Academic journal article Texas International Law Journal

"Judicial Nationalism" in International Law: National Identity and Judicial Autonomy at the ICJ

Academic journal article Texas International Law Journal

"Judicial Nationalism" in International Law: National Identity and Judicial Autonomy at the ICJ

Article excerpt

I. INTRODUCTION

While most states have come to view judicial independence as vital to the dispensation of justice in the domestic sphere,1 states do not have the same expectations of detached jurisprudence when facing disputes under international law. In fact, while a judge associated with a party to a domestic suit may be required by municipal law to recuse herself,2 in "international adjudication . . . [it has been assumed that] each State in the litigation should be permitted to have a judge of its own nationality on the bench."3 The rationale for this arrangement, and the demands of states that it continue, rests on an usually unspoken assumption: states believe that national judges will view fellow countrymen with greater sympathy than foreigners.4 Thus, though in almost every international forum there are regulations and customs limiting judicial conflicts of interest and adjudicators have regularly removed themselves from proceedings for such reasons,5 the vast majority of the fora allow, and even encourage, the existence of a base level of partiality which states believe stems from a judge's nationality.

Though the importance of judicial nationality has become visceral for many, its nearaxiomatic status among states remains curious. States have by and large failed to question the assumption of judicial partiality, presuming that their judges will vote with them and that others' judges will similarly follow their masters. By concentrating on the record of the International Court of Justice (ICJ), this article contends that while a continuing focus on nationality is understandable in the ICJ, the "nationality" bias of judges on the Court was never as powerful as claimed by alarmists and today seems to be breaking down even further.

For both critics and supporters of international justice, any existence of national6 judicial allegiance would be important-for the former it would buttress one of its most cogent critiques and for the latter it would prove another hindrance to the development of a truly transnational system of law. Part II of this article proceeds first by briefly examining the history of this "judicial nationalism," and the Permanent Court of International Justice (PCIJ)'s (1920-1942) and the ICJ's (1946-the present) tendencies to de facto and de jure assume national bias among their respective judges. The statutes, institutional structures, and practices of both organizations have been fundamentally impacted by the belief in judicial allegiance.7 Despite this, Part III will show, via a quantitative analysis of the Court's voting record from its inception through 2000, including a cross-tabulation of alliance voting on the body, that the power of nationality is indeterminate at best, rarely dispositive, and likely fleeting. Linking nationality with expected voting behavior is an over-simplified and blunt heuristic. Finally, Part IV looks to the future, both normatively and positively. It examines both why the nationality assumption seems to have failed and how such failure is being implicitly acknowledged among states, as manifested by the increasing inconsistency with which it is applied in fora apart from the ICJ. In particular, a substantial rift is emerging between public international law and private international law in this regard; the most recent regulations of the World Trade Organization (WTO) actually prohibit co-nationals from serving on arbitrations.8 It is this return to-and mounting importance of-the commercial, nonstate roots of international litigation (when it was conducted solely between commercial actors) that is ironically changing the landscape of interstate disputes.

Arguably, there remain important components of nationality that ought to be recognized. However, the claim that nationality matters in international jurisprudence, as a positive assertion, is so overbroad as to be inaccurate, while the claim that nationality should matter in such jurisprudence, as a normative assertion, seems unattractive in today's world. …

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