This is the second part of my paper on national bias in the International Court of Justice. If you haven't read part one, go here.
CAUSES AND CONSEQUENCES OF NATIONAL PREFERENCES IN THE ICJ
It has been widely shown that judges in the ICJ have a strong national bias. But what can explain this behavior? Although it may be partly true, simply saying that the judges favor their nations because they are patriotic is an unsatisfactory answer. Moreover, what is the impact that this voting behavior has on the independence of the Court? Some could easily jump to the conclusion that the national bias destroys all impartiality in the ICJ, but, as this section shows, the reality is much more complex.
The reasons that explain the voting behavior of national judges may be psychological, academic, institutional, economic or ideological. Let us begin with the first two categories: it is understandable that ICJ judges have “strong emotional ties with their countries”, as Posner and Figueiredo put it (Posner & Figueiredo 2004, 11). After all, ICJ judges usually have served as politicians, attorneys, diplomats, public administrators, magistrates, etc. in their nations before joining the Court.[1] Their reputations as respected, well-connected people have the consequence that judges could be afraid of getting bad press in their home countries if they vote against them. Public opinion may count in their calculations. In addition, it is natural that ICJ judges have greater knowledge of the legal system and practices of their home countries. In other words, they are much more used to the way justice is made and understood in their nations. It is difficult to put aside all these experiences and emotional ties, especially when the national interests of one’s own country are at stake. These psychological and academic constraints could explain the national bias in the Court to some extent.
Nonetheless, the previous section of this paper shows that judges in the ECHR do not have the same national bias that ICJ judges have. Why is this? There has to be something specific in the way the ICJ operates (i.e., in its institutional characteristics) that explains this behavior. The first of these institutional reasons is the fact that judges are rarely (in fact, never) dismissed by their fellow judges. Obtaining the unanimity (fourteen votes) needed to dismiss one judge is a costly process, and it is easy to see that the existing two and three-judge voting blocs in the Court, as described by Hensley, make this process virtually impossible. Therefore, ICJ judges know that they can repeatedly vote in favor of their nation without fear of being dismissed by their fellow judges.
The second institutional explanation for the national bias in the ICJ is, in a way, the opposite of the previous one. The other Members of the Court may be unable to affect a judge’s position, but there is someone else who has power over the judge’s job: her national government. During the judge election process, it is national governments who choose their candidates and who lobby other UN members for their votes in the General Assembly and the Security Council. Judges could lose reelection support from their governments if they vote consistently against their contentions. Thus, if a judge wants to retain his position, it is in her interest to favor her State when it appears before the Court. No fear of dismissal if they vote for their country, and fear of losing reelection if they do not, helps explain the national bias, too.
What happens with ad hoc judges? They are not running for reelection, and once elected they stay in office for the entire duration of the case. Then, why is it that they vote for their national governments with astounding frequency? A national government is able to elect ad hoc judges at its discretion, and after the dispute has reached the Court. As a consequence, governments usually choose judges who have a formed opinion in the case and who will favor their contentions once on the bench (Kuijer 1997, 51). This ex post capacity of national governments to choose ad hoc judges guarantees that these judges will be biased almost by default. This also helps explain why ad hoc judges show a greater national bias than regular ICJ judges.
The economic reasons, of national bias are related to the points made in the paragraph above. Although the ICJ judges obtain their annual salary from the Court’s coffers (and not their government’s), judges are not at risk of losing their wage if they displease their government (ICJ, 2006b). However, when they vote, judges may be thinking about their financial stability after leaving the ICJ. A government can punish a ‘disloyal’ judge by deciding to give her no other public positions when their tenure ends (Posner & Figueiredo 2004, 11). Posner and Figueiredo logically conclude that “these considerations are likely to weigh even more heavily in the calculations from authoritarian states” where control of the economy remains largely in the hands of the State (Posner & Figueiredo 2004, 11).
Finally, there are some ideological explanations as well. As it was mentioned, judges usually vote for countries that have political systems and levels of wealth similar to those of their own states. This could stem from a belief that some sorts of government and economic organization are better than others (e.g., democracies vs. dictatorships, capitalism vs. planned economies). Also, judges from poor countries may be more open to the belief that poor nations deserve retribution from richer States (e.g., for past colonial practices, trade policies, etc.), while judges from developed countries may think the contrary. These beliefs, if ingrained in the judges’ minds, may have a bearing in the way they vote. Given their profound convictions, judges could be ideologically predisposed to favor their own nations and other countries with similar characteristics.
All the reasons shown above sound rather cynical. Are ICJ judges so guided by their patriotic, personal, and material considerations that they are unable to look at the cases with at least some objectivity? What about the ideals of international law and justice to which they have dedicated a good part of their careers? Actually, there is a final explanation of national bias (which is not discussed in depth in any of the works cited here) that takes this last issue into consideration: ICJ judges may decide to vote in favor of their nations in order to preserve their country’s commitment to the Court and to international justice. If a government comes to believe that its point of view is rarely represented on the Court’s bench, this could reduce its willingness to comply with the judgments of the ICJ and lead it to stop seeing the Court as a tribunal where its contentions will be treated fairly. This is something that national judges may take into account, especially if their nation has shown some opposition to the ICJ in the past. Thus, national judges could see themselves as the keepers of the Court’s credibility before their government’s eyes, understanding that to vote against their country could undermine the job of the ICJ.
This leads us to the consequences of national bias at the ICJ. Many criticize this behavior by arguing that it puts into question the impartiality of the Court. Yet, the previous paragraph points to a different logic. The national bias may be “a political necessity” for the ICJ to work, given that it may increase confidence in and compliance with the Court’s decisions (Kuijer 1997, 51-52). If there was no guarantee that the position of all litigant parties would be represented on the bench, national governments could be less willing to trust the ICJ (Kuijer 1997, 56). In this case, a court of sovereign States where territorial, economic and other important national interests are discussed sounds like the one place where one should be allowed as a judge in one’s own cause. As some have argued, allowing permanent and ad hoc national judges to sit in the Court is a political concession that helps the cause of international law.
Nonetheless, the above does not solve the issue of the Court’s impartiality. Regardless of its ‘political necessity’, the national bias could still represent a danger for the objectivity of the ICJ. This point of view, however, does not hold in practice. Allowing national judges to sit in the Court does not diminish the ICJ’s impartiality or change the outcome of the cases. There are two main reasons why this occurs: First, in a normal case with two litigants there are maximum two national judges on the bench (one for each party). If these national judges vote in favor of their own countries, as it occurs 90 percent of the times, their votes will cancel out, having no bearing on the final outcome, as all rulings are made by majority decision (Posner & Figueiredo 2004, 12). Second, it is fact that the vast majority of cases at the ICJ are decided by large majorities of ten or more judges. In almost all cases, there are few dissenters, and so, there are almost no close votes in the Court. Out of the 140-odd cases on which the ICJ has issued judgments since 1949 there are only two (Liberia v. South Africa and Ethiopia v. South Africa, both on 1966) that were decided in an 8-7 split vote. This means that the votes of national judges are almost never decisive in swinging a decision one way or the other, as the outcome would have been exactly the same as if they had not been sitting in the Court.
CONCLUSION
There is a large body of evidence showing that judges at the ICJ tend to favor their home states and states with similar characteristics to their own. The statistical work of scholars and the opinions written by the judges are proof of this national bias. As their position in the Court and their future financial stability inter alia depend on the support of their national governments, it is logical that ICJ judges favor the contentions of their own States. Nonetheless, judges may also support their nations as a way to uphold the credibility of the Court and of its judgments.
Although some claim that this national bias hinders the Court’s credibility, this is not the case. Statistically, the votes of national judges are irrelevant for the decisions of the ICJ, as they almost never alter the outcome of the cases. Furthermore, as the votes of the two opposing national judges usually cancel each other out, there is no ground for the argument that the national bias has an impact on the Court’s decisions. Therefore, although ICJ judges are certainly one-sided regarding their own countries, the Court as a whole remains impartial and largely unaffected by the existence of the national bias.
For these reasons, changing the Court’s structure in order to prevent national judges from participating in the cases would be both unnecessary and potentially harmful. It would be unnecessary because keeping national judges out of the procedures would not alter the outcome of the vast majority of cases. And it would be potentially harmful because it can diminish both the credibility of the ICJ and the compliance with its decisions among sovereign States.
As many nations turn to the ICJ in order to solve disputes that could also be dealt with through other less preferable means (war being the most destructive), maintaining the credibility of the Court is a task of utmost importance. All changes that could damage the trust that sovereign States have put in the ICJ should be left aside. There can be little doubt that getting rid of regular and ad hoc national judges would be one of these unwelcome changes.
WORKS CITED
Government of Nicaragua. (1984, April 9). Application Instituting Procedures . Retrieved January 13, 2010, from International Court of Justice: http://www.icj-cij.org/docket/files/70/9615.pdf
Government of Singapore. (2004, March 25). Memorial of Singapore. Retrieved January 12, 2010, from International Court of Justice: http://www.icj-cij.org/docket/files/130/14133.pdf
Government of the United States. (1984, August 17). Counter-memorial of the United States. Retrieved January 12, 2010, from International Court of Justice: http://www.icj-cij.org/docket/files/70/9627.pdf
Hensley, T. R. (1978). Bloc Voting on the International Court of Justice. The Journal of Conflict Resolution , 22 (1), 39-58.
International Court of Justice. (2006a). How The Court Works. Retrieved January 6, 2010, from The International Court of Justice: http://www.icj-cij.org/court/index.php?p1=1&p2=6
International Court of Justice. (2006b). Members of the Court. Retrieved January 6, 2010, from The International Court of Justice: http://www.icj-cij.org/court/index.php?p1=1&p2=2
International Court of Justice. (1978, July 1). Rules of Court. Retrieved January 6, 2010, from International Court of Justice - Basic Documents: http://www.icj-cij.org/documents/index.php?p1=4&p2=3&p3=0
International Court of Justice. (1945, June 26). Statute of the International Court of Justice. Retrieved January 6, 2010, from The International Court of Justice: http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0
International Court of Justice. (1986, June 27). Summary of Judgment of June 27, 1986. Retrieved January 12, 2010, from International Court of Justice: http://www.icj-cij.org/docket/files/70/6505.pdf
International Court of Justice. (2008, May 23). Summary of the Judgment of 23 May 2008. Retrieved January 12, 2010, from International Court of Justice: http://www.icj-cij.org/docket/files/130/14506.pdf
International Court of Justice. (2006c). The Court. Retrieved January 12, 2010, from International Court of Justice: http://www.icj-cij.org/court/index.php?p1=1
Kuijer, M. (1997). Voting Behaviour and National Bias in the European Court of Human Rights and the International Court of Justice. Leiden Journal of International Law , 10 (1), 49-67.
Madison, J. (1787, November 22). The Federalist No. 10. Retrieved January 6, 2010, from Constitution.org: http://www.constitution.org/fed/federa10.htm
Posner, E. A., & Figueiredo, M. D. (2004, December). Is the International Court Biased? Chicago John M. Olin Law & Economics Papers .
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[1] The biographies of the current judges in the ICJ may be found at: http://www.icj-cij.org/court/index.php?p1=1&p2=2&p3=1
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