Gleider Hernández’s impressive book updates Hersch Lauterpacht’s 1933 classic, The Function of Law in the International Community. Despite Lauterpacht’s more general title, his focus, like Gleider’s, was on adjudication of international law in the international community. Lauterpacht makes a case for courts as critical institutions of international law. He responds to concerns of his day challenging the very possibility of courts of law delivering judgments binding on sovereign states.
The International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice (PCIJ), have now been in existence for over 90 years. This long history might suggest that the importance of a world court is now accepted. To a certain extent this is true. Comparing the topics Lauterpacht dealt with and those chosen by Hernández indicates real progress. Yet, major issues relative to the ICJ’s existence and its claim to be a true court of law remain. General and compulsory jurisdiction were goals of the world’s mass peace movements in the late 19th and early 20th centuries. Today, the interest in expanding the ICJ’s compulsory jurisdiction has nearly vanished. (See Mary Ellen O’Connell and Lenore VanderZee, “The History of International Adjudication,” The Oxford Handbook of International Adjudication (C.P.R. Romano, K.J. Alter, and Y. Shany, eds. 2013).)
Moreover, the feature that separates the ICJ from the formal ideal of a court more than any other may well be the requirements respecting judges and nationality. Guaranteeing five states judges of their nationality and allowing for a judge ad hoc when no judge of a party’s nationality is already on the court is a vestige of the party arbitrator.
Gleider does not discuss compulsory jurisdiction or the P-5 judges. He accepts almost without critique the judge ad hoc. (pp. 136, 145-46) Instead, his book seems aimed not at the international community and its attitude toward the ICJ, but at the ICJ itself, which he conceives of in corporate form, rather than as a collectivity of judges. He is interested in the “ICJ’s” view of judicial function. He wants the ICJ to adopt an activist stance, arguing throughout the book for “progressive development of the law.” (See, e.g, pp. 280-293.) Judge Tomka in a foreword comments on the “significant risks in demanding too much of [the court] in terms of progressive development.” (p. viii)
Tempting as it is to consider the risks of progressive development, in these brief comments, I will instead look at an assumption underlying Gleider’s call to activism. Read the rest of this entry…