Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Manley O, Hudson Medal Lecture

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Manley O, Hudson Medal Lecture

Article excerpt

The lecture began at 4:00 p.m., Thursday, March 26, and was given by Charles N. Brower of the Iran-United States Claims Tribunal.

THE EVOLUTION OF THE INTERNATIONAL JUDICIARY: DENATIONALIZATION THROUGH JURISDICTIONAL FRAGMENTATION

I. INTRODUCTION

In 1925, Manley O. Hudson delivered a pair of lectures at Cornell University honoring the 300th anniversary of Hugo Grotius' publication of his works on "The Law of War and Peace," in which he took the international legal community to task for its failures to respond adequately to the chaos and calamities of World War I. He found the international legal order then to be lacking a jurisprudence and methodology of international law that "served the social needs of the time"--ultimately world peace--and was both coherent and devoid of the nationalism with which he felt the then extant sources of international law were imbued. He expressed the hope that with the establishment of the Permanent Court of International Justice, "a new era will dawn for the judicial development of the law along truly international lines." (1)

In 1944, with the world yet again suffering the ravages of global conflict, Hudson wrote in the preface to his monograph, International Tribunals Past and Future, that war once again had emphasized the need to "reexamin[e] the basic institutions of world society," with a view to "reshape many of those institutions for the better serving of future needs," with special attention to be given to the "remodeling and adaptation of international judicial institutions." (2)

In his 1925 lectures, Hudson wisely had cautioned that the evolution of international law would not be the work of a single generation and that its transformation was "not a goal but a process.., not a destination but a method of travel." (3) So in Hudson's estimation, the child's anxious query from the back seat of the car, "Are we there yet?", is not appropriate for this particular journey; we are never "there," rather, we are perpetually en route. The question I therefore pose is not, "Are we there yet?", but rather, how efficient (and comfortable) is our chosen "method of travel"?

In what follows, I propose to offer at least a partial answer, one directed to the focus of Hudson's life's work--international courts and tribunals--specifically, the role now played by the international judiciary in navigating our common course. As a necessary prelude, however, a very brief side trip is necessary into the eternal philosophical debate between Formalism and Realism, a debate historically carried out largely in the municipal context. Following that, I will address the pertinence of that debate in the international context, which adds the element of adjudicators' nationalities. (4) From there I explain how the influence of an adjudicator's nationality, whether actual or only perceived, is diluted in direct proportion to the narrowness of the adjudicator's jurisdiction. Finally, I note that fragmentation of international law is the necessary result of jurisdictional specification and evaluate its consequences.

II. JUDICIAL LAWMAKING IN THE MUNICIPAL CONTEXT

In September 2005, testifying before the Senate Judiciary Committee considering his nomination to become Chief Justice of the United States Supreme Court, John Roberts declared, "judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them." (5) In other words, judging is, in baseball terminology, just calling balls and strikes.

Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit has retorted to Justice Roberts' testimony with a parable of three different umpires who explain how they perform that task. The first is like a law professor; he calls them as they are. The second explains that he calls them as he sees them. The third maintains that there are no balls or strikes until he declares them so. …

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