“Judicial Nationalism” in International Law: National Identity and Judicial Autonomy at the ICJ


To many, the International Court of Justice’s allowance for a State to have a co-national on the bench when the Court hears its case is an affront to “justice.” The unstated assumption—under which both the critics of the practice and the States who demand it operate—is that national judges will view co-nationals with greater sympathy than they do foreigners. Despite its intuitive appeal, it is troubling that States, critics and academics alike have accepted this assumption with little questioning. In fact, nothing on “judicial nationalism” in the ICJ has appeared in the academic literature since the 1960s. Given the ICJ’s growing profile and caseload, a new analysis is long overdue. Through an examination of the history of ICJ judicial votes since the Court’s inception through 2000, this paper demonstrates that the presumed “nationality” bias of ICJ judges was never as powerful as claimed by alarmists, and today seems to be breaking down further. For reasons related largely to the changing nature of nationality, linking nationality with expected judicial voting behavior is an over-simplified and blunt heuristic.


International Law

Date of this Version

November 2004