by Duncan French, Mathew Saul and Nigel D. White (eds). Oxford: Hart Publishing, 2010. 444pp. Hardback. £65.00/$130.00. ISBN: 9781841139128.
Reviewed by Won Kidane, Assistant Professor of Law, Seattle University School of Law. Email: kidanew [at] seattleu.edu.
This book duly honors Professor John Merrills, one of the foremost authorities in the field of international dispute resolution, human rights and non-discrimination. The contributions recall many aspects of his work and puzzle over some of the same problems and techniques of dispute settlement that Merrills had been thinking and writing about for decades:The leading and most commonly consulted work is INTERNATIONAL DISPUTE SETTLEMENT(4th ed. 2005). The editors selected 14 essays for the book. In doing so, it is clear that they were unconstrained by the traditional public-private, binding-non-binding, hard law-soft law dichotomies reflecting their glaringly contemporary approach to the examination of interrelated transnational legal problems through the prism of dispute settlement. The collection interrogates various mechanisms of dispute resolution in diverse yet interrelated substantive areas, ranging from human rights to the Law of the Sea and covering geographic areas from Antarctica to Arusha.
This review examines the fundamental assumptions and arguments of each chapter and evaluates the nature and clarity of the contributions independently and collectively. What follows is a substantive review of each essay, after which I offer a brief conclusion about the book’s unique contribution to the realm of dispute resolution.
In Part 1 of the text, THE CHANGING FACE OF INTERNATIONAL ADJUDICATION, Vaughan Lowe opens the discussion with the fundamental question of “whether private justice can secure the fulfillment of public values” (p.4). His piece, “Private Disputes and Public Interest in International Law,” begins to answer this question by making some fundamental and thought-provoking assumptions. The premises are preceded by an example in which Lowe hires a plumber who refuses to perform as agreed. Lowe states that “there may be no public interest in ensuring that the plumber that I hire does the work that he has contracted to do properly, or that I pay him as I have agreed to do so. But if one of us believes that the other has failed to fulfill the contract, and goes to court to seek its enforcement, there is a public interest in ensuring that private contractual rights are upheld in fair, transparent and just proceedings in the court” (p.4). He then concludes that: (1) the public interest mainly concerns procedural regularity rather than substantive rights of contracting parties, and (2) if the contracting parties resort to arbitration, the public does not need to know what happens in that process unless the court’s [*570] involvement becomes necessary at the enforcement stage. These essential statements set the stage for the discussion of private-public interaction in the international law arena.
Lowe’s two assumptions serve as a foundation to explore the interface between the public and private interface in international law. However, two unstated caveats would have made the propositions complete. First, the public’s interest in the substantive content of the agreement is often expressed in the substantive law that ensures the contract against illegality, incapacity, or illicitness. Second, even if the parties are free to arrange for a private mechanism of dispute resolution, the public remains interested through certain arbitration laws that either permit or forbid arbitrability based on public policy considerations. In other words, enforcement is not the very first time that the public takes a look at the process. Indeed, laws designed to uphold public policy strictly regulate these private mechanisms of dispute resolution. Moreover, in some countries, courts retain the jurisdiction to review errors of law. In fact, it is fair to say that private means of dispute resolution are merely tolerated because of the convenience they offer. Otherwise, it is strictly controlled and the public’s interest is protected through various means, including procedures to set aside awards.
Protecting the public’s interest is Lowe’s concern in the realm of investment treaties as well. Lowe explores the private-public relations primarily in the context of bilateral treaties, commonly known as the “spaghetti–bowl” (e.g., Amarashinha and Kokutt, p.121). Lowe does not use this term but he emphasizes the numerosity. He is concerned about the potential lack of public involvement in monitoring the conduct of private investors whose rights are protected under these treaties – particularly in countries where there is little public input in treaty adoption. One example he cites is a situation where the executive can conclude a treaty without legislative consideration. In that situation, the investor may be granted rights that the public has not ratified through the legislature. That is a real concern, which leads Lowe to conclude that “[n]ot even international law can do everything. Some battles must be fought at home, on the domestic stage” (p.16).
His apprehension lingers even in circumstances where agreements are accordingly drafted with public involvement. Treaties often give investors numerous substantive rights and allow them to proceed against the state in arbitration, a privately arranged dispute settlement forum that is almost always confidential. One example is the Methanex dispute brought against the state of California for proscribing the use of a chemical additive in petrol sold in California. Methanex, a Canadian company that makes the additive, alleged that the environmental measures amounted to an indirect taking. The case was arbitrated under NAFTA. The arbitration was held in camera, as is the case in almost all investor-state arbitrations; however, Lowe points out that there is immense public interest in these kinds of environmental cases. NAFTA rules are silent on the issue of transparency but cognizant of the public’s concern; thus, the tribunal allowed amicus briefs although interested third-party intervention was [*571] forbidden. Lowe acknowledges that allowing amicus briefs is becoming increasingly common, including acceptance by the WTO’s Appellate Body. At the same time, he highlights the poor clarity of the rules governing the participation of civil society organizations (p.11). He inquires again “whether private-justice could adequately secure public interests” (p.12), and analyzes the front-end problems such as the lack of public involvement in arbitration itself. Lowe does not, however, acknowledge the back-end safety net built into the system, the courts’ inherent authority to refuse recognition and enforcement of the awards that contravene public policy. Note that this principle is universally recognized. Its finest expression is contained in Article V of the New York Convention for the Recognition and Enforcement of Arbitral Awards entered into force June 7, 1959.
Lowe’s conclusion recognizes that international law could limit the actions of irresponsible governments but asserts that protecting the public’s interest must come from within individual states (pp.15-16). This piece is very insightful and provocative. Readers with an established foundation in international investment and arbitration will come away with a deeper comprehension of public-private relations in investment law.
Chapter 2, Malgosia Fitzmaurice’s “International Court of Justice and Environmental Disputes” (pp.17-56), complements Lowe’s discussion of public interest in environmental issues. Fitzmaurice begins his discussion by clearing the doctrinal hurdles related to standing. He reiterates the general principle that classic international law is essentially based on bilateralism. In multilateral treaties, including environmental treaties, two types of obligations are owed: (1) obligations erga omnes, obligations to the entire international community, and (2) obligations erga omnes partes , obligations to the contracting parties only. Fitzmaurice is concerned that limitations on standing stemming from obligations only to other contracting parties may offer opportunities for states to freely engage in conduct that harms the environment while enjoying shelter from reprimand.
Having analyzed the ICJ’s environmental law jurisprudence through the prism of the Nuclear Test , Water law, and Air Pollution cases, Fitzmaurice compares the suitability of the ICJ with the appropriateness of specialized international tribunals for the settlement of environmental claims. His suitability analysis examines the rigidity of the ICJ’s rules on standing and the non-acceptance of actio popularis to pursue collective interest. The longevity of the ICJ’s proceedings, among other issues, leads Fitzmaurice to conclude that the ICJ may not be an entirely appropriate forum to pursue environmental claims (p.51). He offers examples of unsuccessful efforts to establish specialized courts, including some within the ICJ, and suggests that the appropriate tribunals continue to adjudicate their respective environmental cases, but the ICJ must maintain its irreplaceable role. Fitzmaurice explains that the ICJ links “international environmental law to general international law” (p.56). It is a brilliant analysis with a clear roadmap, an optimal use of authority, and a [*572] balanced conclusion. The discussion on standing, which is the principal doctrinal dilemma, complements Lowe’s concern about the representation of the public’s interest in private dispute settlement fora. The editors are to be commended for placing Lowe and Fitzmaurice consecutively.
Duncan French and Richard Kirkham take the discussion of international dispute settlement beyond the inter-governmental framework with their piece, “Complaint and Grievance Mechanisms in International Dispute Settlement.” Their primary focus involves non-judicial administrative-type mechanisms. They define judicial broadly to include not only the strictly judicial ICJ type proceedings but also the likes of WTO proceedings (and they call some of them quasi-judicial (p.x at n.2)), leaving for examination consultations, public document disclosures, evaluations, audits, ombudsmen, and inspection panels (pp. 63-82). These methods are employed by inter-governmental organizations such as the World Bank as well as non-governmental organizations and transnational corporations. The authors provide in-depth descriptions of the mechanisms’ functions advantages, and shortcomings and advocate for their continued use and development. The Ombudsman system receives a particularly scrutinized analysis. French and Kirkham outline the origins and elements of various Ombudsman strategies as wells as inherent characteristics common to all the techniques. They praise its flexibility and adaptability as a dispute settlement mechanism in both public and private spheres to address diverse substantive issues such as corruption and the environment. They discuss the technique in the context of domestic systems while noting the absence of “fully fledged ombudsman systems” in the international arena with the exception of the European Ombudsman (p.67). They indicate that the international ombudsmen tend to focus on staff grievances and seem underdeveloped. Furthermore, French and Kirkham, like Lowe and Fitzmaurice, express concern about the absence of public involvement in these procedures. They note that one of the principal advantages of non-judicial informal administrative mechanisms is their accommodation of the public’s interest through NGOs and civil society participation (p.58). It is a well-reasoned and remarkable addition to the collection.
Next, in “Stuck in the Middle With You? Alternative Approaches to Realizing Accountability for Human Rights Violations by Business,” Sorcha Macleod offers the use of alternative approaches to hold businesses accountable for human rights violations. She begins her inquiry with a succinct description of the dilemma between hard law and voluntarism and the prevalence of the latter’s role in the international regulation of Transnational Corporations (TNCs). She emphasizes the fragmentation and abysmal record of the available national and international means to uphold corporate social responsibility (CSR), a notion she finds perplexing (among the nation attempts she cites is the litigation under the United States Alien Torts Claims Act. See p. 88). She describes the available alternative non-binding means of accountability, including the OECD’s Guidelines on Multilateral Enterprises, [*573] and states that these mechanisms may not be “inherently inferior” (pp.89, 99-105). Her subsequent discussion yields the conclusion that voluntary compliance mechanisms could be effective in CSR’s support of the “bottom line,” but the work cannot stop there. She notes that all efforts to adopt binding international treaties have failed, and they are unlikely to be effective anytime soon. Therefore, she summarily calls for a “stick” option and offers some interesting ways to add that stick to the carrot. Her suggestions range from linking export credit to compliance with human rights standards to withdrawing corporate status in response to violations and pursuing company officers (pp.106-107). Unlike the other authors in Part 1, Macleod does not engage in a discussion of the private-public dichotomy. In fact, although the main subject is a private entity, her essay does not grant the recognition private remedies deserve as methods of securing compliance.
Part 2 is titled "Problems and Techniques in Substantive Areas of International Law." The title misbrands the wonderfully diverse content; only a few of the essays deal with specific substantive issues. The first of the seven pieces is “Practice and Procedure of Dispute Settlement in Individual Communication Cases Within the Human Rights Committee and the Committee on the Elimination of Discrimination against Women: Congruence or Conflict?” by Sandy Ghandhi. Ghandhi offers an excellent description of the substantive content of the various post-World War II international human rights instruments. He particularly emphasizes gender-related norms, and offers a comparative analysis of the individual communication cases within the Human Rights Committee and the Committee on the Elimination of Discrimination Against Wwomen. While Ghandhi is especially bothered by the conspicuous absence of inter-state dispute resolution mechanisms from the Convention for the Elimination of Discrimination Against Women (CEDAW), he regretfully notes their dubious utility even when such mechanisms are available, drawing on the writings of John Merrills, whom this collection honors (p.139). Ghandi examines the jurisprudence of CEDAW in light of other enforcement mechanisms including the challenges and prospects of individual complaint mechanisms under the Optional Protocol. He then compares the Optional Protocol with HRC and ICCPR mechanisms. He concludes with the hope that CEDAW develops a set of norms that is coherent and consistent with preexisting well-established human rights instruments. This piece is exceptionally notable for its fabulous comparative style and readability.
The second piece in this part is Robin Churchill’s “Trends in Dispute Settlement in the Law of the Sea.” Paying tribute to Merrill, Churchill opens begins with the confirmation that dispute settlement techniques in the Law of the Sea tend to be similar to methods used in general international law. Then he goes on to describe recent trends that distinguish dispute resolution in the Law of the Sea from general international law (pp.143ff). Churchill’s expertise is exemplified in his depiction of various dispute settlement mechanisms; he conveys them with astounding efficiency and care. For obvious reasons, he gives more attention to the mechanisms under the 1982 UN Convention on the Law of [*574] the Sea (UNCLOS) with a stern warning that it must not be understood to be the only instrument. He asserts the UNCLOS dispute settlement mechanism as “far-reaching, detailed and ambitious,” rivaled only by the WTO’s Dispute Settlement mechanism. He also briefly describes dispute resolution under the Fisheries Treaties (pp.157-163), the Marine Pollution Treaties (pp.163-167), and the judicial options under general international law, including the ICJ, through party-arranged arbitration and regional mechanisms (pp.166-170). Churchill concludes with a summary of the innovations that he sought to identify in his introduction. Some of the innovations are compulsory dispute resolution mechanisms (which no longer sound novel), specialist arbitrators, the smattering of choices offered by UNCLOS, and the establishment of a global court – ITLOS, the only global institution apart from the ICJ (Churchill is careful not suggest that compulsory jurisdiction was invented in 1982 by the UNCLOS, but that it is unique in its comprehensiveness). Essentially, this piece is informative, easy to follow and is an interesting read for anyone who is not intimately familiar with the Law of the Sea.
In “The WTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Law,” Surya Subedi offers a brilliant overview of the workings of the WTO’s Dispute Settlement and Appellate Bodies. He admires the successes each body has enjoyed in both number of cases handled and amount of money involved. Later, he tempers his enthusiasm with explanations of some of the fundamental deficiencies of the system. He notes the challenges the Dispute Settlement Board and the Appellate Body face in enforcing their adopted rulings against powerful economies. Subedi also points out private interests’ lack of representation in daily routines and operations. Finally, he claims a liberal bias is to blame for the WTO’s difficulties in balancing its pro-trade stance with its promotion of international justice (p.187). This unbalanced system, which relies on retaliation for enforcement, places developing countries in a predicament. Subedi expresses hope that some improvements proposed during the Doha round could remedy some of the defects and ensure a more robust legitimacy and acceptability. One of the improvements that he envisions is a compensatory and punitive regime (p.190). Although it is a classic account of the WTO’s system of dispute settlement by all standards, this piece is commendable for its wide scope of coverage and excellent precision.
Nigel White and Mathew Saul, co-authors of “Legal Means of Dispute Settlement in the Field of Collective Security: The Quasi-Judicial Powers of the Security Council,” align their writing with the book’s theme of assigning a broader meaning to dispute settlement. White and Saul consider the quasi-judicial functions of the Security Council (SC). These include investigation, judgment and implementation (enforcement), all emanating from its essentially executive Chapter VI and VII powers. White and Soul effectively frame the SC’s largely political functions in legal and adjudicatory terms. They point out that the SC must adjudicate facts and apply international law in determining recommendations and enforcement as well as in establishing various [*575] international criminal tribunals (pp.206-211). White and Saul effectively argue their points; a large component of their success is their clear emphasis that the SC bases its decisions on facts presented and has its actions constrained by certain laws. Their meticulous labor to characterize functions in judicial terms urges the SC to recognize its duties and to adopt and conduct its business under due process of law just like other judicial entities. For greater clarity, White and Soul emphasize the need for “transparency, consistency, equality, due process, and proportionality” (p.223). This piece is quite simply brilliant, and a model of excellent legal analysis.
Karen Scott’s piece, “Non-compliance Procedures and Dispute Resolution Mechanisms under International Environmental Agreements,” places its substantive focus on environmental law. It is unclear why the editors decided to include the piece in the middle of Part 2, for it shares a more intimate connection with some of the Part 1 pieces. The work is highly descriptive and deeply technical. Its technical nature coupled with its lack of a roadmap makes it a difficult read for the non-specialist. Once these issues of context and technicality are overcome, however, the reader can appreciate its substantive content and quality. After a relatively comprehensive description of non-compliance procedures (NCPs), Scott links them to decision-making processes and reintroduces the overarching theme of the book: public participation in at least one mechanism – non-compliance proceedings (p.249). She notes that public input in the form of NGO and other civil society responses is becoming a common feature in many NCPs and she urges further transparency (p.249). Next, she addresses the relationship between NCPs and dispute resolution processes. Scott begins by saying that “non-compliance procedures function alongside rather than replace traditional dispute resolution mechanisms” (p.) Scott falls short of saying that NCPs are themselves options in the context of the book’s broad definition of dispute resolution mechanisms. She ponders the exclusivity of NCPs but then offers a brilliant analysis of various approaches to dispute resolution mechanisms related to their hierarchy and co-existence under the different environmental instruments. This piece is perhaps a more substantial work than all the other works in this collection and a great introduction to the area of international dispute settlement.
James Crawford’s, “The Antarctic Treaty after 50 Years,” almost seems misplaced at first sight especially because the treaty itself lacks a dispute settlement provision. If one follows the piece with Job’s patience, however, it becomes somewhat clear that the “[t]reaty regime itself provides the principal device for the resolution of disputes” (p.271). Crawford offers the idea that although the treaty does not prohibit the 13 contracting parties from conducting certain agreed and permissible activities, it does prohibit them from using those activities to build a claim of right. Moreover, the Treaty does not do away with claims that predated its adoption. In other words, the Treaty does not obligate the parties to renounce a pre-existing claim of sovereignty (pp.272ff). Under this and some other related laws, including the Law of the Sea, one sovereign may have a cause of action against another, with the exception of Antarctica. When considering Antarctica, sovereigns [*576] abstain from exercising any real or perceived rights because doing so would be “at the expense of the system as a whole: to rely paradoxically, on the sovereign act of non-enforcement” (pp.295-296). What could be said about this argument is that it is as unique and as sophisticated as the Antarctic Treaty itself. There is no doubt that it both challenges and enlightens the reader while offering a taste of Crawford’s wit that international lawyers have come to crave. While puzzling, it nonetheless enriches the collection.
Kish Beevers’ piece, “Cross-Border Family Mediation” has the misfortune of following Crawford’s wit but she does not disappoint the reader. She brilliantly describes the fundamentals and virtues of mediation in the domestic family law context, and shares her thoughts about how such benefits could be exported to the cross-border context. She surveys the existing cross-border initiatives with a particular emphasis on mediation in child abduction cases (pp.307-314). Beever carefully outlines the intricacies and complexities that cultural and jurisdictional issues may pose. She recognizes the challenges that may emerge when mediation is embedded in a pre-established adjudicatory process. She points out the potential for costs and delays associated with duplication as well as issues in recognition and enforcement. However, she concludes with the positive assertion that although it is not free of problems, cross-border mediation is a mechanism that must be seriously pursued (pp.317-318). Quite simply, Beever's work is a wonderful addition to the collection.
Part 3, The Regional Dimension, focuses on some local means of dispute settlement. In the first of the three essays, “Aspects of the African Court of Human Rights,” Gino Naldi does a great job of describing the genesis, structure and most importantly, the jurisdiction of this new court. His greatest contribution in this short piece may be his step-by-step description of the relevant provisions of the various instruments that tell the whole story about the court’s jurisdiction. He then answers the most frequently asked question of under what circumstances, that is, what mix of ratifications would give the court the jurisdiction to accept cases from individuals and NGOs (pp.329-330). He responds to that inquiry by quoting the appropriate provisions of the relevant conventions and protocols and he identifies the sources of law that the court applies. Finally, he describes some of the challenges involved in making the court a useful institution (pp.331-343). This is a very useful informational piece; its organization and precision is especially noteworthy.
Tawhida Ahmed’s “The EU, the ECHR and the Effective Protection of Human Rights and Individuals” considers individual rights in the context of the European Union human rights regimes, particularly the relationship between the European Court of Human Rights (ECtHR) of the Council of Europe and the European Court of Justice, and the European Court of Justice of the European Union (EU). Ahmed analyzes the possible overlap of these regimes in light of the ECtHR’s 2006 decision in the BOSPHORUS case. After a systematic analysis of potential negative impacts of the decision on individual human rights (Ahmed notes that the decision was based on a balancing of interests between international [*577] cooperation on the one hand and individual rights on the other, disproportionately in favor of the former. See p.363), Ahmed outlines a modified list that could strike a more just balance between the legitimate interest of international cooperation and the protection of individual rights (pp. 363-365). It is a very well-articulated and focused piece of advocacy.
In the final essay, “The European Court of Justice as a Constitutional Court: Implications for the EU and International Legal Order,” Paul Cardwell examines the role of the European Court of Justice using three relatively recent cases. The well-selected cases cover areas such as police and judicial cooperation in criminal matters, fundamental rights under EU Law, and jurisdiction and competence.. Using recent cases to underscore his points, Cardwell demonstrates that the court’s increased assertion of jurisdiction over matters that are not strictly governed by EU law (e.g., mixed agreements) suggests that the court’s ambitions could be likened to behaviors demonstrated by a constitutional court, but without a written constitution (pp.386-387). This is a very well-written and provocative piece.
The essays show individual variation, yet together, they yield a coherent theme. Consequently, (borrowing from Steinhardt's (2002, p.2) statement about the law regulating transnational commercial transactions), the resulting book is more like jazz than arithmetic. The most important unifying theme is the protection of individual rights, whether framed in the role of public involvement in the first essay or the role of the European Court of Justice in the last essay.
Each essay is superb. As a group, the collection symbolizes the variety of options in international dispute resolution, shattering the myth that one method is superior to another. The various mechanisms are tested using varied substantive categories, supplemented with diverse geographical areas which enhances the book’s portrayal of the diversity and intricacy that accompany dispute settlement. The editing is excellent. Although another organizational structure is not inconceivable, the lineup is very good, and easy to follow.
The book’s essential contribution is the presentation of a wide array of dispute settlement mechanisms uniquely joined beneath the cover of one volume. In addition to this distinctive convenience, it encourages academics, students and practitioners to think about their areas of focus in light of other mechanisms and processes. Indeed, it is a great supplement to the literature currently available on the topic of dispute settlement.
One might add two observations. Although the book delivers on its promise of addressing “New Problems and Techniques” in some of the essays, it is fair to say that most of them deal with recurring issues in different and very valuable ways but not necessarily new ways. In fact, most of the concerns addressed in the various essays are the same issues that Merrills has been thinking and writing about. It may also be said that the book is generally very successful in showing the multiplicity of available mechanisms and the existence [*578] of overlap and even conflict. Although some of the individual essays address the issue of resolving overlapping situations in their respective areas, an independent essay addressing multiplicity and overlap would have enriched the book significantly.
At the most basic level, however, it is a unique and groundbreaking addition to the literature that everyone concerned with international law and dispute resolution should read. The contributors, the editors, the publisher and everyone else involved in making it a reality must be congratulated.
Amarasinha, Stefan D., and Juliane Kokott. 2008. "Multilateral Investment Rules Revisited," in THE OXFORD HANDBOOK OF INTERNATIONAL INVESTMENT LAW. Oxford University Press (pp120-151).
Steinhardt, Ralph G. 2002. INTERNATIONAL CIVIL LITIGATION: CASES AND MATERIALS ON THE RISE OF INTERMESTIC LAW. LexisNexis.
BOSPHORUS HAVA YOLLARI TURIZM ve TICARET ANONIM SIRKET v. IRELAND
(2006) 42 EHRR 1.
© Copyright 2010 by the author, Won Kidane.