Rosenne’s Law and Practice of International Court, 5th ed. By Malcolm Shaw QC, 4 vols. Leiden, Brill/Nijhoff, 2016. 1975 pp. HB €999.00. The International Court of Justice. By Hugh Thirlway. Oxford, Oxford University Press, 2016. 223 pp. HB £70.00. The International Court of Justice. By Robert Kolb, translation by Alan Perry. Oxford, Hart Publishing, 2013. 1305 pp. HB £180.00. I. Introduction The 70th anniversary of the International Court of Justice is a proper moment to reflect on three seminal publications published in recent years on this subject, but very different in their approach and analysis.1 Two publications, by Shaw and Thirlway, are reviewed in detail here; the monograph of Robert Kolb was reviewed in this Yearbook by Hugh Thirlway, and is accordingly mentioned more briefly.2 Scholarly interest in the Court’s jurisprudence is very varied. An informative editorial in the Leiden Journal of International Law observes that ‘interest in the Court has shifted back and forth from issues raised by pending cases to more general questions such as procedural issues and impact, with the former type of contributions significantly outnumbering the latter’.3 The editorial notes that commentators have been most inspired by landmark cases, such as the advisory opinions on Nuclear Weapons, The Wall, and Kosovo; and the judgments in Arrest Warrant, Avena, the Genocide cases, Diallo, and Jurisdictional Immunities. Thematically, the most analysed topics concern the use of force, immunities, diplomatic protection and consular relations, military occupation, and the right to self-determination. There is less interest in the Court’s case-law concerning territorial and maritime disputes, and boundary cases. As to the procedural aspects of the Court’s jurisprudence, scholars have focused on incidental proceedings, such as the indication of provisional measures by the Court, and preliminary objections and counter-claims. The increasing role of scientific fact-finding in cases before the Court has also attracted comment. The editorial notes, correctly, a relative lack of interest by scholars in such matters as the role of the Court in contemporary international law; the changing attitude of states towards judicial and arbitral dispute settlement; the Court’s contribution to human rights law, international humanitarian law, the protection of cultural rights, treaty interpretation, remedies, reparations and the enforcement of the Court’s judgments; and the role individual opinions play at the Court.4 The author of this review would add to the list of under-studied aspects of the Court the problems of international environmental law and water law, the latter providing a development in the field which was started by the Permanent Court of International Justice (PCIJ) in the River Oder case.5 Analysing the jurisprudence of the Court has become a very complex if not daunting task, as its docket has been steadily increasing. The authors whose books are under review here have undertaken this daunting task for a period of several years. It is impossible to address all aspects of law raised by these publications in one review essay, so the present author will focus on jurisdiction as a particular theme of interest. II. Malcolm Shaw QC, Rosenne’s Law and Practice of the International Court, 5th ed Shabtai Rosenne’s classic and monumental work on procedural aspects of the ICJ was originally published in 1957. The fifth edition, by Shaw, comprises four volumes: The Court and United Nations; Jurisdiction; Procedure; and Basic Documents and Index. The importance of procedural rules of international courts and tribunals (and especially those of the ICJ) was emphasised by the former Registrar, Eduardo Valencia-Ospina, in his Editorial Comment to the first issue of The Law and Practice of International Courts and Tribunals: Procedural pronouncements are found with growing frequency in judicial and arbitral decisions and recent examples can be cited of changes in the Rules of Procedure of the International Court of Justice, the International Tribunal for the Law of the Sea and the International Criminal Tribunals for Yugoslavia and Rwanda. While reflecting the specific characteristics, ratione materiae, of the newly established courts and tribunals, their Rules of Procedure owe a great deal to those of the oldest and only Court with general competence in the field of international law, the ICJ.6 The same author observes that the interpretation or application of the Rules of the Court are at times very obscure for the practitioner, owing to the fact that, in contrast to its predecessor, the PCIJ, the present Court has not yet decided to made public the travaux préparatoires of its Rules. Therefore, the practitioner must rely on the (rather brief and succinct) statements of the Court. For decisions adopted in the past, Valencia-Ospina finds ‘indispensable guidance in the monumental work of Professor Rosenne’.7 This statement still very much holds. Issues of the Court’s procedure are of the utmost importance. This is exemplified by the 2017 request for an advisory opinion on ‘Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965’,8 which already raises procedural questions concerning whether the ICJ can decide without the UK’s consent,9 and whether judges ad hoc may be appointed.10 Malcolm Shaw has retained the basic structure of Rosenne’s volumes, but with updates on cases and a wider use of literature. The author of this review found the most interesting and challenging aspect of the work to be volume II, on jurisdiction and admissibility. The concepts of jurisdiction, admissibility and competence form a very complex legal nexus in both contentious and advisory functions of the Court. These problems (in particular in relation to jurisdiction in contentious cases) have been debated in many publications.11 Rosenne/Shaw explains that ‘[m]uch of the Court’s judicial work concerns questions of its jurisdiction to entertain the case before it or admissibility of the claim, questions which can arise both in the form of preliminary objections and in the plea in bar’ (537). The statistics relating to the jurisdiction of the Court are very telling. The PCIJ declined jurisdiction in 4 contentious cases. The ICJ has declined jurisdiction at the preliminary stage in 18 cases and in 4 others it has rejected the case on preliminary grounds after the case has been argued on merits (Rosenne/Shaw, vol II, 831–32). The question of the distinction between jurisdiction and admissibility has been the subject of critical analysis by Jan Paulsson.12 Paulsson’s observations and analysis essentially pertain to arbitral tribunals, not the ICJ, but they have a general relevance, clearly evidencing the dynamism of international law and its robust evolution through courts and tribunals other than the ICJ. According to Paulsson, the attempts by such tribunals to rely on findings in relation to admissibility made by judges of permanent courts (such as the ICJ), whose decisions are not subject to any kind of review, ‘are perilous’.13 Drawing on observations from an earlier edition of Rosenne that the case-law lacked certainty over the categorization of preliminary objections, Paulsson noted that pronouncements of the ICJ on the issue of jurisdiction and admissibility are ‘pure abstractions’.14 The decisions of the ICJ (as with other permanent courts and tribunals) in these matters are not reviewable. As Paulsson further explains,the occasional terminological digression of international courts of last resort tend to be unhelpful, because they have no reason to see the importance of the distinction in terms of reviewability. And so, it seems, they tend to fire harmless shots from the hip in particular circumstances.15 Rosenne/Shaw has maintained from earlier editions the statement that in international law there is no hierarchy of courts with predetermined jurisdiction. Instead there exists a more complex and haphazard multiplicity of courts, with no pretence of schematic hierarchy between them. Each of these courts and tribunals has jurisdiction to the extent specified in its constituent instrument, that is to say … to the extent to which the States having recourse to an international court or tribunal have consented to the establishment of the court and have conferred jurisdiction on it (vol 2, 538). According to Paulsson this vision—which was in his view in any case never fully justified—has changed in ‘light of modern realities’.16 Paulsson’s critique of the ICJ’s approaches to jurisdiction and admissibility are mostly based on the lack of a certain established hierarchical order in matters of admissibility, which in fact means some degree of reviewability. Rosenne/Shaw analyse the jurisprudence on jurisdiction and admissibility of the ICJ as it is at present, whilst Paulsson’s comments suggest how it ought to develop in light of the practice of arbitral tribunals and the evolution of general international law. In modern times, most international tribunals are subject to the review of national courts which are ‘hierarchically dominant’ to arbitral tribunals. This is exemplified by investment arbitration, where arbitral decisions are subject to annulment by national courts or statutory mechanisms such as the ad hoc committees of the International Centre for the Settlement of Investment Disputes (ICSID) or refusal of recognition and enforcement under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Awards in international commercial arbitration are also subject to a review procedure.17 Paulsson has observed in the practice of the ICJ some indication of the recognition of a certain hierarchical order in matters of admissibility. In the Ambatielos case, in particular, he argues that the Court decided ‘on the clear premise of a hierarchical relationship between itself and an international arbitral commission created under a bilateral treaty’.18 The Court had to decide whether this case should be referred to arbitration. Paulsson explained that there is no material difference between the Ambatielos case, in which the ICJ decided that the case must be heard by international arbitration, and instances in which arbitral awards are subsequently reviewed on a jurisdictional basis. Therefore, as the same author opines, ‘[i]nternational law can no longer ignore the implications of recognizing the distinction between jurisdiction and admissibility from the perspective of reviewability.’19 Rosenne/Shaw is a publication of very significant importance. It treats in a very clear fashion the procedural aspects of the ICJ’s case-law, and brings much-needed clarification to many complex questions in a very orderly and scholarly manner. The current edition includes a thoughtful selection of new cases and expanded literature. Malcolm Shaw, as a leading scholar and practitioner, was singularly well-qualified to have preserved the continuing importance of this publication. The book under review offers fertile ground for academic debate, as evidenced by the discussions canvassed above over admissibility of claims. Even in the era of the internet and easy accessibility of the case-law, such a publication is very welcome. It not only provides an in-depth analysis of the relevant case-law and related procedural questions but also gives a scholarly commentary useful to both scholars and practitioners. III. Hugh Thirlway, The International Court of Justice The second book under review also presents a holistic approach, covering all areas of the working of the Court. The volume is divided into eight parts: the Court (dealing with the Court as principal judicial organ of the UN, its composition and registry); Jurisdiction and Powers of the Court; Contentious Proceedings; Advisory Proceedings; The Decision; Incidental Proceedings; Post-Adjudicative Stage; and The Court and the Future. The author of this review is impressed by the very comprehensive approach to the Court’s working adopted in this volume.20 In just over 200 pages, Thirlway deals with all pertinent questions concerning the work of the Court in a concise but comprehensive manner. In relation to jurisdiction in contentious cases, Thirlway observes that at the international level no court (including the ICJ) has universal jurisdiction in relation to all states and in respect of all possible subjects of legal dispute. The Court’s jurisdiction is based upon consent and therefore it may be said that ‘all judicial jurisdiction derives from treaty-law. There is no such thing as jurisdiction deriving from custom or customary international law’ (36). Rosenne/Shaw argues that the Court exhibits a flexible attitude to its jurisdiction, but manifests ‘strict adherence to what parties had agreed in their reference to the Court’ (Rosenne/Shaw, vol II, 532). Thirlway offers a slightly contrasting view, commenting perceptively that although the Court strives to show itself as scrupulous in respecting limits on its jurisdiction imposed by the consent principle, it has succumbed to ‘the temptation to declare its position on grave matters that are recognized to be beyond its jurisdiction in the specific case before it’, for example in the Application of the Genocide Convention case (37). All aspects of the Court’s jurisdiction are analysed in-depth, illustrated by the relevant case-law (including the ‘inherent jurisdiction’). The author of the review also found very illuminating the first chapter, on the Court as principal judicial organ of the UN. Thirlway explains the main points which differentiate the ICJ from the other principal organs of the UN. The Court’s function is restricted to deciding disputes (it is not a legislative body; nor a forum for negotiations; nor does it have any political functions). The Court shares with the Security Council a power to decide, to finally settle any dispute between the parties to it only. Finally, only the parties to the dispute have the power to initiate contentious proceedings (5). As to the relationship between the Court and the Security Council, Thirlway emphasizes that the relation is one of ‘functional parallelism’ (6), defined in the 1984 Nicaragua case: ‘[t]he Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions’; the two thus have ‘separate but complementary’ functions.21 Thirlway, as a former and long-serving Principal Legal Secretary of the Court, provides a fascinating insight into the work of the ICJ. For example, he discusses joining of cases, pointing out complexities of the system, such as in the Legality of the Use of Force case against ten members of NATO and the resulting questions about appointment of ad hoc judges. In the latter respect, the Whaling in the Antarctic case was very interesting if not contentious, ‘approaching manipulation of the system’ (18). In this case Australia brought the case and appointed a Judge ad hoc. New Zealand intervened, rather than being a party; had New Zealand and Australia brought the case jointly, they would have lost the right to appoint a judge ad hoc, as the bench already included Judge Keith, a New Zealand national. The author of this review is particularly impressed by chapter 17 of this book, ‘The Court at 70: Concluding Reflections’. In this chapter Thirlway presents a very balanced and thoughtful reflection on the Court’s past activities and its future. He engages in a debate with critics of the Court, such as Professor Weisburd.22 Weisburd bases his criticism of the Court on four premises: (1) the Court lacks the formal authority to determine the content of international law; (2) the Court has not performed well enough to earn that type of authority (although it might possess a very significant de facto authority); (3) states’ reliance on the Court is not significant ‘either to settle particular disputes or to establish rules governing subjects seen by States as involving particular stakes’; and (4) the working environment of the Court makes this result more or less predictable.23 Thirlway admits the Court’s shortcomings (and errors), but his conclusion reflects objectively the position of the Court today: ‘[t]he Court itself is not perfect, either in conception or operation, but it achieves a great deal in the maintenance of legal stability and international peace, and in the development of international law, and fully deserves the respect it has gained’ (206). IV. Concluding Remarks This review essay would not be complete without mention of the monograph of Robert Kolb, The International Court of Justice, which is the translated and updated version of the French original La Cour internationale de justice (Pedone 2013). Since it was already reviewed in great detail in this Yearbook, the most pertinent features of this publication will be discussed and compared with two other publications under review. Kolb’s monograph is a meticulously researched and clearly written publication on the intricacies of the Court’s functioning, and takes a place alongside other seminal publications on the ICJ.24 The book gives a broad general background as it covers Initial Observations on the Peaceful Resolution of International Disputes. Kolb adopts a very broad analysis of the ICJ (its origins; legal instruments governing the operation of the Court; the composition of the Court). A key chapter of the book is devoted to the study of contentious procedures (disputes between states). This chapter deals with such issues as seizing the Court, admissibility and jurisdiction, pronouncements of the Court, effects of the Court’s judgments, their interpretation and revision, and countermeasures, which is a very complex question. Kolb in his analysis of cases also draws on the practice of the PCIJ. The monograph is a monumental publication, the reading of which requires a certain level of knowledge of international law. It is exhaustive on all questions relating to the functioning of the Court, and evidences encyclopaedic knowledge. Kolb’s contribution to knowledge of the Court is without doubt immense, and his ability to combine theory with practice is second to none. The author of this review agrees with Kolb that his book will be used as very useful reference book in order to consult on specific issues. However, with so much detail, it is at times difficult to distil the most pertinent argument. It would benefit the book (and the reader) if the author considered in the next edition certain structural modifications. Some critical comments, made by Thirlway in his review, illustrate that the publication provokes a robust scholarly debate. Kolb’s final chapter, on the future of the Court, is in part very general. Among exogenous factors influencing the Court, he postulates the improvement of international law; the strengthening of global organisations; and the spread of peace. The author of this review found more persuasive Kolb’s arguments relating to endogenous features, like the quality of the Court’s jurisprudence and services; its contribution to the diplomatic field; the Court’s activities as one element of a panoply of dispute settlement mechanisms; and its capacity for innovation (although the idea of the Court fulfilling functions of a constitutional type appears to be far-fetched). All three books here reviewed are on the same subject-matter, but they are quite different. A reader may find certain similarities between the works of Kolb and Rosenne/Shaw, as both are reference publications. That said, the monograph of Kolb also has an extensive theoretical part. All the works reflect great knowledge, and are intellectually challenging and stimulating, with meticulous research and reasoning. As a purely personal preference, the present reviewer leans towards a compact and synthesised approach to the Court’s jurisprudence, such as that offered by Thirlway, at least for initial phases of studying the Court. Detailed reference works like Rosenne/Shaw, and the advanced monograph of Kolb, would be more accessible to the reader who has first read a more concise general introduction. The present author is of the view that the extensive development of the jurisprudence of the Court has posed new challenges in procedural law, such as jurisdiction in the Whaling in the Antarctic case based on an erga omnes partes obligation protecting collective interests of states.25 As was postulated by another commentator on the Court, ‘Belgium/Senegal and Whaling taken together, could perhaps reflect a new willingness on the part of the Court to handle disputes transcending reciprocal inter-State relations’,26 which would further develop the practical importance of article 48 of the Articles on State Responsibility.27 Such developments further strengthen the need for clarification of the practice of the Court, and guidance to states and scholars, as provided by the books reviewed here. Footnotes 1 H Thirlway, ‘The International Court of Justice: Cruising Ahead at 70’ (2016) 29 Leiden Journal of International Law 1103; J Morgan-Foster, G Pinzauti and P Webb, ‘The International Court of Justice in the Leiden Journal: A Retrospective’ (2017) 30 Leiden Journal of International Law 571. 2 H Thirlway, ‘The International Court of Justice. By Robert Kolb’ (2014) 84 BYIL 344. 3 Morgan–Foster et al, ‘International Court of Justice in the Leiden Journal’, 571. 4 Ibid, 572–76. 5Territorial Jurisdiction of the International Commission of the River Oder PCIJ Rep Series A No 23 (1929). 6 Eduardo Valencia-Ospina, ‘Editorial Comment’ (2002) 1 Law and Practice of International Courts and Tribunals 1. 7 Ibid, 2. 8 A/RES/71/292 (22 June 2017). 9 D Akande and A Tzanakopoulos, ‘Can the International Court of Justice Decide on the Chagos Islands Advisory Proceedings without the UK’s Consent?’, EJIL: Talk! (27 June 2017), <https://www.ejiltalk.org/can-the-international-court-of-justice-decide-on-the-chagos-islands-advisory-proceedings-without-the-uks-consent/>. 10 D Akande and A Tzanakopoulos, ‘Composition of the Bench in ICJ Advisory Proceedings: Implications for the Chagos Islands case’, EJIL: Talk! (10 July 2017), <https://www.ejiltalk.org/composition-of-the-bench-in-icj-advisory-proceedings-implications-for-the-chagos-islands-case/>. 11 See, eg, G Fitzmaurice, Law and Procedure of the International Court of Justice (Grotius Publications 1986). 12 J Paulsson, ‘Jurisdiction and Admissibility’ in Gerald Aksen et al (eds), Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum in Honour of Robert Briner (ICC Publishing 2005). 13 Ibid, 603. 14 Ibid. 15 Ibid. 16 Ibid, 604. 17 Ibid, 604–605. The topicality of the issues of jurisdiction and admissibility in investment law and arbitration is exemplified by new publications on this subject, including F Fontanelli and A Tanzi, ‘Jurisdiction and Admissibility in Investment Arbitration. A View from the Bridge at the Practice’ (2017) 16 Law and Practice of International Courts and Tribunals 3; A Reinisch, ‘Jurisdiction and Admissibility in International Investment Law’, (2017) 16 Law and Practice of International Courts and Tribunals 21. 18 Paulsson, ‘Global Reflections on International Law’, 605. 19 Ibid. 20 Thirlway is also the author of The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (OUP 2013). 21Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States)  ICJ Rep 392, 435 (para 95). In this context may be mentioned also Application and Interpretation of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v United States) (Provisional Measures)  ICJ Rep 3;  ICJ Rep 114. On the basis of arts 25 and 103 of the Charter, the Court rejected the applications of Libya for provisional measures. This generated a very extensive debate: see, eg, G McGinley, ‘The ICJ’s Decision in Lockerbie Cases’ (1992) 22 Georgia Journal of International and Comparative Law 577. 22 See, eg, A M Weisburd, Failings of the International Court of Justice (OUP 2016). 23 Ibid, 4. 24 Kolb’s book was awarded the American Society of International Law Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars in 2014. The Committee highlighted the breadth and depth of Kolb’s study: Elizabeth Andersen, ‘2014 ASIL Book Awards’, AJIL Unbound (7 February 2014). 25 See also Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal)  ICJ Rep 422. 26 C Tams, ‘Roads not Taken, Opportunities Missed: Procedural and Jurisdictional Questions Sidestepped in the Whaling Judgment’ in M Fitzmaurice and D Tamada (eds), Whaling in the Antarctic. Significance of the ICJ Judgment (Brill Nijhoff 2016) 211. 27 In this context may be mentioned the very illuminating Advisory Opinion of the Deep Seabed Chamber of the International Tribunal for the Law of Sea, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area  ITLOS Rep 11. © The Author(s) 2018. Published by Oxford University Press. Available online at www.bybil.oxfordjournals.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
The British Yearbook of International Law – Oxford University Press
Published: May 25, 2018
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