Episode 15: IDEAS FOR REFORMING THE WORLD COURT

In this episode we discuss the urgency of revamping our deeply flawed World Court so it can effectively serve the purpose for which it was created namely as the first port of call for nations embroiled in disputes so they can settle their differences peacefully without resort to violence and war. 

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Hello and welcome to Reimagining Our World, a podcast dedicated to envisioning a better world and to infusing hope that we can make the principled choices to build that world. In this episode, we discuss the urgency of revamping our deeply flawed world court so it can effectively serve the purpose for which it was created, namely, as the first port of call for nations embroiled in disputes so that they can settle their differences peacefully without resort to violence and war. This is our 15th episode. I'm excited to be with you here today. The last couple of times we talked about the need for a collective decision making institution that would be capable of addressing our global challenges of the day, including the pandemic, including things like nuclear proliferation and the threat of a nuclear holocaust, including climate change, the slow moving epic disaster that is looming above our heads and other similar global crises. Today I'd like to continue our global governance series and talk about what we need to do, really imagine what our world needs in order to manage conflicts. We're going to talk about how to manage conflicts, particularly between nation states, and manage illegal behavior on the part of states who, for example, develop illicit nuclear weapons programs or who engage in supporting terrorism. We all know that conflict is a feature of human life. If we think of our lives as individuals, even in the most closely knit families, family members will inevitably have disagreements and sometimes they'll disagree intensely. In a healthy and mature family, we find ways of resolving these disputes and managing them in an amicable fashion. In dysfunctional families, what happens is that we allow those disputes to engender long term resentment and hostility and anger and even revenge or outright conflict. Now, in many societies, expanding from the individual and the family, we have learned more advanced techniques, if you like, for managing disputes. We've put aside the sword and the gun, and instead we've created judicial systems whereby we can take our disputes and conflicts to a court where you have independent, unbiased arbiters or judges who hear disputes and then decide for the parties. Now the international community, taking it a level up, has also been on its own journey of growth and evolution designing systems to manage conflict so that they don't turn into war and destruction, and also to manage illegal behavior, the flouting of international laws, for instance. This journey began in particular with great momentum after the First World War. It had already started in the last part of the 19th century with the creation of the Permanent Court of Arbitration in The Hague, which was really an arbitral court to resolve disputes. A true tribunal didn't come into being as a global, supranational, at least it was intended to be, tribunal until after the First World War, when we created the League of Nations. One of the agencies of the League, one of the bodies that was created to go with it, was the Permanent Court of International Justice, known as the PCIJ. The hope was that nations would turn to this body to resolve their disputes instead of resorting to war and shedding unnecessary blood. Unfortunately, as we know, both the League of Nations and this Permanent Court ultimately failed. We then had a Second World War, and we created the United Nations, which had its own new court to replace the Permanent Court of International Justice, and this court is known as the International Court of Justice, and sometimes referred to as the World Court. Let's just call it the World Court for our purposes. Now you would have hoped that at this next stage of humanity's development, we would have got it right. But as we've discussed before in this series, humanity is on a collective journey of growth and evolution, just as an individual goes through various stages. And each developmental stage has its own requirements. We develop different capacities. So too, the international community has slowly been learning with each iteration. It's been learning new lessons and developing new capacities until we get to the stage that we want. Why has the current world court not been able to really play the role of ensuring that all disputes in the world are settled amicably, so that we don't resort to war and conflict, because that's ultimately the litmus test, right? Have we seen an end to war and conflict in the world? No. Therefore, the institutions we've designed aren't doing their job the way we would have wanted to. So we accept responsibility for that. We decide what we want to see and then figure out the steps to take us from here to there. Today we're talking about what we want to see and the steps that are necessary to get us from where we are today to a World Court that actually is able to settle disputes peacefully so that we won't have wars and conflicts. Three particular flaws in the current design that we first need to be aware of. Because the first step is to be aware of where we are, what's working, what's not working, and then to fix it, to throw out the stuff that isn't working, to modify, change it, and create something that is. Let's look at what's not working. The first thing is that the court lacks what we call compulsory jurisdiction. In other words, nation states get to choose voluntarily whether they want to submit themselves to the jurisdiction of the court. Let's say two nations get embroiled in a serious dispute and one of them wants to take the matter to the World Court to have it decide. Guess what? Under our current system, the other nation is under no obligation to show up before the World Court. It depends on whether it has signed on to the compulsory jurisdiction provision of the court. Only 73 nations of 193 today have signed on to the compulsory jurisdiction component. There are other ways that nations can be hauled before the world court. Sometimes they can opt on a case by case basis to show up, and sometimes treaties that they've signed on to require them to show up, but even then, as we'll see in a little while, even under treaty requirements, nation states will say, "No, I'm going to sit this out." When you think about this idea of being able to opt out of a dispute resolution system that is so critical to maintaining peace in the world, it seems crazy. Can you imagine us doing this within our national borders and our cities? Imagine somebody being accused of murder and then the system going to him and saying, "Hey, would you like to come to court and have us try you? Or would you prefer to sit this one out?" We all know what the answer is likely to be, right? It'll be, "I would like to sit this one out, thank you very much." We'd never stand for such a defective system. And yet, in our global community, which has become this single organism we, have been willing to tolerate really an untenable state of affairs, but the stakes are too high now and we have to actually create a change. That's the first flaw that we need to fix. The second flaw is that the judgments of the court are not enforceable. To continue with our example, imagine the murderer saying, "Okay, I'll show up to court," and then there's a trial, and the judge finds him or her guilty. At this point in our own systems, we would have a sheriff or someone, cuff the prisoner and take them to the prison, lock them away, and there'd be a whole system to support this. In the international system, what ends up happening fundamentally is that we say to the nation that has been found guilty, "Hey, here are the keys to the prison. Go walk yourself over. Lock yourself in, take care of yourself, and stay there the 30 or 40 years that you need to be there." Again, it's laughable when we put it that way, but that's basically what our current international system looks like. The law right now at the international level is that we rely on the goodwill of the aggressor to voluntarily abide by the judgment of the court. It's the honor system. And one is left scratching one's head. If a nation has been willing to break the law in the first place, why would we think that at this stage, we could trust that nation to go on the honor system and abide by decisions saying, "Hey, you're guilty, and you need to change your ways or pay damages or do whatever it is that the world court decides there to do." it's farcical, and we definitely need to change the system. We need to have a mechanism at the international level that is capable of enforcing the judgments of the court. Now, interestingly, the current system under the UN Charter and under the statute of the Court of Justice actually authorizes the Security Council to enforce the court's rulings. But it's never been done. In all these years that the court has been around since it came into existence in the 40s, the Security Council has never used this power under Article 94. 2 to do this. Again, we know the problems we have with Security Council and the veto power that the five permanent members have. They just haven't bothered to do this. So we need to change the system. Now the third flaw, fly in the ointment if you like, of the way the World Court is structured, is that in order to function effectively, the international community must trust it and must trust the judgments of the court. For that trust to be there, several things have to be in place. You have to believe that you have competent jurists. They need to be beyond moral reproach. They need to be completely unbiased and to be viewed as being completely unbiased. And they must be truly representative of all nations and all segments of society, right? I must feel that these judges somehow represent me and they're hearing my voice and my concerns as well. There are two problems here in particular we have to address. The first is how judges are elected. Today, under the rules, technically, they are elected by the UN General Assembly and the Security Council together, drawing from a list of names of people nominated by the national groups of something called the Permanent Court of Arbitration, which the arbitrators are actually appointed by various governments. As a practical matter, the way judges are elected is that people, a bunch of usually men, get together in back rooms and they do deals with each other, heavily influenced by political considerations, rather than having the collective interests of humanity as the driving motive of their selection. So fundamentally, the judges are not seen by the international community to be representative of the people, because the people don't have a direct hand in electing them. This then leads to a second problem: bias and perceived bias. Studies have shown that existing World Court judges often exercise bias, not surprisingly, in favor of their own countries when deciding cases. And indeed in 90, 90 percent of cases, they have voted in favor of their appointing country, the country that ends up putting them up to serve on the court. Studies have also shown that these judges tend to tailor their decisions to the reaction that they anticipate that the state parties are going to have to the judgment that they give. Why do they do this? Because they perceive the very legitimacy of the court depends on the acceptance of the decision by the parties. Again, when you think about this is crazy. It's like the murderer is like the judge saying, "Oh, I need to take into account how this murderer is going to react or this accused murderer is going to react to my judgment because the legitimacy of who I am in my court depends on what the murderer and his or her family think of my judgment," as opposed to looking for the truth and doing that which is in the best interests of the community and of the society. As a result, the judgments of the court don't always represent humanity's unalloyed interests of peace and justice. The solution requires that, first of all, a few principles be put in place. We need to have a court that is transparently elected, that has judges that truly represent the international system and all the voices of all the peoples of the world, that is unbiased and independent particularly of national and political pressures, and its decisions must be seen to be motivated solely by the good of international community as a whole rather than one or two of the parties to dispute. These are the principles. What is the practical solution? What are the steps we need to take to get us to the kind of court that actually brings peace to the world? Here's what I propose ,and these thoughts exist in literature. I've pulled them together Each nation's parliament should elect two to three national representatives, in direct proportion to the size of their population. These people should have all the qualities, they should be very familiar with international law, and they should be qualified and competent and all of that. Their election should be confirmed by all the parts of the government, the legislature, the executive, and the head of state. So you've got people who've been elected now, you've got a group of people elected who truly have the support of all the components of a nation behind them. Now all these representatives from all the different nations get together and then they elect from amongst themselves a number of jurists. Right now there are 15 people on the World Court. 15 or whatever number the nations of the world decide is a suitable number. Let's say 15. From amongst themselves, they elect 15 members who are going to serve on the Court of Justice for a fixed term. The next important component is that these judges make decisions based solely on consultations between them and on their conscience. They don't take instructions from their governments or from anyone else. This should ring a bell. We talked about the establishment of a global legislature and we talked also about direct elections and then how the voting should proceed and we said that this had already been done in the world with the European Coal and Steel Community for a long time. Those of you who missed those episodes, please go back and watch them because it's really fascinating for people who are naysayers, who say this can never be done. It has been done. We have a historical model in the not too distant past and it's a fascinating study. And finally, these judges should serve for a fixed term and be prohibited during their service and thereafter from taking jobs from any governments or any work that might be a conflict of interest with their roles as judges. Today the judges of the world court do jobs on the side. It's unbelievable to me that our system allows it. The decisions of that they make ideally would be made unanimously, but we shouldn't bind them because we'll hamstring the court, right? Whenever you require unanimity, if people can't all arrive at a unanimous decision, then they go to the lowest common denominator and you get a really bad decision. So in the case that they can't all decide, then have a vote, maybe two thirds majority vote. The last thing that I want to share with you, another final thought to wrap this up, is that we also need to define clearly the hierarchy of international courts and tribunals. You've probably noticed that over the last many years, we've had new courts springing up at the international level that tend to be specialized courts. The one you're probably most familiar with is the International Criminal Court, right? To prosecute individuals, particularly leaders of countries who are engaged in gross violations of human rights and crimes against humanity, and so on. We've also got the World Trade Organization dispute settlement body. And we've got the Law of the Sea tribunal, the ITLAS, International Tribunal for the Law of the Sea that decides maritime disputes between nations. The problem with having a multitude of courts is that you have to be careful that international law remains coherent and that different bodies making decisions, particularly where there's overlapping jurisdiction, that these decisions don't muddy and confuse what international law is. There has to be uniform application and you also want to stop states from forum shopping, deciding, "Ooh, I'd rather show up at this court because I think I'm going to get a better result based on their past decisions than show up at this other court." So the proposal again here is to make this new world court an umbrella court that coordinates the work of these other thematic courts, maybe by assigning cases to them, and that nation states would have a right of appeal from decisions of these lower courts if they don't like them or feel they're unjust to the world court. That way you create coherence in the system, you create uniformity, and a sense of fairness. Okay, that is what I wanted to share with you about creating this absolutely critical new body in reforming the world court that we have and fixing the fundamental flaws in it so that we can resolve disputes in the world without resorting to war and and we can also ensure that countries who deliberately flout international law are brought to account. Alright I don't know if there are any comments or questions. I'm not seeing anything at the moment. Before I leave, again, I will let you know that if you like the kinds of conversations we're having please look up and pick up a copy of the book, The Alchemy of Peace, Six Essential Shifts in Mindsets and Habits to Achieve World Peace, and share it with your friends, share news of it with your friends. I'd really appreciate your support in getting the word out. The main aim is really to get the ideas out, because they will, I believe, help humanity to create a better, more peaceful, and just world. It is available on Amazon worldwide. Goodbye for now. That's all for this episode of Reimagining Our World. I'll see you back here next month. If you liked this episode, please help us to get the word out by rating us and subscribing to the program on your favorite podcast platform. This series is also available in video on the YouTube channel of the Center for Peace and Global Governance, CPGG.