The European Journal of International Law Vol. 27 no. 4
EJIL (2016), Vol. 27 No. 4, 885–900	 doi:10.1093/ejil/chw052
© The Author, 2017. Published by Oxford University Press on behalf of EJIL Ltd.
All rights reserved. For Permissions, please email: journals.permissions@oup.com
Reflections on International
Judicialization
Philippe Sands*
Abstract
This lecture was delivered at the European Society of International Law’s annual conference,
which was held in Oslo in September 2015. Addressing the move to judicialization, the lecture
touches on the function of international courts and tribunals in resolving disputes and
contributing to the gradual development of international law and their role as social agents
in the evolution of human consciousness and actions. Adopting a historical and personal perspective,
the lecture identifies a number of areas for reflection at various international courts
and tribunals and seeks to encourage the community of international lawyers to engage more
actively with sensitive realities, in the spirit of constructive critique.
In the summer of 2014, I spent three weeks in The Hague in the company of a man
who was a hundred years old. Professor Vladimir Ibler, born on 25 June 1913 in
Zagreb, when it was still a part of the Austro-Hungarian Empire, was one of my cocounsel
during the arbitration proceedings between Croatia and Slovenia, heard in
the Peace Palace. Ibler, diminutive in height but not in presence or character, was curious
about the Peace Palace, built when he was a schoolboy, a place he had not previously
had occasion to spend much time in. Each day, we would slowly make our way
up the central staircase in the morning, then down it later in the afternoon, past the
statue of Lady Justice, to and from the Japanese room, where the hearing took place.
Professor Ibler enjoyed musing about the world, the state of international law,
and the state of international courts. ‘When I was born there were none’, he said
one morning of the courts, ‘and now there are so many that I cannot keep up with
them all.’ He paused, then asked: ‘What are they all for? What do they all mean?’ The
*	 Professor of Law, University College London (UCL), United Kingdom. This article was first presented as a
keynote speech at the European Society of International Law’s 11th annual conference in Oslo on 10–12
September 2015. In preparing this lecture, I have been greatly assisted by Luis Viveros, PhD candidate at
UCL, and Trpimir Socic, Faculty of Law, University of Zagreb. Email: p.sands@ucl.ac.uk. The published
version of the lecture maintains the text as it was delivered and does not seek to address subsequent
developments, if any, beyond noting their existence.
	 In the interests of editorial transparency, readers are referred to the Editorial on ‘Conflicts of Interest in
the Editorial Process’, 27 EJIL (2016), at 562.
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886 EJIL 27 (2016), 885–900
questions were left hanging, but from his cheery disposition I felt he retained a sense
of hope. A centenarian whose life passed through the reigns of Emperor Franz Josef,
Adolf Hitler, Josef Stalin and Josip Tito was somehow still able to seize on the possibility
of courts as an alternative to war, which might be said to be the principal end
of judicialization. He was hopeful too that Croatia and Slovenia might finally resolve
their long-standing boundary dispute by arbitration proceedings under the auspices
of the Permanent Court of Arbitration (PCA), conducted before a panel of five distinguished,
experienced international arbitrators.
Yet Professor Ibler also sounded a note of caution in the course of a more formal
interview that I conducted for a profile to appear in the Financial Times Magazine. ‘I
learnt in my life not to come to fast conclusions’, he told me. He continued:
I was very happy in a lawyer’s office in Zagreb from 1937 to 1939 working with Mr Korsky,
and then the Nazis just shot him. I think that being in a lawyer’s office you can make certain
conclusions about people and about human relationships, and you can learn certain things.
And what I learnt is not to be very quick to make conclusions, but to reflect all the time.
‘Was it a good idea to refer the dispute between Croatia and Slovenia to an international
arbitral tribunal?’, I enquired. ‘Yes’, he responded, ‘of course I think positively
of the idea, it was a good idea to establish the court.’ And then he paused before adding
by way of a translator: ‘What I am sceptical of is some of the judges that were
appointed to the court, I am not entirely convinced that the tribunal has been totally
independent.’ He paused again, and said: ‘It seems there are some invisible forces …
there are justices and injustices.’
That was June 2014. Subsequent events, to which I shall return, caused me to
revisit the conversation with Professor Ibler. Fortunately I had recorded it. ‘What I’ve
learnt is not to be very quick to make conclusions’ – wise advice from a man who is a
hundred years old.
* * *
Against this background, what are we to make of our current institutional judicial
arrangements and the manner in which they function? We have heard much during
these past days at the European Society of International Law’s annual conference in
Oslo about the connections between law and politics, and we know these courts are the
product of political processes with very long roots. We have also heard much about the
relationship between courts and the idea of the rule of law. In one exchange, between
sessions, I asked a doctoral student whether she thought you could have a rule of law
withoutcourts.1
‘No’,shequicklyreplied,‘youcannot.’Andmusttherebeindependence
and impartiality for them to be truly considered to be courts and tribunals? ‘Yes.’ This
response is an assumption that all of the participants at this conference seem to share.
There are today far more international courts than Professor Ibler could ever have
imagined, as a child, as a law student, as a middle-aged man, or, even – remarkably –
1
	 Ms Denise Wohlwend, PhD candidate at Fribourg University, offered a number of interesting insights on
the international rule of law, its functions and projections in international courts and tribunals, which
is the general subject of her doctoral research and an ever-present theme in my academic work and legal
practice.
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Reflections on International Judicialization 887
when he hit the age of retirement (in 1978). Back then there was no World Trade
Organization Dispute Settlement Body, no International Tribunal for the Law of the
Sea (ITLOS), no International Criminal Court (ICC), International Criminal Tribunal
for the former Yugoslavia (ICTY) or International Criminal Tribunal for Rwanda and
no internationalized criminal courts. The PCA was moribund, if not dead. I recall my
first teacher in international law, Robbie Jennings, in our 1980 lecture course, passing
over the PCA as a historical footnote. Yet, today, it has well over a hundred cases,
including a significant number of inter-state cases.2
It might be said that the PCA
offers hope for all institutions that have occasion to hope for more.
Two decades after Professor Ibler had reached retirement age, in 1997, Cesare
Romano, Ruth Mackenzie and I established the Project on International Courts and
Tribunals (PICT), by which time the international judicial architecture had been
transformed. Our first conference meeting apparently offered the first ever gathering
of registrars and secretariats of the international courts, and it seemed we were awash
with these bodies and their cases. Today, it is virtually impossible for anyone to keep
up with the totality of the developments, and this has had consequences, not least the
emergence of new initiatives to keep us informed and help us understand, including
this fine pluricourts project in Oslo3
and the iCourts project nearby.4
If not exactly an end of judicialization, one of the consequences has been the emergence
of fertile academic communities that have sprung up, and this too has produced
consequences. John Louth of Oxford University Press told me last night that 55 books
were published on the ICC last year, a number that surely gives rise to the question:
what is the purpose and utility of such a rush of publications?5
For all of our work
and effort, it must be said that it becomes ever more difficult to step back and identify
trends and themes for the whole. Each court and tribunal is unique, and, I am bound
to add, I do believe they are courts and tribunals, not just the International Court of
Justice (ICJ) as I was told Professor Martti Koskenniemi might have suggested during
the opening plenary. Each court and tribunal has its own rules, composition, working
methods, cases and, of course, its distinct legal community of bar and scholars.
Invited to address ‘the end(s) of judicialisation’, in such a context I hesitate to draw
broad conclusions. We inhabit a galaxy of a thousand points of light, or more.
One thing is clear, however, and it has been a common theme that has coursed its
way through this conference: our international courts are delicate and fragile creatures.
We may take national courts as a point of comparison, but often they have had
centuries to mature. A  former colleague, the distinguished English legal historian
Professor Sir John Baker, would occasionally tell me that my world of international
courts of today equated somewhat to the situation that the English courts found themselves
in during the late 15th and early 16th century. I have never quite forgotten that
2
	 A complete list of pending cases at the Permanent Court of Arbitration (PCA) is available at www.pcacases.com/web/allcases/
(last visited 30 November 2016).
3
	 PluriCourts, available at www.jus.uio.no/pluricourts/english/ (last visited 30 November 2016).
4
	 iCourts, available at http://jura.ku.dk/icourts/ (last visited 30 November 2016).
5
	 John Louth’s own publishing activities, now over many years and with so extensive a reach, will no doubt
one day be the subject of a doctoral thesis, exploring the role of academic publishers in contributing to
the articulation of our community and its output, including in the jurisprudence of the courts.
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888 EJIL 27 (2016), 885–900
point of comparison, as it allows us to reflect in a more contextualized way on some of
the things we tend to get excited about. The reality is surely that we are engaged in a
project that will extend over centuries, and it is but at an early stage of development.
We should therefore permit ourselves to have low expectations, even if this does not
mean we should not have expectations at all. It does not mean that matters might not
be improved, including by our own endeavours as observers and commentators and,
occasionally, as actors.
* * *
As Professor Andreas Follesdal noted in his introduction, over the past years I have
been spending a significant amount of time researching a book that focuses largely
on the Nuremberg trial and the lives of three men in that trial: Hersch Lauterpacht,
Raphael Lemkin and Hans Frank.6
As a result of this project, 1945 and 1946 have
been very much on my mind. The idea that courts and law might supplant politics
and power came to the fore in 1945, a point at which the notion that disputes could
be settled by recourse to arbitration or judicial settlement began to gain traction. In
the broader scheme of historical developments, that is a remarkably short period of
time – just seventy years have passed.The idea and its moment were encapsulated by a
memorable speech given by United States Supreme Court Justice Robert Jackson, who
was the chief prosecutor at Nuremberg on 21 November 1945, when he stood before
the eight judges in Courtroom 600 in Nuremberg’s Palace of Justice, which is still a
working courtroom today: ‘That four great nations, flushed with victory and stung
with injury stay the hand of vengeance and voluntarily submit their captive enemies
to the judgment of the law is one of the most significant tributes that Power has ever
paid to reason’, he told the judges.7
And, in a sense, that has been our guiding light –
reason and the judgment of the law trumping brute force and power politics.
His friend and colleague Hersch Lauterpacht – the man who suggested that he put
the concept of ‘crimes against humanity’ into the Nuremberg Statute (when they
met in the garden of Lauterpacht’s home on Cranmer Road in Cambridge on 29 July
1945)8
– was rather keen on courts. For enforcement within the State ‘there must
exist a judicial machinery’, he wrote in 1944, ‘accessible to every individual, for testing
the conformity of legislative, judicial, and executive action with the provisions of
[his proposed] Bill of Rights’.9
Lauterpacht was less keen about the idea of an international human rights court,
and it is well worth going back to what he wrote in that remarkable book. He thought
such an idea was not practicable, in part because of the absence in the international
sphere of what he referred to as ‘restraints upon the unavoidable power of judges’.10
What was missing at the international level was an equivalent to the ‘community of
6
	 P. Sands, East West Street: On the Origins of Crimes against Humanity and Genocide (2016).
7
	 Trials of the Major War Criminals before the International Military Tribunal, reprinted in 2 Nuremburg Trial
Proceedings (21 November 1945) 98.
8
	Sands, supra note 6, at 113.
9
	 H. Lauterpacht, An International Bill of the Rights of Man (2013), at 185.
10
	 Ibid., at 13.
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Reflections on International Judicialization 889
national tradition’, one that reflected ‘the overwhelming sentiment … of national solidarity
and of the higher national interest, the corrective and deterrent influence of
public opinion, and, in case of a clear abuse of judicial discretion, the relatively speedy
operation of political checks and remedies’.11
The more you go back and the more you read Hersch Lauterpacht, the more
remarkable he appears, yet he was shown not to be right in this particular prediction.
International courts of human rights were created – even if the issues he alluded to
are surely pertinent today across the range of international courts. Still, a number
of broad points can be made in regard to the ‘end(s) of judicialization’ (I will include
arbitration, although purists may object): the end and the ends.
1  First, What Are the Ends of Judicialization?
There seem to be at least three, although only two are usually referred to. First, as
Lauterpacht put it, the ‘original and primary purpose was to decide disputes between
States’.12
This is a limited end and one that has evolved as other international actors
have emerged, including individuals, corporate investors and international organizations.
Our legal world is no longer just about states, even if they do remain rather
significant. Second, as Lauterpacht also recognized – indeed, he was a proponent of
the idea – there is a broader role for international adjudication as a means to develop
the law – and the idea of the international rule of law – as a way of gradually beefing
up the content of the rules and their effects.13
However, there is, I think, a third end for all of these courts: they have themselves
become new social actors, ones that contribute to evolutions in the state of human
consciousness and actions. Their very existence, and the fact that they function, tends
to support the notion that there is an alternative to the unlimited exercise of power
or even the possibility of an end to crime and other wrongs (although we know this
to be somewhat illusory, as the experience with the ICC makes clear). It could also be
said that the mere existence of these institutions offers the illusion of hope – an alternative
that is often shown to have been dashed. As discussed during this morning’s
additional session on the challenges of migration to Europe, the current problem of
individuals trying to reach countries of the European Union shows rather clearly the
limits of the law and the idea of the rule of law. But it is also evident that changes of
public consciousness may be affected by the activities of international courts.
I am sometimes asked which cases really made a difference, and it seems there are
actually quite a few that you could settle on. The choice may be subjective, but I would
certainly include, by way of illustration, the judgment in the case of Smith and Grady
v. United Kingdom of the European Court of Human Rights (ECtHR) issued in 1999, a
decision that unanimously found that the investigation into, and subsequent discharge
11
	 Ibid.
12
	 Scobbie, ‘The Theorist as Judge: Hersch Lauterpacht’s Concept of the International Judicial Function’,
8(2) European Journal of International Law (1997) 264, at 270 (citing Lauterpacht’s Provisional Report
on the Revision of the Statute of the Court, 1 September 1955).
13
	 Ibid.
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890 EJIL 27 (2016), 885–900
of, personnel from the Royal Navy on the basis that they were homosexual was a breach
of their right to a private life under Article 8 of the European Convention on Human
Rights.14
This seems to have been a catalytic jurisprudential moment, one that has contributed
to, if not caused, a transformation of public views in the European context on
gay marriage and related matters. Courts can make a difference; that too is a reality.
2  Second, Can We Envisage the End of Judicialization?
It seems hard to envisage. Warts and all, international courts are now a settled part
of international and domestic political processes, and they are here to stay. There will
be ebbs and flows, and the directions might change, but they are not going away. To
be sure, there will be backlashes and whingeing and even departures and disappearances;
we have heard much about that over the past two days. There will be questions
about arbitration or courts, ad hoc or permanent, concerns about fragmentation and
competition and whether these features are a good or bad thing.
A prospective international litigant now has a range of choices, and that is a good
thing. Competition has offered choice in decision making – which of several judicial
or arbitral possibilities might a claimant opt for – is a question informed, in large part,
by speculation as to the possible outcomes. We have seen competition influence the
development of the law and public consciousness. One suspects that the fact that
ITLOS became the first international court to delimit a maritime boundary 200 miles
beyond a coast had at least something to do with the desire to give itself an advantage
against its Hague competitor, which has, until now at least, refrained from making
such a delimitation.15
Competition allows ideas to flourish, and the battle of ideas is a
hallmark of our emerging international judicial system.
There is nothing novel about this. I could mention the start of Slade’s case in 1596
before the English courts – it arose because under medieval common law a claim for
the repayment of a debt had to be pursued through a writ of debt in the Court of
Common Pleas, a difficult, archaic, slow and very expensive process. By 1560, lawyers
had found another method, which was enforced by a different court, called the Court
of King’s Bench, through the action of assumpsit, a form of action for deceit. Then
along came another body, the Court of Exchequer Chamber, the appellate court to the
Court of Common Pleas, which overruled decisions of the King’s Bench on assumpsit,
causing great friction between the courts. Courts going in different directions is not a
new thing; it has happened for centuries.16
14
	ECtHR, Smith and Grady v.  United Kingdom, Appls nos 33985/96 and 33986/96, Judgment of 27
September 1999.
15
	Judgment, Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in
the Bay of Bengal, ITLOS Reports 2012, 14 March 2012, s. IX, para. 506(2); Cf. Territorial and Maritime
Dispute (Nicaragua v.  Colombia), Merits, 19 November 2012, ICJ Reports (2012) 624, s.  IV; see also
Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical
Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, 17 March 2016 (pending),
available at www.icj-cij.org/docket/index.php?p1=3&p2=3&code=nicolb&case=154&k=02 (last
visited 30 November 2016).
16
	 Sir J. Baker, The Oxford History of the Laws of England: Volume IV (2003), Part III, s. 5, 6, 7.
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Reflections on International Judicialization 891
In Slade’s case, the Exchequer Chamber gave judgment after five years – it seems
there is nothing novel either about delay – ruling that assumpsit claims were valid and
enforceable. They became the main course of action in English contract cases, and
the episode is sometimes cited as an example of judicial legislation where Parliament
failed to act. It could also be cited as an example of the reality of competition, and it
applies equally in the international domain.
* * *
Against this background, summing up the current state and perspectives of international
courts and tribunals is no easy feat. An assessment of the relative successes or failures
of international justice enterprises requires an understanding of what we expect of
them, both individually and collectively. It would need several hours to engage fully in the
matter. All I can do, having surveyed the general landscape, is to settle on a few developments
that might raise an eyebrow or indicate the road that might yet be followed. I will
briefly touch on a few examples, not wishing to suggest any particular sense of hierarchy
or exclusivity, to suggest some themes we might wish to think about.
In so doing, I depart from the lecture I had prepared before I arrived. It has been
striking, as I sit in on various sessions, to note that there seem to be quite a few things
that were not talked about in this conference – matters that are delicate and best
skirted around in the polite company that is our community; matters one prefers not
to talk about. So I shall plough on, encouraged to talk about them, reminded of the
words of psychoanalyst Nicolas Abraham, who observed: ‘What haunts are not the
dead, but the gaps left within us by the secrets of others.’17
In this sense, that which
has not been said over the course of this conference may be as interesting as what was
said. In entering this forbidden domain, I shall draw from my own experiences.
A  ICC
In recent months, the question has entered my mind: ‘Did we create the ICC too early?’
It is plainly now something of a problem institution in the eyes of many, and the causes
of this situation seem to be manifold. Particularly in the African context, one has to
confront a very real and – let us say it – legitimate concern: if you switch on a computer
and go to the ICC webpage, you will see that every single person that has been
indicted by the Prosecutor’s Office at the ICC is African and black.18
Yet Africans and
17
	 Abraham, ‘Notes on the Phantom: A Complement to Freud’s Metapsychology’, translated by Nicholas
Rand 13(2) Trial(s) of Psychoanalysis (1987) 287.
18
	 Situation in Democratic Republic of Congo’s indictees: Thomas Lubanga Dyilo, Germain Katanga, Bosco
Ntaganda, Callixte Mbarushimana, Sylvestre Mudacumura and MathieuNgudjolo Chui; Situation in
the Central African Republic’s indictees: Jean-Pierre Bamba Gombo, Aimé Kilolo Musamba, Jean-Jacques
Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido; Situation in Uganda’s indictees: Ahmad
Muhammad Harun (‘Ahmad Harun’), Ali Muhamad Ali Abd-Al-Rahman (‘Ali Kushayb’), Omar Hassan
Al Bashir, Bahar Idriss Abu Garda, Abdallah Banda Abakaer Norain and Abdel Raheem Muhamad
Hussein; Situation in the Republic of Kenya’s indictees: William Samoei Ruto, Joshua Arap Sang, Uhuru
Muigai Kenyatta and Walter Osapiri Barasa; Situation in Libya’s indictees: Saif Al-Islam Gaddafi; Situation
in the Republic of Côte d’Ivoire’s indictees: Simone Gbagbo, Laurent Gbagbo, Charles Blé Goudé and Ahmad
Al Faqi Al Mahdi. International Criminal Court, ‘All Cases’, available at www.icc-cpi.int/en_menus/icc/
situations%20and%20cases/cases/Pages/cases%20index.aspx (last visited 30 November 2016).
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892 EJIL 27 (2016), 885–900
black people do not have a monopoly on international crime. This record, 15 years
after the creation of the ICC, sends a troubling signal that we are bound to reflect on
and address, not least since it is having political ramifications.
We have seen the consequences of that in the Kenya case19
and, more recently,
in the situation of Sudan’s President Al Bashir arriving in, and then leaving, South
Africa, which is a party to the ICC Statute, under an obligation to arrest him.20
We must recognize the cogency of an argument that suggests the focus on certain
individuals amounts to a form of legal neo-colonialism. Why there has been no
indictment for the practice of torture or rendition adopted after the events of 11
September seems remarkable.21
We have to confront this issue; we cannot just run
away from it.
B  ECtHR
Let us alight on the situation in my own country, where the dominant political party
of the day has a large number of parliamentarians – and even ministers – who seem
to want to leave the ECtHR. This is because the Court is coming down with judgments
they do not like, given by judges from faraway places. One of the judgments they like
to focus on – the prisoner’s voting case – strikes me as one that actually was correctly
decided.22
Here too, we have to deal with a reality, and one that tends to be skirted around at
conferences such as this, namely that in the Council of Europe of 48 states, you have
some that have properly functioning, independent judicial systems and others that do
not. When you create an international court that straddles so varied a group of countries,
it is understandable that there may be an institutional desire to ensure that there
are expressions of judicial action across the range of those countries. And this desire
raises the question of whether it was mistake to get rid of the European Commission
of Human Rights, which functioned as a screening mechanism, allowing the ECtHR
to deal with a more limited number of cases – those that raise serious, grave human
rights issues that plainly touch on the well-being of Europe as a whole. Again, we have
to deal with the realities of the situations into which we have put ourselves, and if we
have fallen into error we must be honest about it.
And, of course, the positions adopted by Prime Minister David Cameron in the
United Kingdom23
get seized on by friends in Russia: ‘If the UK is going to withdraw,
19
	 O. Bowcott, ‘ICC Drops Murder and Rape Charges against Kenyan President’, Guardian (London, 5
December 2014), available at www.theguardian.com/world/2014/dec/05/crimes-humanity-chargeskenya-president-dropped-uhuru-kenyatta
(last visited 30 November 2016).
20
	 N. Onishi, ‘Omar al-Bashir, Leaving South Africa, Eludes Arrest Again’, New York Times (New York, 15
June 2015). Rome Statute on the International Criminal Court 1998, 2187 UNTS 90.
21
	 P. Sands, Torture Team: Uncovering War Crimes in the Land of the Free (2008).
22
	ECtHR, Hirst v. United Kingdom (No. 2), Appl. no 74025/01, Judgment of 6 October 2005; M. Holehouse,
‘David Cameron: I Will Ignore Europe’s Top Court on Prisoner Voting’, Telegraph (London, 4 October
2015).
23
	 N. Watt, ‘Cameron Refuses to Rule out Leaving European Convention on Human Rights’, Guardian
(London, 2 June 2015).
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Reflections on International Judicialization 893
then we might as well do so.’24
The parallel approaches of the present leadership in
Russia and that of the United Kingdom is striking and worrisome. It seems that the
idea of sovereign equality means treating all countries equally, yet the reality, as we
know, is that not all countries are equal in the context of international judicial systems.
That is a reality we cannot run away from.
C  Court of Justice of the European Union (CJEU)
Much has been talked about it in this conference about the recent advisory opinion
on European Union (EU) ratification of the ECHR.25
This decision seems difficult
to justify in purely legal terms in circumstances in which EU member states have
agreed that they wish the Union to become a party. It is hard to escape the conclusion
that the CJEU has basically acted to protect its own turf, to safeguard its own
autonomy and put its own interests first. This suggests that one of the ends of judicialization
– yet not one that our community has really focused on – is the instinct
of institutional self-interest, of self-protection and ‘bigging up’ your own institution
against the encroachment of others. Again, let us have strength to rise to the challenge
of calling a spade a spade and engage with what is actually going on in the
functioning of the courts.
D  Investor State Dispute Settlement (ISDS)
One could speak for hours on this subject. There are a growing number of observers
who believe that the system has been ‘captured’ by one particular stakeholder: the
arbitrators (of which I am one) and the lawyers and law firms who benefit from the
growth of the system.26
It is hard to avoid the charge. Sitting in on Alina Miron’s striking
presentation on the costs of international justice – the legal fees – I reflected on the
information that comes before ISDS arbitrators, the kind of fees that are charged for
discrete, small and sometimes relatively insignificant cases – fees that run to the tens
of millions of dollars for cases – and the legal opinions of a few pages, for which a fee
note of a hundred thousand dollars or more might be charged. This is what one sees
sometimes when presented with a breakdown of costs. We need to look at those issues
and address them realistically, and we need to join the clamour for greater transparency
in the system.
24
	 ‘The participation of the Russian Federation in any international treaty does not mean giving up national
sovereignty. Neither the ECHR, nor the legal positions of the ECtHR based on it, can cancel the priority
of the Constitution. Their practical implementation in the Russian legal system is only possible through
­recognition of the supremacy of the Constitution’s legal force.’ M. Smirnova, ‘Russian Constitutional
Court Affirms Russian Constitution’s Supremacy over ECtHR Decisions’, Ejil:Talk! (15 July 2015), available
at www.ejiltalk.org/russian-constitutional-court-affirms-russian-constitutions-supremacy-overecthr-decisions/
(last visited 30 November 2016).
25
	 Case 2/13, Opinion Pursuant to Article 218(11) TFEU, judgment of 18 December 2014, not yet published
(ECLI:EU:C:2014:2454).
26
	 C. Olivet and P.  Eberhardt, Profiting from Injustice: How Law Firms, Arbitrators and Financiers Are
Fuelling an Investment Arbitration Boom, 27 November 2012, available at www.tni.org/en/briefing/
profiting-injustice (last visited 30 November 2016).
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894 EJIL 27 (2016), 885–900
There is also the most unfortunate practice of those who act as counsel and arbitrator
in ISDS cases, a sort of revolving door in which the same person can spend a
morning drafting a pleading on the meaning of ‘fair and equitable treatment’ (in one
case) and then an afternoon drafting an award on the meaning of ‘fair and equitable
treatment’ (in another case). This is sometimes referred to as ‘issue conflict’,27
and
some institutions have put an end to it (the ICJ took a leadership role in eradicating
this kind of practice nearly 20 years ago in its practice directions, which precluded
individuals who acted as counsel from simultaneously sitting as ad hoc judges;28
the
Court of Arbitration for Sport has now also prohibited the practice).
Speaking from experience, it can be an unfortunate situation to find yourself
deliberating with fellow arbitrators knowing that one or more of them is actually
litigating the very point on which you are striving to write an award. There is growing
attention now being given to this and rightly so. In the ISDS field, the European
Commission has now stepped in to call for an international investment court,29
and
the European Parliament has also made clear that it no longer wishes to tolerate this
kind of practice.30
What is the alternative? The alternative is to move away from arbitration to the
establishment of a standing body or court. Whether this resolves all of these issues –
who knows; whether it gives rise to other issues – who knows. One can have one’s
views, but these matters are now very much on the agenda. On this matter, the ends
of judicialization operate to prioritize the interests of certain stakeholders, including
lawyers and law firms and perhaps also individual arbitrators. That is not a popular
thing to say publicly, but we have to address the reality of what is actually going on.
E  ICJ
I turn to the ICJ, a court that probably has its strongest bench in years. It is now in a fine
position to enhance its role.Yet it too might also want to examine some of its practices,
some long established, to see if there is not room for improvement – for example, the
standard applied by the court to the issue of independence and the circumstances in
which a judge can and cannot sit in a case. This was addressed in the Construction of a
Wall advisory opinion,31
giving rise to a standard that was relied upon in an Annex VII
27
	 Sands, ‘Conflict of Interest for Arbitrators and/or Counsel’, in M. Kinnear et al. (eds), Building International
Investment Law: The First 50 Years of ICSID (2015) 655.
28
	 ‘The Court considers that it is not in the interest of the sound administration of justice that a person sit as
judge ad hoc in one case who is also acting or has recently acted as agent, counsel or advocate in another
case before the Court.’ Practice Direction VII: Basic Documents of the International Court of Justice,
available at www.icj-cij.org/documents/index.php?p1=4&p2=4&p3=0 (last visited 30 November 2016).
29
	 ‘Commission proposes new Investment Court System for TTIP and other EU trade and investment negotiations’,
European Commission News Archive (Brussels, 16 September 2015), available at http://trade.
ec.europa.eu/doclib/press/index.cfm?id=1364 (last visited 30 November 2016).
30
	 European Parliament, Resolution on the Future European International Investment Policy, Doc.
2010/2203(INI)(2011),availableatwww.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7TA-2011-0141&language=EN
(last visited 30 November 2016).
31
	 Legal Consequences of the Construction of aWall, Order, 30 January 2004, ICJ Reports (2004) 3, paras 6–8.
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Reflections on International Judicialization 895
arbitration proceeding between Mauritius and the United Kingdom.32
The approach
raises some fundamental concerns: the principal judicial organ of the United Nations
(UN), which should operate to the very highest standards, seems to have the lowest
standards of judicial independence in the world in terms of determining the circumstances
in which a judge can and cannot sit.
Related to this is another matter that should be put on the table with some trepidation,
given who is in the audience today, and that is the extracurricular activities of
judges. Why is the ICJ apparently the only permanent court in the world that allows its
judges to sit and act as arbitrators? This strikes me as potentially problematic in terms
of independence and perceptions as to the functioning of the Court itself. One has to
step back from our community and ask ourselves: ‘How do others perceive this practice
and how do others perceive the idea that a judge might accept appointment by a
party, a claimant or a state?’ One can understand, perhaps, sitting as president of a tribunal,
not as a party-appointed arbitrator, but even in these circumstances, how can
it be that a judge who has a permanent and a full-time position and is paid a full-time
salary does not pass over any fees that are paid to the UN (as happened, I understand,
on one occasion when an ICTY judge was allowed to sit on another case).33
It is not
about actual bias but, rather, about perception and about ramping up our standards.
F  PCA/Ad Hoc Inter-State Arbitration
This is a convenient point to come back to the PCA and Professor Ibler. The PCA, as
I mentioned, was moribund when I first studied international law and has since had
a remarkable transformation. In relation to inter-state disputes, it has been much
assisted by the coming into force of Part XV of the UN Convention on the Law of the
Sea (UNCLOS).34
Developments at the PCA had been going seemingly well until rather
recently. A  couple of its cases have now involved permanent members of the UN
Security Council – Russia and China – who have chosen not to participate in UNCLOS
Annex VII cases brought against them, an approach that raises concerns that need to
be addressed.35
That is not the only problem. Of the various aspects of this conference that have
struck me over the past three days, the one that has been most striking is the fact that
there is one recent development that, in any discussion I have attended, has not been
addressed on any platform. So delicate and sensitive, perhaps, or so recent, and it is the
case of Croatia and Slovenia.36
I declare an interest, as I was counsel for Croatia until
32
	PCA, Chagos Maritime Protected Area (Mauritius v. UK), Reasoned Decision on Challenge, 30 November
2011, PCA Case no. 2011-03, at 24–35.
33
	 Even pending change in the practise, surely a first step would be to make publicly available on the Court
website a list of all such appointments accepted by judges? In regard to future practice, the problem
could be addressed by changing the status of judges and treating the appointment as part-time, as at the
International Tribunal on the Law of the Sea.
34
	 Convention on the Law of the Sea 1982, 1833 UNTS 3.
35
	PCA, In the Matter of the South China Sea Arbitration (Philippines v. China), Case no. 2013–19; PCA, Artic
Sunrise Arbitration (Netherlands v. Russia), PCA Case no. 2014-02.
36
	PCA, Arbitration between the Republic of Croatia and the Republic of Slovenia, PCA Case no. 2012-04.
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896 EJIL 27 (2016), 885–900
it withdrew from the proceedings in August 2015. I am not independent, neutral or
objective, and I must limit myself to the facts that are in the public domain. However,
it seems clear that what occurred – what was revealed – last summer is like an Exocet
missile that goes to the heart of the system that we are all involved and care about, a
system that we wish to see succeed and improve but that, remarkably, we seem not to
want to talk about at this conference, which has as its theme the functioning of international
courts and tribunals.
The case was brought by an arbitration agreement between two countries to resolve
along-standingdispute.37
Thewrittenpleadingsclosedinthespringof 2014.Hearings
were held in May and June 2014. It is a big case involving land and sea boundaries,
so it is entirely reasonable that it should take time to resolve that case and to write an
award. In February 2015, an incident occurred that gave rise to some concerns and
some attention in the media. The Slovenian foreign minister made a public statement
in which he suggested that he had been privy to the confidential deliberations of the
tribunal. The tribunal was alerted to these statements and, on 5 May 2015, wrote to
the parties (the letter, which is strongly worded, is available on the PCA website).38
The
tribunal noted that it was ‘seriously concerned by the suggestion that one Party would
have been privy to confidential information related to the Tribunal’s deliberations’,39
and it noted that it considered that ‘such a meaning could be attributed to statements
by the Slovenian Foreign Minister, and … that such statements are unhelpful for the
resolution of the present dispute’.40
The tribunal then expressed the view, understandably,
that ‘safeguarding the confidentiality of the deliberations until the issuance of
an award is a matter of highest priority’, premised as it is on the independence of
the adjudicators from the parties.41
In the letter, the tribunal took note of ‘Slovenia’s
assurance that it has not received any information whatsoever as to any aspect of the
outcome of the arbitration’ and stated that it had ‘examined the arrangements that
it has put in place to ensure that no confidential information may be disclosed’.42
It
concluded: ‘The Tribunal is therefore confident that no information about the likely
outcome of any aspect of the arbitration has been disclosed.’43
And that, we expected,
was the end of the matter.
I went on holiday on 22 July on a morning flight to NewYork. By the time I got off
the plane, I had some 200 email and phone messages directed to what had emerged
in the course of that day: the publication by a Serbian newspaper of the transcripts
37
	 Arbitration Agreement between the Government of the Republic of Slovenia and the Government of
the Republic of Croatia, available at www.mzz.gov.si/fileadmin/pageuploads/Novinarsko_sredisce/
Sporocila_za_javnost/Sporazum-angl.pdf (last visited 30 November 2016).
38
	 Letter from Dirk Pulkowski (Registrar) to the Agents in the Arbitration between Croatia and Slovenia,
5 May 2015, available at https://www.pcacases.com/web/sendAttach/1307 (last visited 30 November
2016).
39
	 Ibid.
40
	 Ibid.
41
	 Ibid.
42
	 Ibid.
43
	 Ibid.
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Reflections on International Judicialization 897
of what was purported to be telephone conversations between the agent of Slovenia
and Slovenia’s party-appointed arbitrator, revealing extraordinary details about
the deliberations. This was not just about the sharing of confidential information
about what was going on inside the deliberations, it was also about the use of that
arbitrator as a conduit for the presentation of further arguments by the party that
appointed him. Assuming they are accurate, the transcripts were very detailed,
showing a two-way process in which the arbitrator gave a great deal of information
to the agent and also appeared to be acting as a conduit for the views of Slovenia,
through its agent. The question of how these recordings were obtained is of course
an important one, which remains unresolved (I should mention that I have long
proceeded on the assumption that any communication I engage in is recorded by
someone, somewhere in the world, so I was surprised that others involved in this
story did not proceed on the same basis).
On 23 July, the day after the news reports came out and the Serbian news republished,
the agent and the arbitrator both resigned.That was addressed in a press release
put out by the PCA. This press release itself – and here I speak in a purely personal
capacity – contained an extremely unfortunate line: ‘Once reconstituted, theTribunal
intends to resume its deliberations in the present arbitration without delay.’44
No one
who has read those transcripts can sensibly assume that the case can continue in any
way before that arbitral tribunal. I say this having lived through the bitter experience
of the Pinochet proceedings in 1998 and 1999 where the House of Lords for the first
time in a 900-year history found itself having to set aside one of its own judgments
in the case that had drawn more international attention than any other in order to be
seen to be absolutely squeaky clean.45
No doubt for the judges who sat on that case, it must have been a painful and difficult
thing to do, all the more so on a case with such a high profile – to set aside
the whole thing and start again in order to protect the system as a whole. Yet, it was
plainly the right thing to do in order to protect the integrity of the judicial process.
I shall not express any view as to what precisely ought now to happen in the Croatia
v. Slovenia case, but in deciding how to proceed, the interests of the system as a whole
– the integrity of the arbitral process – must surely be paramount.
On 24 July, Croatia wrote to the tribunal to say that it considered the entire arbitral
process to have been tainted. It asked the tribunal to suspend proceedings with immediate
effect and invited the remaining members of the tribunal to reflect on the grave
damage that had been done to the integrity of the proceeding.46
Five days later, on 28
July, Slovenia appointed a new arbitrator, the president of the ICJ. This was odd, since
Article 2, paragraph 2, of the Arbitration Agreement identifies the ICJ president as the
appointing authority for the independent arbitrators, raising a question as to how it
44
	 PCA Press Release, 23 July 2015, available at www.pcacases.com/web/sendAttach/1310 (last visited 30
November 2016).
45
	 R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No. 2), [1999] 2 WLR 272.
46
	 PCA Press Release, 5 August 2015, available at www.pcacases.com/web/sendAttach/1389 (last visited
30 November 2016).
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898 EJIL 27 (2016), 885–900
could be that the appointing authority could have been appointed.47
Nevertheless, the
error was quickly corrected, and the ICJ president resigned from the arbitral tribunal,
as did Croatia’s party-appointed arbitrator, leaving three arbitrators sitting. Slovenia
announced that it would not appoint a new arbitrator, leaving it to the president of the
tribunal to do so. In the absence of Croatia appointing its party-appointed arbitrator,
one assumes the president of the arbitral tribunal would have to decide what to do.
And that, as far as I know, is where matters remain. Three arbitrators standing,
Slovenia says the case can and must go on, Croatia says it is all over.48
It is hard to
describe fully one’s reaction to such developments. It felt extraordinarily painful, not
only as a former counsel but also as someone involved in the system of international
justice, because it went to the very heart of the system in which we are involved – the
centrality of the independence of the adjudicator. The concern must be not only that
the episode will bring to a premature end a process that has run over several years
but also that it will cause tremendous harm to the system of international arbitration
both within and outside the PCA system, including in the context of investor–state
arbitration. The trickle-down consequences are something to watch out for.
There is also a real concern that this might not be an isolated example. During the
conference, I had a conversation with a colleague who expressed the view that this
was surely a one-off, isolated case, and we should not make too much about it. In my
own experience, that is not likely to be the case. Many involved in international proceedings
are aware that things go on that should not go on, even if not to the same
extent as the matter I have just described. It is not entirely unusual for an agent in an
inter-state case to share a conversation that he or she has had with a person sitting on
a court or tribunal, a fact that causes (or should cause) a tremendous ethical difficulty.
Under most rules of professional conduct, counsel should not be privy to such information,
and they should not want to hear such stuff or know what is going on. Other
rules of professional conduct may have a different standard, and this raises a serious
question about the ethical standards for the international bar.
47
	 Composition of the Arbitral Tribunal, Art. 2(1), states that ‘[b]oth Parties shall appoint by common
agreement the President of the Arbitral Tribunal and two members recognized for their competence in
international law within fifteen days drawn from a list of candidates established by the President of the
European Commission and the Member responsible for the enlargement of the European Commission. In
case that they cannot agree within this delay, the President and the two members of the ArbitralTribunal
shall be appointed by the President of the International Court of Justice from the list’. Arbitration
Agreement between the Government of the Republic of Slovenia and the Government of the Republic of
Croatia, available at www.assidmer.net/doc/Arbitration_Agreement_Croatia_Slovenia.pdf (last visited
30 November 2016).
48
	 Following this lecture, the president of the arbitral tribunal appointed Norwegian and Swiss arbitrators,
H.E. Rolf Fife and Nicolas Michel and instituted a process to fill the vacant seats left by the resignation
of the party-appointed arbitrators. PCA Press Release, 25 September 2015, available at www.pcacases.
com/web/sendAttach/1468 (last visited 30 November 2016). On 30 June 2016, following the appointment
of two new members and a procedure in which Croatia declined to participate, the Tribunal issued
a partial award ruling that the breaches of the Arbitration Agreement by Slovenia did not render the
continuation of the proceedings impossible and, therefore, did not defeat the object and purpose of the
agreement, thus allowing the proceedings to continue (see Press Release, https://pcacases.com/web/sendAttach/1785
[last visited 30 November 2016]).
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Reflections on International Judicialization 899
I even had a situation in one case – and I may not be alone in this room having had
such a situation – of receiving an email from an agent in one case (it was several years
ago) sending for my attention, review and comment the deliberations of an international
court or tribunal in a case in which I was involved. The reaction of a member
of the English bar was to delete the email immediately, to refrain from reading the text
and to invite the appropriate person at the court or tribunal to remind its members of
the duty of confidentiality.
The hope must be that this terrible episode in the course of last summer will serve
as a wake-up call to everyone in the community to re-double their efforts in applying
the very highest standards of propriety. Our international system is delicate – each
court and tribunal a fragile creature – and those who wish to attack the system as a
whole or individual courts will seize on these kinds of practices and will do very great
damage indeed. This, I believe, is the positive that one can take out of this particular
development.
What is to be done about it? Silence is not an option. Pushing uncomfortable truths
under the carpet is not an option. The time has come to have an honest debate and
discussion about party-appointed adjudicators and including the issue of nationality
and whether it now ought to be excluded altogether to engage in this particular process.
And I think it also has trickle-down consequences for the question of who sits on
what cases at permanent international courts and tribunals. The moment should be
used for an honest and constructive exploration of our own practices – to enhance the
system, not to tear it apart.
Which brings me back to ask the question that hovers: How can it be that, despite
the fact that these recent matters are now widely reported, even though they happened
only a few weeks ago, they have not been talked about at this conference? This
raises a question about the nature of our community, one that is a small and closed
and inherently conservative, in which it is delicate and embarrassing to raise such
matters and talk about them. It is understandable that younger members of the academic
community would wish to tread carefully, which is why those of us who are
of a more advanced age have a particular responsibility to raise such matters, even
if sensitive and delicate, even if it causes difficulties in relation to our own prospects.
The concern must be that our community is too cosy and too closed. Scrutiny
is good, so is informed discussion and debate. The absence of scrutiny and transparency
surely allows these kinds of things to happen and then perpetuates them.
Much is under the carpet, and it should be allowed – nay, encouraged – to come out.
* * *
Which brings me back to Professor Ibler. ‘I learnt in my life not to come to fast conclusions’,
he said to me. That is surely right, and it covers all of the topics I have briefly
touched on and many others. I take heed of his warning and do not come to any fast
conclusions. Very regrettably – or perhaps fortunately – Professor Ibler did not live to
become aware of what had happened in the case in which he had been involved. He
passed away in the summer of 2015 before these matters emerged, leaving him perhaps
in a happily optimistic state. He infused us with a sense of optimism – this man of
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900 EJIL 27 (2016), 885–900
a hundred years – and that is surely a good thing. So let us leave this conference with a
sense of optimism. Let us not run away from the hard, dirty, difficult things that happen
in our own narrow, small world. Let us confront them but with courtesy, balance
and propriety. I think that is what Vladimir Ibler would have wanted.
Thank you very much indeed for your kind attention.
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