Judicial diplomacy is a set of practices planned and organised by an international court to represent itself and claim authority through nonadjudicative interaction with external actors. It has four main characteristics—judicial diplomacy results from a court decision (not an individual judge). The court plans and organises it and is carried out on its behalf. Even though individual judges and administrators are the faces of judicial diplomacy, it is intended to represent the court (rather than the judges themselves). Not a single judge decides to attend a conference, interact with lawyers, the press, and so on.
For several reasons, judicial diplomacy is perplexing. First, as part of their regular professional lives, judges undoubtedly interact with other legal professionals, as they have long-term interests in maintaining active engagement with academia or professional associations. However, it is still being determined why a court would organise these interactions or how they would serve the court’s interests. Second, these activities require many resources. By engaging in judicial diplomacy, ICs may divert scarce monetary and human resources away from their core functions. Third, judicial diplomacy has the potential to politicise the institution and make judges appear to be politicians. Visits with current heads of state, national parliamentarians, or special interest groups may feed a reputation for independence and impartiality or for being above the fray of politics.
Role of International courts in Diplomacy
According to existing literature, judicial diplomacy reflects International court efforts to mobilise constituencies or socialise actors to adopt international norms. According to these accounts, judicial diplomacy is directed at public officials, legal communities, and civil society, focusing on procedural and substantive legal provisions. However, judicial diplomacy frequently addresses the general public and conveys value-laden narratives about the courts. When constitutional courts demonstrate mastery of foreign law or host foreign judges, their goals may be more than, if at all, to write stronger opinions or win over domestic audiences. They could also be competing for international influence or pursuing foreign policy goals like promoting the rule of law and judicial independence in other countries. The concept of judicial diplomacy helps to explain why constitutional law is so important.
The use of ad hoc or standing arbitral tribunals to resolve international conflicts has been a fascinating development in recent years. Since the Permanent Court of International Justice was established in 1922, which the International Court of Justice succeeded in 1945, it has been customary to distinguish between judicial and arbitral settlement. But, by 1922, there had been enough of the judicial quality in arbitration, and there was still enough of the arbitral in contemporary adjudication to make the distinction meaningless. We have a very long development process in which arbitration has taken on more of the characteristics of judicial proceedings over the last century.
Judges’ engagement in Diplomatic explanations.
Judges occasionally engage with foreign law and courts for reasons unrelated to the performance of legal or adjudication duties. Instead, their motivations may be more diplomatic than personal. Scholars may disagree on the normative desirability of diplomacy, but judicial diplomacy is taking place empirically. And it is happening because constitutional courts have both the opportunity and the incentive to do so. Diplomacy may not be the courts’ primary responsibility, but it was not entirely foreign to them previously.
Judicial diplomacy is an ambiguous term that could refer to several conceptually distinct types of behaviour, the last of which requires special attention. First, ordinary diplomats may use or seek to influence courts in conducting otherwise conventional diplomacy. The work of the courts may be used as a selling point in the quest for international leadership or acceptance, as in the case of State Department publications that educate international audiences about the United States Supreme Court or Israeli mailings of prominent Israeli Supreme Court decisions to American legal academics. Similarly, diplomats may seek to persuade courts to consider foreign policy considerations in their choices, as when officials repeatedly drew the Supreme Court’s attention to the negative impact of racial segregation on international perceptions of the United States during the Cold War. Judicial diplomacy may refer to how courts interact with one another. When dealing with foreign counterparts, courts may employ stereotypical diplomatic tactics and instruments for reasons ranging from jurisdictional to geopolitical. Negotiation and agreement, rather than adjudication and enforcement, are the buzzwords for this behaviour, as are tact and secrecy rather than transparency and justification. This type of judicial diplomacy can be triggered by multinational litigation: inter-court agreements for resolving global bankruptcies, for example, have been described as the equivalent of “case-specific, private international insolvency treaties.” The use of international law to justify decisions is a widely recognised distinction between good offices, mediation, or conciliation on the one hand and arbitration on the other.
Conclusion
Diplomacy is, first and foremost, a social activity. It links a public language to state business, providing meaning, reasons, and explanations for state action. As a result, it is embedded in a social context of reasons, rules, and meanings that existed before the interaction. When states use international law to justify their actions, they help to rewrite and enforce the rules. Diplomacy has a productive effect because it generates the public, social, and legal resources with which future state behaviour is understood, justified, and debated. Because the content of international law at any point in time is a function of how actors have deployed it in the past, this provides one dynamic for change in international law and international relations.
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Writer by Erik MUHIA, International Studies and Diplomacy Graduate Student and Young Diplomat
10 October 2022, Kenya
Category: Diplomacy
Reference: EM10102022D
