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Australian Year Book of International Law |
Edited by
Ryszard Piotrowicz
Martti Koskenniemi
(Cambridge University Press, Cambridge, 2002, xiv + 569 pp)
Koskenniemi enjoys a weighty reputation as one of the leading voices in contemporary international legal studies, a reputation that extends into other cognate disciplines. For that reason, a major new work – a much expanded version of the Hersch Lauterpacht Memorial Lectures delivered in Cambridge in 1998 – is a signal event. The book does not disappoint, even if it simultaneously delivers both more and less than its portentous subtitle leads us to expect. The volume is a work of rich and compendious scholarship detailing the emergence of a particular conception and practice of international law in the 1870s and its eventual demise in the early part of the second half of the twentieth century. Much of it is in the form of minute exegesis of, and incisive commentary upon, the works of a vast array of international legal thinkers across the period. It is a major piece of research and reflection, even if it leaves questions and doubts about central elements of its thesis.
The book reflects its origins as a series of interconnected lectures. It opens with the institutional emergence of the Institut du Droit International in 1873, and the first appearance of the Revue. These, it argues, were driven by the values of an emerging constellation of legal practitioners committed to mid-Victorian notions of liberal internationalism. A second synoptic chapter traces the meeting ground between this progressive view and its real-life encounter with contemporary European imperialism, and the tensions and contradictions to which this gave rise. This is followed by three ‘national’ studies: on Germany, France and Britain (specifically on Hersch Lauterpacht himself). The final chapter moves the discussion into the fields of political science and international relations with an essay on Carl Schmitt and Hans Morgenthau, and the nascent realism.
There are a number of provocative arguments running through the work as a whole. In terms of Koskenniemi’s personal intellectual trajectory, the book marks a notable turning-point from his earlier structuralism. This, he now attests, lends a static quality to the discussion of international law. In its stead, the present volume is avowedly an attempt to ‘infuse the study of international law with a sense of historical motion and political, even personal, struggle’ (p 2). This ends up being, at one and the same time, both one of the strengths and the grey areas of the analysis. Second, the book allows Koskenniemi to develop his notion that modern international law did not originate with Grotius or Westphalia, and was not elaborated by Vattel and others. Rather, modern international law was a much more distinctive intellectual project and its beginnings were marked in the decade of the 1870s. This, in turn, slides into the third claim that the conventional wisdom about the positivist turn in international law at the end of the nineteenth century is erroneous. It is particularly so in its assertion that the legal positivists were committed to sovereignty. As against this, and as part of his contention that international law arose in the nineteenth century, and not the seventeenth or eighteenth, the author insists that the hallmark of modern international law is not sovereignty, but a ‘collective (European) conscience’ (p 51).
This is an ambitious agenda, and it proves difficult to sustain the big theses in amongst the minutiae of the individual surveys. Since, according to Koskenniemi’s conception, a single practice of international law began to develop from the 1870s, one is left to wonder why he then chooses as his vehicle for analysing it a set of separate ‘national’ histories. At one level, what is slightly suspect about his discussion of Germany, France and Britain is his seeming re-invention of the stereotype so often remarked in the history of political thought that these derived, respectively, from philosophical, sociological and pragmatic traditions; a scheme that regularly implodes in practice. More particularly, his analysis reveals what is idiosyncratic in some of the individual national traditions in ways that render problematic the monolithic notion of international law that lies at the heart of Koskenniemi’s ‘rise and fall’. It arose, in the author’s argument, out of common normative impulses. And yet what is so striking, to take but the German case by way of illustration, is the extent to which Koskenniemi shows it to have been marching to a different tune. This reviewer, at least, was surprised to be informed that there existed no international law journal in the German language prior to the turn of the twentieth century (p 213). Moreover, we are told, that in Germany after 1919 ‘the discipline of international law became indissociable from the criticisms of the Peace Treaty’ (p 237). Elsewhere, the author’s analysis of the development of international law in Germany suggests that ‘Germany’s statehood was the very problem’ (p 263). In a different context, he claims also that Morgenthau’s ‘view is rooted in a specifically German intellectual trajectory’ (p 446), and that ‘US universities received from German refugees an image of international law as Weimar law writ large, formalistic, moralistic, and unable to influence the realities of international life’ (p 471). There can be little quarrel with these individual claims but the insistence overall on Germany’s Sonderweg casts some doubt on the collective international law enterprise that forms Koskenniemi’s core argument.
Other tensions emerge as the discussion unfolds, and again they centre upon the supposed singularity of the rise and fall of the author’s distinctive version of international law. By the end, it is clear that he accepts the eventual demise of a particular version of international law with a sense of resigned inevitability, and he is at pains to make clear that there can be no return to it. But there are very powerful whiffs of nostalgia accompanying both the resignation and the admission. Elsewhere, Koskenniemi appears less certain as to what has passed away, and why we might be the poorer for its passing. At the outset, he sketches the ‘end’ of international law in ‘the emergence of a depoliticized legal pragmatism’, and in the ‘colonization of the profession by imperial policy agendas’ (p 4). This is quite possibly so. At the same time, he himself reveals the extent to which the heroic generation of 1870-1914 was itself infected by imperial policy agendas in its attitude to colonialism. Indeed, on these grounds he dismisses its members as ‘such hopeless apologists of empire’ (p 169). Just as disconcertingly, Koskenniemi also remarks in his chapter on Lauterpacht that ‘[t]oday, international law remains one of the few bastions of Victorian objectivism, liberalism, and optimism’(p 360). International law is dead; long live international law!
An important, and invaluable, dimension of Koskenniemi’s book is his attempt to give the international law profession a sense of its own identity, drawn from its disciplinary history. He tells the story of the development of international law with a keen eye upon its ‘openness’; things could have turned out differently, and in this openness of the past lies the inspiration for creativity in the future. But what kind of history is it that Koskenniemi himself tells? He situates it somewhere between the two extremes of the ‘epochal’ and the ‘biographical’ approaches (pp 6-7). Another way of classifying disciplinary histories is somewhat different. It distinguishes between ‘internalist’ and ‘externalist’ accounts. The former would have it that intellectual change proceeds by the internal dynamic of resolving old problems and posing new ones: it is distanced from the sociological and political universe in which this intellectual activity takes place. The latter approach has it that all intellectual quests are driven by events ‘out there’. On the face of it, Koskenniemi’s history demonstrably rejects the former. And yet any embrace of the latter is tentative at best. His pre-occupation with the personal and professional level, valuable as it is, leaves big questions about how much impact the ‘epochal’ events and contexts had upon the developing disciplinary consciousness. Did the 1870s conception of international law survive the Great War and, if so, why was that at all possible? Why did the face of realism that Koskenniemi depicts through Schmitt and Morgenthau not destroy international law much sooner than 1960, just as in international relations the idealists were already being routed by the late 1940s? Why did not the Cold War undermine the international law project long before 1960? The answers to these large questions, where confronted at all, do not emerge clearly.
All that said, this is a wonderful reference for historians and political scientists alike, as well as for its mainstream international law readership. Even if the death of international law which it announces is much exaggerated, the book will deservedly command respect.
Ian Clark
DEPARTMENT OF INTERNATIONAL POLITICS
UNIVERSITY OF WALES, ABERYSTWYTH
Edited by Antonio Cassese, Paola Gaeta and John R W D Jones
(Oxford University Press, Oxford, 2002, 3 vols, cxl + 2202 pp)
In their concluding words to what is a quite remarkable collection of essays on the International Criminal Court (ICC), the editors say that ‘ “[t]he Court we have” might not be “the Court we dream of”. It is, nevertheless, a striking achievement that we have an ICC at all’ (p 1913). The extent of this achievement and its consequences for international law and justice constitute a primary theme of most of the contributions comprising this work. Yet the ICC remains an incomplete and, in many respects, flawed mechanism: its jurisdiction to prosecute individuals is still bound in some ways to the consent of states; it does not have jurisdiction (or at least not yet) over the crime of aggression; many of its procedures are the product of unhappy compromises and may give rise to difficulties in practice; and the efficiency of the proposed interactions between the ICC and national criminal systems remains to be proved. These, and many other, concerns are also discussed and assessed by the contributors.
The first thing that one notices about this work is its size. The text itself runs to some 1935 pages, spread over two volumes, in addition to which there is a very detailed and particularly useful index (itself 82 pages). A third slim volume contains the texts of the Statute of the ICC, the Rules of Procedure and Evidence and the Elements of Crimes. The text consists of 79 chapters and sub-chapters organised, at times uncomfortably, into ten sections. Overall, there are 57 different contributors coming from a wide range of national, linguistic and professional backgrounds. The calibre of the authors is impressive: there are essays by the chairs of the negotiating committees and of the Rome Conference at which the Statute was concluded (including Philippe Kirsch, recently elected as the first President of the ICC), judges and former judges of the International Criminal Tribunal for the former Yugoslavia (ICTY), heads of delegations to the Rome Conference, legal officers of the United Nations (UN) and the ICTY, defence counsel at the ICTY and International Criminal Tribunal for Rwanda (ICTR), and many other well-known international lawyers.
A second observation quickly follows the first: the title of the work is a misnomer and undersells the scope and scale of the work. Although the ICC provides a focal point, most of the essays range far beyond this and indeed some deal only briefly with the ICC and the Rome Statute. It would be more accurate to describe the work, as the dust jacket does, as taking ‘a thematic look at the whole of international criminal law’. The work is also much richer than a ‘commentary’, traditionally understood. The contributions are not tied mechanistically to individual articles of the ICC Statute; rather they address particular themes that might pertain to a single or several provisions or to no provision or provisions in particular. In this respect, the work has more in common with, although it is far grander than any of, the now numerous collections of essays on the ICC.
The majority of essays follow a common structure. A brief general overview of the topic is typically followed by an appraisal of the contributions of the Nuremberg and Tokyo tribunals and of the constituent instruments, case law and experiences of the ICTY and ICTR. Where appropriate, there is also consideration of national law and practice and of customary international law. On turning to the ICC, the essays review the drafting history, including the various options discarded during the negotiations, and the provisions as they ultimately appeared in the Statute. They generally conclude with a critical analysis and assessment of the provisions in light of what might have been the ideal from the perspective of international criminal law and justice. Some essays include a select bibliography, although these vary widely in size and completeness.
Section 1, entitled ‘The Path to Rome and Beyond’, consists of three chapters. The first is a general historical overview by Antonio Cassese of previous efforts to establish international criminal courts and of the congruence of factors that made the end of the twentieth century ripe for the establishment of such a court: notably, the end of the Cold War, the horrors of the conflicts in the former Yugoslavia and Rwanda and the increasing importance of ‘the human rights doctrine’. Chapter 2 consists of four essays analysing the preparatory work of the International Law Commission (by James Crawford, the Special Rapporteur) and the negotiations leading up to, at, and following the Rome Conference (authored, or coauthored, by the chairs of the negotiations, Adriaan Bos and Phillipe Kirsch). These often quite personal and engaging accounts of the negotiations serve to identify the hot topics, major controversies and make-or-break issues that arose during the negotiations and which are considered in more detail in subsequent chapters. A fifth essay in this chapter, by William R Pace and Jennifer Schense, considers the contributions made by non-governmental organisations (NGOs) to the establishment of the ICC.
The mildly self-congratulatory tone of these early contributions is not shared by Alain Pellet in the final chapter of this section. Pellet uses his essay on the ‘Entry into Force and Amendment of the Statute’ to condemn the model chosen for establishing the ICC as ‘unsatisfactory’ (p 146). That model consists of a multilateral treaty, the Rome Statute, adhered or acceded to by those states prepared to accept the obligations imposed by the Statute. However, for Pellet, instead of it being ‘the creation of a haphazard group of States … with no mandate to represent the international community as a whole’, it would have been preferable for the ICC to have been established by resolution of the UN General Assembly (pp 146-48). Before turning to consider the provisions of the Statute relating to its entry into force and amendment, as well as the question of the bar ‘in principle’ to reservations, Pellet also snipes that the Statute is ‘a treaty without inspiration’ and, with stereotypical Gallic pique at the present pervasiveness of English as the popular medium for international discourse, he observes that although the Statute makes equally authentic the six official languages of the UN, ‘one of these six languages is undoubtedly “more equal” than the others’ (p 148). But with even-handedness, Pellet also considers the ‘despicable desire’ of some states, notably France, to immunise members of their armed forces from investigation and prosecution for severe offences against the law of armed conflict by including the possibility of temporary reservations, under article 124 of the Statute (‘a wicked provision’ (p 171)), to the applicability of the provisions of the Statute giving the Court jurisdiction over war crimes (pp 167-71).
In Section 2, attention is turned to the ‘The Structure of the ICC’, although there are also a number of essays dealing with the Court qua international institution. With respect to the former, there are largely descriptive contributions addressing the seat of the Court, the Assembly of States Parties which is the governing body of the Court (both by Bos), the composition of the Court, the qualifications for office and non-judicial functions of the Prosecutor, the Registry and staff, the duties of officials (all by John R W D Jones), and the financing of the Court (Mahnoush H Arsanjani). As to the latter, there are chapters on the privileges and immunities of the Court, its officials and other persons required to be present at the seat of the Court (Hervé Ascensio), the legal status and powers of the Court (Francesca Martines), and the relationship between the Court and the UN, and particularly between the Court and the Security Council (Luigi Condorelli and Santiago Villalpando).
The scope of the ICC’s jurisdiction proved to be one of the most contentious issues during the negotiations over the Statute, a fact that is borne out by many of the essays in Section 3. The first chapter, which is made up of a number of sub-chapters, considers the Court’s jurisdiction ratione materiae. There are essays on each of the crimes over which the Court is to have jurisdiction under article 5 of the Statute, namely genocide (Cassese), crimes against humanity (Cassese), war crimes (Michael Bothe) and aggression (Giorgio Gaja). The essay by Bothe stands out for its attempt to systematise the 50 or so war crimes codified in the Statute and for its analysis of how and why those provisions differ from their customary international law equivalents. The following essay (Mauro Politi) considers the Elements of Crime, the additional text that further codifies the mental and criminal elements of the crimes over which the Court is to have jurisdiction and which is intended to ‘assist’, but not bind, the Court (art 9). The next essay (Susanne Walther) appears to be out of place in this section as it deals with the more procedural questions of cumulation of offences at the charging and conviction/sentencing stages. In the final essay in this chapter, ‘The Missing Crimes’, Patrick Robinson considers some of those crimes that did not find their way into the Statute: drug crimes, international terrorism, mercenarism, and wilful and severe damage to the environment. The failed attempt of many states to insert provisions criminalising the use of nuclear, biological and chemical weapons are discussed elsewhere (eg pp 79-80; 396-97).
Chapters 12, 13 and 14 offer critical analyses of international criminal jurisdiction ratione personae (Micaela Frulli), ratione temporis and ratione loci (both Stéphane Bourgon) and of the provisions in the Statute governing these limits on the Court’s jurisdiction. Much of the same ground is revisited by Hans-Peter Kaul in Chapter 16 on the ‘Preconditions to the Exercise of Jurisdiction’. Chapter 15, by Condorelli and Villalpando, is devoted to the unsurprising conclusion that the jurisdiction of the ICC, a treaty-based organisation established by the states parties to the ICC Statute and independent of the UN, cannot be extended beyond the terms of its Statute by the Security Council (p 572). Echoing comments made in their earlier chapter, the authors suggest that in exercising its power to refer a situation to the ICC Prosecutor in order for consideration to be given to commencing an investigation, ‘it is self-evident that the Security Council could not be allowed to ignore the jurisdictional limits imposed by the ICC Statute’ (p 575). Whether this is accurate or not, it is surely beside the point: whatever the attention the Security Council has paid to the jurisdiction of the Court, the Court will only be able to exercise jurisdiction when to do so is in accordance with the provisions of its Statute.
Chapter 17 addresses the trigger mechanisms that permit the initiation of proceedings. In the first and third parts, Kirsch and Robinson succinctly consider the provisions that permit states parties to refer a ‘situation’ to the Prosecutor for investigation and those that regulate the initiation of an investigation by the Prosecutor acting proprio motu, without the authorisation of the Assembly of States Parties or the Security Council. The latter mechanism, as the authors observe, is one of the most original and surprising developments to be included in the ICC Statute (pp 662-64). The third trigger mechanism, to which reference has already been made, is the power of the Security Council, acting under Chapter VII of the UN Charter, to refer to the Prosecutor a ‘situation’ in which one or more of the prescribed international crimes appears to have been committed (art 13(b)). In coauthoring this contribution, Condorelli and Villalpando complete their monopoly over questions relating to the Court’s relationship with the Security Council. As with their earlier essays, this one contains a number of questionable conclusions. For instance, they state that the Security Council will have power to refer to the Prosecutor situations in which crimes appear to have been committed before the entry into force of the ICC Statute (p 637). This conclusion would seem to be contrary to the express provisions of the Statute: if not article 11(1), which provides that ‘[t]he Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute’, then article 24(1), which provides that ‘[n]o person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute’. It is also inconsistent with the conclusions reached by Bourgon in Chapter 13, and, indeed, with their own earlier conclusion that the Security Council cannot extend the Court’s jurisdictional limits as laid down in the Statute.
The final chapter in Section 3 is entitled ‘Issues of Admissibility and Jurisdiction’, yet it deals principally with the question of conflicts between the exercise of jurisdiction by the ICC and other forms of criminal justice. There is a consideration of ‘complementarity’ (John T Holmes), the principle that is to govern the relationship between the jurisdiction of the ICC and that of national justice systems, and which stands as one of the cornerstones of the system established by the Statute. A second paper (Michael Bohlander) examines the largely hypothetical question of conflicts between the jurisdiction of the ICC and of the ICTY, the ICTR, and any future ad hoc tribunals. John Dugard focuses on the very interesting question of truth and reconciliation commissions and poses the question whether the ICC should recognise the processes and decisions of such bodies, either as a bar to prosecution or as a factor relevant to mitigation of punishment (p 693). He also considers the problem of the effect that should be given to national amnesties, an issue that is also taken up by Christine Van den Wyngaert and Tom Ongena towards the end of their discussion of the principle of ne bis in idem or double jeopardy and its effect on ICC proceedings.
‘General Principles of International Criminal Law’ is the subject of the nine essays constituting Section 4. They include two long and densely written chapters by Albin Eser, on individual criminal responsibility and on the mental elements of the crimes coming within the jurisdiction of the ICC. Both of these chapters are very fine examples of theoretical and comparative legal analysis. However, for this reason they stand out from the style and content of the great majority of the other contributions and one may hesitate a little in assessing the consequences of their inclusion for the harmony and symmetry of the Commentary as a whole. An attempt to focus on more practical considerations can be seen in the discussions of the responsibility of commanders and other superiors (Kai Ambos), the non-applicability of statutes of limitations (Van den Wyngaert and Dugard), the defence of superior orders (Andreas Zimmerman), and the final chapter, ‘Other Grounds for Excluding Criminal Responsibility’, in which Kai Ambos considers the provisions of the Statute relating to the substantive defences of mental disease or defect, intoxication, self-defence and duress/necessity. The remaining essays in this section are a consideration of the nullem crimen/nulla poena sine lege principles in international criminal law (Susan Lamb), a very brief discussion of the distinction between justifications and excuses in international criminal law and under the Statute (Cassese), and an evaluation of the Statute’s provisions relating to the criminal responsibility of individuals acting in official capacities or enjoying certain immunities (Paulo Gaeta).
Section 5 draws together in loose association three papers under the heading, ‘The Statute and General International Law’. In the first, Pellet addresses the question of the law to be applied by the Court and concludes that the Statute reveals ‘a tissue of imperfectly defined sources’ (p 1053). Pellet also doubts the merits of having defined in detail the crimes over which the Court is to have jurisdiction and suggests that the effect has been to ‘freeze the definitions into laborious compromise formulations which, in some respects, are a step backwards compared with the case law and customary law itself’ (pp 1055-1056). The effect of the Statute on customary international law is the subject of Mahommed Bennouna’s brief essay entitled ‘The Statute’s Rules on Crimes and Existing or Developing International Law’. In the remaining paper, Pierre-Marie Dupuy examines, with minimal reference to the ICC, the evolution of individual criminal responsibility as separate from and distinct to the international responsibility of states.
Sections 6, 7 and 8 are for the most part concerned with more technical aspects of the ICC’s mandate. Section 6 consists of 18 essays examining the different stages of criminal proceedings before the ICC and the rights of the persons involved in those proceedings, namely suspects, accused, witnesses and victims. Three papers in particular stand out: the discussion of the ‘Powers and Duties of the Prosecutor’, by Giuliano Turone; Clauda Jorda and Jérôme de Hemptinne’s consideration of ‘The Status and Role of the Victim’, and Steven Kay and Ben Swart’s ‘The Role of the Defence’, a description of the practical difficulties faced by defence counsel in international criminal proceedings enlivened by anecdotes from Kay’s personal experiences in defending persons appearing before the ICTY and ICTR. Section 7 (four essays) is concerned with the issue of international cooperation and judicial assistance in relation to ICC proceedings, and each of the contributors assesses whether the procedures laid down in the Statute for, inter alia, the arrest and surrender of suspects and the taking of evidence, are sufficiently strong and well developed to ensure that the Court is able to function as intended. Section 8, ‘Enforcement’, is divided into three essays, each coauthored by Claus Kress and Göran Sluiter. The authors concentrate on imprisonment, which is intended to be the primary means of enforcing the ICC’s judgments. Some consideration is also given to the alternative penalties of fines and forfeiture orders (Chapter 45), while the question of the enforcement of reparation orders (akin to orders requiring the convicted person to pay compensation or make restitution) warrants a brief appendix (pp 1832-36).
The final substantive section, Section 9, contains three papers on questions relating to the ‘Application and Impact of the Rome Statute’. Pellet continues his program of dealing with constitutional issues by examining the systems established in the Statute for the settlement of disputes. In the next essay, Robinson assesses the impact of the Statute on national law. The bulk of the chapter concerns material – such as complementarity, arrest and surrender, and other forms of cooperation and assistance – that has been considered in other chapters. However, Robinson focuses less on the provisions of the Statute and on the international antecedents to the ICC, and more on the changes that ratification of the Rome Statute will require and encourage in national legislation and practice. The final paper, by the late Gennady Danilenko, is a well-crafted consideration of the various ways in which the ICC will have an impact even on states that do not become parties to the Statute.
Given the scale and quality of this production, it would have been fitting for the final contribution to have been left to the editors. However, their ‘tentative assessment’ of the Rome Statute, written after the Statute came into force, is followed by two papers that might perhaps have been better left for another day. The first, by Mireille Delmas-Marty, is an abstract theoretical conceptualisation of the relationship between the ICC and domestic criminal legal systems – invoking concepts of pluralism, ‘equitable interaction’ rather than ‘normative hierarchy’, and the ‘hybridisation’ and ‘harmonisation’ of legal regimes. It sits poorly in a conclusion. And the last paper, by Robert Badinter, is a short panoramic view of ‘International Criminal Justice: From Darkness to Light’ that adds little, if anything, as an appreciation either of the book and its contributions or of the wider significance of the ICC.
As the foregoing suggests, some contributions stand out more than others and there are a number of instances where different authors have covered similar ground. But one should not be overly critical in respect of so large a collection of essays. The editing and production are of the highest quality from the first page to the last, and the inclusion of a table of contents at the start of each chapter combined with the extensive index render the text particularly accessible. The range of topics and the differing styles of the contributions make it difficult to categorise the work. As observed earlier, it is much more than a commentary confined to the provisions of the Rome Statute and the practices and procedures of the new ICC. It is also clearly not only a student or a practitioner text, nor solely a critical or theoretical review. It is not difficult, however, to conclude that this work will quickly become an indispensable resource and one of the first sources turned to by anyone possessing more than a passing interest in international criminal law in general, and the ICC in particular.
Ben Olbourne
TRINITY COLLEGE
UNIVERSITY OF CAMBRIDGE
James Crawford
(Cameron May, London, 2002, 607 pp)
A collection of essays by a scholar, teacher and practitioner who is widely regarded as one of the most eminent international lawyers of his generation is greatly to be welcomed. It brings together in one volume significant and representative examples of Crawford’s work during the past 20 years. Each essay made at the time, and continues to make, a distinctive contribution to an understanding of the law, and especially international law. No attempt has been made to edit or to update the earlier essays. Dealing as they do with the enduring, and not the ephemeral, issues of international law in our time, they do not suffer for that.
The collection is divided into four sections, each representing a dimension of the writer’s work. The first, entitled ‘The International Law System’ represents aspects of Crawford’s general approach to international law, headed by the essay ‘International Law as an Open System’, which gives its name to the entire collection. The second section deals with aspects of statehood (which was the subject of Crawford’s doctoral dissertation and first book The Creation of States in International Law (1979)). The third section relates to international responsibility. As is well known, Crawford was until recently a member of the United Nations (UN) International Law Commission (ILC) and Rapporteur in charge of the Commission’s mandate to codify and develop international law with respect to that intractable subject. That he managed to cut through the Gordian knot and guide the Commission to a successful conclusion in completing the Articles on State Responsibility, which were presented to the UN General Assembly in 2001, may well be regarded as the pinnacle of achievement in his career so far. The fourth section, entitled ‘Law Reform, National and International’ covers other aspects of the work of the ILC as well as Crawford’s earlier contributions to the work of the Australian Law Reform Commission.
Section I begins with an essay on ‘International Law as an Open System’. He makes a compelling case for the ability of the traditional processes of international law to respond to new challenges. He sees statehood as continuing to lie at the centre of the system, and the traditional legal techniques of international law – and of law in general, such as principles of interpretation – as continuing to provide the tools to work with, and a universal context in which even regimes constituted by a lex specialis must operate. He takes his examples of how newer developments have been accommodated within the traditional structure of international law from extended concepts of legal personality, sources of applicable law, human rights, international personality, and the settlement mechanisms for international disputes.
The section continues with essays on democracy and international law (Crawford’s inaugural lecture at Cambridge University on assuming the Whewell Chair in 1993); ‘International Law on a Given Day’ (an entertainingly fresh tour d’horizon of the ‘difficult and diffuse processes of the creation of customary norms’); on global security; the Charter of the UN as a constitution; and ‘The Global Democracy Deficit’. This last essay of the section, written with Susan Marks, while noting that international law is moving towards a commitment in favour of democratic governance, concludes rather cautiously that it ‘offers little support for efforts either to deepen democracy within nation-states or to extend democracy to transnational and global decision-making’.
Section II – ‘States, Governments and Peoples’ – takes up the enduring theme of people’s rights – the so-called third generation rights – in its first chapter. In analysing seven of these claimed rights Crawford concludes that, except as to self-determination, their real content is with respect to the government of the state in question: international justiciability is still a long way off. The next chapter surveys the practice of the UN General Assembly and the International Court of Justice (ICJ) in relation to self-determination as at 1995. A postscript to the chapter discusses the ICJ’s decision in the East Timor case. The third chapter examines state practice and international law in relation to secession. The final chapter of this section deals with state succession and the proponents of the continuity thesis (above all, Crawford’s first teacher of international law, D P O’Connell) and the rival theses.
The title of Section III is ‘International Responsibility’. It is a large section containing seven chapters, reflecting the extent of Crawford’s commitment to reordering and codifying this fundamental set of principles. The chapters deal with the standing of states and the crucial role of article 40 of the ILC’s Articles on State Responsibility; responsibility to the international community as a whole; countermeasures as interim measures; the relationship between sanctions and countermeasures; international crimes; and a review of the work of the ILC on state responsibility as at the completion of the second reading of the text. These chapters are useful insights into the evolution of the articles. They are not supplanted by Crawford’s later book The ILC’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, CUP, 2002).
The final section of the collection is entitled ‘Law Reform, National and International’. From 1982 to 1990 Crawford was a member of the Australian Law Reform Commission, while holding a chair first at the University of Adelaide and then the Challis Chair of International Law at the University of Sydney. The work of the Commission was demanding and to an extent prepared him for his later election to the ILC, on which he served two terms (1992-2001). The section consists of accounts of three references in which Crawford played a leading role in the Australian Commission: the recognition of Aboriginal customary law in Australian law; legislating for foreign state immunity (the resulting Australian Foreign States Immunities Act 1985, is regarded by many as ‘state of the art’, profiting as it did from the experience and earlier models of other common law countries); and the reform of admiralty law. Two of the three chapters dealing with the work of the ILC are devoted to the drafting of the Rome Statute for an International Criminal Court. The final chapter contains reflections on universalism and regionalism from the perspective of the work of the ILC.
It is tempting to compare the ILC’s draft statute for an international criminal court with the fate of the rticles on state responsibility. The lessons of what can happen when politically driven diplomatic conferences get to work on drafts prepared by experts were surely not lost when it was carefully arranged that the Articles on State Responsibility should be merely ‘noted’ by the UN General Assembly and not automatically sent forward to a diplomatic conference for adoption as a convention.
This volume is a tribute to the vision and industry of its author. With depth of insight, wisdom, and deftly humorous touches, Crawford exemplifies a much needed integrity in the discipline of international law.
Ivan Shearer
FACULTY OF LAW
UNIVERSITY OF SYDNEY
Ros Germov and Francesco Motta
(Oxford University Press, Melbourne, 2003, xliv + 899 pp)
Given the growth in litigation on refugee matters in Australian courts in the past decade, it is surprising a book as substantial as this has not appeared before. Not that the authors did not try to plug the gap earlier. They apparently began working on the text some years ago, but the scope and frequency of legislative change in the past few years, and the sheer volume of case law that was developing on a weekly basis, required several rewrites.
Perhaps by late 2002 the authors sensed a window of opportunity created by the success of government initiatives to deter unauthorised boat arrivals, and by the passage through Parliament in October 2001 of legislation designed to severely restrict judicial review of all decisions made under the Migration Act, including those on applications for protection visas. Certainly, in recent months the focus of interest in legal interpretation has shifted back to Australia’s mandatory detention provisions.
The text’s eventual publication in early 2003 means it covers the law as at 31 December 2002. Perhaps reflecting its protracted birth, it is a little less up to date in its coverage of relevant literature. For example, no reference is made to the work of the expert roundtables on contentious interpretive issues during the United Nations High Commissioner for Refugees’ (UNHCR) process of ‘Global Consultations on International Protection with States in 2001’, or the Australian government’s contribution to that process in 2002, Interpreting the Refugees Convention – An Australian Perspective.
However, this is a relatively minor quibble. In a controversial area like refugee law, rules, practices and interpretations are likely to continue to evolve. A more relevant question is how long it might be before a revised edition is necessary, for as High Court Justice Michael Kirby observes in his foreword, ‘The last word on the legislative and administrative changes to govern officials, and to limit judicial review of refugee decisions has not been written.’
The book is divided into five parts. Part One traces the development of the Refugee Convention and the history of Australian refugee protection policy. It also provides an overview of the legislation, policy and processing procedures for making refugee applications in Australia.
Part Two considers the place of the Convention as an international instrument in Australian law, and general principles regarding how it should be interpreted and applied by decision-makers.
Part Three examines the elements of the definition of a refugee in the Convention, including the critical terms ‘well-founded fear’ and ‘persecution’, the limited grounds for Convention refugee status (race, religion, nationality, membership of a particular social group and political opinion), a few grounds that in certain circumstances may provide such status (eg women, family members, gays and lesbians), and exceptions, exclusions and cessations.
Part Three ends with a chapter canvassing practical strategies for presenting a case before departmental and review decision-makers. According to the authors, it is included in the interests of ‘improving the standard of representation in this jurisdiction and highlighting some of the jurisprudential issues that have arisen from the day-to-day realities of the refugee decision-making process’ (p 513). Their advice is worth heeding. Both have street-credibility as former members of the Refugee Review Tribunal, and Germov continues to work as a refugee law practitioner and Motta is Head of the Refugee Determination Section in UNHCR’s Sudan office.
Part Four deals with the judicial review of protection visa application decisions by the Federal and High Courts. The changes to the Migration Act in October 2001 are discussed in depth. So too is the case law that had developed under the previous judicial review regime, being relevant to some cases still going through the courts and to how the new provisions may be construed.
In Part Five, the authors fix on what they see as a recurring theme in recent changes to the refugee determination system – the curtailing of applicants’ rights – and propose changes that would in their view ‘maintain its fairness’ and ensure that Australia fulfils its international obligations ‘as economically and effectively as possible’ (p xliii). These boil down to improving the competence, integrity and independence of decision-makers, and allowing for appeals to the Federal Magistrates Court or the Federal Court on questions of law by way of special leave, with such applications being made on an ex parte basis.
The book helpfully includes a copy of the 1951 Convention (but unfortunately not the accompanying schedule and annex relating to travel documents) and its 1967 Protocol, a case list and legislation index, and relevant extracts from the Migration Act and regulations.
While essentially a text on current law, the authors do not shy from expressing their general view of policy directions. As inferred above, they consider that recent legislative changes make the protection system ‘harder, stricter, and narrower’ (p xl), and that ‘the Howard Government has opted to place bureaucratic and political considerations above those obligations Australia bound itself to uphold when acceding to the Refugees Convention’ (p 890).
Not that the authors claim all or even most developments are in breach of those obligations. The introduction of temporary protection visas, for example, is seen as a matter of government policy rather than international obligation (although a case can be made that some of the visa conditions – notably no right of return if the holder travels abroad – do breach Convention obligations). Nor is a challenge made to the doctrine of effective protection, developed initially by the courts and later given legislative effect, whereby a refugee’s access to protection elsewhere may take precedence over protection provided by Australia. Further, while critical of some of the interpretive guidance given to decision-makers in recent legislative amendments (eg the requirement that a Convention reason be ‘an essential and significant’ reason for the harm feared by a protection visa applicant, and that in certain circumstances decision-makers may disregard an applicant’s conduct in Australia when it seems aimed at strengthening their claim to be a refugee), they acknowledge that some are more bark than bite, in the sense that they reflect existing court interpretation (eg the meaning of ‘serious non-political crime’ in article 1F(b)).
Some court interpretations are also not spared critical assessment. For example, the authors advance a strong case for internal flight or relocation options to be considered in the context of whether or not a protection applicant’s fear is well-founded, rather than whether or not it is ‘reasonable’ to expect such a move by the applicant, as required by current case law.
A few areas could have done with some further analysis. For example, it would have been useful to hear the authors’ views on the possible implications for applicants fleeing ‘blood feuds’; of new legislation restricting the circumstances in which ‘family’ can be construed as a particular social group. The relative openness of Australia’s ‘social perceptions’ approach to group determination, compared to the ‘immutable characteristics’ approach common elsewhere, might also have been noted. Finally, in view of its potential importance in meeting humanitarian concerns and international obligations under the Convention against Torture and the International Covenant on Civil and Political Rights, procedures and issues relating to the power of the immigration minister to intervene to provide a visa to an otherwise unsuccessful protection visa applicant could also have received greater attention (and are at time of writing the subject of a parliamentary inquiry).
There are also a few areas where the authors’ comments appear incorrect or in need of qualification. For example, they seem to suggest (at p 130) that a state’s non-refoulement obligation is invoked only after a person has been recognised as a refugee. They also assert that Australia ‘is using its right to control its borders as a pretext for shutting its eyes to those who may be Convention refugees in order to relieve Australia of any obligations it may have towards such people under the Refugees Convention, by preventing them from making a claim to refugee status in the first place’ (p 31, fn 135).
However, the principle of non-refoulement lies not only at the core of the Convention, but is widely recognised – including by the Australian government in its endorsement of the ‘Declaration of Contracting States’ made during the UNHCR’s Global Consultations in 2001 – as embedded in customary international law. And while the Convention is silent on how a refugee status determination process should be undertaken, the question of whether or not you are refouling a refugee certainly demands one. This is why the Australian government has been careful still to provide an opportunity for people removed to offshore processing centres to have any protection claims assessed (albeit through a UNHCR-type procedure), and has begun accepting into Australia those found to be refugees who no other country will take (albeit painfully slowly).
But again, these are relatively minor quibbles. They do not detract from the fact that Refugee Law in Australia is a comprehensive, well-written and valuable text on refugee law and its administration in the Australian context.
For students of refugee law and those engaged in client representation and case preparation, it is a must. For decision-makers in the immigration department and the Refugee Review Tribunal, it is a useful complement to in-house legal guides. For those who simply have a general interest in refugee issues, it is a book into which they can dip for the knowledge needed to contribute to related public debate in an informed way.
David Palmer[∗]
FORMER DIRECTOR, PROTECTION STRATEGY
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Edited by Bruno Simma
(Oxford University Press, Oxford, 2002, 2nd ed, 2 vols, i-lxiv + 1405 pp,index xxxiii pp)
At the time of the translation into English of the first edition of Bruno Simma’s The Charter of the United Nations: A Commentary in 1994, the world had already experienced both the optimistic heralding of a ‘New World Order’ after the liberation of Kuwait in 1991, and also the more sober assessments that subsequently had to be made of the United Nations (UN) after its failure to avert tragedy in Rwanda and Somalia. In the eight years since, other events have provoked much rethinking of the UN’s role in the maintenance of international peace and security. These include the North Atlantic Treaty Organization (NATO) bombing campaign on Yugoslavia in 1999, which lacked the authorisation of the Security Council; the extensive role of the UN in administering territories in Kosovo and East Timor; and the terrorist attacks on the United States of 11 September 2001, and subsequent military efforts in Afghanistan to root out suspected Al Qaeda members. These events, and more recent challenges to the Charter system for the maintenance of international peace and security, have made the publication of the second edition of Simma’s Commentary extremely timely.
At the outset, it must be stated that Simma’s Commentary has again secured its position as the standard work on the law and practice of the UN, and one of the essential reference tools of every academic and practising international lawyer. Other commentaries are available, but Simma’s Commentary is undoubtedly the most up-to-date, and, one can safely assume, the most detailed work dealing with the practice of the UN. The depth of research is quite staggering. Each article is prefaced with an extensive bibliography, and each section is also generously footnoted with references to academic articles and books, historical materials and travaux préparatoires, UN and state practice, relevant General Assembly and Security Council Resolutions, as well as the International Court of Justice (ICJ) jurisprudence. Many of the authors who contributed to the first edition of Simma’s Commentary have updated their sections, but the authorship of the Commentary has been noticeably expanded, and several new authors appear in the second edition. These include the two assistant editors, Andreas Paulus and Eleni Chaitidou, as well as Georg Nolte, Michael Gerster and Christian Tams, to name but a few. The Commentary’s expansion is reflected not only in the number of authors but also in its size: it has grown from 1258 pages (including the index) to 1405 pages (excluding the index), and is now presented in two separate volumes. The basic structure of the first edition has been maintained, as have the useful special sections. These deal with the history of the Charter (pp 1-12), interpretation of the Charter (pp 13-32), the preamble (pp 33-37), self-determination (pp 47-63) and peacekeeping (pp 648-700). The section on peacekeeping is appropriately located between information on Chapters VI and VII of the Charter, thus underlining the uncertainty that attends discussion of the legal basis of such missions. But as Michael Bothe notes, ‘[w]hether a situation falls under Chapter VI or VII, is … primarily of significance for the formal powers of the SC. In practical terms, however, the problem is not relevant, as these peacekeeping forces have never been imposed upon the parties to a conflict; the agreement of the parties concerned was sought and given in all cases’ (p 684).
One problem that might be foreseen with a publication such as the Commentary, where over 70 individual authors have contributed sections, is accurate cross-referencing between sections to aid the reader and to ensure that consistent views are expressed or, at least, if divergent views are expressed, that this is noted. In a living document like the UN Charter, many issues can feature in several places. The issue of self-determination, for instance, as well as being addressed in a special section, is raised by articles 1, 2(7), 73 and 74 of the Charter. On the whole, the rather tedious, but important, task of cross-referencing has been performed quite thoroughly. On one occasion, however, this process appears to have been overlooked; this is with respect to the question of the legality of humanitarian intervention as a justification for the use of force. This question was brought into focus in the context of the North Atlantic Treaty Organization’s (NATO) 1999 bombing campaign in Yugoslavia. In the section on self-determination, Karl Doehring recognises that historically, ‘the overwhelming view in international law inclined towards a rejection of humanitarian intervention’, but then argues that ‘[i]t is inconceivable that the community of nations should remain inactive in the face of extremely brutal treatment of a minority group, for example mass killings, because every developed legal system recognises the lawfulness of self-defence and of rendering assistance in such cases’ (p 63). Later, in the section on article 2(4), Albrecht Randelzhofer argues in contrast that ‘[u]nder the UN Charter, forcible humanitarian intervention can no longer … be considered lawful. As a consequence military actions taken by NATO forces against Yugoslavia from March 24 until the beginning of June 1999 … were not compatible with public international law’ (p 131). Unfortunately, Doehring and Randelzhofer do not refer to each other’s views, although neither author claims his position to be universally held, and both refer extensively to the writings of others. Later, Georg Ress and Jürgen Bröhmer go some way towards making amends by referring to the writings of both Doehring and Randelzhofer in their consideration of whether the NATO action complied with the provisions of article 53 on enforcement action by regional organisations (p 869). Another instance of disagreement is provided by the discussion by Jochen Frowein and Nico Krisch as to which resolutions of the Security Council should be considered binding. For them, it is only resolutions adopted under Chapter VII (p 727). Frowein and Krisch do refer to Jost Delbrück’s dissent, in which he states: ‘A closer analysis reveals that the opinion according to which Art 25 declares only those decisions to be binding which are taken by the SC under Chapter VII, ie decisions on enforcement measures, is not tenable’ (p 456). The lack of accord among the authors in no way impoverishes the book; on the contrary, it enlivens its analysis of the Charter provisions, so long as the reader is aware of the differing views.
Another significant role adopted by the UN in the last decade is that of administering territory in states that are, for various reasons, lacking infrastructure and unable to fulfil certain administrative functions. This aspect of UN activity is also addressed by numerous authors in the Commentary, including Paulus in his section on article 29, dealing with the creation of subsidiary organs of the Security Council (p 553); Bothe in the peacekeeping section (pp 681-83); Frowein and Krisch in the introductory chapter to Chapter VII (p 710); and also in their section on article 41 (p 743). Here the authors speak with one voice, agreeing that the extent of the role of the UN Interim Administration in Kosovo (UNMIK) and the UN Transitional Authority in East Timor (UNTAET) was unprecedented. Both of these operations undertook not only peacekeeping functions, but effectively provided a form of government, including the exercise of executive, legislative and judicial power. While Kosovo and East Timor are not the first examples of international territorial administration, previous UN administrations have had more circumscribed roles, as was the case in Cambodia from 1991-93 (pp 672-73).
It is impossible in this review to address each of the many impressive components of this reference tool par excellence. The second edition of the Commentary maintains the high standards set by the first edition, and represents a substantial contribution from a group of scholars whose country has already given much to the study of public international law, such as Rudolf Bernhardt’s Encyclopaedia of Public International Law. The Charter is a document that is difficult to amend, but the environment in which the UN operates is ever-changing. At the time of writing this review, the Charter system for the maintenance of international peace and security faces yet another challenge, perhaps one of the biggest crises of its 58-year history. On 20 March 2003, United States, British and Australian forces used force to enter Iraq in an attempt to disarm Saddam Hussein of his weapons of mass destruction and effect regime change. The legality of Operation Iraqi Freedom is, naturally, a question that has been debated vigorously by international lawyers around the world. The revising of Simma’s Commentary is surely a mammoth task, but in light of current events, there is certainly new material to be included regarding articles 2(4) and 2(7), should Professor Simma continue to produce editions after he has assumed his responsibilities as a judge of the ICJ. The interpretation and application of the Charter’s provisions is a task that requires constant reflection; the role of commentaries, to show how provisions are used in practice, is one that this work admirably fulfils.
Chester Brown[∗]
ST. JOHN’S COLLEGE
UNIVERSITY OF CAMBRIDGE
Michael Tilbury, Gary Davis and Brian Opeskin
(Oxford University Press, Melbourne, 2002, ixii + 1041 pp)
Conflict of Laws in Australia, a cases and materials text, which according to its three high-calibre authors was written ‘with the needs of students and practitioners firmly in mind’, is, with over a thousand pages, a rather heavy tome and is bound to frighten all but the dedicated and industrious students of the subject. Yet, it is no small feat to accommodate in any nearly comprehensive fashion within a single book a subject like conflict of laws, which spans the whole area of private law and has recently been subject to many significant developments: and comprehensive and informative – as far as Australia is concerned – this book is. Of course, at the end of the day it is down to the authors to set priorities and in this case to decide how much of the original material to include or not to include. Tilbury, Davis and Opeskin are aiming high and decided to go for generous extracts. As a pedagogical tool this is laudable. Rather than serving the ratios of cases to students on a plate for easy digestion, this book encourages students to actually study and to extract for themselves what is important. It is not as if the authors do not give them a helping hand. Preceding the extracts are visually effective shaded boxes within which the authors summarise the main legal principles; the extracts are followed by critical and to-the-point commentaries that put them into the wider legal context. So Conflict of Laws in Australia strikes a sleek balance between promoting independent study and critical reading and making it easy for students to access the legal knowledge they need to pass their examinations.
The book broadly follows the structure of the highly successful treatise Dicey and Morris on Conflict of Laws and proceeds from the general to the specific, from general conflict-of-laws principles to the application of these principles to discrete areas of the law, in this case family law, the law of obligations and property law. Such organisation certainly makes sense as it allows students to see the wood before closely examining the trees.
Tilbury, Davis and Opeskin made a wise decision in structuring the first main part (unlike the Dicey and Morris classic) to reflect the three main areas of inquiry of conflict of laws, that is, jurisdiction, choice of law and enforcement of foreign judgments. As a side note, rather than a criticism, it may be noted that it is a shame that this textbook, like admittedly every other textbook on the topic, does not view conflicts of law within the broader parameters of regulatory competence in general, including principles governing transnational criminal activity. Anyone interested in the general regulation of transnational activity is bound to struggle to work out the exact relationship of conflict of laws, focusing on private law on the one hand, and jurisdictional principles under public international law, focusing primarily on criminal/public law on the other. It may be asked whether in view of the great proliferation of transnational activity it is not time to redraw the boundaries of these two, traditionally treated as entirely discrete, areas of law and integrate them within a coherent whole. Ultimately, whether the transnational act or scenario raises issues under private or public law, the types of question raised in terms of regulatory competence are the same (as illustrated in Akehurst’s ‘Jurisdiction in International Law’)[1] does the state or its courts have adjudicative, legislative and enforcement jurisdiction? For sure, the principles governing these questions are very different depending on the private or public nature of the cause of action, but can these differences not be exploited to reflect upon the nature of the principles and the relationship of states and legal systems with each other? It would certainly catapult to the forefront the fundamental issue of why different jurisdictional regimes exist for private and criminal/public law in the first place. Be that as it may, Conflict of Laws in Australia bravely breaks with tradition by including an entire chapter on the ‘Territoriality of Laws’ in which the authors ponder the territoriality principle under public international law and its role and evolution within choice of law principles. The question is whether they could have gone a step further and integrated competence questions in relation to transnational crime throughout the first part of the book.
For those interested in the jurisdictional issues arising out of transnational online activity one real disappointment will be the coverage of this topic in the book. The index includes neither a reference to the term ‘Internet’ nor ‘website’ and the text itself appears only once to refer to, and very briefly discuss, the electronic media in the context of defamation. Given that the Internet has not only triggered a skyrocketing of transnational activity but also a very lively discussion, to say the least, of regulatory competence at business, academic and governmental level across the globe, it is strange indeed that the authors did not consider that the topic merited more than half a page of discussion. Quite apart from that, for students of the subject the online context certainly helps to liven up what are often very technical and complex legal principles. Perhaps one of the reasons why Tilbury, Davis and Opeskin did not do so is that their text specifically focuses on the laws of Australia where very few relevant court decisions deal with the electronic media and, indeed, the publication of the book preceded the high-profile High Court decision in Dow Jones & Co Inc v Gutnick.[2] Thus, for example, the vast body of United States case law on personal jurisdiction in the online context, the EC Regulation on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters (of 22 December 2000, replacing the Brussels Convention) and its treatment of jurisdiction in relation to electronic consumer contracts, as well as other decisions on the topic handed down by courts around the globe, fall effectively beyond the scope of the book. Fair enough.
One general question this raises, though, is whether it is indeed desirable to draw the boundaries of enquiry of a conflict of laws textbook along the boundaries of a particular country, particularly as the subject itself seems intrinsically transnational. The authors may contend, first, that the book as it stands is already a heavy tome and, second, as in fact they do say private international law is no more international than, for example, contract law (p 7). Little can be said in response to the first objection, possibly apart from noting that priorities could be set differently. As to the second point, while there are as many conflict of laws regimes around as there are municipal legal systems, that is hardly a good thing, but rather a source of great legal uncertainty as far as transnational actors are concerned, as the authors themselves acknowledge (p 23). This explains the drive for the international harmonisation of conflict rules, for example, by the Hague Conference on Private International Law. But harmonisation or at least approximation of laws can also occur more informally if, for example, judges regularly take note of persuasive foreign judicial authority.
A textbook that aims to be a comprehensive and authoritative guide on the subject but then narrowly focuses on the laws of one country cannot but reinforce parochial legal thinking, rather than a spirit of mutual learning and cooperation. Do academics not carry a special responsibility in terms of the mindsets they mould in the future practitioners and judges through their teaching and textbooks? Also, those lawyers practising in the field of transnational litigation need to be broadly familiar with the conflicts rules prevailing, for example, in North America or Europe. Again Tilbury, Davis and Opeskin are in good company in relation to their single-country-focus approach and for that reason the above question is one generally posed rather than specifically directed at Conflict of Laws in Australia. It should not, and cannot, detract from the many strengths of the book in terms of comprehensiveness, clarity, analysis, structure, presentation and general utility as a teaching tool and reference book for practitioners.
Uta Kohl
DEPARTMENT OF LAW
UNIVERSITY OF WALES, ABERYSTWYTH
Jean-Pierre L Fonteyne, Anne McNaughton and James Stephen Stellios
(Lawbook Co, Sydney, 2003, xxviii + 301 pp)
How times have changed. In the late 1980s early 1990s, when the representatives of the main publishers used to visit the Law School in Hobart to discuss ideas for textbooks, we regularly suggested a textbook on international law aimed at the Australian market. They regularly assured us there was no real market and, in any case, everyone was content to use the British textbooks. Maybe they just did not fancy the proposed authors.
For most of the 1990s there was little alternative, apart from Ryan’s ageing multi-author International Law in Australia (generally very good) and then, as an alternative to Harris’ Cases and Materials on International Law, the Reicher-edited Australian International Law: Cases and Materials. Of course there was also Starke’s International Law, subsequently written by Ivan Shearer, but while written by Australians it was not written for Australians.
There are now many more resources available to students of international law in Australia. This book is one of them. It does just what it says on the tin: it provides an Australian supplement to Harris’ book. So, it does not purport to reproduce the necessarily international fundamentals that apply to all countries. Rather it aims to highlight the particular Australian perspective on international law and the country’s active participation in the international community. For this reason it does address matters of universal relevance, including sources, personality and the use of force. But it also, crucially, deals with issues that of necessity must be, at least in part, peculiar to Australia, such as the relationship between international and domestic law, human rights protection in Australia and Australian practice to treaty-making. It is absurd that anyone learning these subjects should have to use British sources, except of course to gain a comparative perspective.
The book’s preface does not indicate this, but as a supplement to Harris it is clearly aimed at the student market: which means, of course, that students will have to buy two books instead of the one if they really want to obtain a comprehensive treatment. That said, it will be a very useful reference tool for a much wider range of legal practitioners. The book is also user-friendly. The notes contributed throughout by the authors-editors help greatly to clarify the extracts and, sometimes, to tell the reader what happened next.
There is one important omission: refugees. Of course, Harris barely addresses the matter in his book. To that extent it is quite justified to keep refugees out, just as Australia does (or is often perceived as doing). But, given the wish to demonstrate the particular Australian perspective, it would have been good to see something on this in the human rights chapter. The 1990’s debate on East Timorese asylum seekers and effective nationality, plus of course Australia’s recent practice with regard to asylum seekers off-shore (be they on boats on the high seas or in camps in south-east Asia), are surely worth inclusion. The choice of material would also have done much to raise the excitement level for many of the readers.
That one matter aside, the book is very useful indeed. One may disagree with some of the sources included, but that would apply to anybody’s selection except my own. The book deserves to achieve widespread circulation.
One last point: while one may reasonably query why each jurisdiction or market would even need to reproduce the same inevitable extracts from the North Sea Continental Shelf Cases and the Nicaragua Case (the international lawyer’s Donoghue v Stevenson), the fact remains that Harris’ book is rightly and inevitably the work of that individual. The choices are his. In publishing an Australian supplement to that work the authors are in a way endorsing those choices. Perhaps there remains scope not so much for an Australian supplement but for a self-contained Australian cases and materials.
Ryszard Piotrowicz
DEPARTMENT OF LAW
UNIVERSITY OF WALES, ABERYSTWYTH
Sarah Joseph, Jenny Schultz and Melissa Castan
(Oxford University Press, Oxford, 2000, xxxv + 745 pp)
In their preface to The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, Sarah Joseph, Jenny Schulz and Melissa Castan note that the publication arose out of the need for a coherent and analytical collection of the jurisprudence of the United Nations (UN) Human Right Committee. The authors’ aim is laudable, and the resultant publication makes a most creditable contribution to systematising and making accessible the work of the Human Rights Committee in the exercise of its various functions. Those functions are the rendering of ‘views’ in relation to individual communications pursuant to the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), the adoption of ‘general comments’ concerning the normative content of particular provisions or implementation of the ICCPR generally, and ‘concluding comments’ in relation to periodic reports submitted by states parties on implementation of their obligations under the ICCPR. It is these views, general comments and concluding comments, which are frequently referred to as constituting the ‘jurisprudence’ of the Human Rights Committee.
Despite the significant number of states parties to the ICCPR and to its First Optional Protocol, the procedures, potential and limitations of the Human Rights Committee and other UN human rights treaty bodies are not widely known and understood. Indeed in recent years, in some countries, including Australia, it is this latter aspect – limitations – that has gained particular prominence. For example, in the recent native title decision of the High Court of Australia, Western Australia v Ward; Attorney-General (NT) v Ward; Ningarmara v Northern Territory[4] (Miriuwung Gajerrong), Callinan J rejected the view, expressed by the Committee on the Elimination of Racial Discrimination[5] (CERD Committee) in a general recommendation, that indirect discrimination is proscribed under the Convention on the Elimination of All Forms of Racial Discrimination. According to Callinan J:
[T]he views of the Committee and of other UN human rights bodies are not binding on States, are often controversial, and represent neither State practice nor opinio juris (the recognition by States that a practice is binding as a matter of law).[6]
These somewhat unsympathetic remarks, obiter dicta, highlight the uncertain and ill-defined juridical quality of the views, comments and observations adopted by the human rights treaty bodies pursuant to their various procedures. As The International Covenant on Civil and Political Rights: Cases, Materials and Commentary demonstrates, the depth of analysis, rigour of reasoning, and evenness of coverage of the Human Rights Committee’s elaboration upon the normative content of the ICCPR can vary. At the same time, it is noteworthy that other justices of the High Court have, from time to time, found the views and general comments and observations of treaty bodies of assistance in resolving disputes before them.[7]
The Australian government’s at best ambivalent relationship with the UN human rights treaty system is also a matter of public record. On 29 August 2000, the Minister for Foreign Affairs, Attorney-General and Minister for Immigration and Multicultural Affairs announced that the government would take strong measures to improve the effectiveness of the UN human rights treaty bodies. Cabinet had decided that Australia’s strategic engagement with the treaty committee system would depend on the extent to which effective reform occurred. The government proposed to ‘adopt a more robust and strategic approach to Australia’s interaction with the treaty committee system both to maximise positive outcomes for Australia and enhance the effectiveness of the system in general’.
These (and many other) examples illustrate the difficulties, political and jurisprudential, that attend the work of UN human rights treaty bodies, the pre-eminent of which is, on many accounts, the Human Rights Committee. Some of these difficulties tend to be emphasised by those states whose human rights performance has been the subject of (appropriate) adverse comment. This species of criticism reacts against interference in the affairs of avowed democratically-elected, human rights-respecting states. The need for renewal and reform of the treaty system cannot be supported by reference to the temerity of treaty bodies in criticising the human rights performance of particular self-regarding and thin-skinned states. Rather, discussion of the need for reform must commence with acknowledgment of the structural limitations inherent in the procedures conferred upon the treaty bodies in the first place, and in the resources allocated to the performance of their functions. It is largely these difficulties that inhibit the development of a well-reasoned, coherent and rigorous jurisprudence. Such difficulties include the ill-defined nature of the status of the treaty bodies (they are not judicial bodies: an early proposal by Australia for the establishment of an International Court of Human Rights did not gain wide support), and the unenforceability and ambiguous juridical quality of their views and comments. These structural limitations, compounded by manifestly inadequate funding, make it too easy for states displeased by unfavourable outcomes to dismiss the findings of treaty bodies, and the remedies recommended by them, as lacking objectivity, non-binding and easily ignored.
For legal practitioners seeking to make the work of the treaty bodies meaningful in domestic practice, one aspect of the Human Rights Committee’s work has been particularly problematic. It may be true that the Committee’s views are issued ‘in a judicial spirit’.[8] However, in rendering individual views, the Committee has tended to focus on summarising submissions and finding facts, rather than formulating rules and principles that can be used to decide comparable cases. As Joseph, Schulz and Castan observe, the Human Rights Committee can be ‘criticized for occasionally delivering judgments which are accompanied by weak, sparse reasoning’ ([1.44]). For example, the Committee’s leading decision in relation to article 27 of the ICCPR and indigenous land rights, Ominayak v Canada, consists of a lengthy, 27-page recitation of the parties’ submissions and a meagre five-line statement of the Committee’s reasons:[9]
Historical inequities, to which the State party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 so long as they continue. The State party proposes to rectify the situation by a remedy that the Committee deems appropriate within the meaning of article 2 of the Covenant.
Similarly, the Committees’ leading decision on the guarantee of freedom of assembly in article 21 of the ICCPR, Kivenmaa v Finland[10] is, as Joseph, Schulz and Castan comment, ‘completely opaque and arguably confused in its reasoning’ ([1.44]).
It may be true that the Committee’s more recent views, general comments and concluding comments ‘generally exhibit more rigorous reasoning than earlier opinions’ ([1.45]). However, from the perspective of those concerned with the development of domestic human rights jurisprudence, the paucity and opacity of reasons that can be used in resolving analogous cases remains disappointing. As Justice Michael McHugh of the High Court of Australia has observed extracurially,[11] reasons are essential, in particular, to the common law judicial method. According to McHugh J, reasons must be structured so as to permit the parties to see the extent to which their arguments have been understood and accepted. They must clearly explain the reasoning process and thereby further judicial accountability. And they must declare and apply a principle or rule at a level of generality that transcends the facts of the case and enables other courts to decide other cases, identical in principle but not in detail, in the same way. Whilst the Human Rights Committee’s work is understandably constrained by the search for consensus amongst its members, it would be unfortunate if that search were to deny the Committee’s work transparency, and hence the impact in domestic legal discourse and upon the actual protection afforded to civil and political rights, which it deserves.
Overall, however, as the authors’ painstaking and thorough synthesis of, and commentary upon the Human Rights Committee’s concluding comments, general comments and view demonstrates, the Committee has made substantial contributions to the development of an international jurisprudence in relation to most of the obligations imposed upon states parties to the ICCPR. They show that jurisprudence has grown considerably in volume and sophistication since the Committee first commenced work in 1977. In Part I, Introduction, the authors provide a thoughtful and enlightening commentary upon the ICCPR (including its relationship with domestic law), the Human Rights Committee (in particular, its various procedures), and the interpretation and development of ICCPR norms (including an overview of the Committee’s decisions pursuant to the First Optional Protocol, the role of precedent, and the applicability of the Covenant in federal states). In Part II, they provide an account of the Committee’s approach to admissibility of communications pursuant to the First Optional Protocol. Separate chapters deal with the ratione temporis rule (which precludes admissibility where the impugned events occurred before entry into force of the First Optional Protocol for the state party concerned), the ‘victim’ requirement (including the standing of entities other than individuals: NGOs, Indigenous peoples, third parties etc, and the admissibility of complaints concerning potential violations), territorial and jurisdictional limits, the non-admissibility of communications that are being examined under another international procedure, and the requirement that domestic remedies be exhausted (including in cases of futile, costly, and unreasonably prolonged remedies).
Part III provides a detailed overview of the Committee’s approach to the substantive guarantees in the ICCPR. Separate chapters deal with the right of self-determination, right to life, freedom from torture and rights to humane treatment, articles 8, 11 and 16, freedom from arbitrary detention, freedom of movement, procedural rights against expulsion, right to a fair trial, prohibition of retroactive criminal laws, right to privacy, freedom of thought, conscience and religion, freedom of expression, freedoms of assembly and association, protection of the family, protection of children, right of political participation, rights of non-discrimination, and rights of minorities. In each chapter, the authors identify the various components of each guarantee, and extract relevant general comments, concluding comments and views. Commentary is provided throughout, and conclusions drawn as to the focus and extent of, and lacunae in the Committee’s jurisprudence. Finally, Part IV contains a chapter dealing with reservations, denunciations and derogations.
In recent years, UN human rights materials have become easily accessible on the internet. However, without systematisation, synthesis and analysis, they are largely impenetrable and difficult to use in practice. The International Covenant on Civil and Political Rights: Cases, Materials and Commentary provides an invaluable resource to human rights advocates, judges, legal practitioners, governments, NGOs, and scholars and students of human rights.
Previously, the only works to attempt a wide-ranging account of the Committee’s work were Nowak’s, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) and McGoldrick’s, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1994). Whilst these remain significant pioneering milestones in recording the development of the Human Rights Committee’s jurisprudence, neither aspired to provide the comprehensive account that Joseph, Schulz and Castan have succeeded in providing. Similarly, in recent years numerous works have provided exemplary accounts of the application of international human rights law in domestic courts – such as Harris’ and Joseph’s (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (1995), Hart, Using Human Rights Law in English Courts (1997) and Jayawikrama’s recent, encyclopaedic, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (2002). The focus of these publications, however, is the development of domestic jurisprudence.
The important contribution made by The International Covenant on Civil and Political Rights: Cases, Materials and Commentary is difficult to overstate. With its timely collation of the jurisprudence of the Human Rights Committee, it stands alone in the human rights literature. If future editions were to be contemplated, it is hoped that the authors might consider a loose-leaf or other format, which would allow for easy updating of the voluminous material presently being generated by the Committee. Such a format would render it a truly indispensable addition to every contemporary law library and legal practice.
Sarah Pritchard
SELBORNE CHAMBERS
SYDNEY
Yuval Shany
(Oxford University Press, Oxford, 2003, lxix + 348 pp)
We are witnessing a significant shift in the approach to the delivery of international justice. The preceding decade, with its extraordinary expansion in the justiciable scope of international disputes, has sparked broad theoretical interest among those convinced of the twilight of state sovereignty and consent, and the development of the international rule of law.
Undoubtedly, there has been some degree of intensification of international interdependence and the consequent attachment to international dispute settlement has been striking. The institutionalisation of dispute settlement mechanisms has been uncoordinated and haphazard, although it has been aided by the relatively recent preference for permanence over impermanence, and the submission by a broad range of states to compulsory jurisdiction. It is increasingly probable that in a dispute concerning important areas of international law between two or more states that one, or possibly more, dispute resolution procedures resulting in a binding decision will be unilaterally available.
The possibility of incompatible decisions and the promotion of a rush to justice could tarnish the positive aspects of the proliferation of international courts and tribunals. The proliferation also poses difficulties for the administration of international justice. Unlike municipal law, public international law has not grappled with these issues for the simple fact that until recently they had not presented themselves.
The Project on International Courts and Tribunals (PICT) has for some years been attempting to shed light on these developments by addressing the interrelationship between all existing international courts and tribunals in a comprehensive and coordinated way. Some of the issues PICT focuses on include: the relationship between the various fora; the actual or potential problems arising from the lack of institutional and substantive coordination; the consequences for overlaps in jurisdiction; and the normative and realistic reforms necessary to improve the administration of international justice. A significant initiative between PICT and Oxford University Press has been the creation of the International Courts and Tribunals Series, of which Yuval Shany’s new book is the first instalment. The book encompasses an updated and revised doctoral thesis submitted by the author to the University of London in early 2001.
The author lists several aims of the work, the first of which is to examine the jurisdictional ambit of the main international courts, tribunals and quasi-judicial procedures and to determine their areas of overlap. The second and third aims are to discuss the potential consequences of the current dispute settlement regimes and to identify positive and normative rules of international law that might govern competition between different jurisdictions. These three aims form the core structure of the book.
In Part I of the book Shany surveys the phenomenon of jurisdictional competition and the three traditional jurisdiction regulating rules, namely, lis alibi pendens, res judicata, and electa una via. These rules will only be relevant when jurisdictional competition arises, which occurs when the disputes and parties are sufficiently and respectively related. Shany goes on to separate international courts and tribunals into four categories: those with universal jurisdiction and general competence; those with universal jurisdiction but specialised competence; regional courts with general competence; and regional courts with specialised competence.
In Chapter 2, Shany maps theoretical and practical overlaps in jurisdiction between these four types of courts, for instance between the International Court of Justice (ICJ), the World Trade Organization dispute settlement bodies, the International Tribunal for the Law of the Sea, the International Criminal Court, the United Nations (UN) human rights treaty bodies, the International Centre for the Settlement of Investment Disputes, the European Court of Justice and so on. That is, disputes capable of being heard before specialised courts can also fall within the jurisdiction of courts of general competence ratione materiae, and the jurisdiction of regional courts is often a subset of more global dispute settlement mechanisms. Of course, each mechanism differs in its scope of jurisdiction over states, individuals and international organisations.
Direct competition may not always occur even where the proceedings are closely related. Shany uses the example of the events that took place in the former Yugoslavia in the early 1990s to illustrate the complexities. Some of the protagonists from this conflict are currently being tried at the International Criminal Tribunal for the former Yugoslavia (ICTY), the ICJ is hearing inter-state claims on the question of state responsibility for genocide and also use of force questions involving the North Atlantic Treaty Organisation (NATO) campaign in Kosovo, the European Court of Human Rights has heard matters brought by individual victims of the NATO bombings, and the ICTY Prosecutor considered bringing charges against certain leaders of NATO. One complex set of facts can lead to the involvement of different bodies and many different areas of international law. Shany also notes that jurisdictional overlaps are not all hypothetical, with the most prolific multiplicity of proceedings regarding related facts occurring in the human rights and trade liberalisation fields.
In the second part of the book the author explores the legal and policy issues surrounding the competitions between the jurisdictions of international courts and tribunals. Shany considers that while international law can be viewed as a system on the normative level, it only enjoys a limited degree of coherence, particularly with respect to its institutions. The linkage between the coherence of a legal system, jurisdiction regulating norms and jurisprudential cooperation is explored in some depth and forms some of the most interesting reading of the entire work. The author suggests a relatively practical approach in promoting the adoption of jurisdiction-regulating rules that would attempt to attain elementary coordination and also reach moderate levels of harmonisation. Shany argues that some degree of competition between adjudicatory institutions might lead to beneficial incentives to do better and attract new business.
The other aspect of Part II is a short comparative discussion of the jurisdiction-regulating norms used in private international law in the principal domestic legal systems, and how they might be implemented or expanded in international law. The leading Australian private international law cases on jurisdiction are cited and some are briefly discussed.
The third part of the book makes a broad inquiry into the jurisdiction-regulating norms found both in the instruments governing international courts and tribunals, and from other sources as applied by these courts and tribunals. It is a highly informative and reasonably comprehensive discussion that brings together the relatively limited practice of law in this area for the first time. Among other things, the author discusses and neatly critiques the award of the Annex VII Arbitral Tribunal in the Southern Bluefin Tuna Case, involving Australia, New Zealand and Japan. The award has been expansively examined by many writers, and Shany argues that an extension of its reasoning would lead to the denial of jurisdiction in cases where parallel, but not identical, specific legal regimes are available. Further, the parties should not have readily been presumed to waive significant procedural guarantees available to them under the UN Convention on the Law of the Sea. If any criticism of Chapters 5 and 6 can be levelled, and it is minor, it is that they are at times repetitive of material discussed elsewhere in the book and many of the leading cases may have deserved a more detailed analysis. One important omission from these chapters, due to the release of the awards in March 2003, was the CME Czech Republic BV arbitrations involving highly-related and two separate proceedings based on two bilateral investment treaties.
The final chapter of the book briefly and somewhat disappointingly discusses options for future improvement, including structural reform, increased judicial cooperation and better strategic planning on the part of states. The greatest hope for enhanced coherence and the avoidance of the negative aspects of jurisdictional competition advocated by Shany appears to be the fostering of a culture of mutuality and comity between the various adjudicatory bodies. Given that much of the book is normative in tone, a more thorough analysis of the options for reform and development was warranted.
The book is particularly relevant for Australian practitioners of international law due to the acceptance by Australia of many compulsory forms of jurisdiction in a wide variety of international courts and tribunals. It successfully demonstrates that jurisdictional competition in international law has become a problem of principle that has the potential of undermining the credibility and legitimacy of international law. As Philippe Sands notes in the General Editor’s Preface, this is certainly a time of transformation and challenge for global governance. The book is well researched (it is perhaps informative that the table of authorities stretches over 42 pages) and is written in an accessible and lucid style. It is a valuable contribution to international legal scholarship that will lay the foundation for further research in the area.
Philip Kimpton
ATTORNEY-GENERAL’S DEPARTMENT
CANBERRA
[∗] David Palmer is currently undertaking doctoral research in the School of Social Work at the University of New South Wales.
[∗] Thanks to Dr Christine Gray and Catherine Tracey for their comments on an earlier draft of this review.
[1] (1972-3) XLVI British Yearbook of International Law 145.
[2] [2202] HCA 56.
[3] This review first appeared in the December 2003 issue of the Australian Law Journal. Permission to reprint from Thomson/Lawbook Co is gratefully acknowledged.
[4] [2002] HCA 28; (2002) 191 ALR 1.
[5] General Recommendation XIV, (1993) [2], in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.4 (2000) at 143-44.
[6] [2002] HCA 28; (2002) 191 ALR 1 fn 769.
[7] Eg in the recent decision of Attorney-General (WA) v Marquet [2003] HCA 67 (13 November 2003), Kirby J (in dissent) at [176]-[180] relied upon the Human Rights Committee’s General Comment on art 25 of the ICCPR, as well as various views adopted by the Human Rights Committee in relation to individual communications complaining of derogations from the requirements of art 25. Justice Kirby at [178] found it helpful to cite the work, which is the subject of this review. See also references by the High Court to the jurisprudence of human rights treaty bodies in, inter alia, Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 307 per Mason CJ and McHugh J; Johnson v Johnson [2000] HCA 48; (2000) 174 ALR 655 at [38] per Kirby J.
[8] Selected Decisions of the Human Rights Committee under the Optional Protocol UN Doc CCPR/C/OP/2 (1988) 1; cited in Joseph, Schulz and Castan at [1.34].
[9] Comm No 167/1984: Canada, 10/05/90, UN Doc CCPR/C/38/D/167/1984 at [33].
[10] Comm No 412/90: Finland, 10/06/94, UN Doc CCPR/C/50/D/412/1990.
[11] The Hon Justice M H McHugh AC, ‘The Judicial Method’, Australian Bar Association Conference, London, England, 5 July 1998, http://www.hcourt.gov.au/speeches/mchughj/mchughj_london1.htm.
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