FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE by Vaughan Lowe and Malgosia Fitzmaurice (Editors). Cambridge: Cambridge University Press, 1996. 640 pp. Cloth $110.00 ISBN 0-521-55093.

Reviewed by Marc-Georges Pufong, Department of Political Science, Valdosta State University, Valdosta Georgia. E-mail: <mpufong@valdosta.edu>.
 

The title of this book evinces curiosity. It leaves one with the impression that it comprehensively covers the International Court of Justice's (ICJ) jurisprudence in the last fifty years. However, it is my opinion that it ambitiously does two things in one, neither of which is comprehensively or satisfactorily done. It presents reviews of the work of the ICJ, but these reviews are tied to understanding of a distinguished group of international scholars, judges, and legal practitioners concerning the tenure of one of its Chief Justices, to whom the book is dedicated.

So what then does it do? To mark the fiftieth anniversary of the ICJ, Lowe and Fitzmaurice present a catalogue of essays undertaken on the Court's major works since its inception in 1948. Prepared in honor of Sir Robert Jennings, judge and former President of the International Court of Justice, the chapters cover the main areas of substantive law that have been of interest to the ICJ as well as significant aspects of the Court's practices and procedures in dealing with cases in its first fifty years of existence.

In addition, the chapters examine the works of the Court in particular fields of international law and offer insightful assessments of the Court's work and jurisprudence during Sir Robert Jennings' membership and Presidency on the Court. Included in the collection of essays are those discussing the role of the ICJ in the international legal order and its relationship with other political organs of the United Nations.

The thirty-three chapters of the book are presented under five parts, namely, the International Court of Justice (part I), the source and evidence of international law (part II), substance of international law (part III), procedural aspect of the work of ICJ (part IV) and finally, the ICJ and the United Nations (part V). Part I and V are the shortest of the five parts, with three and two chapters respectively. The book also contains a fairly reasonable list of abbreviations, a list of tables of cases before the former Permanent Court of International Justice (PCIJ--1920-1945) and the current International Court of Justice (ICJ--1946 to present), as well as a fine index suggesting the breadth and scope of coverage of the book.

Substantively, the essays raise interesting questions of international law as they relate more or less to the Court's jurisprudence. More importantly, they cover questions of justice, jurisdictional concerns, equity, remedies, self-determination, use of force, human rights, environmental protection and matters invoking advisory opinions from the ICJ. For example, in part I (the International Court of Justice) the first essay questions in what sense and ways the International Court of Justice can be considered a truly "world court" within the contemporary international community. Responding to this query and linking (or attempting to link) his answers to decisions during Chief Justice Jennings's tenure and jurisprudence on the Court, Georges Abi-Saab offers a two part answer. First Abi-Saab maintains that the ICJ is a "World Court" in the sense that it is a court of and for the whole world. The Court, he maintains, is therefore expected to be universalist in its composition, outlook and vocation, truly representing and at the service of the international community in its entirety, and not dominated by any legal or social culture or special interests of any segment of the community thereof. This, according to Abi-Saab, ensures that the ICJ and its judgments command the confidence of all the nations of the world similarly (p. 3).

Secondly, Abi-Saab also maintains that if ICJ represents and is designed to serve the international community in its entirety, then its first and foremost role is to uphold the global values of that community rather than act as a mere mediator between two disputing parties. This, Abi-Saab adds, means the Court is the organ of legal order of the international community and not of the parties to the dispute before it. By this he means the Court is an instrument constituted by the international legal order at the disposal of litigants, which does not, however, depend on them in its structural and functional properties or its judicial policy (p. 7).

In chapter two, Philip Allot notes fundamental characteristics of the Court drawn from its constitutive texts, the UN Charter and Statute, which make it necessary to question whether the ICJ in its current form is indeed a court of law or a court of justice. However, it is unclear what his conclusions are. In chapter three, Geoffrey Marston explores the influence and initiative of the "London Committee" which was responsible for the preparatory works of the Statute which created the ICJ in 1943.

In part II (source and evidence of international law), the essay by Maurice Mendelson (Chapter 4), exemplifies the six essays of this section of the book. Mendelson maintains that every case in the ICJ involves the questions of the "sources of international law" in some form because every case requires an investigation of substantive rules whose existence and legal effect ultimately depends on their having been created by one of the means recognized as appropriate for this purpose. Also, he notes, even if one were to eliminate all cases where there were no question as to the status of a rule, but only as to its content, in the fifty years since the ICJ was established, the Court has had very many occasions to make pertinent rulings. However, the ICJ in its fifty years, Mendelson concludes, has not attempted to elaborate a theory of the "source of international law" or even attempted to catalogue these sources in some fashion. This, he notes, is hardly surprising because the Court's function as specified in Article 38(1) of the Statute of ICJ, is to decide particular disputes before it, not to elaborate general theories of law to decide questions that are not at issue (p. 63-64).

Part III focuses on "substance of international law" and has eleven essays that address the wide range of substantive international law issues: "the Court's role in relation to international organization," "Cases relating to employment in international organizations," "jurisdiction and immunity" through issues of "use of force". Similarly, Part IV deals with "Procedural aspects of the work of the Court." Its eleven chapters deal with such interesting topics as "procedural law and the ICJ," "Nationality of Claims," "Intervention before the ICJ," "The Plea of domestic jurisdiction before ICJ," "provisional Measures," etc. These essays are written by leading scholars of international law such as Lauterpacht, Ian Brownlie, Sir Arthur Watts, J.M. Ruda, Gaetano Aragio-Ruiz, Shigeru Oda, and others.

Finally, Part V focuses on the relations of the United Nations and the International Court of Justice. It concludes the book with two essays addressing specific relations of the Court with the General Assembly and the Security Council. In his essay, "the General Assembly, the International Court and self-determination," James Crawford maintains that the work of the Court in the field of self-determination and decolonization has not been merely the occasion for international law on other topics--it has been he argues, a positive source of law for the Court. He documents proof that the ICJ has applied broad and flexible categories of statehood. For example, Crawford point to the fact the Court included "indigenous inhabitants of territories before colonization" as part of its criteria for assessing statehood and personality, thus rejecting prior theories based solely on standards of western civilization for determining legal personality that precluded these factors. The Court's decisions in the Namibia/South West Africa and Western Sahara cases exemplifies the Court's affirmative attitude and active jurisprudence in this area. Finally, Krzysztof Skubiszewski in his essay on the ICJ and the Security Council focus on the parallelism of functions of both institutions as organs of the United Nations which he contends are similar in their respective roles in conflict settlement, resolution and negotiation.

There is a great deal of information in this book. Its ambitious attempt to honor Justice Jennings and also present the ICJ's jurisprudence for the last fifty years is perhaps its main shortcoming. Indeed, in so doing, it falls short in forming a coherent perspective for the collection of essays or a consistent framework from which to understand both the works of the ICJ or the contribution of Justice Jennings. Incidentally, this void makes the reading a daunting and difficult exercise. Yet, it is possible that those teaching and/or writing in the area of International law can find some of the essays with particularized treatment of international law issues and questions useful as supplements for both classroom and references when examining the Court's contribution in international law. To this end, some examples are "International Court of Justice as a World Court" by Georges Abi-Saab (p.3), "International Court of Justice and the source of International law" by Maurice Mendelson (p. 63), "International Court of Justice and the use of force" by Christopher Greenwood p. 373), "The treatment of human rights and of aliens in the International Court of Justice" by Stephen M. Schwebel (p. 327) and "Equitable maritime boundary delimitation" by Barbara Kwiatkowska (p. 264).