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Negotiations in the Case Law of the International Court of Justice. By Karel Wellens [Farnham: Ashgate, 2014, 350 pp. Hardback £90. ISBN 978-1-4724-0369-8.]

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Negotiations in the Case Law of the International Court of Justice. By Karel Wellens [Farnham: Ashgate, 2014, 350 pp. Hardback £90. ISBN 978-1-4724-0369-8.]

Published online by Cambridge University Press:  03 July 2015

Philippe Sands*
Affiliation:
University College London

Abstract

Type
Book Review
Copyright
Copyright © Cambridge Law Journal and Contributors 2015 

This weighty volume offers a detailed and minute assessment of the role of negotiations in the case law of the International Court of Justice, and is an original effort to explore the complexities of the interplay between negotiation and adjudication. Divided into three distinct parts, the author examines practice before proceedings have been initiated, whilst proceedings are underway, and after they have been completed. His principle concern is what he calls the “multifunctional role” of negotiation in the Court's jurisprudence: as a condition for the submission of the dispute, as means of dispute settlement engaged in parallel to adjudication, and as a catalyst for bringing the parties to a dispute back to Court after a judgment has been given.

The survey is prodigious in scope, which is no surprise given the Court's extensive case law on the matters discussed. Whether it offers clarification as to the interplay of roles is another matter, in view of the author's emphasis on description rather than analysis, particularly when it comes to the possibility of inconsistency in the approach taken by the Court, which will often turn on the factual particularities of a given case. The author adopts a degree of restraint in his critical approach. In relation to the important 2011 judgment of the Court in the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), for example, there is no thorough assessment of the consistency of approach with the (in)famous judgment of three decades earlier in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America). Nor is there a true effort properly to explain the difference of approach taken by the Court in the CERD case as between the provisional measures phase (2008) and the later judgment on jurisdiction and admissibility (a difference that might be said to hinge, in large part, on a small change in the composition of the Court).

There is too at least one striking absence in the discussion, namely the issue of the turn to Court to assist in obtaining a negotiated settlement. This recently occurred, by way of example, in Aerial Herbicide Spraying (Ecuador v Colombia), discontinued in 2013 following a negotiation between the disputing parties “that fully and finally resolves all of Ecuador's claims against Colombia”. The use of litigation to leverage settlement negotiations is well known in domestic legal orders, and increasingly a feature of the international domain.

The work ought to be a significant point of reference but, in its current presentation, it may not achieve that objective in view of the absence of a thorough index and, even more significantly, a table of cases. This is unfortunate, since the author has performed a notable service in gathering so much material that is potentially useful and interesting, and which ought to serve as a basis for the research on the themes evoked that will surely follow. He has, to an extent, been let down by his publisher. These omissions and the obvious absence of editorial input result in a presentation that is of more limited utility than ought to be the case. This is an unfortunate feature of so much contemporary work that is published in the field of international law: all the more pertinent when it comes to a subject of such significance that has been the subject of so considered a reflection.