In Review:
New Publications on International and Comparative Law
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The International
Judge
by Daniel Terris, Cesare P.R. Romano and Leigh Swigart.
Brandeis University Press. 2007
It is not often that writers and scholars have an opportunity to author a book devoted to an entirely new topic and to discuss a subject that has never been written about before. However, Daniel Terris, Cesare Romano and Leigh Swigart have admirably seized this opportunity.
This is a book for and about judges. That in itself is not unique. Many commentators have written numerous books, essays, and commentaries about courts and the judges who sit in them. But this book focuses on a new genre of judges; those honorable souls who sit on international courts and hear and decide cases that deal almost exclusively with international law.
In perusing this volume, one is struck almost immediately about one quality – the thoroughness of its coverage on the subject. There is, at least to this reviewer, no stone that has been left unturned. For any judge who has a curiosity about international courts and perhaps a desire to sit on an international tribunal, this is a “must read.” It covers every aspect of international courts and international judging that a prospective judicial applicant would want to and would need to know about before seeking an international judicial office.
The book begins appropriately with a “brief history of international adjudication,” focusing on three “milestones:” modern international arbitration, judicial settlement, and the transition of international courts from those that settle disputes between states to those acting as “agents of international justice” for entities other than or in addition to states.
The authors wisely identify the five basic elements that characterize true international courts and then list those courts that meet the following five criteria:
- The court is permanent or at least has been in existence for an extended period of time.
- The court has been established by an international legal instrument.
- The court uses international law to decide cases.
- The court decides cases on the basis of rules of procedure that pre-exist any particular case and not capable of being modified by any party to a case.
- The court can issue judgments that are legally binding on the parties to a dispute.
There are currently 17 international tribunals that meet all of these criteria, beginning with the International Court of Justice (World Court) sitting in The Hague. The book focuses on the first thirteen in the list because they are “the most active and consequential institutions.”
The first chapter also identifies three key characteristics of international obligations that states have accepted that make international courts important for resolving international disputes:
- State behavior is “increasingly subject to scrutiny under the general rules, procedures, and discourse of international law.”
- Such rules and procedures are “increasingly precise in the conduct they require, authorize and proscribe.”
- The authority to “implement, interpret and apply those rules, and to create further rules and/or settle disputes arising out of their implementation is often delegated.”
Thus, the first chapter provides the general framework for the discussions that take place in the later chapters.
The second chapter, however, will be of more interest to judges in general and to those members of the judiciary who may be interested in seeking a position in an international tribunal. The chapter title suggests its content, “International Judges: Who Are They and How Do They Get on the Courts?” After noting that the main route to serving on international courts “almost invariably starts with being chosen by one’s own government as the national nominee,” a “group portrait” is presented that includes discussions of origins of judges, education, gender, the job market, the selection process, vetting candidates, and election or appointment.
Atypically for the usual book of this type, the authors “humanize” the discourse by presenting individual portraits of five judges who actually sit on international courts (one has sent departed from his international tribunal due to term expiration since the book was published). These portraits, interspersed among the six chapters, include:
Judge Navanethem Pillay (South Africa of the
International Criminal Court)
Judge Thomas Buergenthal (United States)
of the International Court of Justice
Judge Georges Abi-Saad (Egypt) of the World
Trade Organization Appellate Body
Judge Cecelia Medina Quiroga (Chile) of the
InterAmerican Court of Human Rights
Judge John Hedigan (Ireland) of the European
Court of Human Rights (now returned
to the High Court of Ireland)
(Two of these judges have been profiled in the International Judicial Monitor.)
These profiles add immeasurably to the quality and usefulness of the book, because they present real life stories of how these judges came to be sitting on their respective courts and offer contrasting views about the international judicial experience.
Of particular importance to the prospective international judge are the two successive chapters on “International Judges and International Law” and “Between Law and Politics.” The former focuses on the need to understand the role of international law in the processes of international courts (an understanding needed in the U.S. where the very concept of international law has come into question). The latter discusses the role that politics necessarily plays in the functioning of international courts, a situation that is often at odds with the concept of an independent judiciary so prevalent in many domestic legal systems. Because international judges “have not inherited institutions of law” and must build then “brick by brick, law by law” they have been forced to “create a new professional role, combining the remote erudition of the scholarly jurist with the political savvy of the international civil servant.”
In the final “Conclusion” chapter, the authors note that “some envision a world where the international rule of law hinges on an integrated network of international courts that bring increased predictability and accountability to matters of economy and crime, war and peace” (this reviewer among them). Such future depends, according to the authors, on three principal trends:
- “[T]he development of a worldwide community of international judges has the potential to stimulate innovative legal thinking and to enhance the stability of international law...”
- “[T]he controversial role of international judges as builders-not merely interpreters-of the law has contributed to significant advances in the the clarity and scope of international law...”
- “[T]he fragility of international judicial bodies-in
terms of resources,
public respect, and reliance on governments acting in concert-casts
doubt upon the future of the strength and independence of these courts.
The authors conclude that “each of these contains seeds of promise and of doubt.”
If there is any reasonable hope for a long and continuous peace in the world under the rule of law, international courts will have to play an important role in the process. And international courts will need enlightened, competent judges to sit on them. Hopefully, this book will encourage judges not only in the U.S. but around the world to think about the international judiciary and promote the concept of international courts. Perhaps it will lead them to consider a career as an international judge by providing them with all of the necessary information required for such a decision.
The only conclusion one can have after a reading this book on “the international judge” is that not only is it the first word on the subject as noted at the beginning of this review, it will probably be, for a long time to come, the last word also.
By James G. Apple, Writer, International Judicial Monitor and President, International Judicial Academy; and Christine E. White, International Judicial Academy
International
Judicial Monitor