Much has been written about the law(s) in Arctic in media and scientific sources. Oftentimes, especially media sources report about the lack of international regulation in the far north and the accompanying risk for armed conflict. In other words, Arctic states are considered to behave in an anarchic way which would only be controllable through the existence of a regulative body of law. The scientific community, on the other hand, has shown that Arctic cooperation is indeed based on cooperative elements, best exemplified by the Arctic Council, and that the Arctic and its resources as a cause for conflict is rather unlikely.
When taking these seemingly adversarial approaches into account, the present volume The continent of international law which is the outcome of the research project with the same title – abbreviated as COIL – at the Centre for Political Studies at the University of Michigan becomes very relevant. While as such not an Arctic or polar book, a review of this work appears necessary given the prominence of international law and international relations in Arctic discourse. The point of departure of COIL is therefore the behaviour of rationally acting states in an anarchic system that enact agreements as a means to tackle mutual problems (see also Guzman Reference Guzman2008). As the author notes on page 62, the book pulls together ‘insights from the international cooperation literature’ while the focus of this work lies on more than 200 sample agreements from the fields of environment, human rights, economics and security and a theory of monitoring, punishment, dispute resolution or withdrawal from these agreements. At the same time, game theory, contract theory and other political sciences tools are used. Koremenos as the Principle Investigator of COIL thus builds a bridge between international legal scholarship, political sciences and International Relations (IR), a link that only until rather recently has been oftentimes neglected, and remarks that ‘one cannot entertain a positive theory of international law without considering international politics, in particular, how power and self-interest matter for both the design and enforcement of international law’ (page 12).
With this in mind, Koremenos embarks on a journey to conduct a broad comparison within international law on the design of treaties, focusing on the treaties’ underlying cooperation problems and characteristics of the states engaged in the drafting and implementation of these treaties. Testable empirical data constitutes a crucial part of the discussion and makes the findings of the book go beyond the theoretical dimension of the study of international law. This being said, the state-centred focus of the book and indeed Koremenos’ claim that NGOs and the transnational society ‘are not the major force behind global order’ (page 28) does not stand without problems. This reviewer would argue that it depends on the subject area of cooperation. While, of course, states are those actors entering into specific agreements, especially in the field of the environment the agreements’ scope and application is indeed driven by non-state actors. One example would be the hunt for whales and the non-utilitarian approach now employed under the International Convention for the Regulation of Whaling (see Epstein Reference Epstein2005). Yet, this shall only be considered as a side note as regards the content of this book. This being said, the author nicely deals with the role of NGOs as (in)formal monitoring bodies of international agreements, therefore highlighting the normative role these organisations can play in the international system (page 279–292).
Koremenos has succeeded in analysing the design of international legal agreements to a degree that serves as a fundamental study for any further theoretical and empirical analysis regarding the legal speaker (the agreement itself) and the legal audience (the agreement's subjects) in international law. At the same time, the approach taken in the book, especially as regards the implications of ‘uncertainty’ as regards agreement design, serve as a benchmark for analysis also of other legal environments. Especially relevant this reviewer would consider the focus on ‘uncertainty’ in the study of legal pluralism, both on an international level (Schiff Berman Reference Schiff Berman2012) as well as on a regional and national level (see Larcom Reference Larcom2015).
It is thus the conjectures presented in this book, which then are empirically tested, which are of relevance particularly for Arctic legal research. They can be used to tackle numerous Arctic-relevant questions. One of these could be, for instance: what is the dependence between the uncertainty of behaviour of one or more Arctic Council member states and the degree of centralisation of a particular agreement? However, also Antarctic law can be approached, for example, by using COIL's brief analysis of the 1979 Moon Treaty, which treats the resources of the Moon as a ‘common heritage of mankind’. Antarctica is considered the same (see for instance Viikari 2012), begging the question of whether potential business ventures as regards resource exploitation in both ‘common heritages’ show parallels.
When taking the Arctic legal environment under closer scrutiny with the help of this outstanding book, a downside of the approach taken by COIL rises to the surface, however: its focus on state actors and treaty-based, ‘hard’ law, a focus COIL explicitly takes (see page 68). After all, as, for instance, shown by Hasanat (Reference Hasanat2013), Arctic law is to a large degree shaped by ‘soft law’ agreements. The Arctic Council as a key forum for Arctic cooperation furthermore goes beyond the nation states and includes the Arctic's indigenous peoples via the council's Permanent Participants. Notwithstanding, Koremenos’ conjectures can nevertheless be tested also in a soft law context and are not per se confined to treaty-based law. If this fails, their further development is of course possible, underlining the book's importance for the analysis of Arctic law.
The book contains many elements which in one way or the other can be used for the analysis of international law pertaining to both polar regions. A brief review like the present does certainly not allow to go much in depth. Suffice it to say that this reviewer in his research will from now on make frequent use of this book and the normative findings of the COIL project. As a consequence, The continent of international law should indeed be an inherent part of the analysis of polar legal design, contributing to the understanding of polar legal dynamics and actor behaviour.
