Failings of the International Court of Justice. By A. Mark Weisburd. Oxford, New York: Oxford University Press, 2016. Pp. xi, 416. Index. $85.
There is no room for doubt about the subject of this book. As the title makes clear, Professor A. Mark Weisburd presents a wide-ranging and carefully documented analysis of what he sees as the failings of the International Court of Justice (ICJ), "the principal judicial organ of the United Nations." (1) Weisburd, who teaches at the University of North Carolina School of Law at Chapel Hill, is an emphatic and unapologetic positivist. He maintains that the definition and limit of the law that the Court must apply can only be found within the familiar elements of Article 38(1) of the Court's Statute--no less and certainly no more. (2) Measured against Article 38, he finds that in several important instances, the Court has exceeded its mandate by applying rules apparently drawn from sources other than those sanctioned by Article 38(1).
Weisburd has limited patience for the Court's supporters in the "invisible college" whose favorable visions of the Court do not match the reality that he perceives. He notes that in its seventy years, "the Court has disposed of ninety-four interstate disputes in one way or another" (p. 350). Of these, the author finds "thirty-four contested cases and three advisory opinions in which either the Court's legal analysis or its fact-finding were problematic" (p. 350). He acknowledges the Court's role in developing or maintaining the law of maritime delimitation, international organizations, and a few other fields. Overall, however, both quantitatively and qualitatively, "the Court's record is, at best, modest" (p. 353).
Whether or not one accepts Weisburd's conclusions, there is much to be gained from his work. The author carefully sets out the backgrounds and issues of many key cases, and his distillations of the Court's reasoning seem accurate and fair. He then subjects the procedural and substantive aspects of the Court's work to a skeptical common lawyer's eye, and explains clearly why he finds a good deal of it to be wanting. The discussions of the Court's handling of questions of procedure and evidence offer particularly telling critical analysis. From the reviewer's perspective, this part of the work has perhaps the greatest value. Litigation before the International Court of Justice is still litigation, even if carried on in unusually grand surroundings. A balanced and predictable procedural framework is the foundation of fair and well-considered decisions in any court. Weisburd sets out a credible case that the Court has, at some junctures, not done well in this regard.
The introduction opens by recalling the widely-held perspective that the Court's "decisions are, on the whole, regarded by international lawyers as highly persuasive authority of existing international law" (p.1). (3) However, for the author, this reflects what "appears to be a contradiction between the significance for international law accorded to the I.C.J.'s decisions... and the formal authority accorded to the Court in its Statute" (p. 3).
In support of this view, chapter one offers a largely historical overview of the Court's formal authority. This begins with the drafting history of the Statute of the Permanent Court of International Arbitration (PCIJ), which, as the author observes, was the largely verbatim antecedent of the ICJ's Statute and "throws light on the originally intended meaning" of important provisions in the ICJ Statute (p. 5). This discussion describes how key (Anglo-Saxon, male) participants on the advisory committee that drafted the PCIJ Statute saw the new court as a "neutral and apolitical" institution able to adjudicate narrowly conceived legal disputes, but without the power to "legislate," or "make policy choices" (p. 9). (There are echoes here of a more recent description of the U.S. Supreme Court's role as simply calling legal "balls and strikes." (4)) The chapter then follows the evolution of the advisory committee's work through the organs of the League of Nations, and the subsequent transformation of the final PCIJ Statute into the Statute of the current...