Judging the media and the ICJ

THE ECONOMIST – International Law is a convoluted matter, not least for those who determine its applications. Thus, to be a judge on the International Court of Justice (ICJ) is a difficult task. The nature of their institution implies an objective perspective on international diplomacy and interrelations, which they must determine. In addition, the body of laws on which the ICJ draws is immense, sometimes contradictory, and subject to shifting norms. Conveying these processes to the media has not historically been a major role of judges themselves.

This is the context which the ICJ presently deliberates on the Jadhav case between India and Pakistan. This facts of this case – matters of international law – are compounded by years of political opposition and confrontation between India and Pakistan, dating back to partition in 1947. Several judges have commented and concurred on the generally political nature of the case. Allegiances of the public, they say, would not be a matter of law, but of national affiliation. The judges of the ICJ, however, cannot allow themselves to be, or be perceived as beholden to any such affiliation.

There has been some unrest amongst the public and the media given reluctance among members of the judiciary to reveal aspects of their deliberations to the world. This political nature of the case in particular, however, demands for truly independent deliberations, and perhaps shielded representations judicial thoughts in the public realm. Private deliberations enable sobriety in the exercise of law and judicial comments to the media can easily be construed or misconstrued as partial endorsements of one side or the other. Any bias imposed on a judge may diminish the public trust in the decision and the credibility of the court.

That is not to say that judges are or practice, or should be prohibited from revealing their thoughts should be parochial in nature and connected exclusively to matter of law, not politics. Several judges of the court, for example, revealed to The Economist limitations on the applicability of a certain precedent to the case (Avena case) and of various other legal considerations relevant to their decision. Little more in the way of biased expressions can nor should be expected.

Once a decision has been made and published, there is little doubt that it will be opposed, both as a matter of politics and law, by whichever party finds itself on the losing end. When this occurs, the international community can will be able to look to a sound and clear decision from the ICJ in order to move beyond the disagreement and hopefully towards improved relations in the future.