As a World Court judge from a nation that questions its authority, Judge Joan Donoghue sought last week to justify the court's existence as a "potent force" for peace despite the lack of full participation by the United States.
Donoghue, the U.S. judge on the 15-member International Court of Justice, told a crowded room of University of Georgia students on Tuesday that the court's role is to shape an often ambiguous body of international law, regardless of whether nations such as her own obey its decisions.
"It's not like we're looking through a telescope like an astronomer at distant stars. What we do shapes and defines the content of the field," Donoghue said during the John A. Sibley Lecture at the UGA School of Law.
The International Court of Justice -- also known as the World Court -- was established by the United Nations' charter in 1945. It rules from The Hague, Netherlands, on civil disputes between nations that consent to its oversight. (This is not the court that charged Yugoslav President Slobodan Milosevic and Liberian President Charles Taylor; their prosecutions were handled by separate international criminal tribunals, also based in The Hague.)
Judges to the World Court are elected by the United Nations General Assembly and the Security Council.
Donoghue said that about one-third of the United Nations' 193 member states accept the court's "compulsory jurisdiction" in contentious cases. The United States, she explained, only appears before the court to resolve treaties signed before 1986, when the nation began avoiding treaties that require using the court.
The U.S. withdrew from compulsory jurisdiction after the court ordered reparations to Nicaragua in its ruling that Americans breached international law by helping to arm the anti-government Contras.
That move left Donoghue and her predecessors in the awkward position as a member of a court whose decisions her home country doesn't always respect.
"When states aren't in compliance with international legal obligations, certainly as a member of the court, that's concerning to me," Donoghue said in an interview after her speech. "If I believe that the state is making a good-faith effort to come into compliance, that has a significant impact in terms of my perception of how to judge the state."
The United States also failed to obey a 2004 World Court decision in Mexico v. United States of America, in which the World Court ruled that U.S. courts should reconsider the sentences of Mexican nationals facing execution because the United States didn't fulfill its obligation under the Vienna Convention on Consular Relations to notify the condemned's consular officers for legal representation, Donoghue said.
President George W. Bush issued a memorandum requiring states to give review and reconsideration to the issue, but the state of Texas contested the president's authority to do so. The U.S. Supreme Court ruled in Medellín v. Texas in 2008 that World Court decisions aren't binding on domestic law except by acts of Congress.
"From the very beginning, there were competing views, especially in the United States, about this idea of a World Court," Donoghue said in her lecture. "Some people had the reaction that the idea of states transferring their sovereignty to a World Court was inherently problematic. Some were very doubtful that a World Court could ever be a place that could avoid wars and other problematic means of resolving disputes."
But while the court has little power to enforce its judgments unless the United Nations decides to act against defiant states, most countries eventually comply with its rulings, she said. For example, it has taken a decade for Nigeria and Cameroon to resolve a border dispute after the World Court decided against Nigeria.
"Compliance is too narrow of a question. It's better to look at the question in terms of the contribution that this particular body makes toward the peaceful resolution of disputes," Donoghue said in the interview. "A court doesn't just exist inside of the courtroom with the parties. It's a piece of a broader system."
The prospects for the United States agreeing to the World Court's jurisdiction in the future "would be something of an uphill battle," she said. "You really can't submit to a court's jurisdiction without being prepared to take that risk" of losing.
UGA international law professor Diane Marie Amann said Donoghue understands the World Court's importance in shaping a global legal framework, even without the United States' support.
"Even if the U.S. isn't before that court, it has a great interest in making sure the rules in which it does business internationally are rules that we feel comfortable with," Amann said after Donoghue's lecture.
The World Court remains relevant to international law and politics, with or without the United States' direct involvement, said Elizabeth Andersen, executive director for the Washington-based American Society of International Law.
"Over time, the court lays down important markers about the rights and responsibilities of various actors that contribute to the ultimate resolution of conflicts," Andersen said. "Whether the U.S. begins to sign more treaties where the court has jurisdiction will be a function of its assessment of its interests. That's something that is a sovereign right."
Donoghue, who is originally from the San Francisco Bay Area, graduated from Boalt Hall School of Law at the University of California, Berkeley in 1981. She was elected to the International Court of Justice in 2010 after spending most of her career as a lawyer in the State Department. Her term expires in 2015.
