Cheng Book Roundtable: Should ICJ Judgments Be Effective? (A Response to Professor Brown)

I am grateful to Professor Brown’s careful summary of the thesis of When International Law Works.

I should, however, make a few clarifying points about my analysis of some international incidents. Professor Brown, with gentlemanly understatement, notes that “some will have their eyebrows raised” by my analysis.

Regarding Loewen v. United States, I confess I am rather ambivalent about the award. In earlier scholarship, I excoriated the NAFTA award. In that dispute, a Canadian company brought NAFTA claims against the United States after a Mississippi court permitted racial biases and other due process violations to infect the trial involving the Canadian company. Nonetheless, the Loewen tribunal declined jurisdiction against the United States on highly technical grounds.

In When International Law Works, I revisited the Loewen award to see if it is completely beyond the pale under my justificatory theory. I concluded that if it is true that the U.S. judge appointed to the tribunal had ex parte communications with the U.S. Department of Justice, there can be no redemption for the award.

But if this allegation is untrue, and if one accepts that the tribunal’s legalist reasoning is not contrary to applicable laws (even if it strained their interpretation), then perhaps considerations about the long-term viability of NAFTA, as well as the impact of an adverse decision against the United States under the political climate prevailing at that time, might properly come into play.

As for my views of the Nicaragua decision and the practice of waterboarding, while I understand the some readers might instinctively raise their eyebrows, I encourage them to study my analyses of these two incidents, which collectively span over 40 pages, to see if they agree or disagree with me.

Professor Brown critiques my proposal that judges should consider morality when legalism does not resolve interpretative ambiguity. He suggests that ambiguities could be resolved by referring to the Vienna Convention on the Law of Treaties or general principles of law. I am glad that Professor Brown has added his view to the discussion that Professor Howse and I began yesterday about my theory in the context of judging.

The hard case I refer to, however, is one where even after using all the tools of legalism, including the Vienna Convention and general principles of law, the meaning of applicable legal rules in a judicial dispute remains ambiguous.

One might believe that such situations are few and far between, or that they do not exist at all. However, the plausible arguments of able advocates, such as Professor Brown, on opposite sides of international cases, and the diversity of viewpoints expressed by judges in their decisions in almost every case, suggest that even the full panoply of legalist tools often do not eliminate ambiguity.

Professor Brown also anticipates that my assertion that “[j]udges should be concerned about the effectiveness of their decisions because a decision that is ignored is useless,” “is likely to raise the hackles of those who seek international justice.” But, in the pages of my book to which he refers (p. 132-33), I also emphasize that “placing effectiveness before morality is like placing the cart before the horse,” and “[g]enerally speaking, judges ought to be faithful to legalism in an independent fashion in order to promote coherence, adherence, and stability necessary for the common good.” That said, can a judicial decision achieve international justice if it is thoroughly ignored and makes no practical difference to victims and perpetrators of injustice?

I also welcome Professor Brown’s tentative application of my theory to the Nuclear Tests Cases, which are not addressed in my book. In that dispute, Australia and New Zealand brought claims against France for its atmospheric nuclear tests in the South Pacific. He correctly recognizes that the ICJ’s refusal to render a decision after France voluntarily relinquished atmospheric testing has been criticized.

It probably will not surprise Professor Brown that my theory suggests that the ICJ’s decision not to decide could have been appropriate. Professor Brown says that after the ICJ case ended, “a dispute persisted as to the legality of the past nuclear tests carried out by France.” I wonder, however, in what ways the dispute about past testing persisted, and to the extent it continued, was it not solved diplomatically? I also wonder whether what the Australian and New Zealand government really sought was a cessation in testing. This they achieved, in part by bringing the lawsuit against France, which exerted considerable diplomatic pressure against France, a permanent member of the UN Security Council.

Unlike a national court, whose authority is not contingent the consent of citizens to its jurisdiction, the ICJ’s authority and viability rests entirely on the consent of states. If the ICJ was able to achieve the relevant policy goals by deciding not to decide, and its reasoning was justifiable on legalist grounds, then in my view it could have been appropriate for the ICJ to be concerned about sustaining its effectiveness, especially given the legal right of states to withdraw their consent to the ICJ’s jurisdiction in future cases.

Ultimately, I am not too troubled if readers disagree with my conclusions about these particular incidents, so long as the theoretical framework I provide in the book gives us tools to analyze these incidents. As I stated in my conclusion of the book:

The justificatory theory of international law provides a framework of analysis based on theory and backed by case studies to guide but not coerce elites. Constituents expect decisionmakers to exercise their judgment, and this book offers decisionmakers a way of thinking about international problems to decide what to do.

It appears that we have begun to use the justificatory theory to think about international legal problems. We may ultimately disagree on our conclusions under the theory. Nevertheless, we may achieve my goals of reframing debates about international law, in order to understand international problems more fully, and coming up with better solutions.