Recently, I had to write a paper for a class called Judicial Politics. In my paper I decided to study the national bias existing in the International Court of Justice. A large body of empirical evidence shows that ICJ judges usually vote in favor of their country of origin when it appears before the Court. Moreover, there is evidence of bloc-voting and other biases inside the Court, which has led several observers to question the ICJ's impartiality. In my paper I analyze the impact that the existence of the 'national bias' has on the impartiality and the credibility of the Court.
I will post the paper in two different entries, given its extension. Here is the first part:
The fifteen regular judges that serve in the International Court of Justice (ICJ) have the important task of solving disputes among sovereign States. Those who believe that the differences between US Supreme Court justices are sharp, could change their minds after looking at the composition of the ICJ: these judges come from a variety of academic backgrounds, speak different languages, are knowledgeable in distinct legal systems, and have different nationalities. However, even if the membership of the ICJ is supposed to represent the “main forms of civilization and of the principal legal systems of the world” all of its judges express a deep commitment to International Law (International Court of Justice, 1945, Art. 9). Every time a new judge joins the ICJ, she is required to make the following declaration before her colleagues: “I solemnly declare that I will perform my duties and exercise my powers as judge honourably, faithfully, impartially and conscientiously” (ICJ, 1978, Art. 4, emphasis added).
Nonetheless, some observers have put into question the impartiality of the ICJ due to the way in which the Court operates. Think about James Madison’s words in Federalist No. 10 that “[n]o man is allowed to be a judge in his own cause because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity” (Madison, 1787). However, in every case before the ICJ, each country that is a party to the dispute is allowed to have one judge from that nationality sitting on the bench (ICJ 1945, Art. 31). If there is no judge from the nationality of one of the parties among the fifteen regular judges, that country is allowed to name an ad hoc judge who will sit in the Court for the duration of the case (ICJ 1945, Art. 31).
Several questions arise from this particular way in which the ICJ proceeds: 1) Do judges vote according to their national preferences? 2) What are some possible explanations for this behavior? 3) If judges are biased, is this something that hinders the Court’s ability to produce fair and impartial rulings? 4) Are there structural or procedural changes the Court could undergo in order to solve current problems? This paper aims to answer these questions by looking at past scholarship on the subject and presenting original work that examines the behavior of national judges in the ICJ. This analysis is divided in four sections. The first one offers general background on the procedure and the composition of the Court. The second section examines the scholarly evidence regarding ICJ voting patterns and the preferences of judges, and looks as primary sources, such as the opinions of judges in cases involving their own nations. The third section explores the reasons behind the voting patterns shown by ICJ judges as well as the impact of this behavior on the Court’s impartiality. A final section concludes.
BACKGROUNDER: the International Court of Justice
Founded in 1945, the International Court of Justice is the most important judicial organ of the United Nations, whose main purpose is “to settle, in accordance with international law, legal disputes submitted to it by States” (ICJ 2006c). All UN members are parties to the ICJ’s statute, which means that virtually every nation has the right to submit cases to the Court (ICJ 2006a). However, the ICJ will consider itself capable of ruling on a dispute only if the States involved mutually consent to it, or if the case concerns a treaty containing a provision that stipulates that disputes over the application of the treaty would be referred to the Court (ICJ 2006a). Type of cases that the ICJ has heard in the past, include disputes over land and maritime delimitation, the legality of the use of force, issues of sovereignty, nuclear tests, etc.
As it was mentioned above, there are two types of judges sitting in the ICJ: regular judges and ad hoc judges. The fifteen regular judges serve terms of nine years with one possible consecutive reelection. Articles 1 to 15 of the 1945 Statute of the Court outline the judge election process. Regular judges are selected from a list of candidates nominated by the national groups of the Permanent Court of Arbitration, another UN judicial organ of lesser importance where all UN members are represented. All nominees ought to be persons who are knowledgeable of international law, or who hold the qualifications to accede to the highest judicial offices in their home countries, according to Article 1 of the Court’s statute. The UN Secretary General gathers this list of nominees and presents it to the General Assembly and the Security Council, who proceed independently from one another during the election. In order to be elected to the Court, a candidate will have to obtain an absolute majority in both the General Assembly and the Security Council.
The selection process for regular ICJ judges ensures that all the “principal regions of the globe” are represented in the Court at all times (ICJ 2006b). At present, two judgeships are reserved for countries in Latin America and the Caribbean, five for Western Europe and its offshoots –including the US, Canada, Australia, etc. –three for Africa and Asia each, and two for Eastern Europe (ICJ 2006b).
The process for selecting ad hoc judges has fewer participants and bureaucratic restrictions. A party to a dispute without representation among the regular judges is generally free to name an ad hoc judge at its discretion (ICJ 1978, Art. 35). The only requirement for ad hoc judges is that they too must be prominent jurists in their nations, preferably those presented by the governments as candidates for a regular seat in the ICJ. Once a decision on the name of the ad hoc judge has been reached, the party must notify the Court, and if the opposing party and the Court itself present no objections, the judge joins the bench with the same rights and privileges of regular judges for the duration of the case (ICJ 1978, Art. 7). This relatively easy, constrain-free selection process contrasts with that of the regular judges, which is influenced by the politics of the General Assembly and the Security Council.
Another important point regards the impeachment of judges in the ICJ. Once a judge has joined the Court, removing her from the position is difficult to achieve, as she may only be dismissed by “the unanimous opinion of the other members (i.e., judges)” (ICJ 1945, Art. 8). To date, no ICJ judge has ever been dismissed. Thus, in practice, the only reasons why an ICJ judge leaves the bench are resignation, losing reelection, the end of two consecutive terms, and death.
Finally, in deciding cases, the ICJ works very much as any other high tribunal of justice. The Court accepts both oral and written evidence, and after the hearings are closed, the judges of the Court withdraw to deliberate in private (ICJ 1945, Art. 52 & 54). When a majority of the judges support the ICJ’s decision, it becomes a binding ruling for the parties, and a majority opinion is written (ICJ 1945, Art. 55 & 59). The judges who vote against the majority may write dissenting opinions (ICJ 1945, Art. 57).
National Preferences in the International Court of Justice
The individuals who serve as judges of the ICJ are leading experts in their field and presumably they have great respect for the ideas of justice and fairness –after all, they have dedicated their lives to studying and interpreting the law. Accordingly, one expects their judicial decisions to be unbiased, which means that for a number of similar cases, their rulings should be similar, regardless of the parties involved. In other words, most people would agree that the decisions of these international judges should only be guided by the facts of the case, and not by the identity of the parties in the dispute.
Nevertheless, there is a great body of evidence that points to a very different direction. As a matter of fact, judges in the ICJ usually favor the position of their own governments when these appear before the Court –they have a national bias. This behavior has been documented and discussed by scholars at least since 1968, when Professor Il Ro Suh of Baker University, using a data set of 203 ICJ votes, calculated that judges vote for their government’s position about 82 percent of the time (Suh 1968, 228). When studying them separately, Suh found that regular judges vote in favor of their States 70 percent of the times, while ad hoc judges do so in 91 percent of the cases (Suh 1968, 230). Furthermore, Suh found that in 5.5 percent of the times when regular judges voted in favor of their government’s position, they did so as only dissenters, while ad hoc judges showed this behavior in 19 percent of those votes (Suh 1968, 228).
These statistics are telling. Both regular and ad hoc judges recurrently vote in favor of their own countries, even against the opinion of the rest of the members of the Court. Suh demonstrates that, in general, judges do not act independently of national interests.
Nevertheless, although Suh’s points are illuminating, his dataset has the shortcoming that it was taken four decades ago. In that time, the world order has changed significantly, globalization has taken hold, and NGOs and other non-State actors have come to the forefront of world politics, challenging the supremacy of the State in international relations. Could it, then, be possible that Suh’s findings are outdated and that national biases in the ICJ are much weaker now? Consider that in the two decades since 1990 more cases were taken to the Court (72 in total) than in the forty-two years between 1947 and 1989 (71 cases). Perhaps this increase in the Court’s docket indicates greater trust in international justice, product of a decline in national bias within the ICJ.
Again, however, the evidence points in a different direction. In a 2004 paper, Eric A. Posner and Miguel de Figueiredo built their own dataset using much more recent information on votes by ICJ judges. According to their results, all ICJ judges voted for their home countries in 88.9 percent of the proceedings (Posner & Figueiredo 2004, 18). Again, ad hoc judges show a national bias more frequently than regular judges (90.5 percent of the times vs. 83.3 percent, respectively). Posner and Figueiredo’s results are consistent with those found by Suh thirty five years before. Time has not diminished the incidence of national bias in the Court; if anything, the frequency of this behavior has increased about 13 percent among regular judges!
Posner and Figueiredo also found evidence that ICJ judges have other biases besides that for their own state. In their study of 1358 proceedings at the ICJ, they concluded that ICJ judges favor states whose level of economic development is similar to that of their own states (Posner & Figueiredo 2004, 21). If the GDP of a country is very close to that of the judge’s nation, there is a probability of around 80% that she will vote in favor of that country. If the GDP of the judge’s nation and that of the litigant differ widely, that probability goes down to 20%. Furthermore, judges also favor States with similar political systems to their own, so that judges who come from democracies tend to vote against nondemocracies, and vice versa (Posner & Figueiredo 2004, 22).
Although none of these preferences are as strong as the national bias, they do indicate the existence of an important phenomenon that is useful for the discussion at hand: bloc voting at the ICJ. The results summarized in the previous paragraph suggest that judges coming from wealthy democracies would vote similarly, forming one camp, whereas judges from poorer nondemocracies would form another clear bloc.
In 1978, Thomas Hensley from the Kent State University in Ohio found some evidence on this, and wrote that votes in the ICJ “reveal several two- and three-judge blocs” (Hensley 1978, 39). Studying the permanent members of the Court of 1972, Hensley found that the two Communist judges (from the Soviet Union and Poland) had high levels of agreement across a number of ICJ rulings (Hensley 1978, 46). Furthermore, the five judges from NATO (from Belgium, Canada, France, the United Kingdom, and the United States) usually voted in a similar way, too. Perhaps these “clear differences between Western and Communist justices”, as Hensley puts it, are unsurprising given that the Cold War was taking place at the time (Hensley 1978, 48). However, the fact that ICJ judges form blocs according to international alliances and similarities in political and economic systems should give pause for thought. The evidence that ICJ judges are not entirely objective, given that they tend to favor their own countries and their allies, keeps piling up.
Looking at all the evidence mentioned above, one may think that national bias is something to be expected from all tribunals formed by judges from different countries. Perhaps there is nothing special about the ICJ in that respect. However, Martin Kuijer from the University of Leiden found that this is not necessarily the case, and that the national bias in the ICJ is particularly sharper than in other international Courts. Kuijer compared voting behavior at the ICJ with that at the European Court of Human Rights (ECHR), a Strasbourg-based tribunal that monitors respect to human rights in its 47 member States. Comparing the ICJ and the ECHR is convenient because the two Courts use ad hoc judges (Kuijer 1997, 50).
Kuijer’s comparison does not show ICJ judges in a good light: judges in the ECHR voted against their government’s position in 61.6 percent of the 375 cases he studied (Kuijer 1997, 58). That is an enormous difference with the 10 percent of the cases in which ICJ judges vote in opposition to their national governments. Nevertheless, when taking ECHR ad hoc judges alone, the national bias increases significantly, as it occurs in the ICJ: Kuijer’s data says that these judges voted in favor of their own governments 60.9% of the cases in the European court (Kuijer 1997, 60). In any case, this number is not even close to the frequency with which ICJ ad hoc judges support the causes of their own States. Furthermore, judges in the ICJ are much more ready than ECHR judges to dissent from the majority of the Court and favor their home countries. While ECHR judges favored their States against the majority of the Court in just 11.2 percent of the votes, ICJ judges behaved that way 43 percent of the time, according to Kuijer’s data (Kuijer 1997, 58-63).
The studies by Suh, Posner and Figueiredo, Hensley, and Kuijer leave little doubt that the judges of the ICJ exhibit a particularly strong case of national bias. The next section of this paper explores some of the reasons why this behavior occurs. But first, let us examine a couple of specific examples of national bias in the ICJ, using both the majority and the dissenting opinions of the judges.
Case study 1: Nicaragua v. United States of America, 1984-1986
In 1984, the Sandinista-run government of Nicaragua filed a suit against the United States in the International Court of Justice. The Nicaraguans maintained that the US Government had trained a group “of more than 10,000 mercenaries”, known as contras, along their border with neighboring countries, and that these armed groups were “direct[ing] attacks against human and economic targets inside Nicaragua” (Government of Nicaragua, 2). On its side, the United States argued that the dispute was “not within the jurisdiction of the Court” because Nicaragua had not provided proof of its ratification of the Court’s Statute (US Counter-memorial 1984, 4). Furthermore, the US maintained that its actions were justified by “the inherent rights to individual and collective self-defense guaranteed to any such other State by Article 51 of the [United Nations] Charter” (US Counter-memorial 1984, 133)
Two years later, the ICJ issued a judgment containing sixteen operative clauses on which the Court voted separately (ICJ 1986). Most of the clauses condemned the US for its training of the contras. Clause two, for instance, rejected the American justification of collective self-defense and ruled that the United States “had acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another state” (ICJ 1986, 161). In a textbook example of national preferences at the ICJ, Judge Stephen Schwebel of the United States voted against this plus other eleven clauses of the judgment. Judge Schwebel even voted as only dissenter against three of the clauses (nos. 7, 14 and 15), two of which ruled that the United States was “under an obligation to make reparation to the Republic of Nicaragua for all injury caused” (ICJ 1986, 162).
In his dissenting opinion, Judge Schwebel repeated some of the same arguments that had been put forward by the representatives of the United States before the Court. He took his country’s position and defended it from the bench. In his dissenting opinion, the judge wrote again that Nicaragua could not act before the ICJ because it had not ratified the Court’s statute (Scwhebel, 560). Furthermore, Schwebel argued that the United States “acted lawfully” in its support of the contras, as it was reacting “in collective self-defense” in support of Nicaragua’s neighboring countries, which had previously been attacked by Nicaragua. (ICJ 1986, 168). Providing an example of bloc-voting, two other judges also voted against the opinion of the Court: Sir Robert Jennings of the United Kingdom, and Shigeru Oda of Japan.
Case study 2: Malaysia/Singapore 2003-2008
On July 2003, the Governments of Malaysia and Singapore notified the ICJ that they had entered an agreement by which they requested the Court to determine whether three groups of islands (Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge) belonged to one country or the other. As neither State had a national judge sitting in the Court, both Singapore and Malaysia elected ad hoc judges for this case (ICJ 2008, 1).
Predictably, in the written proceedings of the case, both countries claimed to have sovereignty over all three islands. Malaysia argued that its claim over Pedra Branca/Pulau Batu Puteh was much older than Singapore’s 1980 claim, and that the islands lie significantly closer to the Malaysian mainland (Government of Malaysia 2003, 3). In the following pages of its Memorial to the Court, Malaysia made similar claims about the other two islands. On its side, Singapore argued that Pedra Branca/Pulau Batu Puteh was part of its territory since the 1840s, and that Malaysia had “purported to include Pedra Branca within Malaysia’s territorial waters” since 1979 (Government of Singapore 2003, 1).
In a three-clause decision, the Court decided that sovereignty over Pedra Branca/Pulau Batu Puteh belonged to Singapore, and that sovereignty over Middle Rocks belonged to Malaysia (ICJ 2008, 13). South Ledge would belong to the State in the territorial waters of which it is located, leaving the matter to interpretation. Following a national bias, the Malaysian ad hoc judge Dugard voted against the first clause, while the Singaporean ad hoc judge Sreenivasa Rao voted against the second clause as only dissenter (ICJ 2008, 13). None of the two judges dissented on the third clause. This case illustrates how ad hoc judges vote for/against clauses depending on whether or not they benefit their national governments.
