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Discussion of T. H. Cheng's Monograph When International Law Works, and in Particular a Defence of the Nicaragua Judgment of the ICJ

  • ROBERT KOLB

Extract

In this monograph Professor Tai-Heng Cheng purports to set up a global perspective on the role of international law in international relations, and in particular on the conditions and ways through which it can be effective. The perspective is the one of the ‘rational’ decision-maker, in the best vein of the New Haven school, whose theoretical framework the author espouses completely and thoroughly. The book is a valuable contribution to international legal theory; it is not written in abstract and hollow words, but on the basis of a practical enquiry based on many examples. By adopting this perspective, it provides the reader with many interesting insights. In particular, it is enriching for the European reader, who is not used to this genuinely ‘US–American’ perspective. The various chapters of the book are as follows: ‘Confronting Anxieties about International Law’; ‘The Politics of Theorizing’; ‘Legalism and Morality’; ‘Judges’; ‘Arbitrators’; ‘Regulators’; ‘Legal Advisors’; ‘Officials’; and ‘Law beyond Cases’. The purpose of these lines is not to give a full account of that book. Nor is it to portray the numerous thought-provoking and fruitful aspects of the developments contained therein; nor, by the way, is it to criticize some points on which the ‘Europeans’ will easily disagree with the author, as on what is permitted to the US officials in Guantánamo (p. 227 ff.). The point is rather to spell out some cardinal aspects, which seem to the present author to be weaknesses of the general approach or inadequacies of particular points. The critical approach, which will here be put forward, should not lead the reader to believe that the book presently criticized is devoid of merit. On the contrary, the author of these lines would not have ventured into the exercise of writing an essay on it if he had believed that such was the case.

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1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment of 26 November 1984, [1984] ICJ Rep. 392; and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14.

2 Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Judgment, 20 July 1989, [1989] ICJ Rep. 15.

3 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment of 24 May 1980, [1980] ICJ Rep. 3, at 19–20.

4 PCIJ, Series A, No. 8, at 6 ff.

5 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Order of 15 December 1979, [1979] ICJ Rep. 6, at 7–21.

6 See Chinkin, C., ‘Article 63’, in Zimmermann, A.et al. (eds.), The Statute of the International Court of Justice: A Commentary (2012), at 1593–4.

7 Nicaragua case, Admissibility and Jurisdiction, supra note 1, at 399–400.

8 On the other hand, if Nicaragua deposited a new declaration, without retroactive effect, the Court would not have had jurisdiction in the case, because the United States of America had in the meantime withdrawn its optional declaration.

9 Nicaragua case, Admissibility and Jurisdiction, supra note 1, at 407–8. This interpretation is analysed minutely, and with approval, by Greig, D. W., ‘Nicaragua and the United States: Confrontation over the Jurisdiction of the International Court’, (1991) 62 BYIL 119, at 123 et seq.

10 Nicaragua case, Admissibility and Jurisdiction, supra note 1, at 404.

11 And the Court had already given this interpretation to Art. 37, which is the twin of Art. 36, para. 5: see the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Preliminary Objections, Judgment of 24 July 1964, [1964] ICJ Rep. 6, at 29 et seq.

12 Nicaragua case, Admissibility and Jurisdiction, supra note 1, at 420, para. 63.

13 Ibid., at 419, para. 62.

14 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment of 26 November 1984, [1984] ICJ Rep. 471, at 511 (Judge Oda, Separate Opinion); [1984] ICJ Rep. 533, at 545 et seq. (Judge Jennings, Separate Opinion); and [1984] ICJ Rep. 558, at 616 et seq. (Judge Schwebel, Dissenting Opinion).

15 Nicaragua case, Admissibility and Jurisdiction, supra note 1, at 420, para. 63.

16 See R. Kolb, ‘General Principles of Procedural Law’, in Zimmermann et al., supra note 6, 891.

17 Nicaragua case, Merits, supra note 1, at 65, para. 116, italics added.

18 That a court of justice shows true independence and courage especially when it goes into cases concerning the powerful and does not confine itself to the judging of the smaller subjects is a trite but general truth. Journalists often stress that, e.g. recently again for the Brazilian Supreme Court in the Mensalao corruption scandal, where the journalist (of a moderate right-wing Swiss newspaper) writes: ‘Das Oberste Gericht hat Mut und Unabhängigkeit bewiesen und eindrücklich demonstriert, dass das Gesetz für alle gilt’ [‘The Supreme Court has shown courage and independence; it impressively demonstrated that the law is applicable to all’]; Neue Zürcher Zeitung, 19 December 2012, no. 296, 21. This is the way the Nicaragua judgment on the merits was perceived by a large part of the world.

* Professor of Public International Law at the University of Geneva [].

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