Book Reviews

Evans, Malcolm (ed.). Remedies in International Law: The Institutional Dilemma. Oxford: Hart Publishing, 1998. £35.

As international instruments proliferate, the remedies available to states for breach of international obligations and the number of institutions offering fora for the granting of such remedies has expanded. Today, the International Court of Justice (ICJ) is no longer alone in providing a forum for the granting of remedies. Different trade, environmental, or law of the sea regimes, for example, have expanded the range of options available to aggrieved states. Yet, with this expansion comes new problems, tensions and questions. For example, will a given institutional option actually be effective? Is the proliferation of procedures and mechanisms necessarily a good thing? What happens if different institutions offer diverging jurisprudence? Which factors determine the choice of one forum over another?

Evolving out of the papers and presentations given at the Fourth EC/International Law Forum hosted by the Law Department at Bristol University in May 1997, Remedies in International Law is a collection of essays by leading international jurists on the remedies available to states in international law and the issues `flowing from the multiplicity of procedures and mechanisms' (p. viii). Discussions go beyond the examination of traditional institutions such as the ICJ to more recent institutional arrangements such as that under the Convention on the Law of the Sea and to alternative dispute resolution mechanisms.

Divided into 13 chapters, the book covers a wide range of topics, including the International Court of Justice (Chapters 1-3), the Law of the Sea Convention (Chapters 4-5), alternative dispute resolution mechanisms (Chapters 6-8), the Gatt/WTO settlement system (Chapter 9), and environmental dispute settlement (Chapter 10). The last three chapters take on much broader issues. Chapter 11 examines `International Wrongs and National Jurisdiction', while Chapters 12 and 13 explore issues pertaining to the European Union.

The book kicks off with a piece entitled `Remedies and the International Court of Justice: An Introduction', in which Judge Rosalyn Higgins sets out to identify `the advantages and disadvantages of recourse to the International Court of Justice'. This she does from a practitioner's perspective, taking the reader through the work of the ICJ from the time a case first comes in, to the distribution of work amongst the judges, up to its final resolution, thereby providing a valuable insider account of the procedure of the ICJ. Malcolm Shaw's piece is also on the ICJ. Like Higgins, his is also from a practical perspective, `from the point of view of a potential client', but with emphasis on `contentious cases'. He offers factors that the potential client must weigh up in deciding whether to have recourse to the ICJ. John Merrill also examines the ICJ, but from a narrower perspective. His focus is on specific aspects of the Court's incidental powers, such as the power to order provisional (interim) measures under Article 41of the ICJ Statute, its intervention powers under Articles 62 and 63, and the power of interpretation and revision of judgment under Articles 60 and 61.

The International Tribunal for the Law of the Sea (ITLOS) `represents the first world-wide court set up specifically to deal with a major part of international law since the establishment of the International Court of Justice 50 years ago' (p. 82). David Anderson and Robin Churchill examine, in different pieces (Chapters 4 and 5), new institutional arrangements under the 1982 UN Convention on the Law of the Sea. Both focus on the ITLOS. However, while Anderson examines the establishment, jurisdiction, rules of procedure and judicial policy of the Tribunal, Churchill provides the context within which the Tribunal was established and offers an examination of alternative fora to the Tribunal both within and outside the framework of the Convention.

The popularity of non-judicial means of dispute resolution is one that has extended beyond the domestic plane. Increasingly, alternative dispute resolution mechanisms present new options for states wishing to avoid the institutional mechanisms for whatever reason. Chapters 6-9 explore the increasing popularity of ADR processes at the international level. David Anderson discusses the advantages of negotiation over other means of settling dispute and its use in international affairs today. This is followed by a very interesting piece, `Alternative Dispute Resolution under International Law', in which Christine Chinkin discusses the development and use of alternative dispute resolution mechanisms in international affairs. She focuses, particularly, on three institutional contexts where negotiating dispute resolution processes have been adopted and adapted: institutional regimes for treaty compliance with emphasis on the fields of environment protection and human rights; inspection panels of the international financial institutions; and the good offices of the Secretary-General. Michael Furmston explores in Chapter 9 the tendencies towards uniformity in arbitral practice in the international sphere. By focusing on how efforts towards harmonization `have been received and reconciled within the domestic law of England and Wales', he raises important points for consideration at the international level.

Bernhard Jensen's piece is an exploration of the development of the GATT/WTO dispute settlement system from an essentially negotiation mechanism to the quasi-judicial body it is today. In `Environmental Dispute Settlement: Some Reflections on Recent Developments', Phoebe N. Okowa assesses `the extent to which environmental disputes raise discrete issues or problems for adjudicatory methods of dispute settlement that exist in the international system' (p. 152). Building on that, she makes a strong case for `specialised forums staffed with the requisite expertise'.

The final three chapters explore much broader issues. The central question Malcolm Evans raises in Chapter 11 is `whether there is a danger in individual responsibility under international law being used - de facto, if not de iure - as a cloak behind which the responsibility of state can shelter' (p. 173). His uneasiness with what he sees as the tendency to transfer responsibility from the state to the individual is also because, he would argue, it calls into question the basic understanding of what international law is about. He concludes that `where individual and state responsibility co-exist ... the efficacy of international law as a body of law is not enhanced - and indeed may be undermined, if the individual becomes the focus of attention to the exclusion of the State' (p. 173). In Chapter 12, Nanette Neuwahl engages the same issue laid out by Malcolm Evans in Chapter 11, but with a focus on the European Union. In other words, does individual responsibility operate as a cloak behind which Member States hide? Contrary to Evans, she concludes in the negative: `within the EC Context the movements which Evans suggests are detectable on the international level do not really apply' (p. 195). Neuwahl's piece also examines the relationship between Member State responsibility and EC or EU responsibility, both on the international plane and within the Union. In the final chapter, William Robinson evaluates, through an examination of case law of the European Court of Justice, the relationship of Community law with international and national law. He concludes that `there remains significant scope for clarification of the Community's international law obligations within the Community legal order' (p. 226).

Regrettably, Remedies in International Law's approach is very statist and, thus, offers no guidance whatsoever to those individuals and non-state groups seeking remedy in international law. Anyone harbouring any hope that some of the options currently available to states may soon be open to individuals and groups will be very disappointed. Judge Higgins, for instance, is of the view that there are `real practical problems' (p. 1) with the idea of amending the Statute of the ICJ to give individuals standing before the Court. Malcolm Evans argues that `there is a need to scrutinise the new orthodoxy that the rise of the individual within the international system is an unqualified good' (p. 175), while Shaw, in his piece on the ICJ, expressly avoids `matters that may require major constitutional changes, such as the question of locus standi before the court of individuals and international organizations'. In the exceptional cases where individuals and non-state interests are recognized, Chinkin warns, and rightly so, that `the procedures may hold out greater promise for involvement than in fact occurs (p. 140).

Furthermore, perhaps because most of the contributors are legal scholars or jurists involved in the work of the different international institutions and mechanisms they are discussing, their approach is highly depoliticized.² The `real' experiences, frustrations, disappointments and hopes of states with the procedures and mechanisms examined are, unfortunately, absent. The question whether some of the options currently open to states are illusory thus remains to be answered. One is therefore bound to agree with Christine Chinkin that the vitality of international lawyers in designing innovative dispute resolution processes may `obscure real substantive conflict that continues even while the procedures are identified and agreed' (p. 139).

Nonetheless, Remedies in International Law offers practical insight into the range of options open to states seeking remedies for breach of an international obligation and the tensions and new questions that are raised by the proliferation of procedures and mechanisms. Perhaps the greatest strength of the book lies in the fact that the contributors (for example, Judge Rosalyn Higgins of the ICJ and Judge David Anderson of the ITLOS) have been or are currently involved in the work of the institutions they are discussing.

Uché Ewelukwa
Harvard Law School

2 Indeed, the EC/International Law Forum, from which the book originated, had decided `not to take a prescriptive view of what might be deemed a `remedy'' (p. vii).

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