Judge James Crawford is one of 15 permanent judges of the International Court of Justice in The Hague, who began his nine-year term in February 2015. He and Sir Percy Spender are the only two Australians to hold this position. Judge Crawford has also been counsel for over 30 governments in 23 cases before the International Court of Justice. He was Dean of the University of Sydney Law School, and the Whewell Professor of International Law and Director of the Lauterpacht Centre for International Law at the University of Cambridge. Judge Crawford was also a founding member of Matrix Chambers, a highly-regarded practice located in London, Geneva, and Brussels, and has acted as a barrister before the High Court of Australia.
Harvard Political Review: The International Court of Justice was established in its current form following World War II. Could you describe the main objectives of the ICJ and how effective you think it has been in achieving these objectives?
James Crawford: The ICJ is effectively a reprint of the Permanent Court of International Justice, which was established in 1920 as the court of the League of Nations. The ICJ is different from the PCIJ in a number of respects, including that the ICJ is part of the United Nations whereas the PCIJ was not part of the League of Nations – it was a separate entity associated with the League.
States become a party to the statute of the ICJ when they become a member of the United Nations, but they don’t accept the jurisdiction of the Court except in relation to advisory opinions – that is a separate act, which is voluntary. So, the ICJ is the court of the United Nations, but it isn’t a fully-fledged constitutional court in the sense which we’re used to with the U.S. Supreme Court or the House of Lords.
HPR: The ICJ is the judicial arm of the United Nations – an inherently political international body. Do you think that the decisions of the ICJ are ever influenced by political issues or the global balance of power?
JC: The ICJ deals with individual decisions between states. It doesn’t have contentious jurisdiction over the United Nations, and it doesn’t have contentious jurisdiction over the United Nations Security Council. Some of the issues it deals with are highly politically fraught, whether they’re about Myanmar or Yugoslavia or whatever else, and that has some influence on the judges. But when a judgement is being argued, it is argued in detail in relation to the facts of the case. The politics don’t disappear, but they tend to recede, and the judges get on with deciding the individual case as best as they can. It’s definitely easy to say a decision might be motivated by politics, but it still has to be made according to the facts and the laws of the particular case.
HPR: The ICJ’s bench consists of 15 judges, and no single member state is allowed more than one judge on the Court. What is it like working alongside so many judges of different nationalities, who have all come from different legal systems?
JC: We are 15 judges and yet there are courts in existence right now which are bigger than that. The European Court of Justice and the European Court of Human Rights are considerably bigger. Fifteen would be regarded now as a minimum number for an international court.
You get used to sitting with judges of different nationalities when you deal with other cases before going to the Court. I did so for a number of arbitrations, including for highly criticized questions like the Chagos Archipelago case. You get used to sitting with judges from states and nationalities of the disputing parties as well as other colleagues – they become friends. Judges still have to maintain their focus on the individual case, and you don’t get very much trading of votes, which surprised me. I thought there would be more jockeying for position amongst the judges on particular issues, but there isn’t. Judges express their views about individual cases; those views are influenced by the positions that the judges hold and the states they come from and so on, but they’re not determined by [those factors]. There is still some level of independence.
HPR: You first came to the ICJ as a barrister before the Court and now you’re a sitting judge. You’ve had the experience now of being both counsel and judge. Has your perspective on dispute resolution changed since making that transition?
JC: Yes, it has. Although I had been practicing before the ICJ for 20 years before I was elected to the position of judge, I didn’t expect some of the things that I found. I didn’t expect the independence for which the judges looked at individual cases for example. You get a stronger impression of that when you see how the judges work in deliberations and in discussions, as opposed to when you’re simply confronted by the Court.
My impression of the Court was improved by being a member of it. My first case as judge was decided eight-to-eight on the casting vote of the President. There have been others cases like that in the past, but for the most part the Court reaches decisions by much larger majorities and in some cases, unanimously, as in the recent Myanmar case regarding the request for provisional measures in relation to the genocide against the Rohingya population in Myanmar. The Court has also been unanimous in some of the Iran v. U.S. cases, in favor of Iran. Although politics is there, it is not the dominant theme in individual cases.
HPR: You have been both counsel and judge in landmark cases in international law. Is there a case you have been involved in that means the most to you and why?
JC: Well, it would be silly now that I’m on the Court to praise one’s achievements as counsel, but the first case you do before a court like the ICJ is always a big one. The first case I was in was brought by the tiny island state of Nauru against Australia. I was counsel for Nauru, to the discomfort of my Australian colleagues, I must say. Although rather specific, the issues in that case were important because it involved the rehabilitation of certain phosphate lands mined under the Australian administration of Nauru before its independence. The case recovered $103 million Australian dollars worth of damages, which is significant for a small state like Nauru.
HPR: A critical basis for any court’s jurisdiction is the consent of the parties to partake in proceedings and accept its decisions. In 1986, the ICJ decided the case of Nicaragua v. United States. It ruled in favor of Nicaragua – the U.S. had violated international law by supporting the Contras in their rebellion against the Sandinistas and by mining Nicaragua’s harbors. Yet, the U.S. refused to participate in the proceedings, as well as blocked enforcement of the judgment by the United Nations Security Council and prevented Nicaragua from obtaining any compensation. Over the Court’s lifetime, four out of the five permanent members of the Security Council have rejected its compulsory jurisdiction. How have these issues affected the Court?
JC: Obviously, judges don’t like it if their judgements are not complied with, but most of the judgements of the ICJ are complied with, including by the permanent members. What was going on in the Nicaragua case was different. The United States was rather exceptionally opposed to the position taken by the Court on Nicaragua: that position has been generally sustained in public opinion in subsequent proceedings. Nicaragua has been one of the most common litigants before the Court and has self-complied with judgements for the payment of damages against Costa Rica, for example. So you get mixed messages. It’s always going to be difficult to enforce international law against the major powers, but the major powers in many cases before the Court behave like other litigants – they comply with awards, and they generally comply with judgements. The Nicaragua case was an exception in that respect and, one hopes, a special exception.
HPR: In the United States, there is a lot of debate surrounding the proper extent of judicial intervention by the Supreme Court. Some Americans believe that justices should exercise judicial activism, while others prefer the doctrine of judicial restraint. What do you see as the role of judges of the International Court of Justice?
JC: The dichotomy between restraint and activism is common to constitutional-type courts. It’s a balance which is struck by different judges in different ways, and … in different periods of their own careers. Some judges start out as “restrainers” and end up as activists, while a few judges have done the opposite. There are very few judges who maintain a completely consistent position in a career which might last 30 years. It’s part of the balance; it’s a background factor. Individual judges still have to decide the individual cases on their merits as they see them. By and large judges do that, which means you get judgements which you wouldn’t have expected: a particular judge voted the way they did because they thought that was the right result in the case.
HPR: The influence of giant multinational companies on world politics and international disputes is growing. Increasingly, these conglomerate companies are out-earning even entire countries. Of the richest 100 entities on the planet, 69 are now corporations, not governments. Could the ICJ potentially play a role in managing disputes between these massive corporations in the future?
JC: The ICJ has no jurisdiction over corporations as such. Its jurisdiction is limited to states and public international organizations, although some people regret that. When you say that the wealth of 69 of the richest entities in the world is held by corporations, that may be true, but it’s very difficult to judge the wealth of a state. You can’t count the territory of a state, the huge amount of sunk costs in establishing a state and establishing its bureaucracy, its government, its infrastructure, and so on. I would have some doubts as to whether those figures really represent reality. If they do, and the governments of the world have decided that power has to be exercised, in part, through corporate entities and private transactions, then that’s how it is.
HPR: You were responsible for shaping the Articles on State Responsibility in its final reading. What is this project, and what does it set out to achieve?
JC: The Articles on State Responsibility are part of a much bigger project dealing with the codification of international law, which started at the League of Nations meeting in 1930 and continued as part of the statutory functions of the General Assembly under the Charter of the United Nations. The International Law Commission, which was the entity which had primary responsibility for the Articles, had drafted texts on diplomatic immunities, on the law of the sea, on the law of treaties, and various other things. One of those projects was state responsibility, which is in effect the law of tort as it concerns states, and I was responsible for the second reading of that process, which was quite a lot of work, because the first reading had been done much earlier and was unsatisfactory in some respects. We rewrote the text to some degree and renegotiated certain aspects to produce a text in 2001 that was adopted by consensus and generally acceptable with some exceptions. We also recommended that the Articles not be made into a treaty, but simply exist as a text, which would have such influence as it deserved.
In fact, the Articles have had an enormous amount of influence. They have been referred to as often as any treaty of the same sort in the period in question and much more often than most. Governments in litigation situations find they have to solve problems of causation, damages, and so on, and the Articles offer a place where they can go. It was a successful codification effort as part of the general program of codification of the United Nations’ mandate in the last period.
This piece initially ran under the title “Inside the ICJ: Interview with Judge James Crawford.”
Image Credit: International Court of Justice
