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.”Footnote 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.Footnote 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).Footnote 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.”Footnote 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 Court.
Chapter two, “The Law the Court May Apply,” sets out the author's view that the Court “has applied rules that cannot be called law[,] . . . has applied legal rules in ways that do not withstand analysis[,] . . . [and] has dealt with procedural issues in questionable ways” (p. 25). As a consequence, “the Court's contribution to the development of international law has been only modest” (p. 25). The author maintains that “rules of international law can be created only by human beings authorized to create such rules” (p. 26, emphasis in original). Thus, the Court can only apply rules sanctioned by Article 38, which meets the crucial test because it was adopted “by authorized human beings, that is, the persons making up the governments of states” (p. 26). In turn, whether purported rules are truly legal rules “depends on showing that they were created according to whatever actions are required to create legal rules by whatever humans are authorized to take those actions” (p. 26). Central to the argument is the proposition that the Court “has no authority other than that conferred by its Statute” (p. 27). While domestic courts derive authority from their position as organs of the state, the ICJ has no comparable fount of authority.
Utilizing this framework, the author discusses the elements that Article 38 recognizes as sources or indications of international law: treaties; custom; general principles “recognized by civilized nations”; and, subsidiarily, judicial decisions and the teachings of highly qualified publicists. A centerpiece here is the author's 48-page analysis of the myriad puzzles associated with customary international law. (The extent of the analysis is illustrated by the fact that the author's ten-point summary itself occupies most of two pages (pp. 77–78).) Major elements include the author's critique of “modern custom” (p. 41), which is his characterization of the work of contemporary scholars who view behaviors that involve normative expressions that do not necessarily reflect how states actually behave, such as General Assembly resolutions, as relevant. A second critique is aimed at those who find the basis for customary rules in basic values, again without action by human agents or regard for how states actually behave. Jus cogens and other values-based approaches to international law come in for critical treatment in this section.
Chapter 3, captioned “Errors of Procedure,” makes up roughly 40 percent of the book's length, and assembles much evidence supporting the author's contention that “the number of judgments and advisory opinions with highly doubtful elements amounts to a significant fraction of the relatively small number of judgments and advisory opinions that the Court has handed down” (p. 93). The chapter opens with critical examination of perceived errors in determining jurisdiction. Not surprisingly, this highlights the vexing series of cases in the 1990s involving the status of the Federal Republic of Yugoslavia (FRY) following the breakup of the former Socialist Federal Republic of Yugoslavia. As surveyed in substantial detail, in a series of orders and judgments beginning with the Court's 1993 ruling on Bosnia-Herzegovina's request for provisional measures against the FRY under the Genocide Convention,Footnote 5 the Court adopted (or avoided) conclusions regarding the position of the FRY as a member (or not) of the United Nations at relevant times, and as a party (or not) to the Genocide Convention. As the author describes, the outcomes are not easy to reconcile. To oversimplify, the Court decided at various points that it need not definitely decide whether the FRY was a member of the United Nations and thus party to the ICJ Statute,Footnote 6 or address the question at all;Footnote 7 but then the Court found that the FRY was not a member of the United Nations and hence not party to the Statute at the time of NATO's disputed military actions in 1999.Footnote 8 However, it subsequently concluded that as of November 2000, the FRY's successor, Serbia, was indeed a party to the Statute, and could be sued, even if it was not a party at the time the litigation began.Footnote 9
The author criticizes other inconsistent applications—or nonapplications—of res judicata, citing, inter alia, the Court's notorious course reversal in the South West Africa cases, where the Court initially found jurisdiction for purposes of preliminary objections,Footnote 10 but later (by the casting vote of the Court's president) rejected Ethiopia's and Liberia's claims.Footnote 11 Comparing the Court's applications of res judicata in South West Africa and in Genocide (Bosnia v. Yugoslavia), Merits, the author finds the Court's decisions both “flatly inconsistent” and arguably wrong on their facts (p. 188).
The second half of chapter 3 offers a substantial critique of the Court's handling of evidence and fact-finding. It collects telling examples in support of the author's view that the Court has used undefined or inconsistent standards of proof, made erratic and unexplained assessments of evidence, drawn unreasonable inferences, and ignored evidence inconsistent with preferred outcomes. The discussion leads with a renewed critique of the Court's fact-finding on the merits of Nicaragua v. United States,Footnote 12 which was before the Court three decades ago. As the author documents, the Court did indeed engage in some dodgy fact-finding by, inter alia: saying that it would not give probative weight to newspaper accounts, but then doing so; giving weight to senior official's statements adverse to one party but not to those of the other; relying on unsubstantiated—and indeed, implausible—military judgments; and selectively relying on official reports for some purposes but not others. The Court's treatment of evidence in Oil Platforms,Footnote 13 the Israeli Wall advisory opinion,Footnote 14 Armed Activities in the Territory of the Congo,Footnote 15 Genocide (Bosnia v. Serbia), Merits,Footnote 16 and other cases receives similarly thorough, if often critical, scrutiny.
The author observes, however, that there seems reason for hope regarding the Court's approach to fact-finding. As he rightly points out, in some more recent cases, the Court has recognized and dealt more effectively and transparently with the challenges of fact-finding. Examples discussed include Whaling in the Antarctic,Footnote 17 where the Court “provided an explicit and detailed evaluation of the evidence” (p. 241), and Genocide (Croatia v. Serbia), Merits,Footnote 18 where the Court both better explained its factual conclusions and utilized a burden of proof better suited to situations where an opposing party controls crucial evidence. One may add to these the Court's recent order in Costa Rica v. Nicaragua,Footnote 19 where for the first time in decades, it utilized its authority to appoint experts to assist in determining significant disputed facts.
In chapter 4, “Errors of Substance,” the author urges that the Court has in important cases “applied doubtful rules” to states’ behavior (p. 245), engaged in problematic treaty interpretations (p. 293), and sometimes engaged in “strategic behavior,” deciding on the basis of political considerations, not law (p. 325). Part of the critique of the Court's use of customary law is not that the Court applied incorrect rules; rather, it is that the Court found authority for the cited rules in unauthorized sources (e.g., International Law Commission reports and the Law of the Sea Treaty prior to its entry into force), not the required review of state practice and opinio juris. The author recognizes that some may see this as nitpicking, but insists that it is not. In relying upon such materials, the Court is acting outside of its Article 38 mandate, a course that is seen as both “lawless” and antidemocratic (pp. 251–52).
A substantial section of chapter 4, aptly captioned “Cases in Which the Court Relied on a Doubtful Rule to Reach a Doubtful Result,” contends that the Court has rested some of its important judgments on questionable legal foundations. Cases discussed include the Nuclear Tests cases,Footnote 20 where the author urges that the Court offered no support for its crucial legal conclusion that official statements are binding if states so intend, and that in any event, the key French statements upon which the Court relied were equivocal and provided no evidence of such intent. Some of the legal rules applied by the Court in Oil Platforms, the Israeli Wall advisory opinion, Genocide (Bosnia v. Serbia), Merits, and others receive similar scrutiny and criticism.
This chapter also presents the author's view that a number of the Court's exercises in treaty interpretation failed to apply, or to apply properly, the rules of treaty interpretation set forth in Articles 31–32 of the Vienna Convention on the Law of Treaties. Among the cases receiving unfavorable attention in this regard are Certain Expenses,Footnote 21 LaGrand,Footnote 22 Avena,Footnote 23 Israeli Wall, and Genocide (Bosnia v. Serbia), Merits. The chapter concludes with the author's reflections on a number of outcomes that he regards as having been shaped by “strategic” concerns involving the Court's own institutional interests, not necessarily rigorous legal analysis (pp. 325–36).
Weisburd's fifth and final chapter seeks to explain the reasons for what are seen as the Court's “performance problems,” offering “with some trepidation” (pp. 339–40) possible explanations of varying persuasiveness. These lead, in the author's view, to an inference that “the Court is not really independent, free to decide cases, without considering any issue beyond the legal merits” (p. 362). Given its role as an organ of the United Nations, facing a caseload that increasingly presents legal issues with significant political overtones, and reluctant to accept a doctrine of justiciability that recognizes courts’ institutional limitations, “the Court will have reason to avoid rendering judgments that will anger significant groups of states, are likely to be disobeyed, or that can lead to negative consequences for which it does not care to take responsibility” (p. 363).
Readers may not agree with the author's positivist view of international law, or accept his overall assessment of the Court and its work. Neither is required in order to benefit from this well-written book. The ICJ is, after all, a court. It is fair and useful to subject any court's procedure, fact-finding, and legal analysis to careful analysis from the perspective of legal craft. That is what the work largely accomplishes. The author, an international lawyer, but clearly of the common law persuasion, subjects a significant cross section of the Court's work to a common lawyer's critical search for rigor, consistency, and coherence. He finds some of it seriously wanting. Many specific criticisms of the Court's past work come unsettlingly close to the mark. Both the author's criticisms and conclusions are clearly presented for readers to assess and accept or reject.
The previous paragraph referred to “some” of the Court's work. It should be noted that, except for a critical discussion of the Court's 2014 decision in Peru v. Chile,Footnote 24 Weisburd has relatively little to say about the Court's work in addressing land and maritime boundaries, which, after all, constitutes half or more of its workload. (The author notes that seven of the eleven active cases pending at the time of writing involved either territorial disputes or maritime delimitations.) These are cited as evidence that states will “invoke the Court's jurisdiction only in cases they can either afford to lose entirely or in which they expect that the Court will not leave either party completely empty-handed” (p. 364). Libya and Chad, Cameroon and Nigeria, the United States and Canada, and many other states that have resorted to the Court to resolve vexing boundary or delimitation disputes may find this a bit glib.
