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
Page 167 follows:
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.