Episode 24 of Borderlines features a rare look behind the scenes at the International Court of Justice with The Honorable Joan Donoghue (’81), recently retired president of the ICJ, in candid conversation with host Professor Katerina Linos. They discuss ongoing disputes, including South Africa v. Israel and the Chagos Archipelago advisory proceeding; key Court functions, such as provisional measures, advisory proceedings, and contentious case resolution between nations; and what it’s like to serve in this preeminent global arena.
Established in 1946 to settle legal disputes between Member States and offer advisory opinions to UN organs and agencies, the ICJ is the United Nations’ top court, also known as the World Court. The International Court of Justice is made up of 15 judges, elected to nine-year terms without regard to nationality by the UN General Assembly and Security Council.
Judge Donoghue remains one of Berkeley Law’s most distinguished alumni in the field of international law. She was selected for her qualifications, including high moral character, impartiality, and integrity, to represent the U.S on the Court in 2010, re-elected in 2014, and chosen by fellow ICJ judges as president in 2021.
Before her judicial appointment in The Hague, Judge Donoghue had a long career at the U.S. State Department, cumulating in her role as Principal Deputy Legal Adviser advising Secretary of State Clinton and President Obama on all matters of international law. She also was Deputy General Counsel of the U.S. Treasury Department, overseeing every aspect including international financial institutions, and lead general counsel for Freddie Mac. She has taught international law courses at several law schools, including Berkeley. Judge Donoghue is the recipient of many awards, including Berkeley Law’s 2015 Riesenfeld Award, and is Honorary President of the American Society of International Law.
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Episode Transcript
Katerina Linos: So welcome to Borderlines. I’m Katerina Linos, Tragen Professor of International and Comparative Law at UC Berkeley. And today I have the distinct pleasure of welcoming Joan Donoghue. Joan Donoghue has served on the International Court of Justice from 2010 until 2024. She most recently was the president of the Court. She is the honorary president of the American Society of International Law and a Berkeley alum, Class of 1981.
Judge Donoghue, it’s a distinct honor to have you here today. I thought I would start with one of your recent rulings that got extensive attention, the interim decision in South Africa v. Israel.
Just today, we’re recording on May 24th, there was a new set of entering measures. In a world that’s very polarized, in a world where there’s a lot of disagreement about the facts, how has it been possible to get so [00:01:00] much consensus for provisional measures in such a difficult and urgent case?
Joan Donoghue: Well, first Katerina, thank you for having me here today. I’m happy to be here. If I look back to January when the Court delivered its first order on provisional measures in this case about Gaza, I’ll say that the application that was filed by South Africa referred to very extensive evidence and the Court had that evidence to assess and then the team that Israel presented at the hearing was well prepared and also provided extensive information.
So as president, working with staff, it was really my job among other things to look very carefully at what information was before us and to try to identify the evidence that was most relevant to the factual questions that we were presented with. And that this requires, I think, a lot of [00:02:00] judgment because not all evidence is equally probative.
And we’re trying to line up the evidence that would be cited in the order with the elements that needed to be established in order for the Court to decide whether or not to impose provisional measures and what measures to impose if it were to do so.
Katerina Linos: Can I ask you about how this case comes to the Court and how you decide to impose provisional measures? So one question I have is about the Genocide Convention and the jurisdiction that the Genocide Convention gives
to parties and to the Court. My other question is about provisional measures. So I wanted to ask, how much do the parties need to show? Is it only evidence by the parties or is there other evidence that the Court can consider? And what types of measures are possible? So just [00:03:00] today, the Court decided to order Israel not to invade Rafah.
Earlier on, provisional measures called for regular reporting, for Israel to do everything it could to prevent starvation. Could you tell me about what is and is not possible for the Court to do it in such a situation?
Joan Donoghue: So starting with the Genocide Convention: The first question for the Court when a case is brought under a specific convention, like the Genocide Convention, is the scope of the Court’s jurisdiction ratione materiae – so roughly comparable to what in the U.S. would be referred to as subject matter jurisdiction. And Genocide Convention cases, among others, are difficult because the Court is presented with facts that could support allegations, at least, of violations of other provisions of international law outside of the Genocide Convention, but the Court’s jurisdiction [00:04:00] is limited to determining whether the respondent has met its obligations under the Genocide Convention. And the Court has called attention to that in past cases under the Genocide Convention. And at least for me, I was happy to see work on a convention on crimes against humanity, for example, that would create a potential jurisdictional basis, if that convention enters into force eventually, for the Court to consider different kinds of allegations.
Genocide Convention cases are especially difficult because it is very, very hard to establish violations of the Genocide Convention. So shifting to provisional measures; at the provisional measures stage, the Court has elaborated quite frequently its criteria and it looks at whether on a prima facie basis is has jurisdiction. And it can decide ultimately when it gets [00:05:00] to look more seriously at jurisdiction that it doesn’t have jurisdiction even if it decided at the provisional measure stage that it did. Then it looks to see whether the rights that are invoked by the applicant are rights that appear plausibly to be protected by that convention.
And then, and this is usually, but not always, where the factual inquiry is most relevant, it then looks at the question whether there is a risk that those plausible rights will be harmed irreparably before the Court delivers its final judgment in the case. And so that’s where the Court is looking at the evidence – and so, going back to the order in January – looking at the evidence of what had been happening on the ground and asking itself the question, based on the evidence that we have, “Is there a risk that the right of this [00:06:00] Palestinian population to be free of genocide would be harmed irreparably before the court delivered its judgment?”
So that’s basically the question. And then once, if the Court decides, yes, there is such a risk, it then looks at what provisional measures it considers to be appropriate to guard against the erosion of those rights. And it has an entirely free hand to do that. I would say, the measures that are proposed are a starting point but they need not determine what the Court does.
Katerina Linos: So, just to make sure I understood that last part of your answer correctly, some arbitrator might be limited to damages as a possible remedy. The International Court of Justice can order states to behave in a wide range of ways: to apologize, to feed a population, to stop a military action.
The range of remedies is open ended when it comes to the ICJ?
Joan Donoghue: Well, I’m not sure that I’d quite put it that [00:07:00] way. You have to remember that there’s a distinction between the merits phase, where the idea of remedies is relevant. At the merits stage, if there’s a finding that a respondent state failed to meet its obligations, then there’s a question what remedy would be appropriate for that – what reparations would be appropriate for that is the term that we would use. At the provisional measures stage, the question is what measures the Court thinks should be imposed in order to preserve the rights until it gets to the end of case. So they aren’t really remedies. And it wouldn’t be a point in the process where the Court would impose what we would call in the U.S. money damages, for example, because that’s not a way to preserve the rights. So they’re different baskets of measures that the Court might decide on.
Katerina Linos: So it sounds like the Court has a broad range of interim measures it can order, but on jurisdiction it is constrained.
Today there was a condemnation of [00:08:00] Hamas, but it seems fair to say that the ICJ does not have jurisdiction over the entire conflict in Gaza. Could you contrast what tools the ICJ has available to what tools the International Criminal Court has available to address this situation?
Joan Donoghue: Yes, I’m happy to do that.
So the case that you’re referring to, the Gaza case, is what’s called in the Court a contentious case. And those are cases between states, usually two states, one applicant and one respondent. This Court has no jurisdiction to decide on disputes that involve a non-state entity and a state, nor does it have jurisdiction to decide on the individual accountability for crimes, for international crimes. And that’s where the contrast to the International Criminal Court comes into play. Because the International Criminal Court has jurisdiction to [00:09:00] decide whether individuals – whether they are private individuals or those associated with a government – have committed certain international crimes.
Katerina Linos: You mentioned that this is a contentious case, that we have a state bringing a claim against another state. In a more traditional contentious case of, say, territorial delimitation or boundaries in the water or land, you would have two states that are directly impacted. In this case, it’s South Africa bringing the claim, in your earlier decision on provisional measures. In Myanmar, it was Gambia bringing the claim. Could you talk about who can bring a contentious case and what your erga omnes jurisprudence allows for?
Joan Donoghue: Sure. I’m happy to do that. So, the familiar paradigm is one that’s entirely bilateral and a territorial dispute would be a good [00:10:00] example. Although those are not always exclusively bilateral because often there are more than two states claiming a particular island, for example.
But the idea of jurisdiction erga omnes partes is an idea that for certain kinds of rights and obligations in certain treaties – and human rights treaties are the best example, I think, but they’re not necessarily the only example – those obligations run among all the parties the treaty.
So all parties to the Genocide Convention have obligations under that treaty in relation to genocide and therefore also have rights as parties to those treaties. And so the Court has decided in relation to the Torture Convention that a state need not establish that it was specifically injured by an alleged violation by the respondent.
It set that out clearly in relation to the Torture Convention in a case that [00:11:00] was brought by Belgium against Senegal and decided in 2012. And then the Court addressed jurisdictional objections of Myanmar in the case brought by Gambia and reached that same conclusion on similar reasoning in respect of the alleged violations of the Genocide Convention that are pending still before the Court.
Katerina Linos: So to come back to my earlier question about consensus, it sounds like you can get most ICJ judges on the same page in a way that the Security Council is not on the same page, in part because you have been at this work on who has standing, what is the scope of the Genocide Convention, for quite some time, and there’s been some successes you are building on. Is that roughly right?
Joan Donoghue: That might be true in respect of the specific question of standing. Because, for example, in the case brought by South Africa against Israel, [00:12:00] that wasn’t a point that the parties addressed. But the Court set it out in its order so as to indicate that we had thought that through. In other words, by the time that that application was presented in the specific context of a provisional measures request, the Court’s jurisprudence on that point was pretty well established, and I’m sure the parties thought that other points had a higher priority. But I would say in general the work of reaching a broad majority in a case is very case specific. Most of the time we’re looking very closely at specific legal arguments about that case and specific factual assertions about that case.
And I think a president needs usually to have a very firm grasp of all the arguments made by the parties and has to check very carefully assertions [00:13:00] that each party makes on the facts and on the law which are often, of course presented in a way that they hope will assist their client state, but when one looks very closely, things are not always as clear as a party might wish them to be.
And then that level of knowledge helps to guide the Court more easily towards outcomes that attract broad support. It’s, I think, partly a function of really understanding very closely what the information available to the Court shows, and also for a judge who’s been on the Court for a while, one gets an appreciation of how other judges approach certain questions of evidence, what sensitivities they might have to certain formulations, certain expressions, either favorable or negative, and that can be taken into account in trying to craft a possible outcome that will attract broad support.
Katerina Linos: And is it fair to say that as president, one of your goals is to have [00:14:00] a decision that is unanimous or has broad support – that a decision with many separate opinions is less likely to have the weight that a decision with a lot of consensus attracts?
Joan Donoghue: Not necessarily. I think it really depends on the case, and it depends on a sense of how achievable it is to reach a broad consensus.
The judges are going to vote the way that they think the information demands. So, it’s not always desirable or important to try to pull everybody towards a particular outcome. It depends a lot on the nature of the case.
I’d also say that the Court’s procedures, which are not very well known outside the Court, are worthy of a couple of minutes of attention.
When the Court is delivering a judgment – so let’s say a [00:15:00] judgment on the merits – the judges deliberate orally, and they also have submitted their views in writing and have had the benefit of studying each other’s views on a provisional basis. And then the Court, on nomination of the president, elects two judges to serve on a drafting committee working with the president.
The identity of those judges is always kept confidential because the Court is then going to review that text over and over again and it becomes a very collaborative document. In a provisional measures order where the timeline is very compressed, it’s the president working with staff that prepares a draft after the deliberations and presents it to the judges.
So in that case, the process is more expedited and the president has more of a burden and responsibility to try to target something that seems like it will at least reach a majority, and then potentially a broader majority. So I would say the real goal is, [00:16:00] you have to have on each point at least a majority, and maybe, depending on the formulations, the president or the drafting committee can aim for a very large majority.
It really depends on the case.
Katerina Linos: So you drafted the first order on provisional measures in South Africa v. Israel. Is that fair to say?
Joan Donoghue: No, it would be more accurate to say I prepared a draft working with staff that took into account what I had heard from the judges after we met and discussed the case for hours and then presented it to the judges, and then we went through it, paragraph by paragraph, and discussed every paragraph before it was finalized.
Katerina Linos: When I read the final opinion, I saw a lot of citations to UN sources. A lot of them focused on famine. Could you talk a little bit about why that was a large part of the opinion, if I’m characterizing it correctly?
Joan Donoghue: Well, what I would say is generally [00:17:00] speaking, going back to my point that we review the evidence carefully, we were trying to look at the evidence that we thought would be least likely to be criticized as lacking in support.
Speaking for myself, at least, when I thought that people had access to information on the ground, it was meaningful to me because then those persons might have firsthand knowledge. Whereas, there were, for example, a number of special rapporteurs who had made statements about what had happened – they joined together to make a statement. And at least for me, while I don’t mean to disparage them or their role, I couldn’t attach the same probative value to whatever assertions they might make.
So we were looking very carefully at the reliability of the evidence that was presented by both sides.
Katerina Linos: Let me switch tracks a bit, because you have a long career. [00:18:00] You’ve practiced international law for decades before being appointed to the ICJ. I’ll ask about, in a moment, about your work at the U.S. State Department, but I would be remiss if I didn’t ask about the beginning of your career here at Berkeley Law.
Could you talk about the very early first steps, when you were a law student and an early graduate? What do you still remember?
Joan Donoghue: Well, first, I was a very naïve law student, I think.
I came to law school very interested in what I thought was international law. And it was partly because I had written an undergraduate thesis on an aspect of Soviet law. I was a Russian studies major. And when I got here and I was a first year student, I took international law from Professor Riesenfeld, who was simultaneously our professor in the spring of 1979 while also serving as Counselor on International Law in Washington, so flying back and [00:19:00] forth. And that was really a humbling experience, to see somebody who was, I think, already in his seventies, with such an energy and commitment to the field of international law. And so while I was here, I took really every course that was available on either international law or comparative law or related topics.
And I also took international business transactions from Professor Buxbaum, who I know is still a member of the faculty and still active, which is a great pleasure to me. So I was very lucky, I think, to be here at a time when there was a huge amount of energy and interest in international law and to be kind of swept along with that.
Katerina Linos: Let me just mention for Berkeley Law grads that we have the Riesenfeld Award and Judge Joan Donoghue has been an awardee in 2015.
It’s still held in Room 110, which apparently has not changed since 1981. We need some upgrades in that particular classroom. On the more positive side Professor Dick Buxbaum [00:20:00] is doing extremely well in his 90s, still supervising student papers and around at Café Zeb and is also the subject of another Borderlines interview, if you wanted to listen in on that.
Let me now turn to your career at the U.S. State Department. From the mid-1980s through the early 2000s, you had a lot of roles, including as Acting Legal Advisor. Indeed, when we teach international law, we teach Nicaragua v. United States, and you worked on that case, not as a judge, but you represented a party to that case.
How do you think of your work in international law when you’re working from the bench and when you’re working from the perspective of a specific state?
Joan Donoghue: Well, thanks for that question. So the two, I’d say, obvious similarities between the two are one, the field of public international law is common to them, [00:21:00] although one of the features of being an international judge that I’ve enjoyed is not having to worry about what’s called in the United States foreign relations law, which is not on our agenda at an international court. The other commonality is that a foreign ministry lawyer and a judge – they have no control over their inbox.
You don’t know what issues are coming to you, and you therefore have to be, at least to some degree, a generalist in order to be effective. And that’s different from a professor, for example, who decides what he or she thinks is the most interesting topic to research and pursues it with energy.
But coming to the differences . . . A foreign ministry lawyer has scope to be engaged as an issue is brewing and is partly in an advisory role. So the person is asked by a client, “We’re interested in pursuing a certain policy. Please tell us whether what we want to do is legally available [00:22:00] or help us understand how we might achieve our objectives broadly stated in a way that works better legally.” So, “Brainstorm with us, do some analysis with us, work together with us.”
Or, the question might be, “We have a brewing dispute with another state. Can you help us think of ways that we can sort that out before it escalates to a really polarized legal dispute?”
By contrast, a judge is looking backwards. A judge is presented with a legal dispute.
The ICJ has jurisdiction only if the dispute is a legal dispute. And it’s a dispute about something that has happened in the past. It might be continuing, but it has happened in the past. And so I often say that a judge paints on a smaller easel with a more limited palette. Because a judge isn’t a mediator, can’t say, “Well, you know what? I think if I could sit down with the two of you or engage in shuttle diplomacy with you, I could sort this out.” That’s not what a court [00:23:00] does. And so it can be a little frustrating as a judge who’s been in a different role to be in that place. But it is a good thing that courts are limited in that way, because we set them up to perform a very specific function and they need to stick to that function in order to be a court.
Katerina Linos: Is that still true when it comes to provisional measures? It seems that decisions on provisional measures might have a direct impact that is prospective rather than retrospective.
It seems that’s perhaps the goal of provisional measures. We don’t live in an ideal world, but when you come down with a ruling on measures, what do you hope the party to which the measures are addressed will do? And what do you hope other parties might do in response to such an order?
Joan Donoghue: Well, a provisional measures order sets [00:24:00] out requirements that the Court has imposed on a state in order to preserve rights that are at issue in that specific case. But it’s, in anticipation of a potential judgment ultimately about whether that state has met its obligations. It’s still quite a bit at arm’s length for the judge. The judges aren’t in a position to suggest how the parties might settle their dispute in the substance in the provisional measures order. The function of a provisional measures order is quite distinct from the function of a final judgment on the merits. It has a limited function of preserving rights until the case has been decided.
I think they’re pretty different.
Katerina Linos: Earlier on, we spoke about cases where you succeeded as president to have broad consensus, but you’re also well known for a separate opinion in the Chagos Archipelago case. In that [00:25:00] decision, the Court held that the United Kingdom is obliged to end its administration of the Chagos Islands as rapidly as possible, and you wrote separately not on the merits but on an issue of whether the dispute should be better resolved bilaterally.
Could you talk about that decision and why your views differed?
Joan Donoghue: I didn’t address the merits that decision other than to say briefly that I could understand why the circumstances that were presented to the Court were crying out for an authoritative judicial decision.
But in that case, in particular, there had been repeated efforts by the United Kingdom to exclude from the Court’s contentious jurisdiction the particular disputes in relation to sovereignty over the Chagos Archipelago that were at issue in the request for the advisory opinion. [00:26:00] So I believed then and still believe that there should be a separation between the advisory opinion function and the contentious case function.
And that in order to preserve the Court’s integrity as a court, there would be situations, and this was such a situation, in which however tempted the Court might be, it was important for the Court not to use the advisory opinion process as essentially a way to circumvent the absence of jurisdiction.
Katerina Linos: So can I broaden this to a question about advisory opinions as opposed to opinions in contentious cases? One could say that there is a growth in important advisory opinions. We have some pending requests from the General Assembly. One could also say that Israel might see the effort [00:27:00] to bring some of these advisory opinions as ways to circumvent Israel’s unwillingness to submit to the Court’s jurisdiction in a bilateral dispute.
How do you see these issues of whether the General Assembly in particular can bring cases to the Court when one of the two parties, be it the United Kingdom or Israel, would rather that an opinion not be rendered?
Joan Donoghue: Just say that I think that the situation of Mauritius and the UK is different from a situation involving Israel’s conduct in the Occupied Territories because in the situation of the UK and Mauritius, you have two states.
They recognize each other as states. They have treaty relationships, et cetera, and you have a series of efforts by the United [00:28:00] Kingdom to reject repeated requests by Mauritius to settle certain issues in adjudication. If you look at the situation of Israel and the occupied Palestine territories, there’s no comparable circumstance. Because we have Israel, it’s a member state of the UN, and you have Palestine, which Israel does not recognize as a state. So there isn’t a comparability in terms of the reasons why the Court would choose or could choose to stay outside of the case. In other words, the particular concerns that I set out in the Chagos case applied very specifically in that circumstance, but they don’t translate automatically to every situation in which a state might have a dispute with another entity that that state doesn’t consider to be a state.
Katerina Linos: Could I ask more generally about the appropriate role of the advisory opinion and about advisory opinion efforts that might not be as [00:29:00] helpful?
We spoke earlier about efforts to get an advisory opinion on challenges related to climate change. You mentioned that there’s an effort to get a question from the ILO. In the past, the World Health Organization has asked some broad ranging questions through the advisory opinion mechanism.
What do you think are some of the best uses of this mechanism and how might this mechanism be misused?
Joan Donoghue: You know, it’s interesting to think about the question, what’s the best use?
I guess what I would say is the Court is open to requests for advisory opinions from the General Assembly, from other UN organs and from certain other UN bodies. And its responsibility is to consider whether it wishes to deliver those opinions, and if so, to deliver them without necessarily thinking very much about which one might be the best use of the Court or not.
What you see, I think, in the two [00:30:00] requests from the General Assembly that are pending, is a sense that the proponents of both of those requests, and there are many states supporting both requests, that those proponents find themselves disappointed with their inability to make progress on the issues of concern to them elsewhere, especially in the political organs of the United Nations in New York.
And of course one feature of that is the widely discussed paralysis of the Security Council these days. The fact that the Security Council is repeatedly divided on issues of great concern to many states and to many others.
Katerina Linos: Given the paralysis of the Security Council, states turn to the General Assembly, states turn to the ICJ. What scope is there for these other bodies to move forward in [00:31:00] challenging times?
Joan Donoghue: If you look at the Court in particular, I would say that the Court is faced with a situation in which it’s being viewed as a place where finally the proponents hope that some successes will be achieved because they feel frustrated that they haven’t achieved success elsewhere. And so it remains to be seen where that will lead in these two significant requests that are pending before the Court now. We’ll have to see what the court says in substance, assuming that it does reach the substance in both requests. And then most importantly, I think we’ll have to see what happens after that, how states and other institutions react to those opinions, because the opinions are, formally, advice to the General Assembly. And so the General Assembly can act in response, but on most matters, the General Assembly can’t act in a [00:32:00] binding way. And advisory opinions can be used elsewhere. They don’t necessarily have to be used only in the organ that requested the opinion.
We’ll have to see how those opinions are used ultimately to achieve the objectives of those who propose them or to refute those objectives depending on the content, which we can’t predict.
Katerina Linos: So let me ask you a little bit more about what happens after an ICJ decision is issued.
We can’t know what will happen in the future, but we do know in part, what happened in the past.
You mentioned that we have had some compliance with important ICJ decisions, even on very high stakes issues, even in disputes between parties that engaged in violent warfare, Congo and Uganda, to take one [00:33:00] example; parties that had significant maritime boundary disputes.
Could you talk about some past successes? Because every time an ICJ opinion is covered in the press, there’s a quick sentence: “The ICJ has no means of implementing its decision.”
Joan Donoghue: Yes, it’s true that the press often says that. And we – ICJ judges – when we have a chance to address that issue, often remind people that domestic courts don’t have ways to enforce their own judgments.
So you have to look at the effectiveness of judicial decisions in the framework of the broader system in which the court is located. In a national system, usually you have other actors who have means to bring about enforcement. Both internationally and domestically, states have incentives to comply with decisions.
And it’s usually their assessment that it’s in [00:34:00] their interest to do so that gives rise to their decisions to comply. And fortunately States normally do comply with decisions of the International Court of Justice. As a court, and this would be true of domestic courts in the United States at least as well, once a decision is rendered and the case comes off our docket, we’re not a monitoring mechanism.
So we don’t have any means formally to keep track of what happens afterwards. We sometimes learn about it in various ways. And so, for example, in one of the cases you mentioned, the Court delivered a judgment while I was president, ordering Uganda to pay reparations to the Democratic Republic of the Congo in increments, in five installments.
And Uganda then paid the first installment on time as ordered. And it’s a significant outcome, I think, because we were aware at the time that we delivered the order that we were ordering a state [00:35:00] that wasn’t itself an incredibly wealthy state to make reparations. These are neighboring states. They have a complicated relationship and one has to expect and hope that in the context of a broader relationship, states make a decision that it’s in their interest to behave in a manner that a court ordered them to behave.
Katerina Linos: A different way to assess whether a court is successful or not is to see whether states bring cases to it or don’t.
And it seems that the docket of the Court is growing. Is that fair to say? It seems that you’re getting more requests from States from the Global South. It seems that you’re getting more requests for advisory opinions. And what does that say about the usefulness of the body and also about the day to day work for the judges?
Joan Donoghue: That’s, I think, an important question and the answer will be clearer in about 10 years, I think, than it is today. When I joined the Court in 2010, so many people told me I was so lucky, that the Court was [00:36:00] so busy and it had such interesting cases, which was true.
I mean, one of the first cases that I worked on was the whaling case between Australia with New Zealand intervening and Japan, which was a very interesting case that caused the Court to consider quite a number of scientific and technical issues in an important way. But the Court is so much busier now than it had been, and the reasons that are often identified go back to a sense, I think that issues have not been settled elsewhere. I would also say that the Court has been functioning well and delivering judgments and orders that whether observers agree with them or not – and usually losing states are not entirely convinced by everything a court says – but whether they agree or not one sees a sufficient amount of commentary that leads to the conclusion [00:37:00] that this court is conducting itself in a court-like manner, that the reasoning is set out in a way that parties and others can understand.
And so these are all factors that contribute to an assessment by a state and its outside advisors who are expert on the Court that, yes, this is an appropriate place to take a dispute. It’s not a trivial decision to bring a case to the International Court of Justice, to accuse another state of failing to meet its obligations.
And states don’t do so lightly. But I think the Court does deserve some credit for conducting itself in a manner that has contributed to the size of the docket and the diversity of questions presented in the docket.
Katerina Linos: Another way to judge the success of a court, which is very indirect, is to see whether its decisions are understood by a broad audience. And ICJ cases are taught around the world to lawyers, but ICJ cases also get [00:38:00] very extensive press coverage. Corporations, elected leaders, work so hard to get this amount of press coverage. As president of the Court, were you concerned about the nature and volume of the press coverage, or were you just concerned about managing the journalists and making sure there was enough space for them, that they were accurate?
Did it all come to you, or did you have to proactively educate people about the work of the Court?
Joan Donoghue: This Court has not put a huge amount of effort into trying to educate journalists directly. There have been briefings to journalists about the Court generally. I’ve done a couple of those in New York and other presidents have done those as well.
But of course, it’s a court, which means that it’s not possible to tell the journalists the things they most want to know about. “What [00:39:00] happened in the deliberation room? Why did such-and-such judge say this in a separate opinion? What are you going to do on cases that are pending?” Et cetera. We can’t answer those questions.
But there is a small, but I think significant, group of journalists who do follow the Court closely. And I would say that for most of our cases, there is considerable reporting in the states that are especially affected. We see the press clips that come after a decision. And it’s interesting to read them.
It doesn’t really materially affect our work, but we’re able to observe the extent to which the popular press, if you can call it that, really does appreciate what the Court has said, which is sometimes not that difficult to understand and sometimes pretty different. Also, after a decision, typically, each party puts out a press statement, and it’s fairly [00:40:00] interesting and maybe even amusing to line those up next to each other and look at them.
Because in general, the teams representing the states are at pains to identify the successes that they had and sometimes it’s fair for each of them to claim successes. Sometimes, the government press releases are quite creative in claiming what happened. And that’s important because then what that government says often then plays a role in the way that the outcome is characterized domestically.
Katerina Linos: I was studying some decisions of the German Constitutional Court where the judges never speak to the press, except for a 2020 decision that was heavily criticized and we had a number of judges coming out and giving interviews and saying, “Oh, the press misunderstood what we were doing.” Has that happened?
Have you ever needed to go out and correct understandings? Or for the most part – even though the parties cover the parts of the opinions they want [00:41:00] with a particular spin – there’s been accuracy in how your decisions get transmitted more broadly?
Joan Donoghue: Well, I don’t assume that our decisions are described accurately everywhere at all.
I think it’s often difficult for the popular press, the non-expert press, to characterize judicial decisions accurately. I’m not aware that the Court has gone out to correct inaccuracies that a judge or the Court or the staff might notice. And I don’t think it would be appropriate to do that.
There is a mechanism in the Court, and it’s also true in arbitration, for a party to seek an interpretation. So if a party thinks that it’s necessary to seek an interpretation of a judgment, it can come to the Court and ask for it. But usually the [00:42:00] parties reading the judgment carefully, with advice from those who are skilled in reading ICJ judgments, have a pretty good sense of what the Court actually decided. Which is different from the way that might translate several steps away from the experts, and the way it might be understood in communities that are affected in a particular country, for example.
Katerina Linos: So it sounds like international law teachers are doing a good job explaining what the ICJ does. Reporters are doing a pretty good job communicating. And the Court, as a result, doesn’t have to invest its own resources. There wouldn’t be an advertising budget, a big press office – a kind of effort that I think some of the tribunals put in place that were designed for special purposes and special situations to educate about their role. That’s just not necessary because the Court is established and successful.
Joan Donoghue: Well, because you raised the question of the [00:43:00] budget, I have to say that this Court works really on a shoestring. The budget of the International Court of Justice, the principal judicial organ of the United Nations, is less than one percent of the overall budget.
That budget has been flat since I joined the Court in 2010, despite the gross growth in the docket. There’s never been anything in the budget of this Court that provided scope to promote the Court, to advertise for the Court. There is a department, called an information department, that has about three professionals in it who are responsible for dealing with the press, for organizing the hearings, and for a whole number of other things that in other institutions might be handled by a protocol office, which this Court doesn’t have.
So this Court was created long ago. Its institutions were set up when it was quiet, not [00:44:00] busy. And these newer courts came in with a lot of energy behind specific problems and were established with larger staffs and with scope to support these kinds of activities that haven’t been assigned to the ICJ.
It’s actually quite remarkable, I think, that the Court and its very small staff – about 115 people, most of whom are working in translation – it’s remarkable to me that the Court can do what it does with such a small staff, and the staff works very hard and is very dedicated, and it was a pleasure to work with all of them.
Katerina Linos: Thank you so much. It’s been a pleasure to ask you these questions. Is there anything that you’d like to end with, a miscommunication about the Court, a wish for the implementation of particular decisions, a reform hope, or a wish for new international law graduates as they think about careers in this field?
Joan Donoghue: [00:45:00] Well, in terms of careers, I would say of the Court’s docket and the level of activity in international arbitration should be born in mind, because there is quite a bit that needs to be done in the space of international dispute settlement, and it’s an important field and rewarding one.
In terms of the Court, as I said earlier, it will be interesting to look back in 10 years. Right now, we’re at a stage where the Court is very busy. Cases are being brought not only by states that are alleging a direct injury, but also by states that have a more attenuated relationship to the facts as a result of the Court’s decisions on erga omnes partes standing, which I think is a correct decision legally, but has implications for the docket.
And there’s quite a bit of interest on the part of states to pursue provisional measures requests. And so we’ll have to see as the Court is busy with all of these demands – in addition, the demands from the General [00:46:00] Assembly – how the Court manages all of that in terms of workload and how the outcomes are perceived by the international community.
And we’ll have a lot of information about that about 10 years from now. And we’ll be able to look back at this period reflect on its significance, where it led, and whether there’s been some recalibration ultimately to bring the docket more in line with what’s available for resources. Or possibly, the Court’s working methods and the resources will be adjusted to accommodate this bigger and more diverse workload.
Katerina Linos: I hope you really enjoyed this interview with former President of the International Court of Justice, Joan Donoghue. If you enjoyed this episode, you might also enjoy the episode with former President of the International Criminal Court, Piotr Hofmański. And a future episode with the President of the Court of Justice of the European Union, Koen Lenaerts.
Thank you so much for listening to [00:47:00] this episode.