinions are common practice. But this wasn’t the case for the ATJ. By contrast, Andean judges believed that the lack of dissenting opinions or, alternatively, the lack of knowledge about judicial disagreements, helped the Tribunal send a message that was consolidated and strong.

ATJ decisions had traditionally been written by a single judge and discussed and signed by all, even though dissent existed in the form of unacknowledged votes against the ruling. This format hid the many points of dissent we would debate in deliberations, and thus I believed that the formality of unanimous rulings limited scrutiny, debate and feedback. As a prelude to creating dissenting opinions, we needed to take a number of interim actions. First, we needed to restructure the format of the decision, highlighting the matters under controversy. Second, we had to make public who was the Judge responsible for drafting the decision. Third, we had to decide to list the judges who voted in favor and if it was the case, to indicate who disagreed. Fourth, we needed to allow the disagreeing judge to publish is dissenting vote and the bases of their disagreement. Finally, we needed to allow the parties to access the dissenting decision. This sort of step-by-step detail–each of which is significant– is, quite understandably, lost in the type of analysis Alter and Helfer undertake.

During my tenure, we discussed the possibility of publishing dissenting opinions as an annex to the judgement of the majority; but the rules of the Court didn´t allowed for this. Very recently, by Agreement 09/2017 published on 29 November 2017 in the Official Gazette of the Andean Community, the ATJ agreed to issue an Information note which indicates that, once the final decision has been published, persons concerned may request access to dissenting opinions. This is still far from public dissenting opinions, as one finds in the ICJ. I provide this detail so that observers can see the many steps needed for change.

Oral Hearings

A second change that is important for judges is the decision to allow Oral Hearings for Preliminary Rulings cases. The Andean regulations expressly refer to the possibility of oral hearings in the framework of the Omission, Nullification and Noncompliance procedures; but rule of procedure is silent with respect to Preliminary Rulings, neither authorizing nor prohibiting oral hearings.

In my opinion, in cases having particular complexity, impact or novelty, an open oral phase or the possibility of affected actors to summit briefs to the ATJ, will help to ensure that the ATJ can entertain new points of view that might not have occurred to them. In this perspective, it is important to recall that the law and the circumstances surrounding particular cases are in a constant evolution. The law can´t be petrify.

Recently, by Agreement 08/2017 published in the Official Gazette of the Andean Community, the ATJ adopted a Regulation that normalizes various aspects regarding the nature of the Preliminary Rulings, which has codified a number of the internal procedural changes implemented during the last years. These changes are partly responsible for the expanded the number of Preliminary Rulings, something that Alter and Helfer observe but do not explain.

Article 9 of this new agreement refers to ‘reports written or oral.’ This small change opens the door for convening oral hearings in exceptional Preliminary Ruling cases. While this change is significant, the new language fails to incorporate the possibility for the parties in the process, who will be directly affected by the decision, to provide their points of view and be questioned by the judges. One thus sees the slow hand of reform at work!

These subtle changes, which may be imperceptible to those outside of the Tribunal, are important to the process of building the Tribunal’s reputation for sound judicial decision-making. While I understand why Alter and Helfer do not investigate these types of changes, a more judge-centric perspective might bring to light a different set of factors that shape the law and politics of the Andean Tribunal of Justice.