The Politics of Adjudication

Article excerpt

The panel was convened at 10:45 a.m., Friday, April 11, by its moderator, Daniel Terris of Brandeis University, who introduced the panelists: Stephen M. Schwebel, formerly of the International Court of Justice; Jacob Wit of the Caribbean Court of Justice; Merit Janow of Columbia University; and Georges Abi-Saab of the Graduate Institute of International Studies in Geneva. *

INTRODUCTION

By Daniel Terris ([dagger])

Under the broad rubric of the politics of adjudication, we are asked to consider the relationship between the work of international judges, arbitrators, and the institutions of which they are a part and the world of politics broadly considered.

This session gives us the opportunity to consider "politics" here on at least three levels.

First, there is the relationship between judges and other adjudicators and the political process. How do individual judges conduct their work within the ebb and flow of the actions, desires, and influence of states and other political bodies? Under what pressures do these individuals find themselves? What resources do they have? To what extent do they consider politics in their work? To what extent can they be insulated from politics? To what extent is such insulation desirable?

Second, there is the nature of judicial institutions as political institutions. International courts themselves operate in the global political realm, conducting their work among other powerful institutional actors, including states, inter-governmental organizations, NGOs, and other bodies. This consideration of institutional politics is distinct from the role of the individual judge, since it considers courts as collective bodies. Of course, there are nevertheless points of overlap.

A third aspect of the politics of adjudication is, perhaps, less frequently considered: the importance of the internal politics of judicial bodies. To what extent do internal considerations of power, prestige, and diplomacy affect the work of international adjudication? Since international judicial bodies are human institutions, these aspects are likely to play a part in their work, as they do in other professional environments. These internal dynamics may sometimes be related to other aspects of politics, but they are generally the least discussed, perhaps because outsiders have few opportunities to examine the closely-held details of the inner workings of the courts.

Public commentary regarding the relationship between politics and international judicial bodies often comes in one of two distinct flavors. On the one hand, critics of international courts unhesitatingly label the work of those courts "politics, not law," making the broad assumption either that international judges are simply performing the bidding of their countries of origin, or the equally broad assumption that states only use and heed international courts when it serves their political interests. Sometimes these critics make both arguments at once.

Some international judges themselves, on the other hand, perhaps bruised by these criticisms, are sometimes heard to fall back on a bland insistence that they simply follow the law, and that they exclude political considerations by mere professional will.

My own experience in listening to international judges suggests that the most reflective practitioners in this field bring a much more nuanced set of considerations to the table. Over the past several years I spoke with an extensive number of judges, along with my co-authors Cesare Romano and Leigh Swigart, as part of the research for our book: The International Judge: An Introduction to the Men and Women Who Decide the World's Cases (Hanover, N.H. and Oxford: Brandeis University Press and Oxford University Press, 2007)

We came to the conclusion that judges are reasonably realistic and sanguine about the idea that politics is not and cannot be removed from their work. …