Young ICCA Webinars: In Conversation with H.E. Judge Abdulqawi A. Yusuf

Judge Abdulqawi A. Yusuf is the President of the International Court of Justice, The Hague, The Netherlands. In this webinar, Judge Yusuf shares his views on a number of topics related to international dispute settlement.

Watch the full interview below. 

Post Event Report

 by Jasmine Rayée, Associate, Loyens & Loeff (Brussels)

It is not every day that the President of the principal judicial organ of the United Nations opens up to young practitioners around the world about his career, his views on international dispute settlement generally and the relevance of the International Court of Justice specifically, and his endeavors to further knowledge and expertise on international arbitration in Africa. On Thursday, 23 July 2020, His Excellency Judge Abdulqawi A. Yusuf did just that, and found himself, for once, on what could be described as the “other side of the bench” as he fielded a series of questions from Susan Kimani (event coordinator at Young ICCA), Matthew Morantz and Panagiotis Chalkias (Young ICCA co-chairs).

On the bench since 2009, Judge Yusuf was elected Vice-President in 2015 and President of the International Court of Justice (The Hague, The Netherlands) in 2018. 

Asked about the role and importance of the International Court of Justice in international dispute settlement, Judge Yusuf reminded participants that while the World Court’s most prominent functions are the peaceful settlement of disputes between states and the rendering of advisory opinions, the Court also plays a role with respect to the (progressive) development, clarification and interpretation of international law. Still, it is the Court’s role with respect to the peaceful settlement of disputes which Judge Yusuf dwelled on. He went back to the origin of this function: the UN Charter. Indeed, with the insertion of the prohibition of the use of force between states in its Charter, the United Nations had to offer states something in lieu of war as a tool to resolve inter-state disputes. Judge Yusuf emphasized that since its creation, the Court has dealt with 151 disputes – disputes which could easily have escalated into armed conflicts between states. The Court’s ability to settle those disputes peacefully and in accordance with the rule of law has emboldened states’ confidence in, and encouraged them to have recourse to, a judicial body such as the Court. According to Judge Yusuf, the fact that the same number of cases have been dealt with by the Court in the last 23 years as in the period from 1947 to 1997 is due to the increased trust and confidence in the work of the Court.

So where does the Court stand today, in the new reality that 2020 offers? With 17 cases pending before it, the Court has no time to stand still, even in the midst of a global health crisis. Judge Yusuf noted that the Court took immediate remedial action in response to the pandemic and has been going ahead “full steam” – with recourse to appropriate technology and the adaptation of procedures, methods of work and rules to the new situation – in order to hold deliberations, plenary meetings and hearings as required. Judge Yusuf was positive on this point: The Court has continued to carry out the judicial functions entrusted to it by the international community. 

Pandemic aside, despite the Court’s success, it is today not immune from challenges. Judge Yusuf gracefully responded to questions relating to these challenges. Asked about the need for a court of general jurisdiction at a time when the number of specialized courts is progressively growing, Judge Yusuf argued that as long as disputes relating to international law continue to exist (and they will) and as long as states (as opposed to individuals) need courts to settle those disputes, we will need a court of general jurisdiction. With respect to proposals to enable the Court to play the role of a court of appeal for all other international courts and tribunals, Judge Yusuf noted that most jurisprudence of other courts and tribunals does not depart that much from the Court’s, whether it be in the law of the sea, international human rights law, law of armed conflict or international criminal law. In fact, according to Judge Yusuf, the Court is already practically seen as an apex court – and has the quality of jurisprudence which levels up to this status. There is, therefore, no need to formally designate it as such.

Judge Yusuf also spoke about his role as President of the Court. He noted that the President may be considered primus inter pares, in the sense that the Statute guarantees full equality among all Members of the Court. As to the specificities of his or her functions, the president of the Court continues to work as a judge, but also has to lead the judicial work of the Court (which includes aspects such as presiding over hearings and deliberations, building a majority, and overseeing the drafting of judgments of the Court). The Registry assists the President with his case management tasks. In addition to these judicial roles, the President fulfils an administrative and a diplomatic role. For Judge Yusuf, the latter includes reporting on a yearly basis to the UN General Assembly, briefing the UN Security Council in informal meetings on the work of the Court, and coordinating with the UN Secretary-General with respect to the work, budget and other administrative aspects of the Court.

Of course, to most participants, the role of President of the International Court of Justice might seem wildly unattainable and therefore quite abstract. Judge Yusuf was however happy to share some more personal thoughts on his career and what makes a good international lawyer (who might, someday, end up at the Court as a law clerk). Judge Yusuf emphasized that what matters most is the passion for one’s selected area of work and the energy and time one devotes to it – although his own passion was sparked almost by accident (having initially wanted to study medicine, stumbling into law and writing a thesis on a protocol of the Organization for African Unity (the African Union’s predecessor) on the peaceful settlement of disputes – mainly because his country, Somalia, was involved in territorial disputes with its neighbors at the time). In addition, Judge Yusuf cautioned against specializing early on in one’s career, emphasizing the importance of mastering international law as a whole (and, in the context of working at the Court, the importance of an excellent knowledge of French and English).

Turning to a question of particular interest to the audience, Judge Yusuf commented on his announcement in 2018 of new restrictions for sitting judges on arbitral appointments. Judge Yusuf stated that this was simply an instance of the Court evolving with its time. At the time of the creation of the Court, when states needed to nominate experienced and knowledgeable judges to interstate arbitral tribunals, they turned to members of the Court. Investor-state dispute settlement as we know it today did not exist. Now, however, with the exponential recourse to commercial and investor-state arbitration as a means of dispute settlement, the Court needed to “draw a line in the sand” in light of the equally increasing workload of the Court. In addition, having members of the Court also sit as state-appointed members of arbitral tribunals could create an unwanted perception of partiality when that same state appears before the Court.

The discussion concluded with two topics of importance to Judge Yusuf: the importance of the UN Charter in the contemporary international legal order, and his efforts to promote international law and arbitration in Africa.

According to Judge Yusuf, the most trailblazing treaty in international law is the UN Charter. As opposed to the PCIJ in relation to the Covenant of the League of Nations, the International Court of Justice was built into the UN Charter system, and therefore truly serves as the alternative for the use of force. But his defense of the UN Charter goes further than that: Judge Yusuf argues that no multilateral treaty comes close to it in terms of innovation, adding to the body of international law that existed before and expanding the horizons of international cooperation. For instance, the principle of equal rights and self-determination of peoples counts as one of the most revolutionary principles in international law, having served as the basis for the liberation of more than half of humanity since World War Two. The faith in human rights on behalf of all peoples as reaffirmed in the Preamble of the Charter is equally as fundamental. For Judge Yusuf, the rules and principles of international law enshrined in the Charter made the progress and evolution we have achieved in the last years possible.

Finally, turning to a matter of personal importance to him, Judge Yusuf commented on his vision on international law and arbitration in Africa. In essence, Judge Yusuf encourages Africa to overcome legacies of colonial thought and contribute to a “Pan African thought”. He urged young (African) practitioners to focus more on the commonalities between civil and common law – which matter less, if not at all, at the level of international law. In addition, related to this, Judge Yusuf referred to the recently established archive (on the ICCA website) of historical arbitration cases involving African parties, which would help raise awareness on the practice of arbitration in colonial and precolonial Africa, and may serve to inspire young generations to engage in the field and prepare themselves for contemporary challenges facing international arbitration. 

It was in fact a fitting conclusion to Young ICCA’s conversation with Judge Yusuf: noting the importance for young practitioners of getting acquainted with, and learning about, decisions that affect their country and their peoples, in order to prepare themselves for the future.