PAIL Institute Publications

PAIL Institute Monograph Series

Prior Consultation in International Law: A Study of State Practice

Author(s): Kirgis, Frederic L., Jr.

Hardcover - 389 pages (1983)
ISBN: 0-8139-0971-6; LC: 82-17354

Price: US $52.00

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About This Publication

This study examines the role and the value of prior consultation among nations in international law. International disputes frequently occur when one nation, with no hostile intent, takes unuilateral action that adversely affects the interests of other nations. It is generally acknowledged that some of these disputes could be avoided, and others could be ameliorated, if the acting government would assess beforehand the risk of harm to other nations. The most effective way to do this is through prior consultation with representatives of potentially affected nations.

When governments are able to act unilaterally, they have very little incentive to refrain from taking self-interested action in order to consider the adverse interests of other nations. Thus, it is important to determine the circumstances in which international law imposes on them a duty to consult. The author examines these determining circumstances in details.

To the extent that international law does impose such a duty, it arises from treaties and from other state practice conducted with the understanding that normative expectations dictate that course of conduct. This book examines presently existing state practice rather than attemptiong to create new normative structures. Kirgis does not find an overall duty to consult before taking any action that could adversely affect other nations, but he does find specific situations in which prior consultations are required and are generally conducted. He identifies variables that may strengthen or weaken the case for prior consultation.

The findings in this book should help government decision makers ascertain whether they should consult with other nations before acting in a great variety of situations. Among the situations discussed here are the diversion of an international river for irrigation purposes, the extension of a maritime zone seaward in order to claim exclusive fishery rights, and the imposition of a new trade barrier in order to protect domestic industries. The book should also help resolve disputes when one government proposes to act, or has acted, without advance consultation, and another government claims that it has, or had, the right to be consulted. With this clarification of the circumstances requiring prior consultation, international consultation mechanisms may be made more effective, and new ones may be tailored to the situation they are intended to cover.

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About The Author(s)

Frederic L. Kirgis, Jr., is Dean of Washington and Lee University School of Law.

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Reviews

Leo Gross and D.H.N. Johnson, American Journal of International Law
This book, which is volume 16 in The Procedural Aspects of International Law series, breaks new and interesting ground. . . . The ground covered in the book is thus varied, and its chief value lies in the vast amount of information that has been brought to light through meticulous research on a broad front.

Michigan Law Review
Prior consultation inserts an assessment of the external costs into the decisionmaking process of the acting state and thus provides an opportunity to reduce the negative impacts on the affected state and to alleviate potential hostilities. The international dispute avoidance ramifications of this practice have been largely ignored by legal scholars to date, so Frederic L. Kirgis' comprehensive study of the role of prior consultation is a long overdue look at this developing legal norm. . . . The book is based on, and Kirgis has fulfilled, his expressed desires of identifying "existing and developing prior consultation norms for the guidance of decision makers in the give and take of state practice" and suggesting "those areas in which practice has developed sufficiently to justify efforts to construct new or improved consultative mechanisms" (p. 375). He has also laid an impressive groundwork of research; the task is now left to other scholars to build upon that basis with further analysis.

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Availability

Prior Consultation in International Law: A Study of State Practice is available from:

William S. Hein & Co., Inc.
1285 Main Street
Buffalo, NY 14209

(716) 882-2600
(800) 828-7571 (toll free)
(716) 883-8100 (fax)
e-mail: mail@wshein.com
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Hein Item #: 306500

Prior Consultation in International Law: A Study of State Practice is also available from Amazon.com.

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Table of Contents

	Acknowledgments				xi
I.	The Framework for the Study				1
	A.	The Utility of Prior Consultation			1
	B.	Methodology			7
		1.	Sources and Evidence of International Law Relating to Prior Consultation		7
		2.	Scope, Definitions, and Difficulties		9
II.	International Watercourse Systems				16
	A.	Introduction			16
	B.	Europe			19
	C.	Africa and Asia			41
	D.	The Americas			55
	E.	Nonregional Practice			77
	F.	Synthesis: Watercourses			85
III.	Air Basins, Partially Enclosed Seas, and Similar Resources				88
	A.	Introduction			88
	B.	Europe			89
	C.	Africa and Asia			108
	D.	The Americas			114
	E.	Nonregional Practice			123
	F.	Synthesis: Regional Resources			128
IV.	Nonregional Resources				133
	A.	Introduction			133
	B.	Oceans			133
		1.	Jurisdictional Extensions		133
		2.	Claims Not Involving New Extensions		157
	C.	Outer Space			177
		1.	Space Activities Potentially Affecting Other Uses of Outer Space		177
		2.	Space Activities Potentially Affecting Terrestrial Interests		189
	D.	Synthesis: Oceans and Outer Space			194
V.	Alliances and International Organizations				199
	A.	Introduction			199
	B.	A Political-Military Alliance: NATO			199
		1.	The Role of Consultation		199
		2.	The NATO Consultation Framework		202
		3.	Action Within the Alliance Affecting NATO Defenses in Europe		208
		4.	Détente with Eastern Europe and the German Question		220
		5.	Developments Outside the North Atlantic Treaty Area		233
		6.	Economic and Environmental Policies		240
		7.	Synthesis of NATO Practice		242
	C.	A Regional, Multilateral Political-Economic Organization: The European Communities			244
		1.	The Distinctiveness of the European Communities		244
		2.	Institutional Provisions		247
		3.	Relations Within the Common Market		249
		4.	External Relations		259
		5.	Synthesis of European Community Practice		265
	D.	"Universal" Organizations: The United Nations and Related Agencies			266
	E.	Synthesis: Alliances and International Organizations			275
VI.	Economic Relations				277
	A.	Introduction			277
	B.	Balance-of-Payments Measures			278
		1.	Monetary Measures		278
		2.	Trade Measures for Balance-of-Payments Purposes		291
	C.	Trade Measures Relating to Segments of National Economies			296
		1.	Introduction		296
		2.	Protective Measures Against Imports		297
		3.	Measures to Encourage Exports		316
		4.	Export Restraints		317
		5.	Trade Measures for Conservation or Environmental Purposes		321
		5.	Trade Externalities		332
	D.	Domestic Measures Affecting Trade			335
		1.	Technical Specifications		335
		2.	Production Subsidies and Related Measures		338
		3.	Extraterritorial Antitrust Enforcement		341
		4.	Macroeconomic Policies		345
	E.	Domestic Measures Affecting Foreign Investment			347
		1.	Regulation of Incoming Direct Investment		347
		2.	Measures Affecting Existing Direct Investment		350
		3.	Capital Movements		354
	F.	Synthesis: Economic Relations			356
VII.	Prior Consultation Practice in a Broad Perspective				359
	A.	Introduction			359
	B.	Contours as Developed in Practice			359
	C.	Implications of a Duty to Consider Other States' Interests			362
	D.	Practice - Influencing Factors			366
		1.	Factors Promoting Consultation		366
		2.	Factors Deterring Consultation		372
	E.	Conclusion			374
	Afterword				376
	Index				379