q EJIL 1999

..............................................................................................................................................................EJIL (1999), Vol. 10 No. 2, 465–485

.............................................................................................

Book Reviews

L. Condorelli, A.-M. La Rosa, and S.Scherrer (eds). Les Nations Unies et ledroit international humanitaire : Actesdu Colloque International à l’occasiondu 50e anniversaire de l’ONU. Paris:Pedone, 1996.

This volume is a record of a three-day collo-quium held in October 1995, jointlyorganized by the law faculty of the Universityof Geneva, the United Nations and the Inter-national Red Cross, and involving some 250participants. It is an awkward mix of bilingual(French and English) riches, consisting offormal diplomatic speeches by high-level pub-lic officials, 15 thought-provoking academicpapers by an impressive collection of eminentscholars and practitioners, more open-ended‘debats’ among the participants, and reflective‘conclusions’ by Dietrich Schindler, GeorgesAbi-Saab, Theodor Meron and Luigi Con-dorelli. After a formal opening plenary, thesymposium was organized around three sub-stantive sessions, the first describing theUnited Nations’ role in the elaboration ofinternational humanitarian law, the secondcanvassing the UN’s implementation efforts,and the third addressing the extent to whichUN forces are bound by that law. As Abi-Saabnotes in his conclusion to the second session,this effort to compartmentalize what are inreality inextricably linked issues does notwholly succeed and results in some dupli-cation of substantive coverage. Nonetheless,the ‘debats’ and ‘conclusions’ serve as usefulbridges between the substantive papers andprovide opportunities for synthesis. The resultis an impressive survey of the United Nations’many achievements and even greater chal-lenges with respect to international humani-tarian law at the closing of the millennium.

In the opening introductory session, Crone-lio Sommaruga, President of the International

Committee of the Red Cross (ICRC), outlineswhat becomes a persistent theme for otherparticipants. Sommaruga argues that the UNand the Red Cross each have distinctive rolesand that it remains essential for the latter tomaintain its neutrality as independent, apolit-ical guardian of the norms of internationalhumanitarian law. Ralph Zacklin, from theUN Office of the Legal Counsel, develops thispoint further, suggesting that the UN has notbeen (and perhaps cannot be expected to be)equally adept as codifier, executor and subjectof international humanitarian law. Zacklinpoints out that the UN, established to eradi-cate war, is the wrong place in which to seekthe codification of the laws of war and that it isfortunate that the Red Cross provided thepolitically sheltered forum from which thefour Geneva Conventions emerged. AlthoughZacklin surveys the normative impact of rel-evant General Assembly resolutions, heimplies (as does Yves Sandoz) that the UN hashad the greatest normative impact onhumanitarian law through the indirect conse-quences of Security Council enforcementactions, including most recently, that organ’screation of ad hoc international war crimestribunals.

In the first substantive session, Eric David,Mahnoush H. Arsanjani, Laurence Boisson deChazournes, and Christian Dominicé outlineother ways that UN bodies (from the GeneralAssembly through the International Court ofJustice (ICJ)) are today elaborating humani-tarian law. The sheer abundance of examplesof institutional practice that they presentsuggests that, however ‘indirect’, the norma-tive consequences of UN actions, even whenthese do not purport to be normative, aresubstantial and hard to ignore. Each of theessays in this section are illuminating casestudies of modern institutional law-making.Nonetheless, several of these essays cast doubt

466 EJIL 10 (1999), 465–485

1 For an interesting discussion of the ‘anomalies ofinversion’ that may result when internationalprosecutions are accorded ‘primacy’ overnational proceedings, see, e.g., Morris, ‘TheTrials of Concurrent Jurisdiction: The Case ofRwanda’, 7 Duke Journal of Comp. & Int’l L.(1997) 319.

on the ultimate value of the UN’s normativeimpact. Arsanjani’s contribution, describingthe UN’s efforts to protect its own blue hel-mets, the many reasons why UN personnelcome under threat, and the distinct problemsof UN military operations, also outlines thenumerous ambiguities of its newly (and all tooquickly) adopted Convention on the Safety ofUN and Associated Personnel. Arsanjani con-cludes that this UN Convention may provideno more than a psychological shield, in thesense of morale booster, for UN personnel andshe evinces considerable doubts aboutwhether the possible incompatibilities be-tween the Convention and existing inter-national humanitarian law were properlyconsidered. Her sobering essay will suggest tosome readers that the negotiation of futuretreaties relating to humanitarian law shouldremain within Red Cross fora whenever poss-ible. Similarly, Chazournes’ (and later Hans-Peter Gasser’s) critical examination of thenormative impact of relevant Security Councilresolutions regarding Somalia and the formerYugoslavia is not likely to please those whobelieve that humanitarian law’s continuinglegitimacy requires systematical, uncon-ditional and even-handed application. Finally,Christian Dominicé’s argument that Article103 of the UN Charter does not entitle theSecurity Council to override ‘fundamentalprinciples of humanity’ reflected in inter-national humanitarian law only raises con-cerns about whether the present SecurityCouncil agrees with his premises. Some mightsuggest that the Security Council, despite itshumanitarian exceptions to its various sanc-tions regimes, has thus far demonstratedrelatively little sensitivity to these principles,given the impact of its sanctions on innocentcivilians within targeted countries and itspassivity in the face of, for example, theRwandan genocide of 1994.

The second session contains surveys of thediverse ways that the UN serves as a humani-tarian law enforcement agency (especiallythrough its role in peacekeeping). Theseessays, by Michael Bothe, Antonio Cassese,Laïty Kama, Hans-Peter Gasser, and MarioBettati, are more positive in tone and are

especially laudatory about the contributionsto the progressive development of humani-tarian law being made by the UN’s ad hocinternational criminal tribunals for the formerYugoslavia and Rwanda. Bothe provides acomprehensive survey of the ‘enforcement’efforts of distinct UN organs, from the ICJthrough the Security Council, indicating theways that such efforts promote the principlesand purposes of the United Nations. It falls toCassese and Kama, judges at the Yugoslavand Rwanda tribunals respectively, to makethe not entirely convincing case that whileneither tribunal is empowered to make newlaw (since this would violate the nullum crimenprinciple), both entities are nonetheless legiti-mately developing the law in ‘controversial’areas. Cassese surveys several areas of inter-national humanitarian law where the Appel-late Chamber of the Yugoslav tribunal hasrendered, in his words, ‘legal findings thatcould be regarded, at least in some respects, asnot fully consonant with the view upheld bythe majority of the legal literature’ (p. 235).

These judges’ positive views of the role andimpact of their respective tribunals echo thesentiments of many other participants here,including Zacklin, Gasser and Abi-Saab, andthis reader at least wishes that participantshad more thoroughly and critically examinedthe contributions of these tribunals, especiallywhere, as in Rwanda, there is a simultaneousattempt to conduct national criminal pros-ecutions. While it is undoubtedly true that theexistence of these tribunals has boosted thevisibility of international humanitarian law,the contribution that they have made to theaffirmation of the national rule of law withinRwanda (for example) is not obvious.1 Giventhe fact that the first trial at the Yugoslavtribunal involved a fairly low-level per-petrator, it is striking that no participant

Book Reviews 467

challenged Cassese’s affirmation that the mis-sion of these tribunals is to punish the ‘grand’criminals emerging from recent conflicts (p.304). Given such developments as SouthAfrica’s Truth and Reconciliation Com-mission, it seems odd that most participantshere were content to presume that criminalpunishment of war criminals is vital tonational reconciliation. One wishes that thesymposium had elicited some sparks of dis-agreement about what are, upon reflection,deeply contentious issues.

During this second session, Gasser, legaladviser to the Red Cross, returns to the themeof the ‘complementarity’ between the ‘politi-cal’ Security Council and the ‘neutral’ RedCross. Like others before him, Gasser presentsthe strong case in favour of continued inde-pendence and autonomy for the Red Cross.Interestingly, he reads Security Council de-cisions addressed to his organization, as inconnection with the former Yugoslavia, not asinappropriate attempts to subordinate the RedCross to UN authority, but as ‘appeals —welcome appeals — to the parties to an armedconflict to comply with their obligations underinternational humanitarian law, includingobligations toward the ICRC and its delegates’(p. 279). Whether this is an objective readingof those resolutions or of the Security Coun-cil’s contemporaneous intent — as opposed tothe pious hopes of a vitally interested partisan— is left to the reader.

The third session, consisting of essays byDaphna Shraga, Jean De Courten, ClaudeEmanuelli and Françoise Hampson, canvassesthe extent to which the UN itself is bound byinternational humanitarian law. Shraga,from the UN’s office of legal counsel, presents ahistorical overview of the increasingly defunctdistinction between peacekeeping and peaceenforcement and concisely summarizes fam-iliar debates over the applicability of inter-national humanitarian law to each,indicating, for example, the problems thatemerge for the application of traditionalhumanitarian law from UN command andcontrol and the difficulties inherent to theproper categorization of conflicts (‘inter-national’ or internal) in which the UN

becomes involved. Shraga lays out the UN’scurrent position with respect to the inapplica-bility of certain portions of humanitarian law,noting, for example, that the UN is in no sensean ‘occupying power’ administering enemyterritory (p. 326). For their part, Emanuelliand Hampson present the general argumentsin favour of applying humanitarian law to UNforces; they canvass the specific rules andprinciples that ought to be applicable depend-ing on the nature of the particular UN oper-ation. In his conclusions to this section,Theodore Meron is critical of the UN’s existingapproach to international humanitarian law(whereby UN forces are said to adhere only tothe ‘principles and spirit’ of that law). Meronargues that ‘there is a growing consensus onthe proposition that the United Nations mustcomply or try to ensure compliance withinternational humanitarian law in all cases ofuse of armed force in armed conflicts, whetherby military formations acting under UnitedNations control or authorized by the UnitedNations’ (p. 444). To this end, he, along withAbi-Saab, propose that the UN announceinstead that it adheres ‘mutatis mutandis’ tothe principal conventions and protocols.

Although the essays in this collection pro-vide a useful compendium of the state of thelaw on this rapidly developing topic, non-specialists might be a bit disappointed by therelatively narrow approach taken. Few par-ticipants mention, much less analyse, thepossibility of overlap (or conflict) between theissues addressed and human rights regimes,for example. Yet narrowness has its ownrewards. For readers of such classic works inthe field as Derek Bowett’s United NationsForces (whose conclusions as to the applica-bility of humanitarian law to UN forces aresimilar to Meron’s), this volume serves noticeof how far the UN has come in a relativelyshort period of time. And despite the inevitableshortcomings of the multi-authored sym-posium format, this collection of essays man-ages to present a consistent narrative. It tellsthe fascinating story of how one intergovern-mental organization, established to ban war,came to realize that it needed to regulate it and

468 EJIL 10 (1999), 465–485

how another non-governmental organiza-tion, long involved in a lonely struggle todefend the integrity of international humani-tarian law, now wrestles with‘complementarity’.University of Michigan José E. AlvarezLaw School

Tully, James. Strange Multiplicity:Constitutionalism in an Age ofDiversity. Cambridge: CambridgeUniversity Press, 1995.

James Tully states what he calls the ‘impasse’of contemporary constitutionalism in the fol-lowing terms: ‘How can the proponents ofrecognition bring forth their claims in a publicforum in which their cultures have beenexcluded and demeaned for centuries?’ (p.56). But this impasse, Tully argues through-out his book, is an ‘illusion’ (p. 57) —premised upon the theoretically naive andhistorically inaccurate presumption that con-stitutionalism is essentially and exclusivelymodern. And it is somewhat against itscharacterization as ‘imperial’ (p. 37), as ‘aEuropean monolith, imposed from the centreon to the periphery without any change orinteraction’ (p. 38), that Tully seeks to recoverthe ‘intercultural’ (p. 37) and ‘dialogic’ (p.183) resources of what he calls ‘the hiddenlanguage’ of an ‘ancient’ or ‘common law’constitutional tradition (p. 57). Reconceptua-lizing constitutionalism as ‘a composite of[these] two dissimilar languages’ (p. 31), hisargument, therefore, is that constitutionalismis an ‘assemblage of languages . . . composedof complex sites of interaction and struggle,both within Europe and with non-Europeanpeoples and cultures’ (p. 38).

The language of constitutionalism may,after Wittgenstein, be considered as some-thing like ‘an ancient city: a maze of littlestreets and squares, of old and new houses,and of houses with additions from variousperiods; and this surrounded by a multitude ofnew boroughs with straight and regularstreets and uniform houses’ (p. 103). And,eliciting the charm of this constitutional city,

Tully claims that ‘[t]his hidden constitutionallanguage can be reconstructed to change ourvision of a constitution and dissolve theimpasse’ (p. 57). It is in accordance with thisre-vision, therefore, that Tully offers thecharacterization of constitutionalism as ‘aform of accommodation of cultural diversity’(p. 30): such that, his argument concludes,‘people reach agreement on a constitution bymeans of an intercultural dialogue in whichtheir culturally distinct ways of speaking andacting are mutually recognised’ (p. 29).

Despite Tully’s usefully direct approach to‘one of the most difficult and pressingquestions of our political era’ (p. 1), hisargument exhibits a fundamental paradox. Hereplaces an account of the absence (silence) ofmultiple constitutional traditions with anaccount of their presence (voice). But as such,and as I will indicate, it is in his apparentinability to conceive of any other possibilitythat his argument negates any reason for —or, indeed, any possibility of — that contem-porary politics of cultural recognition which ishis explicit concern.

Tully’s interest is not in the history of aconstitutional monologue, but rather in amonologic history of constitutionalism. It isthis vision of history, he argues, which is‘restricted’ in the sense that it ‘forgets’,‘ignores’ or ‘misinterprets’ what is here re-visioned as the history of an ‘assemblage oflanguages’ (p. 38) or, indeed, of ‘a “common”intercultural language’ (p. 57). Tully’s argu-ment, therefore, is that constitutionalism hasalways contained, and so already contains,other voices. Consistently, then, he assertsthat cultural diversity is ‘here and now inevery society’ (p. 11). Or, again: ‘The reason itis possible to understand one another inintercultural conversations is because this iswhat we do all the time in culturally diversesocieties to some extent’ (p. 133).

Tully’s argument, in this respect, proceedson the basis of a more or less anthropologicalcritique of the ‘separation, boundedness andinternal uniformity’ of cultures (p. 10). Cul-tures are, rather, ‘overlapping, interactiveand internally negotiated’ (p. 10). They are‘densely interdependent in their formation

Book Reviews 469

and identity’, such that, he argues: ‘Themodern age is inter-cultural rather thanmulti-cultural’ (p. 11).

Tully’s critique of the naivety of an essentialcultural separation — and thus his conten-tions that constitutionalism cannot be con-sidered as exclusively European and,correlatively, that claims to recognition can-not be considered to come from cultures thatare incommensurably ‘other’ (p. 10) — isdoubtlessly important. As this historicalvision fails to see/hear any resistance so, asTully points out, it can only ‘accept the veryself-image the most chauvinistic imperial the-orists of modern constitutionalism sought touphold’ (p. 38). But as Tully enforces adistinction between the illusion of culturalseparation/constitutional monologue and thereality of cultural relation/constitutional dia-logue, the logic of his argument becomesclear. Tully does not dissolve the impasse ofconstitutionalism. He disregards it.

Tully reduces imperialism entirely to avision of history; as though this vision wouldonly need to be re-visioned in order to do awaywith imperialism altogether. Consider, forexample, his rather odd complaint against the‘imperiousness’ of those ‘[m]any commun-itarian and critical theorists’: ‘When they askthe crucial question of “whose justice?” and“which rationality?” the answers are alwaysthe same: some European, male traditions ofinterpretation set within the stages ofEuropean history; never a dialogue’ (p. 97).Whilst one might support the contention thatsuch accounts are exaggerated, perhaps evenimplausible, it is not, of course, clear thatredescribing imperialism as a dialogue is anyless implausible or, indeed, any less naive orillusory.

One might, indeed, want to resist — and inthe name of resistance — that monologichistory and its foundation upon the self-sufficiency of culture, which Tully himselfcontests. But, of course, dialogue is not theonly manner in which cultures relate.

In the invocation of ‘cultural interactionand conflict, however unequal it may havebeen’ (p. 38), Tully seems to offer the possi-bility of a more viable account. But, in a

decisive theoretical gesture, he states thefollowing: ‘[i]f one . . . language or traditiongained ascendancy in a constitutional nego-tiation, it would cease to be a dialogue at all. Itwould be a . . . monologue’ (p. 57). Tully hasalready distinguished cultural interactionfrom the ‘restricted vision’ of a non-interactiveand monologic constitutionalism. But it is ashe reduces all unequal cultural interaction tothis monologism, that it too is consigned tothe ‘restricted vision’ of imperialism’s illusoryself-image. This, then, is the obvious conse-quence: if all cultural interaction is dialogicand all dialogue is egalitarian, then Tully hasexcluded the possibility of any unequal cul-tural interaction altogether.

As imperialism is conjured away so, forTully, cultural interaction becomes anunqualified good. Cultural identity isrelational to the extent, Tully says, that ‘[t]heloss or assimilation of any of the other culturesis experienced as an impoverishment of one’sown identity’ (p. 205). Or, again: ‘[o]ne’s ownidentity as a citizen is inseparable from ashared history with other citizens who areirreducibly different; whose cultures haveinteracted with and enriched one’s own’ (p.205).

This interaction, then, is affirmed to theextent that it is cultural diversity, rather thanthe diversity of cultures, which becomes thefocus of Tully’s argument. Indicatively, then,his concern with the ‘situation of a consti-tutional dialogue of people who are alreadyconstituted in various ways’ (p. 55) appearsnot to be with the multiplicity of claims tocultural recognition, but with claims to some-thing like a recognition of cultural multi-plicity. As if, and this is the clarification heoffers, such claims were only to ‘the consti-tutional right to speak and act politically inintercultural ways’ (p. 55). Tully displacesthat diversity which is his concern onto thosepeoples whom he comes to regard, not asdemanding to have their cultures recognized,but as seeking the opportunity to ‘discuss’their ‘constitutional identities’ (p. 55). It ishere, of course — in this strained multiplicity— that Tully’s inability to account for a

470 EJIL 10 (1999), 465–485

contemporary politics of cultural recognitionbecomes discernible.

Culture, Tully tells us, is internally nego-tiated. It ‘is always different from itself, as wellas from others’ (p. 45). But, despite hisconsistent opposition of the ‘flexibility’ ofculture to its ‘stability’ (p. 38), one is leftwondering (not simply) what (but how) cul-ture might be if it were not at least less differentfrom itself than it is from others. Amidst themutually enriching interaction of cultures,one is, then, left wondering, not only whatmight cause one to claim recognition for one’sculture but, in respect of what such claimsmight be made at all.

As Tully himself points out, claims tocultural recognition are consistently manifestas claims to ‘self-rule’ (p. 6). But presumablyagainst a cultural interaction which is evi-dently not so enriching as Tully supposes —he can provide no account of this ‘self’ that itmight claim, or that it might want to claim,the right to rule, precisely, ‘itself’.School of Law Colin PerrinThe University ofNew South Wales

István, Ábel, Pierre L. Siklos, and IstvánP. Székely. Money and Finance in theTransition to a Market Economy.Cheltenham, UK, Northampton, USA:Edward Elgar Publishing Limited, 1998.Pp. 211. Index. $80.

Money and Finance in the Transition to a MarketEconomy represents one of the first and fewattempts to analyse the role of finance intransitional economies. As the authors statethemselves, this is an extremely difficult task,especially given that the financial data avail-able to the contributors is largely unreliable ordoubtful. The material has not been reviewedby external analysts.

The book is structured in such a way thatthe reader can follow the historical evolutionof the market system in the former state-planned economy countries. The first chapterdeals mostly with the problems of state with-drawal from the management of the economy

and the influence of such self-restriction onthe financial system of a country. The secondchapter considers the problems caused bysuch state retreat from management andadministrative positions, namely the deterio-rating liquidity of the businesses and itsimpact on monetary policy. Logically, themalfunctioning of the financial marketsresults in the phenomenon called a creditcrunch, which the authors examine in thethird chapter. One of the reasons for thefinancial distress in which the former commu-nist countries found themselves is the pre-maturity of the law, including the law ofproperty. The fourth chapter examines thevarious limitations imposed by the socialistsystem on property and ties this to an analysisof bankruptcy practices of the Central andEastern European countries. Since the house-hold represents a major part of the market, theauthors’ focus in the fifth chapter is on theopportunities and behavioural patterns ofhouseholds in the transition economies.Among other things, the households’ invest-ing power and preferences are questionedfrom the point of view of market efficiency andthe country’s growth potential. Chapters 6–8analyse the banking sector of transitionaleconomies. These chapters consider the role offinancial intermediaries in the restructuringof the economy of the Central and EasternEuropean countries, bad loans inherited bystate-owned financial institutions, bankingreform, and its impact on overall macroeco-nomic conditions. Further, the authors con-sider the role of the Central Bank in theevolving markets’ financial systems and theextent of their independence from the state.The final chapter, Chapter 10, summarizes tosome extent the preceding analysis and pre-sents various opinions as to the possibletransition scenarios and the basics of sucheconomic transformation. Here the authorsconsider the extent to which a prematurefinancial system, at the early stages of itsevolution and transformation to market,should be exposed to market risks andvulnerability.

One of the tools utilized by the authors isretrospective analysis: they present the facts

Book Reviews 471

on the system’s composition and its mainfunctioning patterns before the introductionof the reforms. For example, the discussion ofstate desertion is preceded by an analysis offinancial data pertaining to GDP and govern-ment expenditures in the pre-reform era.There the authors analyse the reasons for theappearance of bad loans on the balance sheetof government-owned banks, subsidyrelations established between the banks andindustries, the quality of the banks’ portfoliosin general, high-risk aversion of the ‘commer-cial banks in a rather primitive state’ (p. 12),and tie this analysis to the weak and vulner-able position of the banks during the refor-mation. Another example is the authors’discussion of the effectiveness of the marketand creditors’ protection through the mech-anisms of liquidation or reorganization. Dur-ing the first half of the 1980s, according to theauthors, only seven state enterprises, chosenat random, were liquidated (p. 73). That, interalia, was one of the reasons why subsequentbankruptcy of insolvent enterprises was notpursued vigorously and why the laws provedto be insufficient to ‘bridge the gap betweenthe need for a well functioning capital marketand the mere reality of a very underdevelopedfinancial system’ (p. 74).

The analysis largely depends on facts andfigures from one particular country — Hun-gary. Though some chapters contain datafrom Czechoslovakia, Bulgaria and Poland,the analysis or conclusions in most chaptersare based on Hungarian sources: see, forexample, conclusions to Chapter 5, ‘ChangingStructure of Household Portfolios in EmergingMarket Economies’ — this chapter was orig-inally written as an article on the Hungarianexperience. Chapter 2, ‘Constraints on Enter-prise Liquidity and Their Impact on MonetaryPolicy’, is also based on a Hungarian article,‘Constraints on Enterprise Liquidity and itsImpact on the Monetary Sector in Hungary’(p. 31). See also financial data on bad loans inChapter 7: the authors base their explorationof the bad loan problem in transitional econ-omies on pre-1993 Hungarian data (see alsopp. 128–143).

Extensive research has been conducted to

compare the experiences of Hungary and theG-7 countries in regulating the banking sector(Chapter 8). The chapter explores the mostrecent data on Hungary, USA, Germany and,to some extent, the Czech Republic, Polandand Greece.

The authors consider the changes in thefinancial system in connection with house-hold portfolios, enterprise liquidity and withinthe international context. Therefore, the aimof the book is to provide a broad overview ofthe problems and difficulties of altering thecommand system, turning it into a marketsystem. The role of the state and central bankis also considered, though in respect of thelatter the authors limit themselves only to theissues of independence of this institution andpay almost no attention to the role of thecentral bank in regulating the economy andthe activities of other banks and financialinstitutions. The authors also avoid analysisof the securities market and the role of agovernmental agency similar to the US SEC.

The authors do not always analyse theactual events or practices of the emergingmarkets. For example, in Chapter 4, whichdeals with bankruptcy, only seven abstracts(less than two pages) deal with the liquidationand reorganization practices of the emergingmarkets. The authors excessively cite USbankruptcy laws, introduce a highly theoreti-cal overview of the problem and eventuallydeal with the emerging market enterpriseinsolvency only to a small degree. This is truewith regard to other material as well: theauthors excessively include basic theoreticalfundamentals of economic analysis, whichmakes the book akin to a textbook for collegestudents and not a problem-pointing andanalysing directory for professionals (see, forexample, pp. 19–21, 25–26, 73–75, 62–71,146–149, 164–168, 177–184, 188–190). Inaddition to that, the authors do not alwaysseparate the actual and estimated data whileputting both into tables (see, for example,Table 2.2, p. 24; Table 3.1, pp. 38–39).

This reflects the main drawback of the book:it is composed of a number of articles writtenat different times and with different motives.While the authors acknowledge this, it hardly

472 EJIL 10 (1999), 465–485

improves the logic of the book, which remainsa fragmented compilation of separate writ-ings. The manifestation of this compilationwithout a significant transformation into onelogical narration is shown through the prob-lem of bad loans. The authors thoroughlyanalyse this problem in Chapter 1, where theyalso introduce the problem of state desertion;they then come back to the issue of bad loansin Chapter 7. The reason for such repetition issimple: the first chapter was written as anarticle for Acta Oeconomica, and the materialfor Chapter 7 was originally presented at theConference on Bad Enterprise Debts in Centraland Eastern Europe (Budapest). Basic analysisof bad loans again appears in Chapter 6.

Similarly, the authors did not sufficientlyupdate these separate articles to a single levelof internally interrelated parts. Articles whichhad been written prior to other articles ‘standout’ in the overall text. For example, Chapter3, ‘Fiscal and Monetary Policies in the Tran-sition: Searching for the Credit Crunch’, islargely based on a 1993 article; thus, thehistory of pre-1992 reforms occupies 17 pages(pp. 40–56) whilst the post-1992 story filtersthrough two abstracts (p. 56). Chapter 5contains only data from 1970–1990, whilstthe authors claim that ‘the composition offinancial wealth holdings has changed signifi-cantly’ (and the whole chapter, as the namesuggests, is aimed at changing portfolio struc-ture in emerging markets); no evidence in thisrespect is presented (p. 91). See also thefinancial data of Chapter 6. Authors’ refer-ences and citations are unfortunately notreliable. They are often too broad (e.g.,‘Sources: National Bank of Hungary, Monthlyreport various issues’, p. 134), not sufficientlydefinite and precise (e.g., ‘Based on data fromOECD Main Economic Indicators, variousissues’, p. 59), unsupported (e.g., ‘Source: I.Abel’, p. 142), or completely missing (see thereferences to Chapter 4).

Finally, each chapter has its own shortsummary, but a conclusion for the entireanalysis is missing. Instead, in Chapter 10,‘Stabilization and Convertibility in the Tran-sition: The Legacies of the Twin Deficits’, theauthors spend two pages analysing Hungar-

ian macroeconomic policy experience of the1980s (pp. 184–186). The book actuallyrepresents a set of separate readings on theexperience of the Hungarian (and to someextent other countries’) financial systems ofthe late 1980s to the early 1990s. It rep-resents a fairly broad grasp of the early stagesof transformation and might be helpful foranalysts interested in an initiation into thetransition of the financial systems of Centraland Eastern European countries towards themarket.Harvard University Dmitri I. Melnik

Evans, Malcolm (ed.). Remedies inInternational Law: The InstitutionalDilemma. Oxford: Hart Publishing,1998. £35.

As international instruments proliferate, theremedies available to states for breach ofinternational obligations and the number ofinstitutions offering fora for the granting ofsuch remedies has expanded. Today, theInternational Court of Justice (ICJ) is no longeralone in providing a forum for the granting ofremedies. Different trade, environmental, orlaw of the sea regimes, for example, haveexpanded the range of options available toaggrieved states. Yet, with this expansioncomes new problems, tensions and questions.For example, will a given institutional optionactually be effective? Is the proliferation ofprocedures and mechanisms necessarily agood thing? What happens if different insti-tutions offer diverging jurisprudence? Whichfactors determine the choice of one forum overanother?

Evolving out of the papers and presen-tations given at the Fourth EC/InternationalLaw Forum hosted by the Law Department atBristol University in May 1997, Remedies inInternational Law is a collection of essays byleading international jurists on the remediesavailable to states in international law and theissues ‘flowing from the multiplicity of pro-cedures and mechanisms’ (p. viii). Discussionsgo beyond the examination of traditionalinstitutions such as the ICJ to more recent

Book Reviews 473

institutional arrangements such as that underthe Convention on the Law of the Sea and toalternative dispute resolution mechanisms.

Divided into 13 chapters, the book covers awide range of topics, including the Inter-national Court of Justice (Chapters 1–3), theLaw of the Sea Convention (Chapters 4–5),alternative dispute resolution mechanisms(Chapters 6–8), the Gatt/WTO settlementsystem (Chapter 9), and environmental dis-pute settlement (Chapter 10). The last threechapters take on much broader issues. Chap-ter 11 examines ‘International Wrongs andNational Jurisdiction’, while Chapters 12 and13 explore issues pertaining to the EuropeanUnion.

The book kicks off with a piece entitled‘Remedies and the International Court ofJustice: An Introduction’, in which JudgeRosalyn Higgins sets out to identify ‘theadvantages and disadvantages of recourse tothe International Court of Justice’. This shedoes from a practitioner’s perspective, takingthe reader through the work of the ICJ fromthe time a case first comes in, to the distri-bution of work amongst the judges, up to itsfinal resolution, thereby providing a valuableinsider account of the procedure of the ICJ.Malcolm Shaw’s piece is also on the ICJ. LikeHiggins, his is also from a practical perspec-tive, ‘from the point of view of a potentialclient’, but with emphasis on ‘contentiouscases’. He offers factors that the potentialclient must weigh up in deciding whether tohave recourse to the ICJ. John Merrill alsoexamines the ICJ, but from a narrower per-spective. His focus is on specific aspects of theCourt’s incidental powers, such as the powerto order provisional (interim) measures underArticle 41of the ICJ Statute, its interventionpowers under Articles 62 and 63, and thepower of interpretation and revision of judg-ment under Articles 60 and 61.

The International Tribunal for the Law ofthe Sea (ITLOS) ‘represents the first world-wide court set up specifically to deal with amajor part of international law since theestablishment of the International Court ofJustice 50 years ago’ (p. 82). David Andersonand Robin Churchill examine, in different

pieces (Chapters 4 and 5), new institutionalarrangements under the 1982 UN Conven-tion on the Law of the Sea. Both focus on theITLOS. However, while Anderson examinesthe establishment, jurisdiction, rules of pro-cedure and judicial policy of the Tribunal,Churchill provides the context within whichthe Tribunal was established and offers anexamination of alternative fora to the Tri-bunal both within and outside the frameworkof the Convention.

The popularity of non-judicial means ofdispute resolution is one that has extendedbeyond the domestic plane. Increasingly,alternative dispute resolution mechanismspresent new options for states wishing toavoid the institutional mechanisms for what-ever reason. Chapters 6–9 explore theincreasing popularity of ADR processes at theinternational level. David Anderson discussesthe advantages of negotiation over othermeans of settling disputes and its use ininternational affairs today. This is followed bya very interesting piece, ‘Alternative DisputeResolution under International Law’, inwhich Christine Chinkin discusses the devel-opment and use of alternative dispute resol-ution mechanisms in international affairs.She focuses, particularly, on three institu-tional contexts where negotiating disputeresolution processes have been adopted andadapted: institutional regimes for treaty com-pliance with emphasis on the fields of environ-ment protection and human rights; inspectionpanels of the international financial insti-tutions; and the good offices of the Secretary-General. Michael Furmston explores in Chap-ter 9 the tendencies towards uniformity inarbitral practice in the international sphere.By focusing on how efforts towards harmoni-zation ‘have been received and reconciledwithin the domestic law of England andWales’, he raises important points for con-sideration at the international level.

Bernhard Jensen’s piece is an exploration ofthe development of the GATT/WTO disputesettlement system from an essentially negotia-tion mechanism to the quasi-judicial body it istoday. In ‘Environmental Dispute Settlement:Some Reflections on Recent Developments’,

474 EJIL 10 (1999), 465–485

2 Indeed, the EC/International Law Forum, fromwhich the book originated, had decided ‘not totake a prescriptive view of what might bedeemed a “remedy” ’ (p. vii).

Phoebe N. Okowa assesses ‘the extent towhich environmental disputes raise discreteissues or problems for adjudicatory methods ofdispute settlement that exist in the inter-national system’ (p. 152). Building on that,she makes a strong case for ‘specialised forumsstaffed with the requisite expertise’.

The final three chapters explore muchbroader issues. The central question MalcolmEvans raises in Chapter 11 is ‘whether there isa danger in individual responsibility underinternational law being used — de facto, if notde iure — as a cloak behind which theresponsibility of state can shelter’ (p. 173). Hisuneasiness with what he sees as the tendencyto transfer responsibility from the state to theindividual is also because, he would argue, itcalls into question the basic understanding ofwhat international law is about. He concludesthat ‘where individual and state responsibilityco-exist . . . the efficacy of international law asa body of law is not enhanced — and indeedmay be undermined, if the individual becomesthe focus of attention to the exclusion of theState’ (p. 173). In Chapter 12, Nanette Neu-wahl engages the same issue laid out byMalcolm Evans in Chapter 11, but with afocus on the European Union. In other words,does individual responsibility operate as acloak behind which Member States hide?Contrary to Evans, she concludes in thenegative: ‘within the EC Context the move-ments which Evans suggests are detectable onthe international level do not really apply’ (p.195). Neuwahl’s piece also examines therelationship between Member State responsi-bility and EC or EU responsibility, both on theinternational plane and within the Union. Inthe final chapter, William Robinson evalu-ates, through an examination of case law ofthe European Court of Justice, the relationshipof Community law with international andnational law. He concludes that ‘thereremains significant scope for clarification ofthe Community’s international law obli-gations within the Community legal order’ (p.226).

Regrettably, Remedies in International Law’sapproach is very statist and, thus, offers noguidance whatsoever to those individuals and

non-state groups seeking remedy in inter-national law. Anyone harbouring any hopethat some of the options currently available tostates may soon be open to individuals andgroups will be very disappointed. Judge Hig-gins, for instance, is of the view that there are‘real practical problems’ (p. 1) with the idea ofamending the Statute of the ICJ to giveindividuals standing before the Court. Mal-colm Evans argues that ‘there is a need toscrutinise the new orthodoxy that the rise ofthe individual within the international systemis an unqualified good’ (p. 175), while Shaw,in his piece on the ICJ, expressly avoids‘matters that may require major consti-tutional changes, such as the question of locusstandi before the court of individuals andinternational organizations’. In the excep-tional cases where individuals and non-stateinterests are recognized, Chinkin warns, andrightly so, that ‘the procedures may hold outgreater promise for involvement than in factoccurs’ (p. 140).

Furthermore, perhaps because most of thecontributors are legal scholars or juristsinvolved in the work of the different inter-national institutions and mechanisms theyare discussing, their approach is highly depol-iticized.2 The ‘real’ experiences, frustrations,disappointments and hopes of states with theprocedures and mechanisms examined are,unfortunately, absent. The question whethersome of the options currently open to statesare illusory thus remains to be answered. Oneis therefore bound to agree with ChristineChinkin that the vitality of international law-yers in designing innovative dispute resol-ution processes may ‘obscure real substantiveconflict that continues even while the pro-cedures are identified and agreed’ (p. 139).

Nonetheless, Remedies in International Lawoffers practical insight into the range ofoptions open to states seeking remedies forbreach of an international obligation and thetensions and new questions that are raised by

Book Reviews 475

3 C. Medina Quiroga, The Battle of Human Rights:Gross, Systematic Violations and theInter-American System (1988).

4 T. Buergenthal, R. Norris and D. Shelton, Pro-tecting Human Rights in the Americas: SelectedProblems (1986).

5 The only exception is the recent volume, D. J.Harris and S. Livingstone (eds), The Inter-American System of Human Rights (1998).

6 Argentina, Barbados, Bolivia, Brazil, Chile,Colombia, Costa Rica, Dominica, DominicanRepublic, Ecuador, El Salvador, Grenada, Guate-mala, Haiti, Honduras, Jamaica, Mexico, Nic-aragua, Panama, Paraguay, Peru, Suriname,Trinidad and Tobago, Uruguay and Venezuela.

the proliferation of procedures and mechan-isms. Perhaps the greatest strength of thebook lies in the fact that the contributors (forexample, Judge Rosalyn Higgins of the ICJ andJudge David Anderson of the ITLOS) havebeen or are currently involved in the work ofthe institutions they are discussing.Harvard Law School Uché Ewelukwa

Davidson, Scott. The Inter-AmericanHuman Rights System. Aldershot, UK,Brookfield, VT: Ashgate PublishingCompany, 1997. Pp. xviii, 381. Index.$76.95.

The Organization of American States (OAS)has ‘spawned a sophisticated human rightssystem in the post World War Two periodwhich has demonstrated the capacity toevolve to meet the changing circumstances ofthe hemisphere’ (p. vii). Nevertheless, it isstriking how few studies have been publishedin English about the functioning, the pro-cedures and the case law of the inter-American system for the promotion and pro-tection of human rights. After Medina3 andBuergenthal et al.,4 published more than 10years ago, no other comprehensive study onthe inter-American system has been producedin the English language. Scott Davidson’sbook comes to fill this gap.5

In a very well-documented book, ScottDavidson, Associate Professor of Law at theUniversity of Canterbury, portrays the manycomplexities of the inter-American system.The structure of the book is similar to manybooks on the European system of human

human rights. The introductory chapterbegins with the history of the system. Thesucceeding chapters describe the Inter-American Commission on Human Rights (theCommission) and the Inter-American Court ofHuman Rights (the Court) and the procedurebefore both organs. The book also includes acomplete study of the rights protected underthe system. In each of the chapters, Davidsonexplains, mostly based on official documentsof the Organization of American States and onthe Annual Reports of the Commission andthe Court, how the system evolved from ‘aninauspicious beginning’ with a very weakCommission created in 1959 to a highlyspecialized and complex system in the 1990s,with a mixture of diplomatic and juridicalactivities in the field. An accurate descriptionof the OAS human rights system is not an easywork to accomplish, but Davidson shows adeep understanding of the system.

It is difficult to understand a system wherethere are three different kinds of obligationson states and two supervisory bodies withdifferent jurisdictions. Currently, there arethree mechanisms within the OAS for theprotection of human rights in the Americas.The Commission monitors compliance withtreaty obligations for the 25 states parties tothe American Convention on Human Rights(the Convention).6 The Commission alsomonitors compliance for the 10 memberstates that are not yet parties to the Conven-tion by applying the American Declaration of

476 EJIL 10 (1999), 465–485

7 Antigua and Barbuda, Bahamas, Belize,Canada, Guyana, St Kitts and Nevis, Saint Lucia,Saint Vincent and the Grenadines and US. Inother words, only common law, English-speak-ing countries are still reluctant to become fullparticipants in the inter-American humanrights system. The 10th country which has notyet ratified the Convention is Cuba. ResolutionVI of the Eighth Consultative Meeting of Minis-ters of Foreign Affairs (1962) excluded ‘thepresent government of Cuba from participationin the inter-American system’.

8 Argentina, Bolivia, Chile, Colombia, Costa Rica,Ecuador, El Salvador, Guatemala, Honduras,Nicaragua, Panama, Paraguay, Peru, Suri-name, Trinidad and Tobago, Uruguay, andVenezuela. After the publication of Davidson’sbook, Mexico and Brazil accepted the conten-tious jurisdiction of the Court. The DominicanRepublic announced recently its intention toaccept the Court’s contentious jurisdiction. Thatwill mean that all of the Latin American coun-tries will be under the jurisdiction of the Inter-American Court.

9 See generally, Vargas Carreño, ‘Las observa-ciones in loco practicadas por la ComisiónInteramericana de Derechos Humanos’, in Dere-chos Humanos en las Américas (1984) 290; seealso Medina Quiroga, supra note 3.

10 For the practice of the inter-American bodies seeCorte Interamericana de Derechos Humanos, Medi-das Provisionales, Compendio: 1987–1996 SeriesE. No. 1 (1996) (listing all the provisionalmeasures requested by the Inter-AmericanCourt between 1987 and 1996). See alsoAnnual Report of the Inter-American Com-mission on Human Rights 1997, OEA/Ser.L/V/II.98 Doc. 7 rev. April 13, 1998, Original:Spanish, at 39 (describing the precautionarymeasures granted or extended by the Com-mission in 1997 involving 15 countries) and at881 (mentioning the 10 cases regarding threecountries where the Commission requested thatthe Court adopt provisional measures).

11 Cf. European Court of Human Rights, Cruz Varasand others v. Sweden, Judgment of 20 March1991, Publications ECHR, Series A vol. 201(stating that the interim measures are notbinding to states parties) with Article 64.2 of theAmerican Convention on Human Rights (grant-ing the power to the Inter-American Court toadopt provisional measures to avoid irreparabledamage to persons). See Padilla, ‘ProvisionalMeasures under the American Convention onHuman Rights’, in Liber Amicorum Héctor Fix-Zamudio (1998) 1189.

the Rights and Duties of Man.7 The Courtmonitors compliance under the Conventionfor the 17 states parties to the Convention thathave also recognized the compulsory jurisdic-tion of the Court pursuant to Article 62 of theConvention.8 Davidson carefully and clearlyexplains these complexities, showing theproblems arising from this mixed system.

Probably because Davidson’s intention is to‘provide an introductory and reasonably read-able account of the institutions, processes andjurisprudence of the inter-American humanrights system’, the reader finishes the bookwith the feeling that something was left by thewayside. The reader feels that he/she has notobtained a complete picture of the system.Davidson does not pay enough attention tosome important mechanisms that are crucialto the work of the inter-American system. Forinstance, the role of country reports andon-site visits, the two principal tools developedby the Commission to deal with widespreadhuman rights violations, receive only mar-

ginal attention in the book (pp. 112–117).9

Another important tool, precautionary andprovisional measures that allow the Com-mission and the Court to intervene in urgentcases to protect the life or physical integrity ofvictims under threat,10 only receive a fewpages of comments (pp. 139–141). One rea-son for this gap in the analysis is that none ofthese tools is present in the European counter-part to the inter-American system. Countryreports and on-site visits are not powersgranted to the European Court of HumanRights or the European Commission. The useof provisional measures is also underdevel-oped in the European system.11 I would sug-gest that the principal problem in Davidson’stext is his tendency to view the inter-American system with European eyes, usingthe European system as a model.

Book Reviews 477

12 For instance, on one occasion, Judge Buergen-thal qualified the conduct of the PeruvianGovernment as ‘an abuse of the judicial process’.He found the petitions of Peru ‘ill founded andtrivial . . . whose sole purpose can only be todisrupt and delay the orderly and timely com-pletion in the machinery established of theproceedings’. Inter-American Court of HumanRights, Case Neira Alegría et al., Requests forRevision and Interpretation of the Judgment of11 December 1991 on the Preliminary Objec-tions, Order of 3 July 1992, Declaration by JudgeThomas Buergenthal.

13 Méndez and Cox, ‘Prologue’, in J. Méndez and F.Cox (eds), El Futuro del Sistema Interamericano deProtección de los Derechos Humanos (1998), at 9.

Another related shortcoming of Davidson’sbook is his completely decontextualizedapproach. The inter-American system formuch of its history has exercised its mandateover societies confronted with gross and sys-tematic violations of human rights, where thejudges have often been killed, threatened,intimidated, corrupted or remained virtuallyimpotent toward military authorities. Theinter-American bodies, the Commission andthe Court, have rarely been able to rely on thefindings of fact of national judicial organs oron the good-faith cooperation of defendantgovernments.12 Generally, the political organsof the OAS, the General Assembly and thePermanent Council have not supported thework of the Commission and the Court.Rarely, if ever, have these political bodies triedto enforce the recommendations of the Com-mission or the judgments of the Court. Itfollows from the differences in political contextbetween Europe and the Americas that anyattempt to comprehend the inter-Americansystem must take into account the hostileenvironment in which it operates.

Nevertheless, Davidson’s book will be anecessary starting point for any research onthe inter-American human rights system. Itwill help the researcher to understand themachinery of the system and will open thedoor to ideas about the successes and failuresof the regional system. Finally, at a time whenthe regional system is experiencing a crisis ofidentity about its role, its objectives and its

future,13 Davidson’s book will serve as a‘useful reminder to lawyers that much may beaccomplished by legal creativity tempered bya sense of political realism’ (p. vii).Harvard Law School Ariel E. DulitzkyCenter for Justice and International LawWashington D.C., 1996–998

Sabel, Robbie. Procedures atInternational Conferences. Cambridge:Cambridge University Press, 1997. Pp.xxix, 438. $110.

This is not a book that will set the scholarlyworld on fire. The subject-matter with whichit deals — the rules of procedure at inter-national conferences — often seems dullwhen examined in the abstract, divorced fromthe sometimes highly charged political back-ground in which disputes about the rules canarise. (Indeed, the author’s habit of citinginstances of disputes without giving details ofwhat was at issue, in the rather bloodlessfashion of the UN Secretariat’s Repertory of thePractice of United Nations Organs and Repertoireof the Practice of the Security Council, aggra-vates the problem.) On the other hand, thematter is of considerable practical importanceto all those who represent their governmentsat international conferences, and those whocomment on their doings — political scientistsas well as international lawyers. The topic hasreceived relatively little systematic and com-prehensive treatment, and the author, anIsraeli government lawyer and diplomat, is tobe warmly congratulated for providing one.The main topics of the study — for instance,credentials, the appointment and powers ofthe conference bureau, proposals and amend-ments — are clearly and accurately describedand analysed. There is little to find fault witheither here or in the presentation: it is indeedrefreshing to be able to report that thisreviewer found only one spelling mistake (thename of Warbrick at p. 425).

478 EJIL 10 (1999), 465–485

14 In Chapter 23, he also submits, perhaps some-what tentatively, that ‘rules of procedure whichsuppress or seriously restrict the right of anindividual State to express its opinion andpresent its proposals would be a violation ofgeneral principles of law’ recognized by civilizednations (cf. Article 38(1)(c) of the Statute of theInternational Court of Justice). This may per-haps be so, but the analysis is too brief (aboutthree pages) and too many questions are beggedabout normativity and about the meaning of theexpression ‘general principles of law recognizedby civilized nations’ for the argument to beregarded as in any way conclusive.

It is when the author passes from describingand analysing what is done to assessing itsjuridical significance — when, in other words,he seeks to move from the normal to thenormative — that he moves onto moredangerous ground. In Chapter 3 he considersthe obligation of delegates to comply with therules of procedure adopted by the conference.Having (rightly) rejected the idea that there issome sort of treaty nexus or analogue, hecomes to the conclusion that the obligation isone of customary law, supported by practiceand opinio juris. It seems to this reviewer thatthis is putting the matter unnecessarily high,amongst other things undertaking anunnecessarily heavy burden of proof. If a legalbasis for the obligation is needed, estoppel is abetter explanation. Those who vote in favourof adopting the rules are clearly saying (albeittacitly) that they will comply with them, andthere is plainly reliance by the other partici-pants. Even those voting against or abstainingmay easily be said to be estopped from break-ing the rules so long as they continue toparticipate in the conference rather thanexercising their undisputed right to withdraw.But in any case, it may be asked whether anexplanation in terms of legal obligation isnecessary, or the only possible one. First, itshould be recalled that diplomats (perhapsabove all others) are expected to behave in a‘proper’ manner. If they behave improperly,this can constitute a violation of a social(professional) norm and thus attract condem-nation even without the need to invoke thelaw. Secondly, there are some ‘rules’ whichare not normative. For instance, there are‘instrumental rules’ — recipes which tell ushow we need to proceed if we are to achieveour objectives, without in any way imposingan obligation on us. Thus, to say ‘to make abread-and-butter pudding you have to getsome bread and butter’ is not a deonticstatement: nor is it to say ‘if you want to crossa busy road safely, you should not proceedwhen the traffic lights are red’. If a participantat an international conference breaks theagreed rules, he or she may well find themicrophone switched off, or other similarsteps may be taken which will prevent the

achievement of his or her goals. This does notprove that the delegate had a legal obligationto comply.

Rather similar considerations apply to pro-cedure before the rules are adopted, and tolacunae, matters considered in Chapter 22 andthe Conclusions. The author argues thatmany of the rules of procedure are norms ofcustomary law (though not all of them, andthough there is also the ‘let-out’, even thecustomary obligation is only one of ius dis-positivum).14 He is here undertaking a heavy‘burden of proof’ and it is not at all clear thathe has discharged it. As indicated above inconnection with Chapter 3, there may beother and better explanations. Thus the needfor credentials or for a presiding officer evenbefore the rules of procedure are formallyadopted could be said to be instrumental rules.Without credentials, there could be a problemof unauthorized participants or of genuinerepresentatives being unable to commit theirgovernments; and without a president (eventemporary), the conference could easily fail toget started. Furthermore, to establish theexistence of a rule of customary law it is notenough to show that there are ‘precedents’and that those who diverge from them arecriticized for doing so: violators of mere rulesof ‘good form’ could also fall into this categorywithout it amounting to a breach of custom-ary law. According to the traditional analysis,there would need to be practice accompaniedby a belief in the legally obligatory character ofthe norm in question. The author deploys littleevidence that delegates regard the precedents

Book Reviews 479

15 See, e.g., this reviewer’s 1996 Hague Academylectures on ‘The Formation of Customary Inter-national Law’ (forthcoming).

16 15 Political Geography (March-April 1996).17 Resolution on the ‘Utilization of Non-Maritime

International Waters (for Purposes Other thanNavigation),’ 49 Annuaire de l’institut de droitInternational (1961), at 381.

as legally obligatory. In the case of lacunae (atany rate), there is a further possible expla-nation which he ignores. Suppose, forinstance, that a rule is adopted at the confer-ence that amendments are to be voted onbefore the main proposal, but no rule isexpressly adopted about amendments toamendments or about the order in which theyare to be taken. There is, nevertheless, a richand fairly consistent set of precedents. It is, inthis reviewer’s submission, not necessary topostulate a rule of customary law to explainwhy the precedents should be followed. Analternative explanation would be a linguisticone, as follows. Notions like ‘amendment’ or‘president of the conference’ are not (entirely)self-explanatory. They derive their full mean-ing from the context in which they are usedand from practices concerning them. Thus,unless the conference decides to the contrary,the use of these terms connotes the consistentunderstanding of the international com-munity in relation to such matters. This is lessa question of obligation than of meaning andimplication. The objection might perhaps bemade to the present submission that the linebetween customary obligation and customarymeaning is a fine, or even a vague one. Thatmay be so — it is in the nature of customaryrules to be informal and not to be easilysusceptible of formal tests in the way thatlegislation or treaties are.15 Nevertheless, it isworth trying to maintain the distinctionwhere possible, if only to avoid the dangers ofa sort of ‘normative inflation’, where regularconduct is too lightly assumed to generate acustomary norm.

However, these questions of the legalcharacter of rules, though intellectually moreinteresting, form only a small part of the book.Even if reservations are possible here, it mustbe emphasized once again that the work as awhole is reliable and clear, and Ambassador

Sabel has performed a valuable service to theinternational community in writing it.Faculty of Laws Maurice MendelsonUniversity College London

Glassner, Ira Martin. The UnitedNations at Work. Westport, CT,London: Praeger, 1998. Pp. xx, 340.Index.

The last two decades, at least, have witnesseda proliferation of literature on the UnitedNations. While some dismiss the ideal ofmultilateralism and, by extension, the UnitedNations, as untenable, others, maintaining anabiding faith in the United Nations, offerreform proposals. In The United Nations atWork, Glassner’s goal is to fill a gap in theexisting body of literature by providing ananalysis of ‘the UN’s practical, everydayactivities’. The book is a continuation and anexpansion of the author’s earlier work thatappeared in the journal Political Geography.16

Contributors to the book, according to Glassn-er’s criteria, had to be persons ‘with either asolid reputation in his field or considerable UNexperience’ and who were not presentemployees of the UN or of any body within theUN system (pp. ix–x).

Divided into four parts and 13 chapters, thebook examines a wide range of topics ininternational law, from international water-ways, the outer space, environmental protec-tion and trade to human rights. Part I focuseson International Law, Part II on InternationalRelations, Part III on Individuals, and Part IVon Prevention and Resolution of Conflict.After an introduction by Glassner, CaflischLucius leads off in Chapter 1 with an examin-ation of attempt by states to regulate thenon-navigable uses of international water-ways, from a 1961 resolution adopted by theInstitute of International Law in Salzburg17 to

480 EJIL 10 (1999), 465–485

18 GA Res. 51/229 of 22 May 1997.

the recent Convention on the Uses of Inter-national Watercourses Other than Navi-gation.18 How effective will the newConvention be? Caflisch is not too optimisticfor two reasons: first, because ‘the number ofaffirmative votes barely exceeds that of theratifications and accessions required to bringthe Convention into force’; second, because ‘itis uncertain whether there will be sufficientnumber of downstream and upstream coun-tries Parties to the Convention, so that thenew instrument can serve its purpose’ (p. 26).

The expansion of the UN’s activities intoareas not specifically mentioned in its Charterhas become a feature of our time — anecessary evil, some would argue. In Chapter3, Djamchid Momtaz examines the work ofthe UN in one such area — the field ofenvironmental protection. His focus is on theUN’s role in the progressive development ofinternational law in this field and the work oftwo bodies central to the UN’s activities in thearea: the United Nations Environment Pro-gramme (UNEP) and the United Nations Com-mission on Sustainable Development.Ultimately, Momtaz’s piece offers valuableinsight into the role of the UN in internationalnorm creation. Sherry M. Stephenson’s task inChapter 5 is to present an overview of inter-national trade within the UN system. This shedoes by tracing the growth of internationaltrade over the past 40 years and the role thatvarious institutions within the UN haveplayed in the field.

In Chapter 7, Hungdah Chiu takes up arather unpopular, if not ‘untouchable’, issuein international politics today: the status ofTaiwan in the United Nations. Tracing theearly role played by the Republic of China inthe crafting of the UN, he concludes that ‘by afair standard of international law, moralprinciples and common sense, the exclusion ofthe Republic of China and its 21 million peoplefrom participation in the United Nations andits specialized agencies is an injustice in theworld today’ (p. 168).

The idea of a global civil society is one that

has gained currency in recent times. Yet whatimpact non-governmental organizations(NGOs) actually have in the internationalarena remains unclear and highly contested.Peter Uvin and Thomas G. Weiss, in theirpiece, ‘The United Nations and NGOs: GlobalCivil Society and Institutional Change’, offeran analysis of the increasing role of NGOs ininternational affairs and within the UNsystem. The authors’ goal is to analyse ‘themyth and the reality of the relations betweenthe United Nations (UN) and NGOs’ (p. 214).

Other topics covered in the book include:‘The United Nations and International SpaceLaw’, by Vladmir Kopal; ‘The Protection ofMinorities’, by Budislav Vukas; ‘The UnitedNations and the Trade and Transit Problemsof Land-locked States’, by Surya P. Subedi;‘International Migration: UN Moves’, byWilliam B. Wood; ‘A Note on Some UNAchievements with Special Reference to theWorld Food Programme’, by D. John Shawand Sir Hans W. Singer; ‘Contributions of theUnited Nations to Solving Boundary andTerritorial Disputes, 1945–1997’, by VictorPrescott; ‘The United Nations, the Oceans andSome Geography’, by Shabtai Rosenne; and‘United Nations Peace-Maintenance’, by JaratChopra.

Perhaps, having as its goal simply to pre-sent to the reader ‘what the UN actually does’(p. xi), most of the contributors refrain frompassing any critical judgment on the work ofthe UN; (indeed it was Glassner’s intent toproduce a book that was ‘neither condemna-tory nor celebratory’). Some do so nonethe-less. Stephenson would give the UN whatappears to be an ‘A’ for its role in thepromotion of international trade: ‘the successof the international trading system hasbecome one of the most positive accomplish-ments of UN’s post war system’ (p. 106). Onwhat does she base her judgment? On what,arguably, is a rather controversial standard:‘a truly global economy of unprecedentedmagnitude, a true integration of the inter-national market-place’. Despite his lack ofoptimism about the prospects of the Conven-tion on the Uses of International Water-courses Other than Navigation, Caflisch is

Book Reviews 481

19 UN Doc. A/RES/44/25 of 20 Nov. 1989 adoptedat the Forty-fourth Session of the GeneralAssembly of the UN.

20 See, Multilateral Treaties Deposited with theSecretary-General: Status as at 27 April 1999.

21 Freeman, ‘Introduction: Children as Persons’, inM. Freeman (ed.), Children’s Rights: A Compara-tive Perspective (1996) 1.

quick to absolve the UN of blame: ‘if, in theend, the result does not live up to its expec-tation, that is due to the lack of agreementamong its member states rather than anyfailings of the organization’ (p. 26). However,on the role of NGOs in the internationalsystem, Uvin and Weiss are more guarded.While NGO pressure can lead to greateropenness of the UN institutions, ‘UN organiza-tions — and the (powerful) governmentsbehind them — remain firmly in control ofpolicy-making’, they conclude.

Given the broad range of activities theUnited Nations is involved in today, it wouldbe difficult to expect a book of this nature tocover all aspects of the UN’s work. The work ofthe UN with traditionally marginalized groupssuch as women and children is, regrettably,noticeably absent. Also noticeably absent arewomen’s voices among the authors. Of the 15contributors, only one is a woman, perhapsreflecting charges by women’s groups that,despite repeated calls for reform, the UN hasremained a men’s club.

Nonetheless, The United Nations at Workputs in the hands of readers, clear and conciseaccounts of the UN’s work in a wide variety ofissues, many of which are contemporary,controversial or otherwise ignored or triv-ialized. Its strength lies in the analysis of morenovel or ignored issues in international law(for example, space law, waterways, transitproblems of landlocked states) and the UN’swork in these areas. Moreover, at a time whenglobal security concerns cloud any assess-ment of the UN, the book offers insight intothose aspects of the UN’s work that may nevermake the headlines.Harvard Law School Uché Ewelukwa

Mower, A. Glenn Jr. The Convention onthe Rights of the Child: InternationalLaw Support for Children. Westport,CT, London: Greenwood Press, 1997.$59.95.

November 20 1989 marked a turning point inthe struggle for the protection of the world’s

children. On that day, the United NationsGeneral Assembly unanimously adopted theConvention on the Rights of the Child (theConvention).19 Opened for ratification onJanuary 26 1990, the Convention had gar-nered sufficient ratifications by September 21990 to bring it into force, making it one ofthe most speedily ratified human rights instru-ments in history. As at the present day, all buttwo states — the United States and Somalia —have ratified the Convention.20 Yet despite itsrapid ratification and despite the fact that theConvention arguably broke new grounds ininternational human rights law, aptlydescribed as ‘a landmark in the history ofchildhood’,21 a more pertinent question todayis how effective is the Convention in address-ing the problems of the world’s children.

The Convention on the Rights of the Child is anexamination of the background, text andpotential significance of the Convention. Thebook is divided into four sections and 17chapters. Section 1 is on ‘The Significance,Background, and Development of the Conven-tion’. Here, Mower identifies four factors ascontributing to the Convention’s significance;first, its recognition of the child as a possessorof rights; second, its character as both aconsolidator and innovator; third, its practicalaspect because of ‘what it could mean in termsof the present and future economic and socialhealth of the world’s community’ (p. 6); andfinally, ‘its potential for making a very realimpact on the domestic life of its parties’ (p. 8).

In Section 2 (pp. 23–60), ‘The Substance ofthe Convention’, Mower introduces some ofthe key principles (e.g. best interest andnon-discrimination) and key human rightsprovisions (e.g. the right to life and the right tosurvival and development) of the Convention.

482 EJIL 10 (1999), 465–485

22 See, e.g., P. Alston (ed.), The Best Interests of theChild: Reconciling Culture and Human Rights(1994).

23 He notes, e.g., that ‘philosophically, the conven-tion is rooted in the change that occurred in thenineteenth century when the child ceased to beviewed simply as a property item. . . .’ (p. 11).These changes were, of course, as manifestedand recorded in the West as many countries ofthe South were still under colonial dominationor were just about to be ‘discovered’.

24 For example, in his discussion on disagreementsat the drafting stage of Article 14 (freedom ofreligion), he observed: ‘this was one issue thatbrought representatives of more authoritarianreligious and political systems into conflict withthose whose backgrounds included a preferencefor a greater degree of individual freedom’ (p.16).

He advances two questions as central to theevaluation of the substance of the Conven-tion: ‘is the convention too inclusive or insuf-ficiently inclusive of the rights to which thechild could or should be entitled?’ ‘Are therights contained in the convention clearly setforth?’ He answers both questions in thenegative (pp. 49–58). Section Three, ‘TheImplementation of the Conventions Pro-visions’ (pp. 61–144), is an examination ofthe implementary provisions of the Conven-tion and the work of the Committee on theRights of the Child, while the focus of Section4, ‘Prospects for the Realization of the Con-vention’s Goal’, is on the factors likely todetermine the extent to which the Conven-tion’s goals for children are realized. Moweridentifies several factors, including: at theglobal level, the role of extra-conventionalinternational agencies; at the domestic level,the policies and practices of national govern-ments and the impact of key segments of theprivate sector such as the media, professionalsand NGOs; and, finally, general conditionsand issues that call for responsive action onboth the global and domestic level, such asarmed conflict, the presence of physicalenvironment and economic factors such aspoverty.

1999 marks the 10th anniversary of theConvention’s existence. The need for a seriousevaluation of the Convention’s performancenecessarily arises. Can it be said that the livesof the world’s children have been bettered bythe Convention? What empirical evidence isneeded to support or rebut such a claim? Whois best poised to answer questions relating tothe Convention’s effectiveness: scholars, acti-vists, policy-makers, states parties to the Con-vention, or the world’s children themselves?Mower avoids these and similar questions. Hisfocus on the ‘likely’ or potential impact of theConvention, therefore, begs the question.Arguably, since 1990, sufficient time haselapsed to allow for a deeper assessment of theactual impact of the Convention on the lives ofchildren rather than a superficial examin-ation of its ‘likely’ impact.

Mower also avoids the universalism/rela-tivism debate, particularly as it relates tochildren.22 In other words, he does not addressthe question of how ideological conflicts aswell as religious and cultural divisions affectboth the legitimacy and the effectiveness ofthe Convention in many societies. Althoughhe somewhat acknowledges the Western ori-gins of the Convention,23 he does not addressthe problem this poses for non-Western socie-ties. He rather appears to dismiss the positionof non-Western states as rooted in the auth-oritarian nature of their regimes rather thanin any ideological ground.24

The Convention on the Rights of the Childprovides a broad overview of the Conventionand raises some interesting questions. It doesnot, however, fully address more fundamentalissues that are raised today, particularly incountries of the South. These include, forexample, questions relating to the multiplemeanings of childhood and the apparentuniversalization and ‘exportation’ of what,arguably, is a Western notion of childhood,the impact and relevance of the Conventionon the ground, and the external and globalforces, including falling commodity prices,huge debt burden and structural adjustmentprogrammes imposed by the internationalfinancial institutions that may impede efforts

Book Reviews 483

to realize the goals of the Convention at thelocal level. It is, nonetheless, a welcomeaddition to the growing literature on chil-dren’s rights.Harvard Law School Uché Ewelukwa

Dallmeyer, Dorinda G. (ed.). JoiningTogether, Standing Apart: NationalIdentities after NAFTA. The Hague,London, Boston: Kluwer International,1997. Pp. xxiii, 155.

The North American Free Trade Agreement(NAFTA) was not conceived of by its nego-tiators nor described to domestic constituen-cies as an effort at political and socialintegration. Nonetheless, North Americaneconomic integration combined withexpanded trade regulation does international-ize an increasing number of political andsocial issues that previously were addressedthrough purely domestic legal and socialprocesses. The papers in this volume recognizeand explore this connection by examining theinteraction between the genesis, passage andfuture course of NAFTA and national politics,cultures and identities.

The authors in this volume adopt inter-disciplinary approaches from law, politics,economics and anthropology to explore theconnection between trade policy and issues ofdomestic politics and local identity. LouisOrtmayer utilizes a dialectical theory of inter-national trade negotiation, two-level gametheory and an internalization theory of multi-national enterprise to analyse the complexpolitical economy of the negotiation andpassage of NAFTA. Alejandro Nadal providesa critical account of the origins and claimedbenefits of the neoliberal economic agenda ofthe Salinas era in Mexico, of which NAFTA isconsidered a part. Léon Bendesky describesthe social unrest and political resistance fol-lowing the 1994 financial crisis in Mexico asconsequences of the economic sacrifice andthe lack of substantial political or socialreform involved in the Salinas agenda. DanielSalée discusses the challenges for national

identity in Quebec posed by both globalizationand the growth of significant sub-nationalidentities. Jill Norgren and Serena Nandaargue that NAFTA will have minimal impacton US national identity based on their exam-ination of an assortment of US laws and caseswhich show a limited tolerance for pluralismof cultural minorities. David Wirth summar-izes various kinds of effects that NAFTA and‘government by trade agreement’ may haveon the formation of domestic environmentalregulation in the United States. Dorinda Dall-meyer concludes with a chapter summarizingpertinent themes of the volume.

The papers provide a diversity of criticalvoices and identify some fruitful interdisciplin-ary approaches to NAFTA policy debate. Withthis diversity, however, there are also weak-nesses. The chapters range so widely that attimes they connect very little with each other;greater engagement between the differentauthors would have been useful, for example,to explore the connection between limitationson national regulatory autonomy and chang-ing national identity. Topics such as the tradeof cultural products or the legal and illegalmovement of workers may have more effec-tively bridged the issues of trade and identity.More generally, a number of the papersprovide limited commentary on the specificsignificance of NAFTA. The NAFTA oftenseems epiphenomenal, subsumed under dis-cussions of globalization (Salée), pluralism ofcultural identities (Norgren and Nanda) orSalinas-era neoliberalism (Nadal, Bendesky).More nuanced analyses might considerNAFTA not just as a symptom of these othersocial phenomena, but as a distinctive processand venue for the formation of policy, ideol-ogy, culture and identity. In this respect,Wirth’s article provides the most careful con-sideration of the specific effects of NAFTA ondomestic policy formation and nationalpolitics. Greater engagement with the litera-tures on European integration and on compa-rative federal structures might also havebetter focused attention on the particularimpact that different legal and institutionalstructures can have. Overall, however, the

484 EJIL 10 (1999), 465–485

volume makes a useful contribution towards aricher literature on the many and increasingconnections between domestic autonomy,national identity, economic integration andinternational trade regulation under agree-ments like NAFTA.Osgoode Hall Law School Robert WaiYork University

Denza, Eileen. Diplomatic Law, ACommentary on the ViennaConvention on Diplomatic Relations(2nd ed.). Oxford: Clarendon Press,1998. Pp. xvii, 436. Index. $170.

Having served for four years as a diplomat inthe Arab Gulf countries, it was with greatinterest that I read Eileen Denza’s book,Diplomatic Law, A Commentary on the ViennaConvention on Diplomatic Relations. This vol-ume is a rewritten and updated version of thefirst edition, published in 1976, and isintended principally as a practitioner’s hand-book. The book benefits from the author’s ownpractical background as Legal Counsellor inthe Foreign and Commonwealth Office of theUnited Kingdom.

As a handbook, the structure of the book isnecessarily quite formal and conformist. Anextensive introduction gives a general presen-tation and overview of the Vienna Conventionas a universal convention, regulating allessential diplomatic privileges and immun-ities. In her Introduction, Denza also describesthe progressive development of diplomaticlaw, as well as how the convention regime haschanged over time. The Introduction is fol-lowed by a commentary on the preamble andeach provision of the Convention. Each articleor group of articles is placed in the context ofthe previous customary international law andthe negotiating history. Different interpret-ations are discussed, and different state prac-tice, although mainly related to the UnitedKingdom and the United States, is described.

In general, I find the book well structured, itis easy to use and has a comprehensive anduseful table of cases dealing with the differentinterpretation and application of the Conven-

tion. The Vienna Convention is a comprehen-sive codification and formulation of the rulesof modern diplomatic law and is essential tothe efficient performance of the functions ofdiplomatic missions. Furthermore, the Con-vention is a valuable point of reference in thedevelopment of related areas of internationallaw.

I agree with Denza in her opinion that theConvention has stabilized diplomatic law, andit has proved remarkably resilient to the newchallenges of the last decades. Denza identifiesand discusses six provisions of the Conventionas being significant developments on theprevious customary law. The inviolability ofthe mission premises, free and protected diplo-matic communication, and clarification ofdifferent diplomatic immunities and privilegesare, in my opinion, the most important ofthese topics.

The whole concept of inviolability of themission premises has been of much concernand controversy over the years, ranging fromthe discussion of diplomatic asylum, the prob-lem of planting electronic devices in diplo-matic missions, to the obligations of thereceiving state to protect missions againstintrusion and damage. Violent incidents andmob hostility against diplomatic missionshave increased over the last decades, and itmay be the most serious problem of today. Thebook deals extensively with the latest inci-dents and their legal ramifications. In a diplo-mat’s busy daily life, there is no time for anin-depth analysis of the legal problems ofmodern diplomacy. However, during myreadings I recognized many topics from myactive service and the book will be a mostwelcome tool in my future professional life.

In my opinion, Denza’s book will be a usefuland comprehensive source of practical guid-ance for diplomats as well as other prac-titioners. And I am sure it will be equallyappreciated by scholars and students of publicinternational law as a source of reference andlearning.Harvard Law School Anders C. HougaardRoyal Danish Embassy Riyadh, 1994–1998

Book Reviews 485

Barrett, Neil. Digital Crime: Policingthe Cybernation. Dover, NH, London:Kogan Page, 1997. Pp. 218. Index.£11.99. $19.95.

Neil Barrett authored Digital Crime in 1997 —two years ago by the calendar, perhaps 20years ago in Internet time. It provides a solidread today, both as a work that anticipatedmany of the issues facing the Internet of 1999and as a cybercrime ‘Renaissance book’ writ-ten at a time in which such a work was stillpossible without having to be an ambitioustreatise. Digital Crime comfortably springsfrom a loftily titled introduction on ‘TheInformation Age’ into a tour of crimes forwhich the common thread need only be anobject that passes electronically: theft of com-puter chips, theft of money over computernetworks, illicit copying of software and, yes,distribution and possession of digital childpornography.

Readers unfamiliar with either computersor criminal law are among the targetedaudience for the book; Barrett takes time towalk carefully through UK and, to a lesserextent, United States statutes that bear oneach covered crime, and explains in lay termsnow familiar buzzwords such as ‘viruses’,‘hacking’, and ‘encryption’.

Barrett describes the problem of illicit soft-ware copying — such can be done quickly,nearly cost-free, and results in a copy asperfect as the original — by reference to thecopying of music compact discs, which hedescribes by contrast as slow, with an ‘analog’middle step. Today software copying hasbecome more complicated — the existence oflicence codes in a networked environmentand the need for reliable technical support anddocumentation preclude easy substitution of acopy for an original — even as ‘MP3’ com-pression has enabled a brisk traffic in piratedmusic straight from a CD to one’s computerspeakers. This flip-flop may not have beeneasy to anticipate, particularly from the tailend of the Internet era in which the Net could

only be used as it was found: the product ofacademic engineers who did not anticipate itsuses for commerce and personal informationexchange among a heterogeneous, non-com-puter-literate public. We are now on the cuspof a new Internet, one built and rebuilt to aspecification more in line with those whomight wish to lock up information for certainpurposes, or track the mouse clicks andbuying behaviours of fellow Net surfers. Suchan architecture will surely offer new oppor-tunities for digital crimes, but more import-antly will nip many we have becomeaccustomed to in the bud; there is less need forenforcement against, say, software theft whenthe architecture of the next generation Inter-net makes the costs of copying softwaresignificantly higher than before.

Barrett’s disposition is generally pro-regu-lation, but in avoiding support for the anarchywhich many Net old-timers still obstinatelyespouse he makes it clear that he does notwish a Draconian regulatory atmospherebreathable by only the most sophisticated,traditional players. He looks askance atinstances of Net vigilantism, instances inwhich some ‘Netizens’ have taken it uponthemselves to unilaterally disrupt the pres-ence of others who are deemed to have floutedsome important norm, without having achance to delve into other controversial ‘self-regulation’ such as the ‘real time blackholelist’, a privately-run system through whichoutgoing e-mail sites used by suspected junke-mailers find that their outgoing mail isturned away by other e-mail transfer points.

Anyone writing a physical book about thecyberworld is bound to face difficulties withthe work’s shelf life. Barrett faces such prob-lems well, and in the process has generated abook that is yet another helpful roadmarkervisible in our collective rearview mirror as wehurtle along the frenetic path of globalcyberdevelopment.The Berkman Center for Jonathan ZittrainInternet & SocietyHarvard Law School