It is appropriate that the first chapter of the Research Handbook on International Procedural Law contains the last publication of the late Professor Hugh Thirlway titled ‘The Significance of Procedure in the Judicial Settlement of International Disputes’. While the chapter does not, nor can it, summarise the depth and vastness of Thirlway’s devotion to international procedural law, exemplified by works such as Non-appearance before the International Court of Justice (which, in 1985, was one of the premier monographs included in the Cambridge Studies in International and Comparative Law) and The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence, a project begun by Sir Gerald Fitzmaurice, the chapter does display Thirlway’s renowned precision and desire for rigour.
In the chapter, Thirlway focuses on the concept of procedure as a separate body of law. He does this by classifying procedural law as distinct from substantive law, inevitably leading to the question of the exact difference between the two bodies. To achieve formal separation, Thirlway adopts a temporal and functional distinction. The temporal aspect is grounded in experience: only once a dispute settlement mechanism is established does the procedural law of an international court or tribunal come into effect, and it remains in effect for the duration of the proceedings. On the function of procedure, in a footnote, Thirlway recalls his earlier remarks, ‘[p]rocedure is thus, as its name implies, no more than a way of getting somewhere’ (fn 15, p 21).
As to substantive law, which governs the relations of the parties before, during and after the process of dispute settlement, Thirlway notes that its function is to allocate rights and obligations between the parties, something that procedure can indirectly influence, but cannot itself accomplish. Indeed, ‘this aspect of right v obligation is … absent when the law being invoked is procedural’ (p 21).
The purpose of the Handbook is to ‘identify procedural problems common to various jurisdictions, and thus to offer an analysis of procedures before international courts as a distinct ‘body’ of law, across tribunals and from a comparative perspective’ (p 7). The origins of this project lie in a desire to scrutinise three propositions: first, whether a unified body of international procedural law can now be said to exist; second, whether procedure is fundamental to the legitimacy and efficiency of dispute settlement; and, third, how the rules of procedure impact substantive outcomes on the merits. While different authors take various positions, the level of engagement with each point allows the reader to come to their own conclusions.
The structure of the Handbook is as follows. Part I appropriately leads with sources of procedural law, while Part II explores procedural rules within well-known courts and tribunals (International Court of Justice (ICJ), International Tribunal for the Law of the Sea (ITLOS), World Trade Organization dispute settlement, commercial and investment arbitration). Part III could be characterised as pure procedural law, dealing with principles and concepts such as jurisdiction and admissibility, evidence, intervention, annulment, appellate review and alternative dispute settlement methods. Lastly, Part IV seeks to provide an account of the subject as a whole, unpacking the relationship between substance and procedure under both private and public international law.
The Handbook is a valuable resource due to the breadth and variety of theoretical and practical perspectives. Foundational chapters such as ‘Sources of Procedural Law in International Dispute Settlement’ by Maxi Scherer, Andrew Mitchell and Dharshini Prasad and ‘General Principles of Procedural Law’ by Philipp Janig guide the reader to reflect on the theoretical underpinnings of the sources of the law of procedure, while other chapters deal with specific aspects in detail. There is also evidence of procedural ‘cross-fertilization’ in several chapters of the Handbook. For example, José Magnaye concludes that ‘admissibility rules also play a decisive role in procedural coordination across and between international courts and tribunals’ (p 366). Similarly, James Devaney identifies a significant degree of commonality across jurisdictions on issues of proof and the flexible nature of fact-finding regimes (p 425). Furthermore, in his chapter Judge Marciniak identifies significant procedural interaction between the ITLOS and the ICJ, observing that the binding force of ITLOS preliminary measures orders influenced the later finding in La Grand of their obligatory nature under the ICJ Statute.
For the reader, despite the detailed analysis, there is a lingering question as to the value or truth of enunciating a unified body of international procedural law. This is touched on briefly in the conclusion on ‘Judgments and the Termination of Proceedings’ by Daniel Costelloe, who remains sceptical of the existence of any common law of procedure. As Costelloe puts it, ‘[t]hese institutional settings share certain features that arise out of common principles and practices. Yet those common features do not, at least not yet, derive from any normative source common to all’ (p 487).
As a general observation, more attention could also have been afforded to the inconsistent application of procedure. From res judicata to the concept of obligations erga omnes partes, what is sometimes presented as a consistent procedural narrative throughout judicial practice is, in fact, very difficult to make sense of without reference to wider judicial functions. For example, the 2016 preliminary objections judgment on Delimitation of the Continental Shelf determined that a prior judgment was not subject to res judicata in contradiction to the earlier use of the principle in the Bosnian Genocide case. The practice of international courts and tribunals reveals a tension between a desire for doctrinal consistency on the one hand, and the necessity of performing their judicial function of peacefully settling the dispute before them.
To repurpose Thirlway’s words, the Handbook is a way of getting somewhere. With this in mind, it will be useful as a starting point for practitioners, academics and students interested in grappling with practical problems of procedure within international dispute settlement.
The editors and contributors are to be commended for their work in producing such a valuable text. While the title ‘international procedural law’ may not sound exciting to an undergraduate law student, readers at any stage of their academic or professional journey will be pleasantly surprised by this volume’s thematic breadth and clarity, and its interactions with the foundations of international law.
