This volume has been dedicated to the life and legacy of Professor Ruth Lapidoth, one of Israel's most renowned academics, diplomats and judges whose work developed along the same lines as this essay collection: functional arrangements of authority; tailored solutions for specific situations; and the changing nature of sovereignty. As stated by the editors, this book seeks to achieve “a description and evaluation of important parts of the debate over the allocation of authority in international law, hoping to present a range of ideas on the topic and to foster discussion” (p. 3–4).
The collected essays focus on three legal concepts (sovereignty, supremacy and subsidiarity) which bring to mind the notorious words of Professor Louis Henkin in his 1999 address at Fordham University School of Law: “I don't like the ‘S word.’ Its birth is illegitimate, and it has not aged well. The meaning of ‘sovereignty’ is confused and its uses are various, some of them unworthy, some even destructive of human values.” Although he was only referring to the S of sovereignty and not to the other two S's, supremacy and subsidiarity which together form the central feature of this book, the same questions can validly be asked as to whether the origin and development of these three concepts are legitimate, whether their meaning is clear and how their uses ought to be assessed.
The book deals elaborately with these issues providing a range of arguments divided into four parts: the Structures of International Law; International Authority and the State; Allocation of Authority among Judicial Bodies; and Allocations of Authority in Specific Normative Contexts. In the first part Thomas Franck examines principles for centralisation and decentralisation of governance, suggesting a number of principles allowing international law to deal with the tension between global and local authority. W. Michael Reisman delivers a particularly poignant assessment of the ‘volatility’ of international law and the opportunities and challenges which this entails. The three remaining chapters of this part consist of a theoretically strongly supported analysis of the structural paradigms of international law (by Dirk Pulkowski); a study of the concept of subsidiarity as a method of policy centralisation (by Gareth Davies); and finally, a look at authority allocation through the prism of normative integration (by Tomer Broude).
The second part of the book focuses on the traditional model of international authority residing with the State. However, the manner in which this topic is approached is far less traditional as the concept of State sovereignty is juxtaposed with concepts such as international legality (by Brad Roth), democracy and political ethics (by Robert L. Howse and Kalypso Nicolaidis). The last chapter in this part addresses the concept of democracy as well but it does so in order to provide a link between subsidiarity and the often-debated issue of the fragmentation of international law (by Andreas L. Paulus).
In the third part on judicial bodies, Nikolaos Lavranos assesses the feasibility of transposing the European Solange-method (developed by the German Constitutional Court to demarcate its reserved jurisdiction from that of the European Court of Justice, which has since then been widely applied by the European domestic courts and the ECJ alike) to globally serve as guidance to regulate jurisdiction issues between international courts and tribunals. Also Iris Canor finds inspiration in European case-law to address jurisdictional matters whereas Amichai Cohen looks at transnational and domestic courts, in particular in Israel, the UK and the USA.
The fourth and final part examines allocations of authority in a number of specific normative contexts, the first being the Euro-Med Case in which Guy Harpaz elaborates on the impact of regionalism, economic interdependence and the approximation of laws, and on the meaning of sovereignty, national identity and legitimacy. Moshe Hirsh and André Nollkaemper each select one particular field of law (respectively international investment law and international criminal law) to assess the complex obligations of the international actors involved. The last essay is of the hand of Malcolm N. Shaw who sheds light on authority allocation issues connected to the territorial administration by non-territorial sovereigns, both from a historical and contemporary perspective.
Over the course of the 20th century, international law has undergone a remarkable normative development as a result of which international rules have currently attainted an unprecedented level both in terms of quantity and scope. As stated in the Report of the Study Group of the International Law Commission on the Fragmentation of International Law, “such specialized law-making and institution-building tends to take place with relative ignorance of legislative and institutional activities in the adjoining fields and of the general principles and practices of international law. The result is conflicts between rules or rule-systems, deviating institutional practices and, possibly, the loss of an overall perspective on the law” (p. 11). This book offers a panoply of views on how to solve this type of conflict, how to streamline institutional practices and thereby maintain an overall perspective on international law. If one wishes to assess this volume in the light of Henkin's questions, paraphrased at the outset of this review, regarding the legitimacy, the meaning and the uses of the allocation of authority, the one-sentence reply would be that in the view of these authors “sovereignty, supremacy and subsidiarity will continue to be the mainstays of the vocabulary of authority allocation in international law in the foreseeable future.” (p. 14–15)
In conclusion, this book represents a thought-provoking attempt to examine the tensions between the traditional concept of sovereignty and the modern allocation of decision-making authority to international organisations, courts and other international actors. The academic reader is offered a range of viewpoints and suggestions, some of which familiar but some refreshingly new, to address current problems of legitimacy, effectiveness, predictability and co-ordination of international law. This work needs to be recommended to whoever is interested in the development of the legal mechanisms behind international authority and decision-making in the 21st century.
