Book Reviews Franck, Thomas M. Fairness in International Law and Institutions. New York: Oxford University Press, 1995. Pp. xxxvi, 484. Index. $55. This book is a combination of a philosophical analysis of international law and a review of the main subjects of the law of nations in the light of that analysis. The author is of the opinion that international law has reached an advanced stage of maturity and specialization. Hence, there is no longer a need to defend its very existence. Instead, one should ask whether it is effective, enforceable, understood and fair (p. 6). He then discusses the notion of fairness (pp. 7-46). `Legitimacy and distributive justice are two aspects of the concept of fairness' (pp. 8-9). Legitimacy is procedural fairness. It expresses the preference for order and stability and the belief that for a system of rules to be fair, it must be firmly rooted in a framework of formal requirements about how rules are made, interpreted and applied. Distributive justice, on the other hand, is substantive fairness. It expresses the need for a justifiable distribution of costs and benefits, and usually favours change. Distributive justice is rooted in the subjective, relative moral values of the community. Legitimacy and justice may coincide, but they may also clash. The objective of fairness is to achieve a balance between the need for order (legitimacy) and the need for change (justice). The importance of fairness lies not only in its moral value, but also in the utilitarian aspect that it pulls towards voluntary compliance. [The international community is ripe for a discussion of fairness since there exists `moderate scarcity' and a `community' - two preconditions of fairness discourse. In a situation of extreme scarcity, fairness would not be sought. Neither would it be relevant in the absence of a community, namely, `a social system of continuing interaction and transaction ... a conscious system of reciprocity' (p. 10).] The author continues by analysing further the legitimacy component of fairness (pp. 25-46). Legitimacy is affected by properties of the rule, by the process by which it was made, and by its implementation. [The legitimacy of most of the rules of international law derives from their being based on the consent of states. However, once this consent has been given, the consenting state is bound to act in accordance with that to which it has agreed (pacta sunt servanda) - an obligation which cannot be derived from state consent, but from another source of legitimate authority. Moreover, once a new state joins the community of states, it is bound by the basic rules of that community, regardless of consent.] The legitimacy of substantive rules of law depends on four indicators: determinacy, symbolic validation, coherence and adherence. Textual determinacy is the ability of a text to convey a clear message. A clear rule has more chance of being complied with and of being perceived as fair. Paradoxically, when the legislator introduces a reference to a `fairness' standard or to equity, this may reduce the determinacy of the rule. Symbolic validation communicates authority by means of cues. These signal the importance of the relevant rule in the overall system of social order and the fact that it was adopted in accordance with right process. Examples include the symbols of pedigree and rituals in diplomatic practice. `A rule is coherent when its application treats like cases alike, and when the rule relates in a principled fashion to other rules of the same system' (p. 38). That is, generality and consistency of the rule increase its legitimacy. This does not mean that uniformity has always to be achieved. But `when distinctions are made, they must themselves be explicable by reference to generally applied concepts of differentiation' (p. 39). Adherence is the nexus between a rule of conduct and secondary rules governing the creation of rules. In national communities, the legitimacy of the law derives from its having been made in accordance with the procedure established by the Constitution. International rules derive their legitimacy not only from the consent of states, but also from compliance with certain preemptory norms - `a sort of customary constitution of the international community' (p. 43). The state is also bound by certain rules due to its mere status as a state, namely, customary rules that developed before its establishment. After this theoretical analysis of the notion of fairness and its components - legitimacy and distributive justice - the author examines equity as fairness in international law (pp. 47-80). He first studies equity as an instance of `law's justice' (pp. 48-54). In order to protect the legitimacy of this sort of equity, the courts have developed general principles of equity, e.g. unjust enrichment, estoppel and acquiescence. He continues by analysing the distinction between equity and ex aequo et bono, and explains the reticence of the ICJ to decide cases ex aequo et bono. Finally, Professor Franck discusses equity as a mode of introducing justice into allocation of scarce resources, e.g. the riches of the continental shelf. He discerns three approaches in this sphere. The more traditional approach is that of `corrective equity', and the other two, only recently applied, are `broadly conceived equity' and `common heritage equity'. He finds `broadly conceived equity' in some rules of the UN Convention on the Law of the Sea of 1982, as well as in the proposed rules on the Non-Navigational Uses of Watercourses. Lastly, under the `common heritage equity', certain resources are the patrimony of all humanity, as exemplified by the regime of the deep sea bed of the moon and of Antarctica. The author concludes by stressing the need for considerations of equity both on account of the pace of technological and scientific innovation and because of the great and widening chasm between rich and poor. The above theoretical developments are followed by an analysis of some of the most difficult subjects of international law through the prism of fairness: fairness to persons: the democratic entitlement (pp. 83-139); fairness to `peoples' and their right to self-determination (pp. 140-169); administrative impartiality as fairness; the UN Secretary-General's good offices and other third party functions (pp. 173-217); the bona fides of power: Security Council and threats to the peace (pp. 218-244); just and unjust war (pp. 245-283); collective security: sharing responsibility and burdens (pp. 284-315); judicial fairness: the International Court of Justice (pp. 316-347) - this chapter does not deal with the substance of the decisions of the Court but with structural impartiality and procedural fairness; environmental matters (pp. 351-412); fairness in trade and investment (pp. 413-473). These chapters are not merely a search for fairness, but include also a highly original analysis of the subject matter and sometimes a reflection on possible future developments. For instance, Franck suggests a new solution to the problem of the contradiction between people's right to self-determination, which may involve secession, and the state's right to territorial integrity. The author bases his solution on the way in which the crises related to dismemberment of Yugoslavia were addressed by the international community. In the final part (pp. 477-484), the author expresses his dissatisfaction with the principle of the equality of states - `unfair equality' - and with the fact that discourse on fairness is led only by governments. He would prefer to see a forum where the participants are elected by the population, so that values and interests other than a `national interest' can be represented. As a modest proposal of reform, he suggests that the UN General Assembly be transformed into a two-chamber forum, one of which would be constituted as at present and the other would be directly elected by universal suffrage. Although the book deals primarily with international law, the underlying theory is valid for all legal systems. It is unique in its combination of theory and practice. Unlike many other theoreticians, Franck is very clear in his distinction between lex lata and de lege ferenda. His theoretical statements are invariably accompanied by clarifying examples. This reviewer cannot resist the temptation to prove her thoroughness by mentioning a few minor points on which she disagrees with the author. Prof. Franck uses the term exterritoriality in the context of immunities (p. 36), but this term was based on a fiction and has practically been discarded. The 1951 Fisheries case (p. 53) dealt with the territorial sea and not with the continental shelf. The author seems to assume that the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities offers autonomy to minority groups (p. 162), but the text only ensures those groups the preservation of their identity without granting them autonomy. These minor remarks are not intended to detract from the great value of the book. To conclude, Professor Thomas Franck has written a masterpiece, a modern classic of international law. Ruth Lapidoth St. Antony's College, Oxford
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