Politics and the Emergence of an Activist International Court of Justice

By Thomas J. Bodie | Go to book overview

Introduction

On April 9, 1984, the Republic of Nicaragua filed an application with the International Court of Justice instituting proceedings against the United States of America. Nicaragua sought legal relief from what it claimed were unlawful acts of aggression, in the forms of military and paramilitary activities, carried out by the United States against the Republic of Nicaragua. In its counter- memorial, the United States attempted to press the claim that the case did not fall within the jurisdiction of the Court. Several arguments were presented by the United States. First, the questions presented by Nicaragua showed textually demonstrable commitment to another international organ. In other words, this was a peace and security issue of the type charged to the political organs of the U.N. (i.e., the Security Council), not the legal organ. Second, there was no judicially discoverable and manageable standard on the basis of which the legal obligations of the parties could be adjudged. In other words, armed conflict is too amorphous for the abilities of a judicial body. Third, the situation was already the subject of negotiations under the umbrella of the Contadora process. Therefore, the Court should not interfere where political processes were already at work. In short, the United States asserted that the dispute "is an inherently political problem that is not appropriate for judicial resolution." The Court found otherwise.1

Nicaragua v. the United States of America (hereinafter referred to as Nicaragua) is only one battle in a very long war, a war over the jurisdictional boundaries of international tribunals, maybe even the very boundaries of international law itself. At issue is 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? If this question has a positive answer, then there exists an arena in which states may act unilaterally, unbeholden to any higher authority such as the

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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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