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International Adjudication: Peaks, Valleys, and Rolling Hills

Published online by Cambridge University Press:  22 March 2019

Joan E. Donoghue
Joan E. Donoghue*
Affiliation:
International Court of Justice.
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Extract

This lecture is not styled as a tribute to Professor David Caron, but I shall invoke his scholarship today, not only because this Annual Meeting is dedicated to his memory, but also because of his many insights into dispute settlement.

Type
Twentieth Annual Grotius Lecture
Information
Proceedings of the ASIL Annual Meeting , Volume 112 , 2018 , pp. 15 - 22
Copyright
Copyright © by The American Society of International Law 2019 

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Footnotes

The author thanks Cyril Emery, Xavier-Baptiste Ruedin, and Julia Sherman for their research assistance. Any errors, however, are attributable solely to the author.

Judge Joan Donoghue of the International Court of Justice, and discussant Dapo Akande, Professor of Public International Law at Oxford University Faculty of Law, provided the Twentieth Annual Grotius Lecture on Wednesday, April 4, 2018 at 4:30 p.m.*

*

This lecture will also be published in the American University International Law Review (AUILR), forthcoming 2018. Professor Akande did not contribute remarks for the Proceedings. Note for readers: this lecture reflects the style conventions of the AUILR as it is published in both publications.

References

1 See Caron, David D., War and International Adjudication: Reflections on the 1899 Peace Conference, 94 Am. J. Int'l L. 4, 5-6 (2000)CrossRefGoogle Scholar.

2 See generally id.; Manley O. Hudson, The Permanent Court of International Justice 1920-1942: A Treatise (1942); Denna F. Fleming, The United States and the World Court, 1920–1966 (rev. ed. 1968); James B. Scott, An International Court of Justice (1916) (giving valuable descriptions of the 1899 and 1907 Hague Peace Conferences).

3 The origins of the PCIJ and the drafting of its Statute, as well as the progression from that Court to the ICJ, are described in Spiermann, Ole, Historical Introduction, in The Statute of the International Court of Justice: A Commentary 47 (Zimmermann, Andreas et al. eds., 2d ed. 2012)Google Scholar.

4 See Statute of the International Court of Justice arts. 2, 36-39, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 933.

5 See Caron, supra note 1, at 17, 21-22; Hudson, supra note 2, at 145-46; Scott, supra note 2, at 21.

6 Statute of the International Court of Justice art. 2, supra note 4.

7 Id. art. 4.

8 Id. art. 4(1).

9 Id. art. 2.

10 Id. art. 8.

11 Id. art. 9.

12 Lachs, Manfred, Some Reflections on the Nationality of Judges of the International Court of Justice, 4 Pace Int'l L. Rev. 49, 59 (1992)Google Scholar.

13 See Declarations Recognizing the Jurisdiction of the Court as Compulsory, ICJ, https://www.icj-cij.org/en/declarations (last visited Sept. 28, 2018) (stating that there are currently seventy-three states that have accepted the compulsory jurisdiction of the Court under Article 36(2) of the Statute).

14 See Statute of the International Court of Justice art. 36, supra note 4.

15 See Declarations Recognizing the Jurisdiction of the Court as Compulsory, supra note 13.

16 See, e.g., Arthur Mark Weisburd, Failings of the International Court of Justice 4 (2016); Eric A. Posner, The Perils of Global Legalism 149 (2009).

17 Caron, supra note 1, at 26.

18 See Crook, John R., The International Court of Justice and Human Rights, 1 Nw. U. J. Int'l Hum. Rts. 2, 6-7 (2004)Google Scholar (addressing the slow pace of the ICJ litigation and “rudimentary procedures” that persist in the Court).

19 See, e.g., Michael Bobek, Selecting Europe's Judges: A Critical Review of the Appointment Procedures to the European Courts 5 (2015); Ruth Mackenzie et al., Selecting International Judges: Principle, Process, and Politics 1-2 (2010); Keith, Kenneth J., International Court of Justice: Reflections on the Electoral Process, 9 Chinese J. Int'l L. 49, 49 (2010)Google Scholar.

20 See generally Mackenzie et al., supra note 19.

21 See Posner, Eric A. & de Figueiredo, Miguel, Is the International Court of Justice Biased?, 34 J. Legal Stud. 599, 599 (2005)CrossRefGoogle Scholar (arguing that there is evidence that ICJ judges vote in the interests of their countries of nationality).

22 Statute of the International Court of Justice arts. 36, 65, supra note 4.

23 See id. (setting out the court's jurisdiction in respect of contentious cases and advisory opinions, respectively).

24 Caron, David D., Fifth Annual Charles N. Brower Lecture on International Dispute Resolution: The Multiple Functions of International Courts and the Singular Task of the Adjudicator, 111 Am. Soc'y Int'l L. Proc. 231, 236 (2017)Google Scholar.

25 See id. at 239 (“[I]f one uses a screwdriver as a hammer, not only does one hammer inefficiently, but eventually the tool turns into a hammer.”).

26 Registry of the Court, Int'l Court of Justice, A Dialogue at the Court: Proceedings of the ICJ/UNITAR Colloquium held on the Occasion of the Sixtieth Anniversary of the International Court of Justice, at the Peace Palace on 10 and 11 April 2006 1 (2006) (summarizing the 2006 colloquium); Crawford, James & Keene, Amelia, Editorial, 7 J. Int'l Disp. Settlement 225, 227-230 (2016)Google Scholar (containing a record of the proceedings of the 2016 Seminar, including an enumeration of the main proposals for reform of the Court's rules and procedures).

27 See Mackenzie et al., supra note 19, at 98-99 (asserting that open and transparent processes for nomination to the ICJ lead to a greater focus on the merit of candidates than do closed processes).

28 See Bobek, supra note 19, at 33-34; see also Mackenzie et al., supra note 19, at 158–59 (asserting that formal screening mechanisms are comparatively “developed and credible” in the context of so-called full-representation courts in which each state is entitled to have a judge of its nationality on the bench).

29 Broches, Aron, The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 136 Recueil des Cours 331, 344 (1972)Google Scholar.

30 See id. at 342-43.

31 See Convention on the Settlement of Investment Disputes Between States and Nationals of Other States art. 25, opened for signature Mar. 18, 1965, 17 U.S.T. 1270, T.I.A.S. No. 6090, 575 U.N.T.S. 159 (entered into force Oct. 14, 1966).

32 See generally ICSID Rules and Regulations Amendment Process, <ICSID, https://icsid.worldbank.org/en/Pages/about/Amendment-of-ICSID-Rules-and-Regulations.aspx (last visited Oct. 27, 2018).

33 See, e.g., Gabrielle Kaufmann-Kohler & Michele Potestà, The Composition of a Multilateral Investment Court and of an Appeal Mechanism for Investment Awards, Ctr. Int'l Disp. Settlement (Nov. 15, 2017), http://www.uncitral.org/pdf/english/workinggroups/wg_3/CIDS_Supplemental_Report.pdf; CETA Explained, Eur. Comm'n Directorate-Gen. for Trade (Sept. 21, 2017), http://ec.europa.eu/trade/policy/in-focus/ceta/ceta-explained/index_en.htm; The Multilateral Investment Court Project, Eur. Comm'n Directorate-Gen. for Trade (Dec. 21, 2016), http://trade.ec.europa.eu/doclib/press/index.cfm?id=1608.