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Custom's Future: International Law in a Changing World . Edited by Curtis A. Bradley . Cambridge, New York: Cambridge University Press, 2016. Pp. xii, 379. Index. $125.

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the Court in Oil Platforms, the Israeli Wall advisory opinion, Genocide (Bosnia v. Serbia), Merits, and others receive similar scrutiny and criticism. This chapter also presents the author’s view that… Click to show full abstract

the Court in Oil Platforms, the Israeli Wall advisory opinion, Genocide (Bosnia v. Serbia), Merits, and others receive similar scrutiny and criticism. This chapter also presents the author’s view that a number of the Court’s exercises in treaty interpretation failed to apply, or to apply properly, the rules of treaty interpretation set forth in Articles 31–32 of the Vienna Convention on the Law of Treaties. Among the cases receiving unfavorable attention in this regard are Certain Expenses,21 LaGrand,22 Avena,23 Israeli Wall, and Genocide (Bosnia v. Serbia), Merits. The chapter concludes with the author’s reflections on a number of outcomes that he regards as having been shaped by “strategic” concerns involving the Court’s own institutional interests, not necessarily rigorous legal analysis (pp. 325–36). Weisburd’s fifth and final chapter seeks to explain the reasons for what are seen as the Court’s “performance problems,” offering “with some trepidation” (pp. 339–40) possible explanations of varying persuasiveness. These lead, in the author’s view, to an inference that “the Court is not really independent, free to decide cases, without considering any issue beyond the legal merits” (p. 362). Given its role as an organ of the United Nations, facing a caseload that increasingly presents legal issues with significant political overtones, and reluctant to accept a doctrine of justiciability that recognizes courts’ institutional limitations, “the Court will have reason to avoid rendering judgments that will anger significant groups of states, are likely to be disobeyed, or that can lead to negative consequences for which it does not care to take responsibility” (p. 363). Readers may not agree with the author’s positivist view of international law, or accept his overall assessment of the Court and its work. Neither is required in order to benefit from this well-written book. The ICJ is, after all, a court. It is fair and useful to subject any court’s procedure, fact-finding, and legal analysis to careful analysis from the perspective of legal craft. That is what the work largely accomplishes. The author, an international lawyer, but clearly of the common law persuasion, subjects a significant cross section of the Court’s work to a common lawyer’s critical search for rigor, consistency, and coherence. He finds some of it seriously wanting. Many specific criticisms of the Court’s past work come unsettlingly close to the mark. Both the author’s criticisms and conclusions are clearly presented for readers to assess and accept or reject. The previous paragraph referred to “some” of the Court’s work. It should be noted that, except for a critical discussion of the Court’s 2014 decision in Peru v. Chile,24 Weisburd has relatively little to say about the Court’s work in addressing land and maritime boundaries, which, after all, constitutes half or more of its workload. (The author notes that seven of the eleven active cases pending at the time of writing involved either territorial disputes or maritime delimitations.) These are cited as evidence that states will “invoke the Court’s jurisdiction only in cases they can either afford to lose entirely or in which they expect that the Court will not leave either party completely empty-handed” (p. 364). Libya and Chad, Cameroon and Nigeria, the United States and Canada, and many other states that have resorted to the Court to resolve vexing boundary or delimitation disputes may find this a bit glib.

Keywords: court work; court; law; author; international law

Journal Title: American Journal of International Law
Year Published: 2017

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