Politics and the Emergence of An Activist International Court of Justice

By Thomas J. Bodie | Go to book overview

5
Where Angels Fear to Tread

The present chapter has a threefold purpose. The first task is to draw together the four previous chapters. While each chapter dealt with the difference between legal and political questions in international law, each dealt with the decisions of a separate entity, with little carry-over between the chapters. The result is that some degree of synthesis is necessary. The second task is to determine if the evidence uncovered leads to any worthwhile conclusions about the difference between legal and political questions in international law. The chapter's final task is to discuss any implications that might arise from those conclusions.

Discussion of this subject began, in Chapter 1, with an examination of the scholarship that has surrounded the topic. The first opinion on the matter was traced back to Vattel in the mid-1700s. There, in its earliest formulations, the differentiation between legal and political questions was seen to be self- explanatory. International tribunals had useful roles to play in the resolution of inter-state disputes, but only in a certain subset of such disputes. International arbitration, it was stated, was relevant only to disputes where no vital interests of the state were involved.

That opinion was Vattel in 1758. But this position remained as the reigning paradigm for a long time, holding unchallenged primacy through the conclusion of World War I. If there were voices of opposition during the pre-war period, they were fairly quiet ones. In the aftermath of war, with the benefit of hindsight, the horror of the war made viable the position that unilateral decisions about security may have brought on the war and perhaps international arbitration and adjudication could have settled the disputes before war broke out.

Adherents of this new position suggested that there was no objective standard for distinguishing between legal and political questions. The greatest voice in this school, that of Hersch Lauterpacht, suggested this was so, not simply

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Politics and the Emergence of An Activist International Court of Justice
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Foreword ix
  • Acknowledgments xi
  • Introduction 1
  • 1- Previous Inquiries 7
  • 2 - International Arbitration: the States In Action 21
  • 3- The League and the Permanent Court Set a Standard 37
  • 4- The U.N. and the Icj: Continuity And Change 57
  • 5- Where Angels Fear to Tread 85
  • Notes 99
  • Bibliography 105
  • Index 111
  • About the Author 113
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