Personality and Procedure: Judges and UNCLOS adjudication
In his first post as GJA Student Ambassador, Connor Hounslow reports from the 2017 Scottish Centre for International Law‘s Annual Lecture. This year’s lecture was delivered by Natalie Klein, Professor and Dean of Macquarie Law School.
Last Tuesday, Professor Klein delivered the Scottish Center for International Law Annual lecture on the role of the judge in developing international law, especially within the context of the Law of the Sea. As described by Professor Klein, her body of research on this topic represents a microcosm of the international legal system. Nonetheless, Professor Klein’s explorations in this lecture posited an understanding of the judge which applies to the broader international legal universe.
Dispute settlement procedures, such as compulsory arbitration, are an important mechanism within the “Constitution of the Sea”. The significance of these mechanisms were explored through the lens of the procedural and regime-building models, which emphasized the compulsory jurisdiction as the ‘glue’ of dispute resolution and the building of an international legal order, respectively. Professor Klein moved onto how the courts and their role are specifically situated and theorized within the international adjudication system. Professor Klein utilized international relations theory to understand the courts as resolving disputes which increase credibility (acting as a trustee) and performing ‘tasks’ that states cannot (acting as an agent). According to Klein, these theories, alongside the notions enforcing the law and developing law, offer an incomplete understanding of the courts within the LOS. This is where Professor Klein turned to the role and characteristics of the judges.
Professor Klein focused on the role of the 43 judges and arbitrators – for Annex VII arbitrations – amongst the estimated 2000 individuals who are involved with law of sea adjudication – from justices to maritime experts. Why study these judges anyway? For one, their recurring presence within the the LOS cases implies that greater attention ought to be paid to these individuals. Another answer to this question was provided when Prof. Kleins quoted Oscar Schacter: the “attributes and characteristics of individual judges is important as a widely representative group with different political and cultural representation’ which ultimately contributes to “credible and authoritative judgments”. For example, understanding the Anglo-American tradition that most of the judges have been educated in can offer insight into the judicial approach to dispute settlement.
Professor Klein discussed four judicial functions which evidence the centrality of the judges in how LOS cases have developed: setting procedure, treaty interpretation, fact-finding, and resolving disputes. In setting procedure, the judges determine who the actors are, especially important in terms of non-state actors, and what information is to be made available for the purposes of deciding the case. Professor Klein cited the challenge to the arbitrator (from the United Kingdom) in the Chagos Archipelago case. Professor Klein, in discussing treaty interpretation, discussed the jurisdictional procedures in UNCLOS Articles 281, 286, and 297 and 298. Klein recognized that ‘developing the law is about “making law visible” (Lauterpacht). From this discussion, it became apparent the the judges are part in parcel of the adjudication procedures and thereby the broader development of the LOS.
Although Professor Klein did not specifically mention the notion of procedural justice, her lecture paralleled some of the theorizing and literature on this topic that exists. Procedural justice, broadly defined, concerns the principles of justice (as fairness, if we recognize Rawls formal account) as applied to procedures that govern what we do. In the case of international adjudication, such procedures reasonably include the functions that Professor Klein enumerated in her lecture (i.e. setting procedure of adjudication and treaty interpretation). One principle the international community requires of its arbitrators is impartiality (viz. Hernandez) and increasingly is sexual representation (viz Grossman).
Professor Klein claims that role of the judge is to (1) identify who are the stakeholders and what counts and (2) understand the objectives of adjudication in order to provide an interpretation of the rule that ‘connect[s] to the past in way that shape future applications’. Professor Klein’s inquiry suggests that the ‘adjudicator’ is not a neutral or passive actor within the UNCLOS adjudication procedures. In turn, ‘pure procedural justice’ appears to ground judicial principles, such as impartiality, in order to achieve an ‘agreeable outcome’ amongst disputing parties. Indeed, there is a consequent effect of ‘sociological legitimacy’ when applying these principles (viz. Fontanelli and Busco). Ultimately, the application of these principles (e.g. expertise and impartiality) is dependent on how the judges determine the proceedings of the case (Fontanelli and Busco), and how they themselves are perceived within the international community.
Fontanelli, F & Busco, P 2016, ‘The Function of Procedural Justice in International Adjudication’ The Law and Practice of International Courts and Tribunals, vol 15, no. 1, 1, pp. 1-23. DOI: 10.1163/15718034-12341310
Grossman, Nienke (2012) “Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?,” Chicago Journal of International Law: Vol. 12: No. 2, Article 9. Available at: http://chicagounbound.uchicago.edu/cjil/vol12/iss2/9
Hernandez, G. (2014). The International Court of Justice and the Judicial Function. Oxford, Oxford University Press.