by Kaiyan Homi Kaikobad. Cambridge: Cambridge University Press, 2007. 394pp. Hardback. $105.00. ISBN: 9780521869126. eBook format. $84.00. ISBN: 9780511292378.
Reviewed by Emilian Kavalski, Department of Political Science, University of Alberta (Edmonton, Canada). Email: kavalski [at] ualberta.ca.
The interaction between territoriality, globalization, and conflict has gained momentum in the study of world politics. More often than not, the line of inquiry has tended to advance a network of causal relationships between the increasing interdependence of international life and the alleged reduction in inter-state conflicts. Yet, such assertions seem to neglect the resurgence in boundary disputes and the attempts at their international arbitration and settlement. Kaiyan Homi Kaikobad’s volume, therefore, addresses this interpretative lacuna in the literature and develops operational vocabulary for tackling its analytical quandaries. Despite the increasing permeability of borders by goods, ideas, and individuals, the attachment to and significance of particular locations does not seem to have diminished; on the contrary, territory seems to have gained renewed centrality in the discourses of global governmentality. Therefore, Kaikobad’s parallel examination of the interpretation and revision of international boundary decisions considers the symbolic – and, thereby, legally demarcated – value of places. In this respect, it is the confluence between the non-tangible historicization of territorial attachment and the very distinct outlines of national sovereignty that underwrite the difficulties attending the resolution of border disputes.
As Kaikobad insists, his book makes a contribution to the literature on the law of title to territory. His prescient analysis offers in-depth reflection on instances of legal dispute settlement of territorial conflicts through adjudication and arbitration. Such endeavor pays special attention to the powers of and the role(s) played by international tribunals to clarify and amend their judgments on territorial entitlement. In this setting, Kaikobad’s engagement with the notion of boundary arbitration (i) contextualizes the instrumental purpose, scope, interpretation, and application of territorial adjudication; and, at the same time (ii) suggests the global implications of these juridical decisions regarding territorial borders. The investigation situates its inferences through a four-part exploration that brings in evidence from twenty-nine cases of the International Court of Justice, nine opinions of the Permanent Court of International Justice, eight decisions of the Permanent Court of Arbitration, nearly sixty arbitral decisions from various national and international courts, and one case from the European Court of Human Rights. Such diverse evidence-base attests not only to the volume’s meticulous exploration of the specific juridical dynamics animating boundary disputes, but also their intrication with the broader literature on the relationship between the [*164] growing interdependence of global life and the persistence of territorial conflict.
In the introductory section, Kaikobad reviews the literature, discusses the dominant parameters and perspectives that underwrite arbitration of territorial disputes, and presents his preliminary observations. Such overview provides not only the background against which Kaikobad builds up the thrust of his argument, but also sets up the relevance of the selected cases and acknowledges the remedial character of the decisions on boundary adjudication that does not develop in a “complete juridical vacuum,” but is intimately related to juridical practices and cases that do not relate to territory, per se. Such comparative approach allows Kaikobad to examine critically “these remedies in the context of territorial and boundary disputes insofar as they generate problems peculiar to this area of the law” (p.14). Thereby, the second part of his volume engages in detailed assessment of the settlement of territorial and boundary disputes. This section addresses the inter-relation between international law and demands of different groups for self-determination and armed conflict. The analysis, therefore, pays special attention to the post-conflict settlement of boundary and territorial disputes and offers a historical process-tracing of its dynamics. Such survey discusses the experience of the legal effects of “peaceful” territorial settlement by grouping the different issues and disputes in four clusters: (i) problems deriving from the “continuity and discontinuity of frontiers” following a succession of state and/or government; (ii) problems deriving from the unilateral decision of some states to renounce formal agreements on boundary alignments; (iii) problems deriving from the unwillingness to accept (if not outright rejection of) territorial or boundary awards; and (iv) problems deriving from the complexity of legal considerations when, “despite one or even two judicial or quasi-judicial decisions regarding the location of the [boundary] line, the matter cannot realistically be considered as having finally and definitively been settled, and, equally, importantly, rejection may come not from the disputant parties but from a mediating body” (pp.32-52).
The context provided by the in-depth analysis of the arbitration and adjudication of territorial and boundary disputes allows Kaikobad to scrutinize the judicial remedies proffered by interpretation and revision of judgments and awards. Thus, in the third part of the book, he details the evolution of the notion and practices of interpretation. This examination directs the investigation towards the various legal quandaries provoked by the emergence of interpretation, specifically as they relate to the “role of consent” (p.102). Kaikobad’s focus, therefore, leads him to elaborate the purpose, scope, and principles of interpretation. Such analytical overview suggest that interpretation can be “put into effect as a remedy” only when the following “threshold criteria” have been applied – proving the existence of a dispute; focusing on the operative part of the adjudication; examining the meaning and scope of a territorial award or a boundary judgment; assessing them with reference to the particular temporal context; and ensuring that the parties involved consent to the arbitration – i.e., interpretation “cannot be considered an inherent right or remedy of a tribunal . . . [*165] [instead, the] fundamental fact is that the remedy of interpretation exists only by way of mutual agreement” (p.225). Following this study, in the fourth part of the volume Kaikobad engages in scrutinizing the judicial remedies prompted by the revision of judgments and awards. Again he starts by surveying the emergence of the notion and practices of revision, its general features, and classification. The investigative spotlight in this part of the analysis, however, falls on the issue of admissibility of judicial revisions and their substantive and procedural criteria. In the end, Kaikobad concludes that the judicial revision of territorial arbitration, just “like interpretation, is a judicial remedy which can be exercised only where there is evidence of agreement between the parties to the effect that the same or some other tribunal has jurisdiction to revise the previous judgment” (p.319).
Such detailed discussion of the two judicial remedies – interpretation and revision – indicates both their practical applicability to the resolution of boundary disputes as well as their potential to initiate a whole set of problematic issues in the mid- to longer-term period beyond the short-term objectives of conflict settlement. Thus, although lending themselves to the “quick-fix” objectives for peaceful resolution of territorial disputes, often however such legalistic remedies do not seem to tally with the particular contexts to which they are applied. In this setting, Kaikobad’s insistence on the necessity of a mutual agreement and consent of the conflicting parties to territorial adjudication is a central feature to his argument, which he re-emphasizes in the fifth part of the volume. As he points out, lack of cooperation with the process of boundary arbitration “would tend to defeat the very object and purpose of international adjudication as perceived by litigating States: the dispute would continue to fester and would jeopardize relations between the disputing parties” (p.339). However, the emphasis on this corollary is also the point which Kaikobad’s otherwise prescient analysis leaves somewhat occluded. In other words, despite the insistence on consent, Kaikobad does not seem to problematize how such mutual agreement between (what usually are very staunch) adversaries is instigated, constructed, or engineered. This is a dynamic, which some of the volume’s readers might be provoked to explore further.
Such blemish notwithstanding, Kaikobad’s volume renders a rarely erudite and perceptive investigation of the issues relating to the international interpretation and revision of boundary decisions. In this respect, by bringing his in-depth knowledge and experience with third-party mediation, conflict analysis and juridical approaches to territorial disputes, Kaikobad makes an outstanding contribution both to understanding the interactions between territoriality and conflict in an era of globalization and to the contextualization and application of judicial remedies. It is anticipated that both advanced scholars and students of international law, conflict resolution, secession movements, international organizations, and world politics would benefit from the lucid and shrewd analyses included in the volume.
© Copyright 2008 by the author, Emilian Kavalski.