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Choice and Evasion in Judicial Recognition of Governments: Lessons from Somalia
Mària Aristodemou 1
Full text available: PDF format *
I. Introduction
The role of judges in domestic legal systems and the question of how they decide or should decide cases have been the subject of extensive discussion, explanation, description and prescription for many years, with commentaries on the topic ranging from the normative, to the conceptual, to the empirical. The area has been the concern of, amongst others, legal philosophers, practising lawyers, sociologists of law and politicians for so long that one may venture to suggest, in the words of one wit, that even if we cannot pretend to be any wiser on this issue, we can at least claim to be better informed. Unfortunately, there is a dearth of similar writing on the role of judges and the nature of judicial decision-making in the international arena; by the latter I refer both to judges applying international law in international tribunals and judges called upon to examine elements of (or to deal with issues that have implications for) international law in domestic tribunals. This comment stems from the belief that although theories of adjudication addressing the domestic legal system may be concerned with similar issues and may illuminate our understanding with analogous insights, certain characteristics peculiar to international law and the international legal system make this area worthy of separate consideration.
The High Court's decision in Republic of Somalia v. Wodehouse Drake,2 demonstrates our courts' unwillingness to address issues relating to international law at the same time as exemplifying an area where the decisions of domestic courts can have important implications beyond the domestic arena. The question before the court was who, if anyone, was entitled to the proceeds from the sale of a cargo of rice which, as a result of the civil war in Somalia, had not been delivered. The deposed Government of Somalia had bought and paid for the rice in December 1991 but a new interim government set up at an international peace conference in July 1992 was claiming the proceeds. Hobhouse J decided that neither the interim government nor any of the other warring factions in Somalia could be regarded as the Government of Somalia and therefore the money would be kept in court until and unless a group could prove to the court's satisfaction that it was the Government of Somalia.
At first glance the case can inform us about how our courts deal with unrecognized entities, what standards they require before taking cognisance of the latter and whether any change has become apparent as a result of the UK Government's decision in 1980 not to accord recognition to governments. However, given the real human tragedy behind the facts of this case, and the possibility that our judges may today exercise more discretion on this issue than they did in the past, it seems appropriate to raise questions beyond that of whether the decision is in accordance with precedent. In particular, one may enquire into what choices and standards are available to our judges in such instances, what the ideological assumptions behind such choices are, how judges perceive their role in this area and towards international law in general and how such issues relate to their position in the two legal systems in which they are required to operate.
Taking Somalia as a springboard from which to examine these issues, this article argues that although international law differs in nature and sources from domestic law, when dealing with an international law issue our judges follow the same, broadly positivistic, approach in their decision-making familiar from the domestic system: they claim, that is, to base their decisions on `facts' which can be proved or disproved and refrain from explaining the value judgments inherent in their choices. In the particular task of choosing between competing regimes, the effect of this approach is to avoid, not making, but expressing the value judgments intrinsic to their work, to accord priority to some values over others and to reinforce the status quo. By unravelling the value judgments hidden in such decisions, and specifically in the test of effectiveness, one may discern our courts' reliance on an assumed but unacknowledged understanding of the purposes of the law, uncover the underlying conflicts between such purposes and reveal the indeterminacy and relativity of the standards our courts purport to apply. At the same time, the comment affirms the inevitability, and urges the acknowledgment, of the exercise of choice in judicial decision-making. By situating the Somalia case within the positivist and, more generally, the modernist project of separating fact from value, it argues that although both this choice and this indeterminacy are endemic to judicial decision-making, domestic or international, the clearer we are about the choices open to our judges the better. On the domestic level, if this judgment signals our judges' willingness to go beyond and behind pronouncements by the Foreign Office to reach their own decisions on the issue, the desirability of developing and revealing the principles on which those decisions are reached, and the need for our judges to explain how they view their role in the international sphere, is essential. On the international plane, claims concerning the arrival of a New World Order and a new era for international law, accompanied by attempts to enforce this order by military means, make this inquiry more urgent than ever. For it is the assumption behind this inquiry that judicial decisions in this, as in other areas, are never self-determining and, even less, self-justifying.
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