Inside the World Court: A Conversation with H.E. Judge Joan E. Donoghue, International Court of Justice

By:

Photo courtesy of the United Nations.

H.E. Judge Joan E. Donoghue has been a member of the International Court of Justice (ICJ), the principal judicial organ of the United Nations, since 9 September 2010. Prior to her ICJ appointment, H.E. Judge Joan E. Donoghue was Principal Deputy Legal Adviser in the U.S. Department of State (2007-2010), in addition other roles such as General Counsel and Corporate Secretary for Freddie Mac, and Deputy General Counsel for the U.S. Department of Treasury. In this blog post, H.E. Judge Joan E. Donoghue discusses the work of the Court and some challenges to public international law.

On the work of the Court and public international law

What do you see as the biggest challenges for Court in the coming years?

In the decades since the ICJ was created, other forms of international dispute settlement have emerged and have thrived. Notable examples are the International Tribunal for the Law of the Sea, the Dispute Settlement Body of the World Trade Organization, investor-state arbitration and the revitalization of the Permanent Court of Arbitration. These institutions can learn from each other, borrowing and adapting successful procedures. The ICJ must be open-minded about possible changes in established practices that would increase the vitality of the Court. On the substance of our work, we cannot expect every Judge and all observers to agree with the Court’s conclusions in each case, but we must always strive to demonstrate fairness to the parties and rigor of analysis in our decisions, bearing in mind not only the implications for parties, but also the role that our decisions inevitably play in the development of international law.

The ICJ is known as a world court without a world government. What do you think are the most crucial factors other than Article 94 of the U.N. Charter that make states comply with the court’s judgments despite the absence of a governing body to enforce them?

The reasons why states do and do not comply with international legal obligations, including the obligation to comply with ICJ judgments, are not well understood. Although much has been written about the subject, outside observers can never be certain about the reasons behind a state’s decision to comply (or not) with substantive law or with a judicial decision. We are engaged in speculation informed by theory. Among the reasons for compliance that are usually identified by scholars are a state’s concern about its reputation and reliability and a desire to avoid retaliation or another form of unfavorable response from the other state or states involved in a dispute.

The Judges of the ICJ come from 15 different States, with varying heritages and legal traditions. How does this affect the work of the Court?

Except when the parties request a smaller chamber (which they rarely do), all ICJ Judges participate in every case. Two or three Judges work with the President to produce an initial draft of a Judgment, which is then reviewed several times by the entire group. Such a process puts a premium on inclusiveness and collaboration, with some cost to efficiency. The process suits a court that is accountable not only to the parties to a case, but also to the entire UN membership.

The legal traditions in which Judges have been trained vary greatly. The Court is neither a civil law court nor a common law court. Its Statute, Rules and practices draw from both traditions. The two traditions diverge on such matters as the function of an oral hearing, the role of witnesses, the assessment of evidence and the manner in which a court presents its reasoning. As a result, even when ICJ Judges agree on the outcome on a particular issue, they may differ on the reasoning that leads to that outcome. Our collective drafting process requires careful communication within the Court, bearing in mind also that legal traditions affect the way in which outside readers will understand our judgments and orders.

How does your U.S. legal training affect your approach in deciding cases before the Court?

U.S. legal training focuses on the study of judicial decisions, in the context of a system in which those decisions both settle a dispute and serve as precedent that is binding law for non-parties to a case. U.S.-trained lawyers test assertions of law with reference to the process of distinction. We might ask ourselves, “is the present case the same as or different from case X or hypothetical Y? What do these distinctions tell us about the best way to state the law?” We see this reasoning, for example, when judges in the United States pose questions to counsel. This process of distinction and comparison does not feature prominently in the written reasoning of the ICJ, in which Judges from the common law tradition are inevitably in the minority. However, I find it valuable as I weigh competing legal propositions.

What do you expect from lawyers arguing before the Court? What do you think are some of the most effective advocacy techniques?

Oral proceedings in the ICJ take place after one or two rounds of written pleadings. In the hearings, advocates should focus on the issues that are likely to be most vexing for the Judges. Arguments should respond to the strongest points made by the other party. Parties should not shy away from setting out their fallback or alternative positions. Individual advocates must take care to establish and to preserve their credibility. Thus, counsel should not make flimsy assertions of law or fact, nor should they offload such arguments onto their junior colleagues. When a party speaks last in a hearing, there may be a temptation to slip new arguments or new evidence into counsel’s presentation, to which the other party will be unable to respond. Such maneuvers undermine credibility and can backfire.

Do you think international law should be a mandatory course in American legal education?

U.S. lawyers might go through their entire careers without confronting questions of international law. However, they often are thought-leaders within their communities, regardless of their areas of specialization. Not surprisingly, I would like all of them to be well-informed about international law and U.S. foreign relations law. This would enrich our national conversations on such topics, which are too easily captured by sound-bites.

I’ve heard mixed views from both professors and students about mandatory international law courses, which apparently are not always well-received by students. My understanding is that in some law schools efforts are made instead to include international modules in various courses. I hesitate to pronounce on the subject, given that I am not a professor or dean, but such an approach seems intriguing.

On advice for students:

Do you have any advice for students who want to pursue a career in public international law?

My core advice is not very original: focus on getting good grades in all classes. Students can expect employers to use grades as an initial screen for applicants and to look for strong performance in classes that are known to be difficult, regardless of whether the subject interests the student.

Within the field of public international law, the choice of particular classes is probably not as important to employers as students may expect, because employers know that any class will only scratch the surface of a specialized area.   Students might instead wish to choose electives in order to test their interest in particular subjects or to expose themselves to professors who are known to challenge students and to sharpen their skills in legal reasoning.

Do you think an LL.M. or another advanced degree is valuable for U.S. J.D. holders?

In my experience, when U.S.-based employers (such as the Office of the Legal Adviser at the U.S. Department of State) review academic qualifications, they focus on the J.D. curriculum and performance. LL.M. degrees are not common for applicants with U.S. J.D.s, and may add little to the resume.

The situation is different for non-U.S. employers. U.S. J.D. students who are competing with non-U.S.-trained lawyers must bear in mind that the first law degree in most countries is an undergraduate degree. The strongest non-U.S. applicants with whom they’ll be competing are likely to have a first degree from their home countries and an LL.M. degree from, say, the United States, the UK or France. U.S. J.D. students with strong academics are competitive with those students, but it is especially important for the U.S. J.D. students to demonstrate that their coursework in international law is at an advanced level, and that they have written something of publishable quality.

Based on your experience working with junior lawyers at various institutions, what do you think are their most common mistakes?

I offer three suggestions:

When junior lawyers meet with a supervisor, they should come prepared to take notes on the meeting and to ask questions about an assignment. If there is doubt about the assignment, it is prudent to confirm it, for example, by a short e-mail.

A junior lawyer should be cautions in using secondary sources and should always consult the primary source before coming to a conclusion.

Junior lawyers understandably have difficulty estimating the time required to do a first-rate job on a project. If the lawyer encounters difficulties, it is best to communicate with the supervisor so that the project can be restructured, rather than submitting something that is not the junior lawyer’s best work.

If you could turn back time to when you were in law school, is there anything you would do differently?

I entered law school immediately after graduating from college. With the benefit of experience, I discourage prospective law students from doing that. In law school, I was not comfortable participating in large classes. I encourage reticent students to challenge themselves to do so (without become one of those students who dominate each session).

 

Interviewer Subarkah Syafruddin is a second-year J.D. student at Columbia Law School and holds an LL.M. from the University of Virginia School of Law and an LL.B. from the University of Indonesia. Prior to Columbia Law School, Subarkah worked at the International Court of Justice, Thomson Reuters, and the United Nations Population Fund.