by Tomer Broude and Yuval Shany (eds). Oxford, England and Portland, Oregon: Hart Publishing, 2008. 429pp. Hardback. £60.00/$126.00. ISBN: 9781841137971.
Reviewed by Lee P. Ruddin (LL.B: Liverpool); (MRes: London); and (PgCert: Sheffield). Email: leepruddin [at] yahoo.co.uk.
THE SHIFTING ALLOCATION OF AUTHORITY IN INTERNATIONAL LAW: CONSIDERING SOVEREIGNTY, SUPREMACY AND SUBSIDIARITY, edited by Tomer Broude and Yuval Shany, is the latest volume in Hart’s Studies in International Law series (No. 19). The essays published were first presented at a conference held in June 2006 at the Hebrew University of Jerusalem, which celebrated the life and work of Ruth Lapidoth. Professor Lapidoth, in the words of one contributor, Thomas M. Franck, is “the raison d’être of this collection of essays” (p.21).
In the 400-pages-plus hardback, leading international scholars systematically examine the allocation of decision-making authority to international organizations, courts and other international actors through the prisms of three organizing principles: sovereignty, supremacy and subsidiarity.
The terms sovereignty, supremacy and subsidiarity pervade the language of law and politics. Each likewise influences the language of diplomacy in international law as well as international politics. For this reason it will be of great interest to readers of the LAW AND POLITICS BOOK REVIEW.
The 15 contributors offer theoretical, analytical and practical responses to the attempt by international law-makers and institutions to exert their authority vis-à-vis states, while addressing, at the same time, challenges to their legitimacy from other state norms. In other words, the volume covers a multiplicity of legal relationships (one legal relationship not covered, though, concerns rogue states and preemptive intervention) from the vertical (postmodern) dimension to the classical (‘Westphalian’) horizontal paradigm.
The work of the authors is divided into four parts: “The Structures of International Law” (pp.17-120); “International Authority and the State” (pp.121-213); “Allocation of Authority among Judicial Bodies” (pp.215-292); and “Allocations of Authority in Specific Normative Contexts” (pp.293-415). The volume is coherently organized and the writing is consistently first-rate yet the essays remain beyond the reach of undergraduate students. (Undergraduate students would no doubt find STATE, SOVEREIGNTY, AND INTERNATIONAL GOVERNANCE a more accessible primer.)
The first of the volume’s four parts is all about the tensions that today permeate the structuring authority in international law and politics. Chapter One is lively or, as the author would put it, “surreal” (p.20). [*1124] After introducing the tensions that exist between the global and the local decision-making processes, NYU Professor Thomas M. Franck proposes three practical principles for the allocation of power between the centre and periphery (pp.26-29). To that end, Franck’s installment makes for interesting reading.
Diverse symbols of authority put stress on the existing legal apparatus, increasing the instability of international law, writes W. Michael Reisman, author of Chapter Two. It is this “dynamic dialectic of law that gives it its vitality and its volatility” (p.40). Reisman’s contribution is as comprehensive as it is powerful. Even Francis Fukuyama gets a mention, although Reisman’s use of ‘justical anachronism’ (p.40) puts paid to the Japanese-American’s ‘end of history’ thesis.
In a similar vein to the opening chapter, not to mention as skeptical as the second, Gareth Davies, in Chapter Four, provides a clear and concise take on the issue of the method of subsidiarity. In the following chapter Tomer Broude correlates norm-authority integration. Suggesting methods of norm integration that are less intrusive upon the institutional authority in question, Chapter Five offers an original perspective on authority allocation.
The second section of the book concentrates on conceptions of sovereignty and the tension between (international) authority and (national) sovereignty. Brad R. Roth (“State Sovereignty, International Legality and Moral Disagreement”: pp.123-161) provides a clever, penetrating look at self-determination and non-intervention, while Robert L. Howse and Kalypso Nicolaidis (“Democracy without Sovereignty: The Global Vocation of Political Ethics”: pp.163-191) methodically evaluate the model of governance offered by the World Trade Organization compared to its predecessor organization, the General Agreement on Tariffs and Trade. And Andreas L. Paulus (“Subsidiarity, Fragmentation and Democracy: Towards the Demise of General International Law”: pp. 193-213) looks at questions of legitimacy and whether a shift from democracy to technocracy has occurred.
Section III is as light to read as Section II is as heavy. Indeed the chapters contained in Section III (substantively, in the case of Chapters Nine and Ten) compliment each other in a similar way Sections I and II do. Nikolaos Lavaranos offers an unrivalled insight on the Solange-method and jurisdictional overlap despite being one of the shortest contributions to the volume (19 pages). Much like the preceding installment, Iris Canor’s chapter provides an original contribution to the existing literature analyzing, in this particular instance, the BOSPHORUS case. And Amichai Cohen (“Domestic Courts and Sovereignty”: pp.265-292) serves up a simple yet scholarly take on the not-so-simple relationship between international cooperation and sovereignty.
Two essays stand out in Section IV. The first, by André Nollkaemper (“Multi-level Accountability: A Case Study of Accountability in the Aftermath of the [*1125] Srebrenica Massacre”: pp.345-367), Director of the Amsterdam Center for International Law, traverses law and politics effortlessly. The second, the gem of this collection, by Malcolm N. Shaw QC (“Territorial Administration by Non-territorial Sovereigns”: pp. 369-415), is both substantively astute and historically nuanced and is the longest contribution to the volume (47 pages).
The editors have done a fine job of amassing a wide repertoire of scholars, from a wide repertoire of backgrounds, to discuss a wide repertoire of topics (yet the commentators, surprisingly, provide little critique of others’ works within the volume). That said THE SHIFTING ALLOCATION OF AUTHORITY IN INTERNATIONAL LAW is by no means the final word on the subject, but rather a ‘hologram’ of the discussion (p.14). Indeed more research needs to be carried out – many of the contributors say as much. It is here that a concluding chapter is conspicuous by its absence. What is more, this heterogeneity contributes to the lack of any unified solutions. And although this point is acknowledged by the editors when considering the goal of the book (p.3), readers looking for any theoretical take-away will be disappointed. But none of this detracts from the overall value of the text. There is little in the way of repetition, little in the way of typing errors and the volume remains of huge significance to the informed reader.
Kreijen, Gerard (ed). 2002. STATE, SOVEREIGNTY, AND INTERNATIONAL GOVERNANCE. Oxford and New York: Oxford University Press.
BOSPHORUS AIRLINES v. IRELAND,  ECHR (application no. 45036/98).
© Copyright 2008 by the author, Lee P. Ruddin.