Vol. 5 No. 5 (May, 1995) pp. 166-167
POLITICS AND THE EMERGENCE OF AN ACTIVIST INTERNATIONAL COURT OF
JUSTICE by Thomas J. Bodie. Westport, CT: Praeger, 1995. 128 pp.
Cloth $45.00.
Reviewed by Donald Jackson, Department of Political Science,
Texas Christian University.
This is a short book with a somewhat misleading title. It is not
about the politics, judicial otherwise, that may have been
involved in influencing the judges of the International Court of
Justice to adopt a more activist stance. Instead, it is about the
evolution of the distinction in public international law between
"legal" issues and "political issues". The
actual book is of much less interest to political scientists than
the one suggested by the title might have been.
Bodie identifies his purpose in writing the book by asking the
following question: "Is there subject matter in
international discourse over which international law does not
rule? In other words may international relations be divided into
legal and non-legal realms?"(1). Fair enough, but the
conceptualization of the distinction between the two realms in
international law traditionally has characterized some issues as
political and others as legal, and that usage is not likely to be
of much interest to political scientists, except perhaps as a
form of decisional behavior to be explained. It should also be
noted that the legal/political distinction is not the same as
distinction between political questions and constitutional
questions contained in decisions of the U.S. Supreme Court. What
has the distinction meant to public international lawyers?
An early try (in 1758) distinguished between "essential
rights" and "less important rights"(7). In some
understandings of the distinction, essential rights were not
within the legal realm because they involved the fundamental
security of the state and could be settled only by a test of
strength, i.e., war, rather than law. Clearly any understanding
that merely claims "less important rights" for
adjudication is likely to be unsatisfactory in the long run.
Another understanding of the distinction involved the position
that a political issue becomes a legal issue only when there is a
mutual willingness of the contending states to rely on
arbitration or adjudication, or when all the parties agree that
the correct answer is provided by established rules of
international law -- another outcome unlikely to satisfactory to
international public lawyers in the long run.
According to Bodie, one long-standing conflict in public
international law has been between the "realists" and
the "idealists". Realists tend to be more skeptical
about the capacity of international law to resolve disputes,
while idealists have a normative preference for expanding the
ambit of international law. In this context Bodie summarizes the
characterization of these disputants by Hans Morgenthau,
"[W]hereas the idealist believes in abstract principles and
attempts to reeducate people to be better, the realist sees the
world and its inhabitants for what they really are and formulates
policies that will work with those forces, not against them
"(17). Both, however, must recognize that states sometimes
do use force rather than law to achieve their ends. Thus the more
general point is the obvious one that, since national interest
and international law may sometimes be in conflict, the vital
question is how to secure the jurisdiction of an
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international tribunal when it usually is not coercive, as it
ordinarily would be within an nation state.
A subsequent chapter reviews the history of the submission of
nations to international arbitration, as in the dispute between
the United States and Great Britain over the ship Alabama
following the American Civil War. Of course arbitrations usually
occur by consent rather than by compulsory jurisdiction, so they
represent only a small step forward for international law. It is
only in Chapters 3 and 4 that Bodie examines the experiences of
the Permanent Court of International Justice under the Covenant
of the League of Nations and of the International Court of
Justice under the Charter of the United Nations with the aim of
examining how assertive they have been in claiming jurisdiction
for international law over international disputes. He finds that
the Permanent Court of International Justice, while perhaps not
activist overall, did not always avoid cases because of their
"political context," although most of the cases did not
involve the sort of issues that states go to war over (55).
However, more serious conflicts reached the International Court
of Justice.
The core of Bodie's book is contained in his review of the work
of the International Court of Justice in the post World War II
era, for Americans most notably in two cases involving the United
States, the taking of American diplomatic and consular staff as
hostages in Tehran in 1979 and the case brought by Nicaragua
resulting in a judgment in 1986 holding that the United States
had violated its obligations under customary international law
through its support of the "Contras". Bodie applauds
the willingness of the International Court of Justice to take the
"idealistic" position that international law in
principle ought to be applicable to any international dispute:
"Another way of saying this is that regardless of the
approach taken interpretation-wise, restrictive or expansive, the
Courts (the PCIJ and the ICJ) have never been faced with subject
matter that is incapable of legal resolution" (89).
The fact that international courts may not have the resources --
even with the aid of allied international institutions -- to
enforce their decision when voluntary compliance is not
forthcoming doesn't seem to bother Bodie much. In his view a
non-complying South Africa or a non-complying United States are
more tarnished by the moral judgment of international law than is
a court that is incapable, in the end, of enforcing its decisions
(95). Some might find it easy to disagree with that evaluation.
Bodie does a decent job at what he seeks to accomplish, and he
certainly is not verbose, but this book will be more of interest
to professors of law than to political scientists. It might serve
as a supplemental reading for an undergraduate course in
international law, although I suspect that such courses are
rarely taught within political science departments these days.