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Australian Year Book of International Law |
Edited by
Ryszard Piotrowicz
C G Weeramantry
(Sarvodaya Vishva Lekha, Sri Lanka &
Kluwer Law International, The Hague, 1987, re-issued 1999, xiv + 430 pp)
How the international community ought to attempt to solve the dilemmas raised by nuclear weapons has presented one of the most – if not the most – important international conundrums of the post-Second Wold War world. The advent of nuclear weapons, perhaps more than any other development in military weaponry, has challenged the very raison d’être of many branches of international law, especially the law of war and humanitarian law.[1] The idea of weapons that can indiscriminately kill millions of innocent civilians and the possibility that they may be used to do so is, at the least, a moral nightmare. Since the inception of atomic weapons, however, international lawyers have had difficulty in elaborating conclusive answers to the important legal questions of whether nuclear weapons are by their very nature unlawful – and if not – when, if ever, they may be used lawfully in military circumstances.[2]
On 8 July 1996, the International Court of Justice handed down its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, at the request of the United Nations General Assembly. In what has been called a ‘non-holding’, by a vote of seven to seven with the President’s casting vote, the Court determined in dispositif paragraph 105(2) E that ‘the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict and, in particular, the principles and rules of humanitarian law’. The Court also stated that ‘in view of the current state of international law, and of the elements of fact at its disposal’ it could not ‘conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake’.
Without fully deconstructing the votes of the judges,[3] the equivocal and ambiguous nature of the Court’s determination is readily apparent.[4] In dissent, Judge Weeramantry wrote about the Court’s dispositif paragrah 105(2) E:
My considered opinion is that the use or threat of use of nuclear weapons is illegal in any circumstance whatsoever. It violates the fundamental principles of international law, and represents the very negation of the humanitarian concerns which underlie the structure of humanitarian law. …I regret that the Court
has not held directly and categorically that the use or threat of use of the weapon is unlawful in all circumstances without exception …
I strongly oppose the presence of the word ‘generally’ in the first sentence. … I cannot assent to a proposition which, even by the remotest implication, leaves open any possibility that the use of nuclear weapons would not be contrary to law in any circumstances whatsoever. … The main purpose of [my] opinion is to show that, not generally, but always, the threat or use of nuclear weapons would be contrary to the rules of international law …
The second paragraph of 2 E states that the current state of international law is such that the Court cannot conclude definitely whether the threat or use of the weapon would or would not be lawful in extreme circumstances of self-defence. It seems self-evident to me that once nuclear weapons are resorted to, the laws of war … take over, and that there are many principles of the laws of war … which totally forbid the use of such a weapon …[5]
In 1987, nine years prior to the delivery by the ICJ of its Advisory Opinion, Judge Weeramantry outlined identical absolutist views in a text entitled Nuclear Weapons and Scientific Responsibility. In 1999, the book was reissued in its original form with the addition of three new appendices containing Weeramantry’s dissenting opinions in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, as well as Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgement of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case and Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion of 8 July 1996). Given that no major international law periodical issued a contemporaneous review at the time of first publication, the reissue of the text seems like an opportune moment to look at this out-of-print but important work.
There are a number of approaches, both legal and extra-legal, that might aid in the solution of the seemingly intractable predicament created by nuclear weapons. The tack Weeramantry adopts in the instant text is to focus on those engaged in the manufacture and production of nuclear weapons. It is apparent to Weeramantry’s ethically attuned mind that science might be leading humanity toward common ruin rather than to ever-better panaceas. This dire prospect was vividly depicted by Jonathan Schell in The Fate of the Earth (1982) in connection with nuclear weapons. Weeramantry hopes that his text will provide information readily accessible by, and widely disseminated within, the nuclear scientific community in order to help scientists to debate and clarify their role in nuclear arms production, with a view to promoting the ultimate renunciation of such work.[6] To this end Weeramantry contends that scientists who decide to involve themselves intentionally in military applications of nuclear technologies need to be alerted to not only the peril that they continue to expose the world to, but also the many questions of conscience and legality that are associated with their work.[7]
The crux of Weeramantry’s text is that personal international criminal responsibility attaches to nuclear scientists and technicians who knowingly participate in some aspect of the manufacture or improvement of nuclear weaponry. The argument leading to this proposition proceeds as follows in Chapters Six to Nine: first, nuclear weaponry is in all circumstances illegal under international law and the threat or use of such weapons constitutes a crime against humanity;[8] second, that purported justifications for possession, threats or use of nuclear weapons are without merit; third, the illegality of production of nuclear weapons follows directly and inescapably from the illegality of their use; and fourth, personal responsibility under principles of international law attach to scientists and technicians knowingly engaged in the production of nuclear weapons (chs six-nine).
Interestingly, at least in 1987 when the text was first published, Weeramantry did not seem entirely convinced of the legal normativity of the ultimate proposition he advances. Rather, appearing to concede its status as lex ferenda, he writes, ‘[o]nce the proposition advanced in this work [of personal responsibility of nuclear scientists] becomes accepted as a principle of international law, as the author believes it will, collaborative work between scientists and lawyers will need to be done to draw distinctions, to circumscribe limits of responsibility and, to outline principles of exemption.’(p 2).
Regardless of whether one agrees with Weeramantry’s absolutist position on the more basic, predicate question about the illegality of nuclear weapons – a position abundantly demonstrated by Weeramantry in his dissent quoted above – it is certain that the arguments Weeramantry advances are tight, heavy on reasoned analysis and supported by persuasive authority. The arguments also buttress (as does his dissent) those portions of the Order by the ICJ in Legality of the Threat or Use of Nuclear Weapons that afford a basis for a conclusion of illegality. Weeramantry does not shy away from confronting the difficult counter-arguments supporting either legality or non liquet. For example, he considers the justification of military necessity in order to preserve ‘the life of a nation’ – the basis of the flip-side of the ICJ’s Order tending to support the conclusion of legality – and concludes that even a threat to the continued existence of a state cannot constitute a sufficient legal reason for the deliberate act of killing millions of innocent people. He continues that the
attitude [behind the doctrine of military necessity] is a supreme example of the dominance of traditional thinking and the failure to realize that the entire set of assumptions underpinning that thinking has fallen away. One may operate freely within a framework only so long as the terms of the operation do not exceed the scale of the framework itself … When conflict was a matter of sacrificing tens or hundreds of thousands of men, or even a few million as in World War II, the reservoir of mankind was still large enough to take the blow and survive. But when the magnitude of the sacrifice would be hundreds of millions or billions of people, the operation would exceed the scale of the framework within which military strategy has traditionally been devised. When that happens, the “practical” strategy really has no relation to practicalities at all. In the planning for nuclear war, this attempted divorce of practical planning from morality has reached this limit situation and its unreality stands starkly exposed (p 101).
Of course, one might disagree that any and every use of nuclear weapons will inevitably lead to the death of hundreds of millions or billions. However, there remains a certain logic and attractiveness of the proposition that nuclear weapons, being in a class of their own because of their vast destructive potential, have in some way exceeded the ability of the existing legal framework and normative requirements to ensure that their full destructive potential is never visited upon the world; that nuclear weapons exceed the framework of the traditional state system.
The one peccadillo that may strike readers[9] is that the text is frozen in 1987 and hence does not consider the important developments since then, nor their real world impacts, including the 1998 declarations by India and Pakistan asserting that they are now nuclear powers, and the growing concern over terrorist acquisition of nuclear weaponry or use of a ‘dirty nuclear bomb’. More importantly, the political/military context that underpins the text remains mired in Cold War doctrine and assumptions that in many ways no longer pertain.
Be this as it may, the text remains very worthwhile on its own terms. Moreover, the text has much wider application than only to the normative connections between scientists and nuclear weapons. Weeramantry’s sapient analysis provides a grounding for a much needed legal and moral debate about the relationship of scientist and technology with society more generally. With ever accelerating developments in gene technology (including cloning, the release of genetically modified organisms and privacy and identification concerns), human experimentation, reproductive technology and medical technology generally this is an increasingly urgent agenda.[10]
The book is organised in ten chapters. The first five chapters are intended as introductory material leading up to the argument about the individual responsibility of nuclear scientists outlined above. Chapter one provides historical background about the development of atomic weapons and their use by the United States on Hiroshima and Nagasaki at the conclusion of the Second World War. Chapter Two recounts the Cold War arms race, the doctrine of deterrence, non-proliferation in order to provide the ‘present’ military context for nuclear weaponry. Chapters Three and Four do yeoman’s work by establishing the exceptional nature of nuclear weapons and providing details about the vast arsenals of weapons as they existed in 1987. As indicated above, it is the qualitative difference and unique destructive power of nuclear weapons, in terms of catastrophic loss of human life and cataclysmic environmental effects, that underpins the conclusion that the use of nuclear weapons is illegal. We then get to the crux of the text, set out in Chapters Five to Nine, that leads to the conclusion that nuclear scientists and technicians bear personal responsibility under international law for knowing involvement in nuclear weapons program and associated activities. Chapter Ten then sets forth the practical advantages of underlining scientific responsibility.
Scientists are not the only professional community with a special interest in nuclear weapons. Lawyers also have a special interest.[11] As lawyers our function must be, inter alia, to assist in achieving real limitations on nuclear weapons and their eventual elimination by promoting that normative outcome in law. Weeramantry’s bold analysis teaches not only scientists, but also provides illumination for legal debate and critical examination of all aspects of legality associated with the bomb.
Don Anton
AUSTRALIAN CENTRE FOR ENVIRONMENTAL LAW
AUSTRALIAN NATIONAL UNIVERSITY
Marrack Goulding
(John Murray, London, 2002, xxi + 378 pp)
Marrack Goulding is not an international lawyer, and it shows. He has written a most accessible account of his work at the United Nations, as the Under-Secretary-General in Charge of Peacekeeping Operations from 1986-1993 (a kind of Chief Assistant to the Assistant Chief), when he moved to the Department of Political Affairs. Given his British nationality, this is about as high as he could expect to go in the United Nations.
For someone who spent 26 years working for the British diplomatic service, Goulding’s account comes across as a remarkably frank one, though conspiracy theorists will no doubt see that as a smokescreen for the really dirty work that goes on behind the scenes. The highlight for me is the way in which Goulding describes his professional relations with, and the modus operandi of, successive Secretaries-General, first Javier Pérez de Cuellar and then Boutros Boutros-Ghali. For good measure Goulding was also Kofi Annan’s boss. Goulding is civil throughout but the mutual distrust and dislike between the author and Pérez de Cuellar that resonates from the pages is a delight to contemplate (just one example: ‘On Thanksgiving day 1991 Aimé [a colleague] came to tea to discuss what could be done to save Pérez de Cuellar’s reputation in the five weeks that remained before his departure. It was not a topic I found interesting but out of friendship for Aimé I went along with it’).
But what is in it for the international lawyer? Actually, quite a lot. At the basic level, Goulding’s explanation, in a short second chapter, of the different members of the peacekeeping family, from traditional through preventive to multifunctional and finally complex emergency, is very lucid, as is his account of peacemaking, peacebuilding and peace enforcement. Students of international law will find it coherent, straightforward and accurate.
In the bigger picture, though, the book’s value lies in its account of how the UN actually operates on a day-to-day basis: behind the scenes descriptions, from the politics at headquarters in New York to the dangers of work in the field, the problems of dealing with peacekeeping forces that may well be getting their orders not only from New York but from their own Defence Ministries. Goulding has been at the centre of it and it shows. Not only that, he writes well and brings the personalities to life, warts and all. Compare this work with the last volume of Willy Brandt’s memoirs.[12] Brandt was one of the major political figures of the twentieth century, who encountered everybody who was anybody during a stellar career in German and international politics, yet managed to produce a seriously boring volume that concealed more than it revealed, so anodyne one wondered if he was even awake at the time. It is not enough to be on the scene to bring it to life afterwards.
Goulding’s trick (in the best sense of the word) is that he sucks you in; you really feel you are part of the action: and there is plenty of action, as his accounts of his time in the field make very clear. This was international law in action, underpinning major political events, in the face of armed conflicts all over the world. From this book we get an insight into how those at the sharp end could use, and were restricted by (for better or worse), international law. It demonstrates the limitations of the law, highlighting the perhaps obvious, but often forgotten, point that law, international or otherwise, is only one factor amongst many that motivate human and state actions.
Goulding also allows himself to reflect on the state of the UN in the post-communist era, particularly on the perception that has arisen in some quarters that the west has too much influence in setting the agenda. He is not saying the perceptions are accurate, nor suggesting the adoption of some moral relativism in the face of differing world outlooks; his point is just that these issues are there, and it is something we should think about when we are considering how the UN is to function effectively.
This analysis of the UN is hard and it is realistic, but it is not cynical. The good finds a mention as much as the bad and the ugly. Buy a copy, but don’t lend it to Javier Pérez de Cuellar.
Ryszard Piotrowicz
DEPARTMENT OF LAW
UNIVERSITY OF WALES, ABERYSTWYTH
Edited by Bas Arts, Math Noortmann and Bob Reinalda
(Ashgate, Aldershot, 2001, xvi + 318 pp)
The literature on non-state actors in the international field is burgeoning, this collection being one of the earlier volumes in an ongoing series entitled Non-State Actors in International Law, Politics and Governance, published by Ashgate. This interest in the role of non-state actors is a welcome corrective to the state-centred focus of much writing and debate on contemporary international law and relations, and is evidenced also by the recent appearance of such journals as Non-State Actors and International Law. This particular book has very much a Dutch base, the three editors and all the contributors working from academic institutions in The Netherlands. That in itself maybe an interesting comment on the provenance of this interest, and belief, in the significance of the role of non-state actors. The disciplinary base is also very much that of international relations: only one contributor advertises himself as an international lawyer. That indeed is a relevant comment on this field of research. It seems that legal scholarship in the international law field is still dominated by the ‘Westphalian mindset’. As Reinalda, in his contribution to this collection, concludes:
It seems that the assessment of conceptual manoeuvring and the interpretation of practice by international lawyers is still to a large extent determined by the straightjacket of positivism (p74).
One lesson to be drawn from a reading of and reflection on these essays is perhaps that international lawyers may learn a great deal from this contemporary discourse in international relations. A glance at the international stage at present should convey an evident and active jostling of a diverse collection of entities whose activities are legally significant in some way, ranging from respectable organisations through to belligerent and dangerous groupings. Multinational companies and terrorist organisations claim as much and sometimes more attention than many sovereign states. This fact testifies to the significance of an edited collection such as the one under review.
This is a very useful and highly readable book. The discussion is uniformly crisp, clear and concise and as such provides an excellent opening to the subject for those less-expert readers. As such it deserves a prominent place on student reading lists. The approach taken in the volume as a whole is informative and clearly structured and the referencing supplies a good bibliographical base for the interested reader. To some extent, the Editors concede something of the novelty of the subject. The very first contribution (by the three Editors) poses the question: ‘non-state actors in international relations: do they matter ?’, and some of the subsequent discussion is preoccupied with the disciplinary location of this (new) field of enquiry (notably the contributions in Part One, entitled ‘Three Perspectives: Political Science, Policy Studies, and International Law’), and issues of typology (notably the editors’ concluding contribution). The more substantive sections (Parts Two, Three and Four) explore the subject in particular contexts: first international relations theory, then selected international arenas of activity (labour, trade, the environment), and finally ‘civil society’ (which includes a consideration of organised crime, with Weenik’s contribution on the Russian Mafia). All of this discussion is nicely sign-posted and larger themes in the subject are usefully emphasised. There is a good deal of attention paid to the actual work and significance of different non-state actors and this provides a useful source for those who may wish to deploy argument on the subject.
So, for a legal readership, there is much to learn from a reading of these essays and it is highly recommended for that reason. But at the same time the legal reader may be left with some sense of uncovered territory. One area of the subject that demands fuller (but challenging) discussion is the implications of all of this evidence of significant activity for the character, working and indeed structure of the international legal system. The direction of this (still largely future) domain of scholarship is again indicated enticingly by Reinalda in his conclusion:
the acceptance of international legal personality for non-state actors goes to the heart of the international legal system and changes it into a supra-national legal system (p74).
Exactly! There is much to say about such structural transformation, and Vollard’s contribution to this collection, ‘The De-Territorialisation of Political Authority by the European Union’, is welcome for its probing of the challenge to Westphalian orthodoxy now presented by the European Union as a non-territorial, non-state but hugely significant legal actor.
One further comment may be made regarding the coverage of the discussion in the book as a whole. For the most part the focus of attention is non-governmental organisations (NGOs) and International Inter-governmental Organisations of the conventional and, it might be said, benign kind, such as trade, environmental and human rights NGOs, trade unions, conflict-alerting bodies, transnational networks and aid agencies. With the exception of the Russian Mafia, ‘sinister’ non-state actors do not figure so prominently. Yet some of the most pressing problems of international life are now presented by ‘armed organisations’: insurgent movements, terrorist organisations and organised criminal groups, all of which may also be inter-related in complex and obscure ways. Moreover, there is also the role of large transnational corporations. This side of the subject is concerned not so much with legal personality for purpose of empowerment, but for reasons of accountability.
However, this is not to imply that legal change to recognise the role of such non-state actors is a simple matter of political will, from which all else easily follows. There are considerable problems in relation to the construction of a stable and workable legal identity for many such actors. But attempts may be made, for instance, starting from basic notions of effectiveness and representative roles. This is really just to suggest some of the tasks ahead for both international relations and legal theory. It is encouraging to note that this collection is by its own admission an early contribution to what will be a series of monographs or edited collections. It is certainly possible to agree with the editors’ own self-assessment that this volume is ‘a good start’.
Christopher Harding
DEPARTMENT OF LAW
UNIVERSITY OF WALES, ABERYSTWYTH
Philippe Sands and Pierre Klein
(Sweet & Maxwell, London, 2001, 5th ed, xxxv + 610 pp)
Professor Bowett’s Law of International Institutions was first published in 1964. The 20 years that have passed since the publication of the fourth edition have been marked by a notable increase in the number of international organisations and international dispute-settlement mechanisms, and consequently, the publication of the fifth edition of this work is long overdue. Professor Bowett has now handed over the reins of authorship to Professors Philippe Sands and Pierre Klein, although his contribution in establishing the work as a ‘classic’ is acknowledged in the title of the fifth edition, Bowett’s Law of International Institutions.
Sands and Klein note in their introductory chapter that ‘[t]he purpose of this fifth edition … is not to document and assess all the changes exhaustively’, but rather ‘to provide an introductory overview of the law of international organisations, including international courts and tribunals as a whole’ (p 15). The authors claim to maintain ‘the basic structure and approach adopted by Professor Bowett’. The first chapter provides an excellent historical survey of the emergence of international organisations, and the authors helpfully refer to other leading texts in the field. The recurring theme of the book is one of ‘evolution, not revolution’, as seen in the authors’ argument that the development of international organisations has been ‘a response to the evident need arising from international intercourse’ rather than to the ‘ideological appeal of the notion of world or global government’ (p 1).
Before embarking on Part I, which contains an overview of existing international institutions, Sands and Klein explain their system of classification. The international organisations are broadly divided into those having a global membership, and those with a regional membership. Within these categories, there is a further useful division into organisations with general competence, and those with limited competence. Further sections in Part II list bodies with administrative and judicial functions. One does not envy the authors their task: does the Court of Justice of the European Communities fit within the section on regional organisations, or judicial bodies? Should the regional economic commissions of the United Nations (UN) be considered in the main section on global institutions, or as regional organisations? The compromise struck seems reasonable, and where there are areas of overlap, the cross-referencing is helpful.
Part I covers the UN and its specialised agencies, other autonomous organisations, and regional institutions. Together with the organisational chart, the treatment of the UN organs and agencies goes someway towards unravelling the complex web of the world body. The chapters on regional institutions are arranged by geographical area, being Europe, the Americas and the Caribbean, Asia, the Middle East, and Africa. The chapter on European regional organisations is, predictably, the longest, taking up 48 pages; even before the end of the Cold War, Europe had the most developed ‘institutional landscape’. The authors note the origins of the North Atlantic Treaty Organization (NATO) as a European experiment in the form of the ‘Brussels Treaty Organisation’, aimed at controlling German aggression after the Second World War, and those of the Organisation for Economic Cooperation and Development, originally conceived to administer the funds provided by the United States under the Marshall Plan. That both these bodies can no longer be described as purely European organisations underscores the Eurocentric foundations which have been laid for international institutions; this perhaps also implicitly suggests that the creation of such organisations might be culturally determined. For instance, in contrast to the advanced stage of evolution reached by regional organisations in Europe, the Americas, and Africa, the authors almost apologetically lament the dearth of regional organisations in Asia, and also note that the only organisation of ‘general competence’ in the Middle East is the Arab League, which Sands and Klein conclude to be ‘rather rudimentary’ (p 239). Australia is included in the chapter on Asia, which also includes information on such organisations as Asia-Pacific Economic Cooperation Forum (APEC), the Security Treaty Between the United States, Australia, and New Zealand (ANZUS) and the South Pacific Forum.
Part II examines the functions of international organisations, and the inclusion of these chapters marks a departure from Professor Bowett’s original structure. These are seen as being the legislative or normative function, executive and administrative functions, and finally, the judicial and quasi-judicial function. Here, the authors explain that they essentially ‘take the view that the international legal order reflects elements of the separation of powers’ (p 15). This appears reasonable enough; after all, it seems generally accepted that ‘international organisations are constituted essentially to adopt norms in their fields of competence’ (p 261). The authors admit that the term ‘legislative’ may be misleading, as not all international organisations make binding decisions (p 261); the International Maritime Organisation, for example, can do no more than recommend that its members sign and ratify any relevant conventions (pp 102-5). Sands and Klein also argue that a form of executive power can be attributed to international organisations, ‘concerning the implementation of decisions taken or programs agreed upon by their organs’ (p 297). Finally, the authors’ recognition of a judicial function is also uncontroversial. This aspect of international organisation has perhaps developed most significantly in the past decade, which has seen the establishment of many new international courts and tribunals. The authors wisely leave to one side debates concerning the existence of an ‘international judiciary’ and whether there is an ‘international legal system’, although they do note the emerging problems caused by the ‘proliferation’ of international courts and tribunals, such as doctrinal inconsistency, the problem of overlapping jurisdictions, and forum shopping (pp 436-8).
Part III of the book examines common institutional problems. The first problem identified is the law governing the activities of international organisations. The authors conclude that international organisations have their own internal law, are subject to international law, and must inevitably also comply with aspects of national law. These sources are explored in some detail. Second, Sands and Klein consider the legal personality of international organisations. This question was addressed in the International Court of Justice’s (ICJ) Advisory Opinion on Reparations for Injuries Suffered in the Service of the United Nations. However, there the Court merely held that as the members had ‘entrusted certain functions to it’, the UN had ‘a large measure of international personality’ giving it ‘the competence required to enable those functions to be effectively discharged’. The authors note a difficulty in the Court’s reasoning, being that ‘although it is possible to refer to specific powers as indicators of personality, the court also went on to stress that other powers … not specifically granted in the constituent treaty could be implied from the very fact of personality… In other words, the reasoning is circular’ (p 473). Sands and Klein suggest that the solution is to understand that ‘legal personality has no predetermined content in international law’ (p 473). The third problem noted is the membership and representation of members in international organisations; and finally, the shortest chapter is reserved for a consideration of the financial aspects of international organisations. An analysis of such arrangements is timely, given the practice of the United States of withholding assessed contributions due to its dissatisfaction with UN operations, leaving the UN in financial crisis. The authors note that by the end of 1998 the UN owed 73 countries a total of $872 million for troops and equipment (p 579).
In addition to its sound portrayal of the institutional landscape, this book raises many important questions that will hopefully be pursued elsewhere. One is the responsibility of such international organisations: for instance, as international organisations are subjects of international law,[13] and are consequently subject to the rules of state responsibility, what happens to that responsibility once the international organisation no longer exists? Can the acts of the UN Transitional Authority in East Timor be attributed to the newly independent state of East Timor?[14] A second question is the one suggested by Lauterpacht in 1976; namely, whether the proliferation of such bodies is engendering a ‘common law of international organisation’, whereby a ‘similar approach [is] applied to the interpretation both of international constituent instruments and of other legal documents relevant to the structure and operation of international organisation’.’[15] Sands and Klein tentatively suggest that ‘each organisation may … be considered something of a sub-system’, but this ‘does not preclude the possibility that there may exist a common law of international organisations and that a degree of cross-fertilisation of basic principles might occur’ (p 17). A third issue concerns the judicial function of international courts and tribunals. The 1999 decision of the International Tribunal for the Law of the Sea in the Southern Bluefin Tuna Case[16] in which it set quotas for the total allowable catch, may on one view be regarded as a form of standard-setting, traditionally a legislative function. In addition, the recent practice of the ICJ of issuing practice directions to litigant states indicating which issues should be addressed in pleadings, arguably undermines the view that the filing of memorials is a sovereign act. Accordingly, the proper extent of the judicial function of international courts and tribunals may be another area ripe for examination. In light of these questions, it is perhaps unfortunate that the authors chose not to write a concluding chapter that sought to address, or at least identify, some of these issues.
Professors Sands and Klein have done an excellent job in providing information on a large number of international organisations. This publication will be immensely useful to students, scholars and practitioners of international law and international relations, as well as those who need more than just a basic understanding of each institution. The demystification of these institutions, which are so often villainised by those unhappy with the relentless drive towards globalisation ― a sentiment which the authors acknowledge in their inclusion of a photograph of a World Trade Organization protestor on the cover of this fifth edition, juxtaposed with an image of the inaugural sitting of the UN General Assembly in 1945 ― can only be advanced by a greater understanding of how these institutions are created and how they work. The authors are to be congratulated on making such information accessible in this volume. Needless to say, a scholar’s work is never finished. The recent creation of the African Union, transforming the Organisation of African Unity to a regional organisation with greater powers,[17] serves as a reminder of the evolutionary theme of the book, and hints at the prospect of a sixth edition of this most useful resource.
Chester Brown
ST JOHN’S COLLEGE
UNIVERSITY OF CAMBRIDGE
Shaheen Sardar Ali
(Kluwer Law International, The Hague, 2000, xxii + 285pp plus appendices)
After September 11, commentators have discussed the need for moderate Muslims to counteract the extremists in their midst. The need for non-Muslims to develop an understanding of Islam, the diversity of Muslim opinion and the ways in which the Qur’an may be manipulated by extremists is rarely mentioned. Clearly, however, this is an important task.
This goal cannot be achieved without a deeper knowledge of the status of women within Islam. In her book, Gender and Human Rights in Islam and International Law, Shaheen Sardar Ali acknowledges the way in which women have become symbols of national identity in states such as Pakistan (p 184). This phenomenon has largely been detrimental to women’s rights within these states because of what Ali openly terms patriarchal or male-dominated interpretations of Islamic traditions (p 3 and p 89). However, the failure of the public in western countries to grasp the distinction between Islam – a living religion – on the one hand, and the ways in which it has been ossified through a combination of colonial powers’ neglect or active connivance (p 143) and the machinations of modern elites, on the other, has also lead to the violation of Muslim women’s rights in the west.
The veiled woman is viewed as the ultimate symbol of an oppressive religion and, perversely, Muslim women in Australia have been attacked because of their headscarves, particularly in the weeks after 11 September 2001. Yet, as pointed out by Christine Chinkin and Hilary Charlesworth, the gender dimensions of 11 September have not received much attention.[18] The misogynist views expressed in the will of one of the 11 September hijackers received some media attention, though generally without acknowledging the possibility of a link between his contempt for half of humanity and his ability to take so many lives. Meanwhile, the fact that American John Walker Lindh would go to war on behalf of a regime notorious for its oppression of women – the Taliban – was overlooked in the rush to condemn him for (supposedly) fighting Americans.
Ali undertakes the large task of mining the many strands of Islamic thought and finding resonances with international human rights law. My focus in this review will be on the facts and arguments that Ali brought to my attention. These, naturally enough, given my background as a western feminist and human rights lawyer, were largely on the Islam side of the equation, rather than the international law side.
The book begins by examining the concepts of rights in Islam and international human rights law. I had been aware for some time of the different ways in which Islam, as any religion, may be interpreted either to support or deny human rights and gender equality.[19] I had not realised, however, that the passages in the Qur’an used to deny women’s equality number only six (p 43). It would be interesting indeed to make the equivalent tally in relation to the Bible, as well as to compare the content of the relevant biblical passages.
Before reading the book (and undoubtedly still, despite Ali’s mammoth effort), my understanding of the sources of Islamic law was thin, to say the least. Thus, I found the analysis of the conceptual equivalent of rights in Islam – huqooq – and the layers of interpretation following (or, in some cases, departing from) the Qur’an which make up the shari’a, and the way in which the flowing stream of the shari’a (p 24) has been diverted or dammed in an attempt to forestall positive changes, extremely informative. The subsequent treatment of some of the great debates in international human rights law – such as the differences between rights-based versus duty-based conceptions of human dignity – and the comparison with the way in which western rights discourse has traditionally favoured elites was also insightful.
From this solid premise, Ali moves to look at the ways in which women’s rights are protected, or denied, focusing on the way in which Islam, like international human rights, has moved through three phases of protective, corrective, and non-discriminatory rights. Particularly problematic verses of the Qur’an, such as verse 4:34, which enshrines the notion of male authority over women and includes an equivalent of the disputed Anglo tradition’s ‘rule of thumb’ (by which a woman could be beaten with a stick no thicker than her husband’s thumb)[20] are identified and critiqued. Ali’s demonstration of the way in which principles that reflected, and in some cases tried to remedy, particular disabilities of women that stemmed from their less powerful position in society – such as verse 2:282 of the Qur’an relating to women’s testimony, the principles relating to women’s inheritance, and the institution of the veil itself – have been used to create or entrench gender hierarchies is particularly interesting, if unsurprising.
In the second part of her book, Ali looks at the application or misapplication of women’s rights in Muslim jurisdictions, focusing on Pakistan as a case study. The book is equally as informative and interesting in this section, particularly the section dealing with the North-West Frontier Province of Pakistan which, of course, borders Afghanistan. The basic argument is that an ‘operative law’ – the law in practice as opposed to law on the books – has developed in Islamic jurisdictions which has far more to do with custom than religion. The dated nature of these customs is then returned to in the conclusion, where Ali shows how they may be updated without a wholesale rejection of Islam. For example, she comments that rules concerning portions of inheritance could be changed on the basis that so many households are now headed by women, whereas the current rules reflect the former role of men as primary provider. However, I wanted more conclusions and commentary on the labyrinthine interactions between the shari’a, secular Pakistani law, and customary law in this part of the book. Some of the comments were cryptic or difficult to follow, and oddities in expression and use of punctuation – things which a good editor should have picked up – did not assist.
The final part of the book returns to international human rights law and Muslim states’ response to various treaties. Here, the author treads some well-worn paths, commenting on the weak status of the norm of non-discrimination on the ground of sex as compared with the prohibition on racial discrimination and the question of the many reservations to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Tantalising references are made to the ways in which various reservations could be seen as incompatible with Islam, but these are not fully explored. Interesting facts concerning the participation of Muslim states in the drafting of international instruments, such as the fact that one-sixth of the drafting committee of CEDAW were from Muslim states, are used to good effect in countering the disingenuous and political usage of Islam by many countries. Ali also makes some interesting comments on the well-ratified state of the Convention on the Rights of the Child (CRC) and the possibilities of using the CRC as a Trojan horse whereby the rights of the girl-child could be established, making it easier to achieve equal rights for adult women. This is a point well taken, although one reservation might be the potential for the rights of the child and those of women to conflict.
Several Islamic human rights documents, usefully appended to the book, are also explored in this part, namely the Universal Islamic Declaration of Human Rights, the Cairo Declaration on Human Rights in Islam, the Tehran Declaration on the Role of Women in Islamic Societies, and the Islamabad Declaration on the Role of Muslim Women Parliamentarians in the Promotion of Peace, Progress and Developments of Islamic Societies. A discussion of the Arab Charter on Human Rights, along with its failure to attract any ratifications thus far, might also have been worthwhile.
The main criticism I have of the book, which does not at all outweigh the enjoyment and information gained from reading it, is that it deals with far too much information – a welter of laws, norms and principles – leaving the development of some critical ideas to the margins of the book. These ideas crop up as continuing themes but are not always developed in a satisfying way. Nevertheless, as far as I was concerned, Ali’s book certainly met one of its aims, being ‘to build bridges of understanding between women in the West and their sisters in Muslim jurisdictions’ (p 6).
Penelope Mathew
FACULTY OF LAW
AUSTRALIAN NATIONAL UNIVERSITY
Edited by Gabrielle Kirk McDonald and Olivia Swaak-Goldman
(Kluwer Law International, The Hague, 2000, 3408 pp)
Writing in 1997, Theodor Meron reviewed the progress of the International Criminal Tribunal for the former Yugoslavia (ICTY), created by the Security Council four years earlier to investigate and prosecute the perpetrators of serious violations of international humanitarian law committed in the conflict in the former Yugoslavia.[21] In an assessment notable for its frankness and realism, Meron castigated the international community for its ‘collective hypocrisy’.[22] While the decision to establish an international criminal court to try crimes as egregious as the genocide committed in 1990s Europe was a ground-breaking legal and political step, the lack of international support for its work proved so debilitating that, four years after its creation, even its President, Judge Antonio Cassese, was contemplating a premature end to its activities. The ICTY’s first five years were a seemingly unending political struggle for the means to discharge its mandate. It was to be almost 18 months before the Prosecutor assumed office. More than two years after issuing its first indictments, the court had secured custody of fewer than 10 per cent of the individuals charged in them, leaving the purpose-built detention unit in The Hague replete with empty cells.[23] Its first trial was of a low-ranking accused, Dusko Tadic, who had fled to Germany. The German government willingly transferred him to an ICTY eager for an opportunity to establish its credibility and thus create momentum for its work.
Yet, the fundamental legal framework necessary for the Tribunal’s operation already existed. The Security Council acted under Chapter VII of the UN Charter in adopting resolution 827, and endorsed a report by the Secretary-General that stipulated that all orders issued by the ICTY for arrest or surrender of accused ‘shall be considered to be the application of an enforcement measure under Chapter Seven’.[24] Moreover, the governments of the former Yugoslavia, which had the means but not the inclination to arrest or induce the surrender of indictees, had explicitly agreed to co-operate with the ICTY, including by facilitating the transfer of accused and access by ICTY personnel to evidence. Equally important from a practical perspective, The International Fellowship of Reconciliation (IFOR), the North Atlantic Treaty Organization (NATO) peacekeeping force of 60,000 soldiers deployed to secure the implementation of the General Framework Agreement for Peace (GFAP) that ended the active conflicts, also had the authority and means within Bosnia-Herzegovina to execute the ICTY’s arrest and other warrants.[25] However, the consensus among governments overseeing the GFAP held that arresting individuals, including de jure or de facto government leaders, indicted for genocide, crimes against humanity and war crimes could jeopardise the fragile peace in the region. In Meron’s words, the ICTY was becoming a ‘fig leaf for the impotence of the international community’, its very failure an ‘embarrassment’.[26]
It was also in 1997, as Meron’s article went to press, that the international community changed its approach to the region and, as a consequence, to the ICTY. New governments in the United Kingdom and the United States coincided with a recognition that the impunity of war-time leaders emboldened them to obstruct, rather than co-operate, with the transformation of the region from conflict to demilitarised, democratic rule. Although the ICTY continued, and does so to this day, to devote great effort to securing the level of co-operation necessary to the effective and expeditious discharge of its mandate, between 1997 and 1998 the detainee population increased in number and rank, as IFOR’s successor force began detaining Tribunal indictees. In the same period, two new courtrooms opened, the Security Council added a third trial chamber and the court’s budget grew by 50 per cent.[27] At the time of writing, the court has inter alia convicted a former President of the Bosnian Serb Republic and senior military and political leaders, is conducting the trials of a former head of state – former President of the Federal Republic of Yugoslavia, and of Serbia, Slobodan Milosevic, and is in the pre-trial phase of proceedings against leaders of various de jure and de facto authorities that were parties to the different phases of the conflict.
The publication of this three volume work is therefore partly a tribute to, and an indirect consequence of, the political change of fortunes that the ICTY has undergone. Certainly the book’s scope is wider than the ICTY but as it aims to provide an overview of international criminal law as applied and developed through domestic and international courts, the ‘international’ is of necessity heavily drawn from the work of the ICTY and its sister court the International Criminal Tribunal for Rwanda (ICTR), established by the Security Council 18 months after the ICTY and which has experienced its own well-documented internal and external difficulties.[28] Simply put, there are no other contemporary supranational criminal courts from which to draw material. The book would certainly be significant even without the evolution of the substantive and procedural corpus of international criminal law that the international criminal tribunals have confirmed and furthered but, given that 12 of the book’s 15 chapters analyse aspects of the Tribunals’ jurisprudence, and that three are concerned exclusively with ICTY and ICTR proceedings and procedures, the extent of the institutions’ influence on the subject matter is clear.
It is this focus that provides the book’s great strength. The collection situates the experiences and jurisprudence of the ICTR and ICTY in their broader legal context, analysing their rulings and rules as part of the general movement to identify, define and criminalise the most serious international offences. Whereas other texts have interpreted and annotated ICTY and ICTR cases and their Statutes and Rules of Procedure and Evidence, the editors of this work seek to provide an overview of the current practice of international criminal law. As former ICTY and ICTR Prosecutor Louise Arbour explains in her foreword, the book is an attempt to encourage a dialogue between international lawyers, criminal lawyers and other disciplines, with a view to improving the coherence and clarity of international criminal law as an area of practice and study.
The book is a two-volume set. The first contains 18 commentaries, several by leading authorities or practitioners. They begin with a consideration of the individual as an accused in international law, with Kai Ambos providing an historical survey of the jurisprudential development of international criminal responsibility from the International Military Tribunals to the ICTY and ICTR. The five succeeding chapters deal comprehensively with the 'core crimes': aggression, grave breaches of the 1949 Geneva Conventions, violations of the laws and customs of war, genocide and crimes against humanity. This section also illustrates the rapid pace of the development of this area of law. The codification in the statute of the International Criminal Court (ICC) in July 1998 of a global definition of war crimes, as opposed to the Geneva and The Hague strands discussed separately in this book, and the ICTY’s blurring of the practical significance of the distinction between the two[29] portend a greater, teleologically inspired, coherence in the adjudication of war crimes cases. Similarly, the plea at the conclusion of Benjamin Ferencz’s essay on aggression, written prior to the adoption of the ICC Statute, for the international community to curtail ‘war-making … by law’ has been partially answered by the ICC compromise provision that confers jurisdiction once a definition of the crime of aggression has been agreed and incorporated into the statute.
Building on these analyses, four sub-chapters outline the overlapping offences that are among the acts that constitute the core crimes. The last of these is of particular note: the ICTY and ICTR Legal Advisor on gender-related crimes charts the slow and difficult process of international criminalisation of sexual violence. However, for no apparent reason, the discussion seems concerned with only international humanitarian law, thus limiting the analysis of the scope of the prohibitions and protections to situations of armed conflict. This is likely to be a reflection of the historical fact that core crimes are committed during conflict, and of the ICTY and ICTR Statutes’ tendency to reinforce the nexus between egregious international crimes and international humanitarian law.
Three chapters of what are, in the context of the book’s structure, miscellaneous matters begin with a review of crimes against UN and associated personnel. Yoram Dinstein’s chapter on defences, while providing an informative overview, could usefully have been more detailed and included further examples. In an unintentional reflection of practice, many more pages of the book have been devoted to exploring potential charges than to the possible responses that a good defence team might raise to them.
The final piece in this section is a discussion by Ruth Wedgwood of the record of domestic prosecutions of war crimes. She highlights the contribution that national courts can make to the effective enforcement of international criminal law and touches on several controversial features of the discipline, including universal jurisdiction, complementarity and the role and availability of civil suits alongside, or in place of, criminal proceedings.
The remaining five commentaries focus on the ICTY and ICTR. Micha Wladimiroff, who as defence counsel for Dusko Tadic was one of the most constructive external contributors to the development of both Tribunals, provides an overview of the rights of suspects and accused during the various stages of ICTY and ICTR proceedings and discusses the role of defence counsel and the requirements of a fair trial. Christine Chinkin contributes a chapter on the protection of victims and witnesses. As the author of an amicus curiae brief on that subject to an ICTY trial chamber hearing a motion for protective measures in the Tadic Case, she is particularly well-positioned to provide a detailed analysis of the need for special protection for certain classes of witnesses and the normative and practical measures that are present at the ICTY for that purpose.
Three judges of the ICTY (two of whom were members of the joint ICTY-ICTR appeals chamber when they wrote their commentaries) close Volume I with descriptions and discussions of the development of the unique pre-trial, trial and appellate procedures by the two Tribunals. The chapters provide valuable insights into the practical difficulties of conducting criminal trials with multi-cultural, multi-national and multi-disciplinary participants, where the crime scenes are a continent’s distance from the courtroom, and judges, prosecutors and defence counsel are required to collate and assess immense quantities of documentary and live evidence. Reading how the Tribunals have attempted to overcome these hurdles, one is struck by what will perhaps prove to be their most significant achievement: establishing that international criminal law is, for all its limitations, enforceable and operationally feasible.
Volume II is a collection of documents to accompany and contextualise the commentaries. Unfortunately, this part of the book diminishes the practical benefit of an otherwise excellent publication. The 2500 pages of documents are intended to assist readers to ‘form their own conclusions concerning these important topics of international criminal law’, a worthwhile aim given the relative novelty of so much of the field. It is the manner of achievement that is flawed: the vast majority of these materials are available elsewhere, generally free of charge on the internet; and the main documents book is too bulky to be portable. More importantly, as with many other Kluwer publications, the $US742 price of this book is prohibitive for students, many libraries and academics. Given that the documents section is three times the size of the commentaries, and arguably not an essential purchase for most potential readers with an existing interest in the subject matter or with internet access, Kluwer’s marketing strategy once again is a cause for concern. Indeed, in this case it is ridiculous. A sensible pricing structure, which differentiates between the commentaries and the documents, could surely enable more potential readers to buy the book. Moreover, texts such as this one, which are ripe for periodic updates reflecting the developments from the ICTY, ICTR, ICC, East Timorese and Sierra Leonean special courts and domestic courts, might be better suited to more imaginative forms of publication. Documents could be made available through a website or on CD ROM, and the commentaries could be released in loose-leaf format.
Jon Cina[∗]
FACULTY OF LAW
UNIVERSITY OF MELBOURNE
Edited by Michael Byers
(Oxford University Press, Oxford, 2000, xvi + 347 pp)
The disciplines of international law and international relations have kept each other at arm’s length for many generations. International lawyers have tended to look with disapproval on the writings of international relations theorists because of their focus on the raw meat of politics and their apparent lack of appreciation of the elegance of legal principles and the subtle but real constraints the law offers in international politics. International lawyers (like lawyers generally) are often educated to have a suspicion of any type of theory: we are taught that the aim of the law is to produce an objective, impartial solution in a dispute. One true answer can be found, after enough research and rational enquiry. So, when international lawyers agonise about whether international law is really law, they tend to define their role in contrast to that of political analysis and to distance themselves from the slippery, subjective world of political positions.
Scholars of international relations in turn typically dismiss international law as a set of utopian ideals with little basis in reality and regard international lawyers as obsessed with technical detail. Hans Morgenthau, one of the dominating figures in twentieth-century international relations, began his career as an international lawyer and his later relegation of international law to the realm of the ideal and unrealistic had considerable impact. At the same time, as Friedrich Kratochwil’s perceptive chapter in this book points out, realism and legalism have continued to exist in a ‘strange symbiosis’ in both international law and international relations (p 37).
The relationship between the two disciplines has become much more fluid over the last decade. Indeed an academic industry in bridge-building between international relations and international law has sprung up. This was inspired in part by the work of international lawyers who have graduate training in international relations, such as Benedict Kingsbury and Anne-Marie Slaughter, and in part by the interests of international relations theorists such as Oran Young and Robert Keohane. Another prompt for the bridge-building is identified by Stephen Toope in this volume. He claims that traditional understandings of international law and international relations are inadequate to analyse current international issues. Toope studies the area of environmental protection to argue for the significance of ‘contextual regimes’, systems of informal regulation that may generate binding legal norms. One immediate benefit of much closer work between international relations theorists and international lawyers is then its capacity to undermine the insulation of international lawyers from the political nature of their work.
The Role of Law in International Politics is a significant collection of essays. It brings together many well-known scholars in international law and a lesser number of international relations experts. The stated aim of the editor, Michael Byers, now Associate Professor of Law at Duke University Law School, is to promote discussion between the disciplines of international law and international relations and to avoid the facile labels of ‘realist or ‘idealist’. These are worthy academic aims but they require extensive context. Byers’ introduction to the collection is surprisingly brief given his own substantial work in this area, particularly his monograph Custom, Power and the Power of Rules: International Relations and Customary International Law (1999). This book however includes an excellent concluding chapter written by the international relations scholar, Andrew Hurrell, which draws together the major themes of the chapters and provides a valuable background to read them against. Hurrell’s chapter is well worth reading first.
Michael Byers’ objective of discussion across disciplines is fulfilled better by some contributors than others. There are contributors who remain firmly within the boundaries of their own discipline. For example, the former Legal Adviser to the United Kindgom’s Foreign and Commonwealth Office, Sir Arthur Watts, writes about ‘The Importance of International Law’. He presents law simply as ‘a culture of order’ (p 7) without investigating the ways in which the law can in fact be used to justify systemic disorder. This chapter acknowledges that the principles of international law are often ignored by political actors, but it notes that states will always justify actions in legal terms. Watts does not pursue the implications of these observations and simply asserts the significance of international law in international society. The work of Abram and Antonia Chayes on state compliance with international norms[30] would have been a useful resource in deepening Watts’ insights.
I also wondered how Watts would react to some of the provocative epigrams offered by a fellow contributor, Philip Allott, in his chapter on ‘The Concept of International Law’. Allott points to the demoralising of humanity in the international realm: ‘we assign personality to reified ideas of particular social systems (“nation” or “state” or “class”), so that actuality-making choice is isolated from any particular human moral agent or agents, and then we speak of the “intention” of such a systematic process, knowing that a process cannot be morally responsible’(p 88).
The book contains useful sketches of the projects of the bridge-builders. Anne-Marie Slaughter’s chapter ‘Governing the Global Economy through Government Networks’ echoes her earlier work to argue that the international lawyer’s ideas of the state and its sovereignty are outdated and inaccurate. The chapter also contains an extended response to Philip Alston’s feisty critique of Slaughter’s thesis.[31] Slaughter calls for greater attention to the phenomenon of government networks across borders; the way that national courts, administrative agencies and legislators forge significant if informal horizontal links with their counterparts and how this process disperses traditional ideas of sovereign power.
Slaughter acknowledges that her project may discomfort international lawyers by displacing the standard vertical image of global governance. She endorses it nevertheless with some fervour: ‘Every age needs its own idealistic vision: the Information Age will celebrate the exchange of ideas over the imposition of ideology. Networks are the medium for that exchange …’ (p 205). The focus on governmental networks prompts questions about whether they will produce better and more just decisions than the old order. Who is excluded from the exchange of ideas and what ideas are impossible to articulate within the network? What distinguishes ideas from ideology? Christine Chinkin’s chapter, ‘Human Rights and the Politics of Representation’, addresses this point by studying the impact that non-government organisations concerned with the situation of women have had on international standard-setting. Chinkin documents the tight control that states maintain on law-making processes, suggesting that structural inequalities can undermine the value of the international free market of ideas.
Martti Koskenniemi’s chapter offers a rich historical analysis of the call to inter-disciplinarity. He looks at the work of two twentieth-century German jurists, Carl Schmitt and the young Hans Morgenthau, particularly their critique of formal validity and their search for a dynamic form of law that recognised political power. He notes the parallel of the ‘newly heroic liberalism’ that has prompted the bridge-building movement and identifies it as ‘an American crusade’(p 29). The aim of the bridge-builders between international law and international relations, Koskenniemi argues, is to represent international law as the vehicle to spread the values and commitments of the hegemon. It would have been interesting to have included in the book Anne-Marie Slaughter’s response to Koskenniemi’s critique.
Bridge-building between disciplines is of course a complex task. It requires sustained dialogue and engagement and much more than the simple embrace of concepts or methods from another discipline. Very few of the chapter authors in this collection explicitly engage with arguments made by their fellow essayists, giving the book the feel of an anthology rather than a conversation. It is, then, a valuable compilation of some positions, for example Makau Mutua’s trenchant critique of international human rights discourse, Vaughan Lowe’s careful account of norm creation in international law, Brigitte Stern’s meditation on regulation of globalisation and Vera Gowlland-Debbas’ study of the functions of the United Nations Security Council. Eyal Benvenisti’s chapter on the role of international law in domestic politics is very helpful in identifying the influences of domestic constituencies in a state’s acceptance of international law, a much-neglected topic. More discussion of, and interest in, the future disciplinary bridge-building agenda would however have been worthwhile.
The literature overall suggests the occasional foray into disciplinary bridge-building has produced rather rickety structures that do not encourage or withstand much traffic. One plank in the bridge-building endeavour that is strikingly absent in the collection is that between feminist international lawyers and feminist international relations scholars. Feminist analyses of the international order have been a site of extensive exchange between the disciplines.[32]
The cover of the collection of essays illustrates nicely some of the questions that remain inadequately unexplored in its pages. Pictures of young men consulting tomes in a library are overlaid with a photo of a military aircraft, as if to suggest that men poring over cases has a very active element and can lead directly to the unleashing of the use of force. An alternative reading is that military aircraft will go about their business whatever the law books say.
This book nevertheless provides a very useful resource for teachers of both international law and international relations. It offers accessible accounts of a range of theoretical positions in both disciplines and intriguing sparks of disagreement and controversy.
Hilary Charlesworth
CENTRE FOR INTERNATIONAL AND PUBLIC LAW
AUSTRALIAN NATIONAL UNIVERSITY
[1] N Singh and E McWhinney, Nuclear Weapons and Contemporary International Law (1989) 188-93.
[2] For a good recapitulation of the often opposing opinions of legal scholars on the legal status of nuclear weapons up to 1990 see E L Meyrowitz, Prohibition of Nuclear Weapons: The Relevance of International Law (1990) ch III. Not all international lawyers believe that these questions are apropos of legal resolution. Koskenniemi, for instance, argues that a legal approach to these questions cannot attain a determinate regulation of the matter and fails to deal meaningfully with the political and moral dilemmas involved: ‘Faith, Identity and the Killing of the Innocent: International Lawyers and Nuclear Weapons’ (1997) 10 Leiden Journal of International Law 137.
[3] Based on a careful reading of individual declarations, separate and dissenting opinions of the judges it has been argued that the real vote in favour of the general unlawfulness was not 7-7 but 10-4. See R A Falk, ‘Nuclear Weapons, International Law and the World Court: A Historic Encounter’ (1997) 91 American Journal of International Law 64, 67. For a different reckoning see H Thirlway, ‘The Nuclear Weapons Advisory Opinions: The Declarations and Separate and Dissenting Opinions’, in L Boisson de Chazournes and P Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (1999) 390, 398-401.
[4] For detailed treatment of the judgment see Boisson de Chazournes and Sands (eds), above n 3; J Burroughs, The Legality of Threat or Use of Nuclear Weapons: A Guide to the Historic Opinion of the International Court of Justice (1997); C J Moxley, Jr, Nuclear Weapons and International Law in the Post Cold War World (2000); V P Nanda and D Krieger, Nuclear Weapons and the World Court (1998).
[5] Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 433-36.
[6] Weeramantry also intends the text to serve a number of other functions including: sharpening the scientific conscience; creation of a climate of scientific opinion against nuclear weapons; development of an ethical code for nuclear scientists; promotion of an international declaration on duties and responsibilities of nuclear scientists; and channelling science toward peace: ch 10.
[7] Preface to 2nd printing.
[8] Alternatively, Weeramantry argues that, regardless of whether the use of nuclear weapons is a crime under international law, it is nevertheless an international delict entailing responsibility.
[9] Another small quibble is the appearance of several typographical errors, including the felicitous reference to the ‘war of law’ (p 71); something fitting perhaps for the title of a journal article on competing contemporary legal movements.
[10] See generally V Sutton, Law and Science: Cases and Materials (2001). Indeed, Weeramantry has to some extent pushed this agenda already in two texts that he has edited for the United Nations University, Human Rights and Scientific and Technological Development (1990) and The Impact of Technology on Human Rights: Global Case-Studies (1993), as well as the subsequent Justice Without Frontiers: Protecting Human Rights in the Age of Technology (Vol. II, 1998).
[11] W P Nagan, ‘Nuclear Arsenals, International Lawyers and the Challenge of the Millennium’ (1999) 24 Yale Journal of International Law 485; D K Anton, ‘Nuclear Weapons – The Lawyer’s Interest’ (1996) 7 Public Law Review 80; and B H Weston, ‘Lawyers and the Search for Alternatives to Nuclear Deterrence’ (1985) University of Cincinnati Law Review 451.
[12] W Brandt, My Life in Politics (1989; English ed 1992).
[13] Interpretation of the Agreement of 25 March 1951 between the World Health Organization
(WHO) and Egypt (Advisory Opinion) [1980] ICJ Rep 73, 89-90.
[14] See, eg, J Crawford, The International Law Commission’s Articles on State Responsibility (2002) 114-15.
[15] Sir Elihu Lauterpacht QC, ‘The Development of the Law of International Organisation by the Decisions of International Tribunals’ (1976) 152 Recueil des Cours 377, 402.
[16] Southern Bluefin Tuna Case (1999) 38 ILM 1624.
[17] ‘Durban Declaration of 10 July 2002 in Tribute to the Organisation of African Unity on the Occasion of the Launching of the African Union’, <http://www.africa-union.org> .
[18] ‘Sex, Gender, and September 11’, (2002) 96 American Journal of International Law 600.
[19] Like many others, my knowledge had been expanded greatly by the work of Abdullahi An-Nai’m. See A An-Na’im, ‘Human Rights in the Muslim World’ (1990) 3 Harvard Human Rights Journal 13.
[20] It is doubtful that this was a rule of the common law, but the historical evidence certainly suggests that the popular view was that beating wives was acceptable.
[21] SC Res 827, 48 UN SCOR (3217th mtg), UN Doc S/Res/827 (1992), and the Statute of the ICTY annexed thereto.
[22] T Meron, ‘Answering for War Crimes: Lessons from the Balkans’ (1997) 76 Foreign Affairs 2.
[23] See generally ICTY Annual Reports 1994-2002, sections on activities of the Office of the Prosecutor and Co-operation, <http://www.un.org/icty/pub.htm> .
[24] Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, UN Doc S/25704, [125]-[126] <http://www.un.org/icty/basic/statut/S25704.htm> .
[25] See generally ICTY Annual Reports 1995-1997, above n 3; 1996 Yearbook of the International Criminal Tribunal for the Former Yugoslavia, UN Doc E.97.III.P.1, 228-232; P Gaeta, ‘Is NATO Authorized or Obliged to Arrest Persons Indicted by the International Criminal Tribunal for the Former Yugoslavia?’ (1998) 9 European Journal of International Law 174; various authors, ‘Symposium: The Dayton Agreements: A Breakthrough for Peace and Justice?’ and ‘Symposium: The International Tribunal for Former Yugoslavia Comes of Age’ (1996) 7 European Journal of International Law 147.
[26] Above n
[27] See ICTY Annual Reports 1997, 1998, above n 5; ICTY General Information, <http://www.un.org/icty/glance/keyfactindex-e.htm> .
[28] J Alvarez ‘Crimes of Hate, Crimes of State’ (1999) 24 Yale Journal of International Law 365; Office of Internal Oversight Services ‘Report on the Audit and Investigation of the International Criminal Tribunal for Rwanda’, UN Doc A/51/789; International Crisis Group Report (2002) <http://www.crisisweb.org/projects/africa/rwanda/reports/A400721_01082002.pdf> T Howland and W Calathes ‘The U.N.’s International Criminal Tribunal, Is It Justice or Jingoism for Rwanda? A Call for Transformation’ (1998) 38 Virginia Journal of International Law 135.
[29] Prosecutor v Dusko Tadic IT-94-01-A, Judgment, 15 July 1999 [172]-[237].
[∗] Legal Assistant, ICTY, 1996-1999; Special Assistant to the President, ICTY, 1997-1999; Legal Officer, International Crisis Group Humanitarian Law Documentation Project, Kosovo, 1999; Assistant Prosecutor, Serious Crimes Unit, United Nations Transitional Administration in East Timor, 2000-2001.
[30] A and A Chayes, The New Sovereignty (1996). See also S Scott ‘Beyond “Compliance”: Reconceiving the International Law-Foreign Policy Dynamic’ [1998] AUYrBkIntLaw 2; (1998) 19 Aust YBIL 35.
[31] P Alston, ‘The Myopia of the Handmaidens: International Lawyers and Globalisation’ (1997) 8 European Journal of International Law 435.
[32] Eg, J Ann Tickner, Gendering World Politics: Issues and Approaches in the Post-Cold War Era (2001).
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