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Australian Year Book of International Law |
Edited by
Judith Gardam and Penelope Mathew
Edited by Timothy LH McCormack and Gerry J Simpson
(Kluwer Law International, The Hague, 1997, xxvii and 262 pp)
The publication of this collection of essays on war crimes coincides with the fiftieth anniversary of the Nuremberg and Tokyo trials. More importantly it appears at a time when there is a renewed interest in the prosecution of war crimes resulting from the creation of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, the prospect of the establishment of a permanent international criminal court, the enactment of war crimes legislation in Australia, Canada and the United Kingdom and the prosecution of World War II criminals, such as Priebke and Papon, before domestic courts. For the first time since the immediate post–World War II years there is determination to promote the rule of law in armed conflict and military occupation.
Collections of essays on a particular subject frequently fail to cover the field comprehensively or to provide an even quality of treatment. Happily the present collection does not suffer in either of these respects. It provides a thorough account of the history and jurisprudence of war crimes legislation and trials in the context of both international and municipal law through the essays of a diverse range of scholars, who succeed in maintaining a uniformly high standard of description, comment and criticism.
In Chapter One Gerry J Simpson confronts the main criticisms levelled at war crimes trials: partiality (and the exercise of victor’s justice at Nuremberg and Tokyo), retrospectivity, procedural unfairness and the use of the trial to provide legitimation for the victor’s cause. In a thoughtful examination of the political context of the war crimes trial he comments:
The tension between the production of history and the maintenance of judicial propriety is a recurrent motif of war crimes proceedings. The relocation or displacement of history into legal settings has a distorting effect on the story (p 20).
Although Simpson makes no attempt to conceal the injustices that have sometimes been perpetrated in the name of the “war crimes trial” or to justify the failure to achieve evenhandedness in the prosecution of war crimes, he remains committed to the war crimes trial as an instrument of international justice. The purpose of his essay is simply to warn against “the complacent assumptions that the history of war crimes trials is an edifying one” (p 30).
Simpson’s comments on the shortcomings and politicisation of the war crimes trial are equally apposite to the political trial in a purely domestic setting where judicial proceedings are used to authenticate political action (Kirchheimer O, Political Justice: The Use of Legal Procedures for Political Ends (1961)). These trials, whether conducted in repressive or democratic society, are likewise characterised by partiality and by formal respect for notions of legality and procedural fairness only, and are also guided largely by considerations of legitimation. As the international legal order is more vulnerable to criticism than its domestic counterparts, it is wise to recall that while international law may have failed to achieve full justice in its handling of war crimes trials, established and respected municipal system of law have often fared no better in their trial and punishment of political opponents. The political trial, whether conducted by an international court under international law or by a municipal court under municipal law, is a special institution in which the notions of judicial neutrality, prosecutorial impartiality and procedural objectivity associated with the ordinary criminal trial are desirable but seldom achieved. It is the role of the legal scholar to reveal, and not to conceal, this truth in order to advance the cause of justice. Simpson does this brilliantly in respect of war crimes. I merely wish that he had added a tu quoque in respect of the domestic political trial.
In Chapter Two Timothy LH McCormack examines the history of war crimes trials from the sixth century BC until the present. The notorious trials of Peter von Hagenbach (1474), Henry Wirz (1865) and Breaker Morant (1902), the abortive Leipsig trials of 1920 and the non-trial of Kaiser Wilhelm II are considered in the context of the evolution of law and politics on war crimes. The chapter is informative, comprehensive and fair.
Chapters Three to Six consider war crimes in the domestic context, with Europe, Israel, Australia and Canada as the models of study. Axel Marschik’s account of war crimes in Germany, Austria, France and the United Kingdom shows that western European states, although bound by the same international instruments on international crimes, have not responded uniformly in their law and practice. On the contrary, domestic political factors have shaped both the nature and the extent of their response. Jonathan M Wenig’s chapter on Israel, inevitably, focuses on the trials of Eichmann and Demjanjuk. In addition there is an account of the less well-known trials in Israel of Jews who collaborated with the Nazis. In his discussion of the Eichmann case Wenig dismisses the argument that a domestic court should not try a person whose presence has been secured by abduction as persuasive but “unlikely” to be accepted by “any national court” (p 113). This assessment takes no account of recent decisions in which domestic courts have refused to exercise jurisdiction over persons brought before them by illegal means: S v Ebrahim 1991 (2) South African Law Reports 553 (A), Bennett v Horseferry Road Magistrate’s Court [1993] UKHL 10; [1993] 3 All ER 138 (HL).
The chapters on Australia (Gillian Triggs) and Canada (Sharon A Williams) thoroughly examine recent domestic legislation in these countries and the important trials of Polyukhovich and Finta, which show how difficult it is to prosecute persons for crimes committed at another time and in another country.
The final three chapters return to the international dimension. In “Nuremberg and Tokyo in Contemporary Perspective”, Roger S Clark, after an examination of these trials, concludes that the adoption of international conventions outlawing hijacking, hostage-taking, genocide, torture etc represent “the greatest legacy of Nuremberg and Tokyo” (p 187). While it is true these conventions are a legacy of Nuremberg and Tokyo, I would go further than Clark. The human rights movement, which has dominated international law and politics in the post-war era, owes its inspiration to the Nuremberg trial, which destroyed for ever the notion that a State, under international law, is at liberty to treat its own nationals as it pleases.
The concluding chapters examine the ad hoc tribunals for the former Yugoslavia and Rwanda (Christopher L Blakesley) and the International Law Commission’s Draft Statute for a permanent international criminal court (McCormack and Simpson). Both provide excellent accounts of these developments from an institutional perspective. However, the jurisprudence of the ad hoc tribunal for the former Yugoslavia, and the debates in the United Nations on a permanent international criminal court, have taken the topic of international criminal courts into the next stage of development.
Today two procedures are employed for dealing with those guilty of war crimes and crimes against humanity: first, prosecution, either before an international court (ad hoc tribunals for the former Yugoslavia and Rwanda) or domestic courts (Rwanda, Ethiopia); and, secondly, amnesty accompanied by truth-telling. The latter course, resorted to by successor regimes in Argentina, Chile, El Salvador and South Africa, essentially aims to build a new society by means of knowledge of the past and reconciliation. However, in the process amnesty is given to those guilty of international crimes (particularly crimes against humanity and torture, but on occasion war crimes). This raises the question whether a State is free, under international law, to grant amnesty to those guilty of international crimes or whether it is obliged to prosecute them. The Constitutional Court of South Africa, in Azapo v President of the Republic of South Africa 1996 (4) South African Law Reports 562 (CC) has denied the existence of such an obligation, but without proper consideration of the international rules involved. (See John Dugard “Is the Truth and Reconciliation Process Compatible with International Law? An Unanswered Question” (1997) 13 South African Journal on Human Rights 258.) This topic is today so central to the prosecution of international crimes that it can no longer be avoided in any study dealing with crimes of the past.
John Dugard
UNIVERSITY OF THE WITWATERSRAND
SOUTH AFRICA
The Unification of Germany in International & Domestic Law
by Ryszard W Piotrowicz & Sam KN Blay,
with Gunnar Schuster & Andreas Zimmermann
(German Monitor No 39, Rodopi Amsterdam/ Atlanta, 1997, 225pp)
On August 25, 1997 the Berlin District Court sentenced the last Party Secretary of the Socialist Unity Party (SED) in the German Democratic Republic (East Germany), the most powerful political leader in that State, to a term of six years in prison for manslaughter. The court held that the ultimate responsibility for the killing of fugitives at the western border of the German Democratic Republic (GDR) and the Berlin Wall lay with the Socialist State leadership and, by putting the inviolability of the State border above human life, the Communist Party and its leaders had clearly contravened international law, particularly the UN Human Rights conventions which the GDR had ratified. In its political symbolism, this judgment, brought down by one German legal system over another German legal system, was at the apex of the dramatic process of German unification. The judgment dealt soberly with the deep collective trauma of Germans over the frayed identity of their country after the grim National Socialist past and the demolition of the German Reich (commonwealth) in the aftermath of World War II. The term “victor’s justice” quickly made its rounds again. However, Stephan Heuer, an (East) German writer, and himself a victim of the SED-regime, commented that in his opinion this judgment was not only “extremely” (ungeheuer) fair but also just (gerecht).[1] He added: “One should not ask the law for too much. Its task is not to grapple with German history but to find what the law is. And that is precisely what this judgment has done”.
Very much the same can be said about what Ryszard W Piotrowicz and Sam KN Blay have achieved in condensing the past fifty years of German history, a dramatic and traumatic history given the country was positioned on one of the fault lines of the tectonics of world politics, into a concise and sober analysis of international law. Their work is an outstanding achievement, and the resulting book is a fascinating and interesting case-study for scholars and students in international law. It is supported by solid and well-documented research into material that is difficult to access without a knowledge of the German language[2] and Polish history,[3] and includes contributions from local experts on the more intricate matters of German civil and criminal procedures.[4] So overall, as in the case of the judges of the Kammergericht in Berlin, one could not ask for more from a scholarly legal text than such a competent legal analysis set against the pressing complexity of the underlying political dynamics, historical developments and human tragedies — or could one? I shall return to this vexing question after a brief review of the contents of the book.
The book is divided into nine chapters that cover the unification of Germany as a legal problem in international and domestic law. The book starts with the historical background of the Jalta and Potsdam agreements between the Allies in 1944, then moves to consider events with direct consequences in international law like the changing status of Germany and the Moscow Treaty in 1990 — the “year of the disappearing Germanies” (Chapter Two); the finality of frontiers (Chapter Three); the question of State succession (Chapter Four); and the problematic issue of self-determination in view of the stalled project of a peace treaty resulting from deterioration in international relations between the allies after 1945 (Chapter Five).
The remaining chapters (Chapters Six to Nine) deal with the consequences of unification for domestic law. Though relevant in the sense of the interdependence between international and domestic law, the selected topics need further justification for their appearance in this monograph. In the light of the profound transformation of not only Germany but the whole region of central and Eastern Europe, there is evidently great interest in obtaining detailed and expertly interpreted information on how Germany and the German legal system dealt with issues like the complicated patchwork of the restitution of property after unification, given the many layers of expropriation in East Germany from 1945 to 1989 (Chapter Six) and the touchy subject of the criminal prosecution of former GDR officials, including judges (Chapter Seven). It is also instructive to note a remarkable deterioration of the legal positions of some groups in society with the extension of West German law to the acceding[5] States (Bundesländer) in the wake of unification — in this instance, the East German women losing their right to unconditional abortion (Chapter Eight) and international refugees being confronted with a more restrictive administrative procedure as regards the constitutional right to asylum (Chapter Nine). However it is doubtful whether one can, as the authors seem to suggest, relate these developments to an increasing conservatism in the unified Germany as a consequence of unification. Rather one should see them in the context of a wider, international debate on the rights of women versus the right to life, and on the rights of asylum seekers as a result of increasing global mobility. These issues, then, are relevant as a consequence of unification only in so far as the accession of East Germany extended these controversies to the East German population who had been shielded from them with rather extraordinary success, if not perfection. A discussion in the relevant comparative or international context would have been useful and instructive. This applies not only to the issues of the status of refugees and the status of women, especially in view of the discussion on abortion in Poland, but also to the chapter on the prosecution of former State and law officials, in view of the problem of “lustration”[6] in all the former socialist States in central and Eastern Europe.
The central chapters, Chapters One to Five are the most fascinating to study and the true achievement of this monograph. They deal with the growth of international law as a process of the “domestication” of the many thorny issues of hostile international affairs in the wake of the break-down of relations between the former allies of World War II, the ensuing “Cold War” and the following rapprochement of East and West under economic pressure. Quite rightly the authors point out that the legal issues of unification cannot be understood without an analysis of the legal developments with regard to Germany from 1945 onward (p 20). They provide a wealth of information which they assume, undoubtedly correctly, that a predominantly Australian audience would need in order to understand the extraordinary situation of a country which found itself without control over its future as a result of its past, and a pawn in the global politics of the super-powers.
At the same time the restriction in emphasis on legal developments limits such an understanding and leads to a picture of constructed “normality”. This does not adequately reflect the precariousness of the political reality with which not only the German people but all the peoples in central and Eastern Europe had to live during most of the period covered by this monograph. Of course, the German Reich had disappeared as a territory and had ceased to exist as a State. But that cannot mean, as the authors seem to suggest (p 71) that German society had ceased to exist and that Germans could easily resume their lives separately, confined to the two emerging States, simply because these States were sufficiently legally determined under international law. The reluctance of the Federal Republic (West Germany) to acknowledge the German Democratic Republic as a sovereign State; the hesitation in accepting the existing borders as final (at least when compared to the eagerness of the Communist Party of the GDR to be seen to comply with international law even if rejected for domestic use); the insistence on the “special status” of the demarcation line and killing field[7] between the two German States rather than acceptance of it as a “normal” State border, are all premised on the abnormality of the situation. This situation which prevented the population in East Germany from expressing their political will in free elections, prevented 60% of that population from visiting their relatives in the other State, and was premised on rejection of the notion of the rule of law and subjection of the State to the directives of a one-party-regime. The same legal unaccountability, and corresponding uncertainty, applied to the party regimes in Poland and the USSR. This made it politically difficult to deal with issues like the “administration” (in fact, annexation, see p 57) of almost a third of the territory of the German Commonwealth by the USSR and Poland and the expulsion of approximately as many Germans as the total population of Australia in 1945.
Under these circumstances, it is not surprising that the FRG adhered to the position spelled out in the preamble to its Basic Law from 1949 and supported by the Western Allies, namely that legal certainty and finality could be achieved only with a peace treaty between the allies and a whole Germany identified and legitimated by a democratic process. Nor is it surprising that when the opportunity for such a democratic process finally arose in 1990, namely by the implosion of the power of the Communist party in the Soviet Union — which was the only factual political structure sustaining the State constructions in the Soviet Union, Poland and the GDR — the constitutional law of the FRG was the only viable legal programme for the establishment of the legal certainty requisite for reordering the German political landscape. The judgmental finding of the authors that “the accession by the GDR saw it being taken over by the FRG” (p 75) seems to ignore the fact that there was no economic, political or legal substance left in the GDR which would have allowed it to move in any other way.
In sum, then, it appears that much of the complicated argumentation as to the motivation of political processes in the FRG, and many of the authors’ puzzled questions as to the course which unification finally took are largely a result of the projection of the normative image of international law onto a situation which not once in its unexpectedly enduring existence could be seen as representing normal relations between normal States. This could easily have been addressed if the analysis had been extended to an assessment of the function of law in the given context, in relation to the underlying political and socio-cultural structures generally and in the Germany of the past 50 years in particular. But then again, it is difficult to say whether it is the task of scholars of international law to extend their analysis in such a way, or merely to spell out what they deem the law to be. It remains a vexing question because so much of the clarity won by finding the law is achieved by ignoring the complexity of the very structures that make the law work.
Klaus A Ziegert
DEPARTMENT OF JURISPRUDENCE
SYDNEY UNIVERSITY
Donald R Rothwell
(Cambridge University Press, 1996)
In 1989 the Bahia Paraiso, an Argentine vessel, grounded off the Antarctic coast, causing extensive oil damage to the coast line and marine environment. This incident exposed some fundamental questions about the juridical status of polar regions. Most States in the international community consider that Antarctica is outside the sovereignty of any State. If this is the correct legal position, no State, nor any national, has suffered any particular injury as a result of the oil spill and, arguably, no State has the standing to seek a remedy.
Donald Rothwell, in Polar Regions and the Development of International Law (1996) demonstrates how the Antarctic Treaty system and, more recently, the nations with Arctic interests, have responded to these and other legal and environmental challenges. The aim of the work is to assess the contribution to modern international law made by the regimes developed in response to unique problems of the Polar regions. The premise is that general principles of international law have been inadequate for the Arctic and Antarctic and that special legal regimes have evolved to address issues as they have arisen.
The first observation that strikes the reader is that the Arctic and Antarctic are “poles apart”, literally and metaphorically. There are many differences between them. The Antarctic is a continent surrounded by the Southern Ocean; the Arctic is an ocean surrounded by continents. In the Arctic, sector claims to sovereignty are no longer disputed; in the Antarctic seven nations maintain their claimed juridical status through the Antarctic Treaty System. These factors explain the complex web of interrelated obligations that is the Antarctic Treaty System and the predominantly bilateral nature of management techniques adopted in the Arctic. Perhaps the most obvious difference between the Arctic and Antarctic is that modern initiatives for cooperation in the Arctic recognise the interests of indigenous peoples of the region, including the right to self determination.
Rothwell argues that, despite these differences, the polar regions share common imperatives such as the management of mining and fisheries resources and the environment, and that legal creativity in responding to these issues has made a special contribution to international law.
A notable feature of this work is that it is simply and clearly written and is accessible to all readers with an interest in legal and environmental management in the polar regions. The research complements and updates other basic international legal work on the Arctic and Antarctic and provides a well-argued analysis of the Antarctic Treaty System and the evolving regime for the Arctic. Parts I and II of the work review the legal regimes which have developed for the Arctic and Antarctic, placing an emphasis on the Law of the Sea and environmental issues. The Madrid Protocol, banning mining in Antarctica, is assessed, along with the more recent agreement by eight Arctic nations to the Arctic Environmental Protection Strategy and proposals for an Arctic Council.
The central thesis of the work is that treaty and other cooperative efforts to resolve polar issues have made unique contributions to international law. This theme is developed in Part III and the concluding Part IV, using the common areas of resource management, law of the sea, international environmental law and international regime theory. Rothwell recognises that there has been ample scope for the application of international law theories of territorial sovereignty and for global treaties such as the 1982 United Nations Convention on the Law of the Sea and the 1973/8 International Convention for the Prevention of Pollution from Ships. The research shows, however, that general international rules are not always directly applicable in the Polar regions and that specific legal responses have been required. A prime example of new techniques of international law is the contrived ambiguity of Article IV of the Antarctic Treaty on which Professor Falk has said the “governance of Antarctica...the closest thing to a ‘world order miracle’” has been constructed. The “freezing” of sovereignty claims has been used in other, more recent, disputes in international law, such as the negotiation of joint development regimes for the exploitation of resources in overlapping continental shelves.
Rothwell further demonstrates the adoption of creative legal techniques under the Antarctic Treaty System for environmental regulation through an integrated ecosystem approach, and in resource management through the adoption of regional cooperative arrangements such as the Convention for the Conservation of Marine Living Resources, the Convention on the Regulation of Antarctic Mineral Resource Activities (1991) and the Madrid Protocol. It is, however, Rothwell’s assessment of regimes theory in the context of the Arctic and Antarctic which is one of the most important contributions of this research to international law. He explains how regimes theory can enhance our understanding of international law and why international cooperation occurs and is sustained. Regimes are described as
relatively efficient agreements, compared with the alternatives of having a myriad of unrelated agreements, since their principles, rules and institutions create linkages among issues that give actors incentives to reach mutually beneficial agreements (p 407).
The analysis Rothwell provides of the Antarctic Treaty System considers the dynamics of international cooperation, including the practical fact that each Antarctic Treaty party has something to gain from a regime which stabilises claims to sovereignty. By “neutralising” issues of disputed sovereignty, the parties can achieve other values such as ensuring that the continent is used exclusively for peaceful purposes, is demilitarised and continues to be freely available for scientific research. The regimes analysis is less convincing in relation to the Arctic where management agreements are typically bilateral and an evolving regime is at a primitive stage. Nonetheless, this study usefully illustrates how a “rule-driven international legal analysis” of polar regions fails to provide an adequate explanation of how and why the Antarctic treaty system has the capacity to respond to issues which were not, in the early years of the Treaty, seen as critical.
Regimes analysis may prove an important tool for dispute resolution in the future, especially in the Asia-Pacific region where resource management and environmental issues urgently require cooperation amongst States with profound disagreements on territorial sovereignty and offshore continental shelf boundaries. The Rothwell study, particularly of the Antarctic Treaty System and recent efforts to achieve environmental cooperation in the Arctic, provides a framework for analysis and for the development of initiatives for resolution of similar resource and environmental management issues in the Asia-Pacific region. Certainly, creative legal and institutional techniques have been the hallmark of the Antarctic treaty system and may prove to be as important in the evolving Arctic regime.
Gillian Triggs
FACULTY OF LAW
UNIVERSITY OF MELBOURNE
by S James Anaya
(Oxford University Press, New York, 1996; pp 267, including Documents)
All legal systems, national and international, have struggled for centuries with indigenous peoples. These systems have at various times ignored indigenous peoples, included them without consent, patronised them, excluded them and generally treated indigenous peoples as the “other” which never fits in to the system. In Indigenous Peoples in International Law, James Anaya explains these struggles by legal systems and examines perceptively the new directions which the international legal system has begun to explore in regard to indigenous peoples.
In this book, Anaya begins by setting out the historical context in which international law has developed and the more recent international human rights law. He then deals with the right of self-determination as being the human right within which “norms” (as he calls them) of non-discrimination, cultural integrity, lands and resources, social welfare and development and self-government are considered as being of particular relevance to indigenous peoples. His final two chapters set out the ways in which these international norms are, or should be, implemented both within States and by international institutions. Also included in this book are a helpful selection of relevant international documents.
Anaya’s focus is on international law and its increasing awareness of indigenous issues, as well as the ability of indigenous peoples to make use of international law, because he sees international law as a tool in the quest for the survival of indigenous peoples (p 4). Although this is his focus, he does make extensive use of national law and court decisions, particularly in the United States, and develops some of his arguments by reliance on State practice, such as governmental statements to international fora. Yet the real strength of the book is Anaya’s ability to understand and clarify the development of international law affecting indigenous peoples within the context of social, cultural and political processes. He is therefore able to offer a richer picture of the nature of international law so that the different applications (or lack of application) of international law to indigenous peoples over time becomes more coherent (even if often inhumane). He shows how the early rejection by international lawyers, such as Vitoria, of the claims by the Spanish to sovereignty over indigenous peoples in the “New World” were swept aside by later theorists. Thus the decisions in the Island of Palmas and Eastern Greenland cases are illuminated as expressly giving no weight to indigenous issues and as being premised on “positivist’s international law, which affirmed sovereignty built upon colonialism to the exclusion of the sovereignty of indigenous peoples” (p 23).
The discussion of means of implementing international law to assist indigenous peoples is clear and valuable. He is aware that a diversity of measures are necessary as there is such a diversity of indigenous peoples world-wide and that the wishes of indigenous peoples must be paramount. At the same time as offering practical suggestions, such as a permanent indigenous peoples forum at United Nations level, he is able to bring his deep knowledge of the nature of international law to bear in arguing for a less State-based international legal order. While he argues for national solutions, he remains convinced that international law, as a means of external pressure on a State, is necessary to blunt political and economic forces which can dictate decisions at the local level.
His sections on the right of self-determination and its consequences for indigenous peoples are well argued and analysed. His clarity of reasoning is good so that it is a pity that he has chosen not to deal at any length with issues such as how to determine the wishes of indigenous peoples, deciding on representation of indigenous peoples, gender oppression and breach of human rights within indigenous peoples and the consequences of population transfer. It is also a surprise that when analysing the right of self-determination he barely refers to the important reporting role of the United Nations Human Rights Committee.
There are no significant weaknesses in this book, though there are some minor difficulties. Anaya seems too reliant in some sections on the International Labour Organisation Convention 169 as there are only very few (about 10) ratifications to this treaty. In contrast, he offers too few comments on the draft United Nations Declaration on the Rights of Indigenous Peoples 1994 which, although fairly recent and likely to be amended, offers an insight into the processes by which the international legal system can more appropriately interact with indigenous peoples. Also some may criticise him for having an overly optimistic view of international human rights law as a medium for change as it is a State-based, and State-reinforcing, framework, but this view is consistent with the general tone of the book.
This is an excellent book. It places international law and its application to indigenous peoples into its historical context and, in so doing, offers valuable insights into both the nature of international law and its ability to “challenge the legacy of...history” (p 184). Above all, it offers a coherent, accessible and perceptive analysis of the current position, and possible future direction, of indigenous peoples in international law. This book is an essential purchase for anyone interested in contemporary legal issues.
Robert McCorquodale
FACULTY OF LAW
AUSTRALIAN NATIONAL UNIVERSITY
by Paul Hunt
(Dartmouth Publishing, 1996, 313pp)
Those interested in human rights commentaries will have noticed the recent burgeoning of literature concerning the International Covenant on Economic, Social and Cultural Rights[8] (ICESCR). At a time when we are witnessing an increasingly activist role being adopted by the Committee on Economic, Social and Cultural Rights,[9] the resurgence of interest in the ICESCR is a welcome antidote to years of relative academic and NGO neglect.[10] Paul Hunt’s book entitled Reclaiming Social Rights: International and Comparative Perspectives is a timely examination of a subset of ICESCR rights, social rights, from both a practical and academic perspective. Its merit lies not so much in providing novel data or conceptual debates, but that it aggregates so many of the theoretical and practical issues surrounding social rights. As Philip Alston comments in the foreword to the book, Hunt has synthesised “a range of disparate, current developments which shed important light on social rights and strategies for their implementation”. This work will be of interest not only to those concerned with the advancement of human rights in the NGO or academic fields, but also those more generally interested in the interaction between power and international law, human rights and the domestic legal system, NGOs and State action.
In choosing to study a subset of rights, the inevitable question arises as to how sensibly to demarcate the boundaries of the subset. Whilst acknowledging the inherent difficulties in any categorisation of rights, Hunt admirably side-steps this issue by adopting a functional definition of social rights as including an adequate standard of living, food, shelter, health and education. Hunt similarly avoids a prolonged discussion of the somewhat sterile theoretical debate concerning the status and justiciability of economic, social and cultural rights. Instead, he uses the New Zealand debate about a Bill of Rights to document the level of ambivalence about economic, social and cultural rights. He then proceeds to rebut the major arguments against the legitimacy of economic, social and cultural rights. Interestingly, Hunt goes beyond merely responding to the objections put forward by critics such as Vierdag and Bossuyt,[11] to challenge some of the suppositions of critics and supporters alike. A prime example is his critique of the term “second generation rights”. Drawing heavily upon the research of Claire Palley in relation to eighteenth century philosophers such as Thomas Paine, Hunt demonstrates the temporal coincidence of discussions of economic, social and cultural rights and their civil and political rights counterparts, suggesting that the privileging of civil and political cannot be explained simply in terms of a generational seniority.
Having established the legitimacy of social rights, Hunt devotes the remainder of his book to exploring the implications of social rights in conceptual and practical terms by a number of case-studies. It is here that the real value of Hunt’s work is apparent. In Chapter Two, for instance, Hunt highlights the dual marginalisation of social rights — their juridical marginalisation and their special relevance to marginalised groups such as women. Here, the work of feminist academics such as Burrows, Charlesworth, Chinkin, Stark and Wright is used to demonstrate the ways in which the neglect of social rights has a particular significance for the oppression of women.[12] In this chapter, Hunt also stresses the potential of using the “substantive equality” approach to the equality protections in the Convention on the Elimination of All Forms of Discrimination Against Women, the International Covenant on Civil and Political Rights (ICCPR) and ICESCR in order to advance the social rights enjoyed by women. Whilst cogniscent of possible shortcomings of social rights for women — citing for example the under-inclusiveness of the protections for workers, given that they do not extend to work within the home or to many contract workers, Hunt maintains his faith in social rights and their potential. Somewhat more controversial is the suggestion that emphasis on “social rights” might be problematic in so far as it can be seen to encourage a dependency image (dependency on the State). In this area, Hunt’s analysis could have been strengthened by consideration of the “active” model of human rights so eloquently expressed by Scott and Macklem:
Social rights are not meant simply to entrench bureaucratic structures of the modern welfare state so that beneficiaries continue to be treated as passive recipients of state largesse. Instead social rights ought to include rights to participate in the design, implementation, critique and revision of measures that seek to improve material and social circumstances. As such, social rights are aimed at the material and political empowerment of the worst-off in society (citations omitted).[13]
The only social right examined in detail in this volume is the right to health which forms the subject of Chapter Three. Perhaps because of the centrality of this right, Hunt is able to draw upon a wide range of recent research upon the right to health such as that carried out by the Pan American Health Organisation, the World Health Organisation, and individual commentators such as Virginia Leary. In addition to presenting the substantive content of the right to health, Hunt provides an informative guide for NGOs wishing to become active in the protection of social rights. He identifies a variety of ways in which NGOs could make a contribution to the realisation of the right to health. Most of these mirror those already undertaken in relation to civil and political rights — including serving as an information conduit to UN human rights monitoring bodies, pushing for more international standard setting, bringing to the fore national experiences of deprivation of social rights and engaging in necessary conceptual work concerning social rights.
India’s experience with the constitutional protection of social rights is also explored by Hunt. The Indian Constitution incorporates Directive Principles dealing with social rights and, for example, requires the State to direct its policy towards securing citizens the right to an adequate means of livelihood and to regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. Hunt outlines the judiciary’s movement from a conservative, literalist approach to the non-enforceable Directive Principles, towards indirect enforcement of social rights through interpretation of the “right to life” clause in Part III of the Constitution. Thus, for instance, he mentions the case of Frances Mullin v Union Territory of Delhi, in which the court gave the right to life an expansive interpretation:
[it] includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter...Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live...[14]
The success of such arguments underlines the potential of arguments based on the integration of rights.[15]
A particularly interesting element of India’s experience with social action litigation is the procedural framework developed in order to facilitate access by the disadvantaged to the courts. Innovations include the liberalisation of standing requirements, the introduction of epistolary jurisdictions (whereby the court can be moved by a letter, rather than a formal petition), court appointment of fact finding commissions of inquiry and the exploration of more directive remedies. Although the practical impact of such reform requires further study, such innovations, if successful, present an interesting example for all those concerned with the domestic enforcement of human rights.
In his concluding chapter, Hunt presents model approaches to promoting and protecting social rights. They include conceptualising social rights as rights of citizenship, having a Social Charter (such as the Canadian Draft Social Charter), engaging national human rights institutions, using international financial bodies such as the World Bank (the social clause debate), and maintaining an international NGO programme for social rights. The analysis of the work done by the Australian Human Rights and Equal Opportunity Commission (HREOC), notwithstanding the failure of the legislation establishing HREOC to mention the ICESCR, will be of particular interest to readers from the South Pacific area.
Written in an eminently readable style, Hunt presents his arguments in a scholarly fashion with particularly comprehensive footnoting of relevant material. It makes the book an excellent reference for students and academics. Slightly disappointing was the number of occasions on which Hunt identified areas as requiring further examination without himself attempting to grapple at greater length with such issues. This is evidenced, for instance, in his discussion of the history of social rights, the relationship between social rights and women’s marginalisation, and the practical impact of Indian social action litigation. Whilst perhaps understandable in a study of this length, it is to be hoped that Hunt himself take on some of the challenges identified. Despite this minor frustration, Hunt’s book brings together the disparate issues involved with social rights and serves as a reminder of the number of questions that remain to be explored in this area of human rights. It is sure to prove a useful addition to the library of human rights academics and practitioners
Annemarie Devereux
RESEARCH SCHOOL OF SOCIAL SCIENCES
AUSTRALIAN NATIONAL UNIVERSITY
by Henry J Steiner and Philip Alston
(Oxford University Press, 1996, xxxix and 1245pp, including annexes on documents, citations, bibliography and index)
The one draw-back to teaching international human rights law in Australia has always been the two tedious weeks of summer spent cutting and pasting course materials. While texts and periodical literature abound, I had not come across a book that I wanted to use for teaching purposes. I wanted to present students with edited materials one might reasonably expect undergraduate students to read, selected from both primary and secondary sources and placed in context with explanatory notes and questions. Last year I was spared the scissors, tape and photocopier by the appearance of just such a book, a weighty but reasonably priced tome by Henry Steiner and Philip Alston, International Human Rights in Context: Law Politics Morals (Oxford University Press, 1996).
The book’s focus is resolutely international and it provides students with a superb overview of the international and regional human rights systems; the normative foundations of international human rights law; and issues concerning enforcement. It aims to show students “the big picture”.[16] Those human rights lawyers who come to the book expecting to learn for themselves the finer points of particular rights or institutions might be disappointed, but the book is deliberately pitched at the level of university students, not their teachers. And naturally, some teachers may not find the book suitable for their particular courses. A course that focuses on the international level is not the only vehicle for teaching and learning about human rights. As the authors acknowledge, some teachers may want a book that examines particular rights or comparative studies between countries as well as, or in preference to, a book that focuses on the international human rights system.[17]
Given the emphasis on the broad human rights scene, some important areas of human rights are not touched on at all. For example, I needed to supplement the book with materials on refugee law. I also provided my students with materials on the implementation of international human rights in Australia. These materials were easily slotted into the framework provided by the book. The part of the book devoted to the topic of national implementation, Part D — “States as Protectors and Enforcers of Rights”, addresses the broad themes relevant to all countries. These themes include the rule of law and the role of national Bills of Rights as well as the relationship between international law and the domestic legal order. The main focus is on the United States. However, this is balanced with materials on constitutionalism in the developing world and Eastern Europe; the role of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the domestic law of States Parties; Australia’s response to the views of the Human Rights Committee regarding the Toonen communication; and the European Union’s approach to human rights in foreign policy.
Those materials highlighting the US, including the US ratification of the International Covenant on Civil and Political Rights, the operation of the US’s Alien Tort Statute, and the battle of wills between the US and China over Most Favoured Nation Status, are of general significance. The spectacular array of reservations to the US ratification of the Covenant on Civil and Political Rights raises the question of the validity of certain reservations to human rights instruments. The Alien Tort Statute is an exercise of universal jurisdiction over certain human rights violations and one of the more palatable examples of the US tendency to adopt legislation with extra-territorial reach. US policy initiatives on human rights provide a good starting point for a debate about whether soft or loud human rights diplomacy is the best policy and which States — super, middle, or small powers — are best positioned to adopt the loud approach.
Teachers in Australia may want to include materials on the (general failure in) implementation of international human rights by the Commonwealth; the operation of the Human Rights and Equal Opportunity Commission (HREOC) and its possible demise under the weight of massive and ill-advised budget cuts; the use of international human rights standards by Australian Courts in cases such as Mabo[18] and Teoh;[19] the question of an Australian Bill of Rights; the Native Title debate; the response to the HREOC’s report on the “Stolen Generations” (indigenous children taken from their families); and Australia’s “quiet diplomacy” on human rights in the Asian region, and its recent objection to a standard human rights clause in a proposed treaty with the European Union.
Part D is a “core” part of the book. The other two core parts (parts B and C) deal with the development of the normative and institutional framework of international human rights law. After a selection of newspaper clippings on human rights issues in Part A — a useful launching pad for discussion of students’ intuitions and pre-conceptions about human rights — Part B introduces students to the historical development of international human rights; the International Bill of Rights; the different “generations” of rights and their interdependency; and the universality/cultural relativity debate. Materials on the sources of international law are also included for students who have not taken international law previously, and an annex on human rights documents is provided so that students do not have to buy a separate compilation.
A chapter of Part B is devoted to the question of what rights are, and the universality/cultural relativity debate. It contains a wide variety of inter-disciplinary materials and contrasting view-points on the part of theorists and governments, together with a case study on female circumcision or genital mutilation. The case study addresses the politics of language in one’s choice of terminology: “circumcision”, “mutilation”, “genital surgeries”. Through the inclusion of materials from the perspective of women in countries where the practice occurs, students are presented with strategies for mediating the extremes of the universality/cultural relativity debate so that it is not simply a case of “the West versus the Rest”.[20]
The chapter is a comprehensive and provocative introduction to the theories of human rights, and the foundations laid here are put to good use later in the book. For example, Marxist theory is referred to in the chapter devoted to economic, social and cultural rights, and feminist theories are employed in the part devoted to women’s human rights. Thus theories of human rights are properly presented as an integral part of the practice of human rights.
My only criticism of the chapter is that it did not contain enough explanatory material about the critical theories that have emerged within Western States in response to the traditional liberal theory of rights. There is some material on these theories in the chapter and more appears later in the book. However, while the liberal conception of rights to which these theories respond is clearly explained, I thought it necessary to supplement the book with more readings related to Critical Legal Studies and other “schools” in order to give students the full picture. It is important for students to be aware of the fact that even in the West, which lays claim to being the “discoverer” of rights, the rights idea has been, and remains, controversial. This may be particularly relevant to Australian students as they watch the Republican debate unfold (or collapse), and questions arise as to whether a Bill of Rights is a necessary part of the Constitution and how well it would serve indigenous Australians whose rights are most vulnerable.
The final core part of the book, Part C, examines the institutional framework of international human rights. Here, students are introduced to the United Nations Commission on Human Rights; non-government organisations like Amnesty International; treaty organs such as the Human Rights Committee; and the three regional human rights arrangements in Europe, the Americas and Africa. As with the rest of the book, the well-edited materials are placed in context with easy-to-read notes or comments. No student will have any excuse for confusing the Commission on Human Rights with the Human Rights Committee. Even Australian students who are often unfamiliar with the plethora of European institutions with similar-sounding names will be well-equipped to tackle the literature on human rights in Europe. Students are presented with extracts from the reports of UN special rapporteurs and working groups; Amnesty International’s mandate; the “general comments” and “views” of the Human Rights Committee; and decisions of the European and Inter-American Courts. As well as familiarising themselves with the institutional framework of international human rights law, students are encouraged to think critically about reform of the somewhat overgrown system.
The core of the book is followed by a case study of women’s human rights in Part E. This part picks up and further elaborates themes developed in the core. These themes include the impact of cultural relativism; responsibility of States for human rights violations committed by “private” actors such as abusive male partners; the interdependency of civil and political rights and economic, social and cultural rights; the problem of reservations; and the process of “constructive dialogue” between the treaty bodies and States parties.
Part F completes the book with a selection of current topics, namely self-determination and autonomy regimes (Chapter Fourteen); international crimes and criminal tribunals (Chapter Fifteen); and development and human rights (Chapter Sixteen). Each of these chapters give students a good introduction to the areas under examination, although Chapter Fifteen already requires supplementing due to recent developments. For example, the decisions of the trial and appellate chambers of the International Criminal Tribunal for the former Yugoslavia regarding jurisdictional challenges by convicted defendant Dusko Tadic are now available, while the indictments issued against Bosnian Serb leader, Radovan Karadzic, and General Mladic, may raise a more real prospect of trials for these two crucial figures. These developments may mean that the debate introduced in Chapter Fifteen concerning the Tribunal’s likelihood of success will conclude with a positive assessment. Teachers may also want to make more meaningful comparisons with the other tribunal established for Rwanda.
I expected that Chapter Fourteen, concerning self-determination and autonomy regimes, would have been enhanced by writings from authors who are members of indigenous groups and have been prominent at international fora, like James Anaya, Marcia Langton or Mick Dodson. The Draft Declaration on the Rights of Indigenous Peoples produced by the Working Group on Indigenous Populations, which is included in this chapter, does give voice to the aspirations of many indigenous peoples since the Working Group is the only UN forum where they have speaking rights of the same nature as States, and it has proved to be the most inclusive of UN fora. However, the impact of this chapter would have been heightened by commentary from indigenous people. Inclusion of materials by such writers is affirming for indigenous students and raises awareness on the part of non indigenous students.
Even with the luxury of a year–long course (a likely casualty of the cuts to Australia’s tertiary education system), Australian teachers of undergraduate law courses will probably find that they are struggling to cover all 1146 pages of the text. It may be wise to be selective in allocating readings from the core of the book if you are keen to explore the topics in Part F fully, or alternative/additional topics. My experience using the book indicates that teachers will also have to be realistic about the number of questions and exercises posed throughout the book that can be allocated for student discussion. I have often found that I cannot get my students to leave their discussion groups after being let loose on these questions, with the result that we are always hopelessly behind the course reading guide. Of course, this is not intended as a criticism of the book: the fact that it encourages students to be their own teachers is one of its many fine features. My students’ course evaluations gave the book the thumbs-up.
Penelope Mathew
LAW FACULTY
UNIVERSITY OF MELBOURNE
by the Catholic Institute for International Relations and the International Platform for Jurists for East Timor
(Russell Press, Nottingham, UK, 1995, vi and 341 pp)
This collection of articles on international legal aspects of the situation in East Timor stems from a London Conference entitled “Indonesia’s Occupation of East Timor: Legal Questions” held in late 1992. No doubt the impetus for the Conference was the tragic events at the Santa Cruz Cemetery in Dili in November 1991; but the forthcoming case in the ICJ between Portugal and Australia regarding the Timor Gap Treaty[21] was also on participants’ minds. Despite all the chapters being updated to include developments up to early 1995, the collection may be considered to be out of date in some respects as a result of the decision of the ICJ, handed down after the collection’s publication.[22] As we now know, the ICJ decided that as Indonesia was an indispensable third party to the proceedings,[23] and was not before the court, it could not pronounce on the merits of the case. This result conflicts with the opinions stated in two of the essays in the collection.[24] Although the court did not address the substance of Portugal’s claim against Australia, the decision is nevertheless of importance because the majority opinion confirmed the right of the people of East Timor to self-determination.[25] and two important minority opinions proceeded to discuss, at length, the substantive issues before the court.[26]
While the lack of analysis of the court’s decision in the collection is a pity, the book does not suffer greatly from the passing of time. The unfortunate reality of the East Timorese situation is that little of substance has changed on the ground. Indonesia continues its military occupation. The dialogue between Indonesia and Portugal has not yielded any concrete results. The United Nations has, in the main, continued to ignore the issue. Thus, the analysis of the major international law issues, such as self-determination, the use of force by Indonesia, human rights and humanitarian law is valid today. Even the examination of the question of Indonesia’s claimed title to the territory — title which may be effected by “historical consolidation” as a result of the international community's lack of action — is not substantially altered. The arguments against the applicability of this doctrine by Christine Chinkin[27] and Roger Clark[28] remain strong.
Unlike most volumes of essays, there appears to be no particular editor of this collection, although the historical context of the East Timorese situation is penetratingly explained in the short Preface by James Dunn (p 1), and the contents of each chapter are well summarised in the “Introduction” to the book by Pedro Pinto Leite (p 5). Editorial guidance could have mitigated the inevitable danger of uneven quality and coverage inherent in multi-authored works and evident in this collection.
Part I of the book is one of the most useful as it provides an informative perspective on the relevant international,[29] local[30] and economic[31] context of the East Timorese situation, all of which are important in placing the international legal issues in their appropriate setting. However, the legal analysis that follows is patchy in some areas. For example, there is surprisingly little detailed analysis of the important human rights issues such as whether Indonesia has violated indigenous rights and prohibitions relating to genocide and systematic racial discrimination. The main human rights chapter in the collection[32] is disappointing as it consists mainly of descriptions of the reports and work of the human rights bodies within the United Nations and does not attempt analysis of these significant human rights questions.
The issue of self-determination is one which is tackled comprehensively in a number of articles. One of the highlights of the collection is the contribution by Paula Escarameia,[33] who provides a not always easy to understand but nevertheless intriguing and detailed historical and political analysis of the concept of self-determination. She attempts to clarify the concept by a detailed proposal to break down its meaning into what she calls five “areas” or “regions”.[34] Her conclusion is controversial in that she argues that self-determination has been given so many meanings over recent history that it is has now been rendered a useless legal tool for solving concrete international disputes. This is disputed in many of the other contributions, the most comprehensive being that of Bill Bowring. After a detailed examination of the jurisprudence of the ICJ on self-determination,[35] he concludes that:
while criticisms may be quite validly levelled against the incoherence and indeterminacy of the right to self-determination ... there should be no such problem where the people of the territory of East Timor are concerned.[36]
The problem, in Bowring’s opinion, is not with the legal concept of self-determination, but rather with the international community’s political failure to push for Indonesia’s withdrawal from East Timor. Certainly, the affirmation by the ICJ of the East Timorese right to self-determination[37] lends support to the conclusion that self-determination is a fundamental international legal concept of continuing importance.
Other highlights of the collection are Roger Clark’s very detailed refutation of Indonesian legal arguments and justifications for its breaches of the norms of self-determination and the use of force,[38] Daniel Machover’s analysis of the applicability of international humanitarian law in East Timor[39] and Christine Chinkin’s well thought out and succinct conclusion.[40] Chinkin points out that the verdict of all the writers in the collection, and practically all international legal scholars, is that Indonesia is in breach of a number of international norms. She laments the disparity between this conclusion and the lack of progress on the vital issue of East Timorese self-determination. This brings into focus the clash between international law and international politics, and the limits of the discipline of international law. In this respect, the chapter comparing the international response to the invasions of East Timor and Kuwait[41] could have been the most important: however, it does not tackle these deeper issues.
All authors in the collection openly admit to a bias against the Indonesian position and to being pro East Timorese. This is hardly surprising given that the International Platform of Jurists for East Timor is the co-publisher of the book. Some of the essays use statements of Indonesian Government Ministers and Indonesian press releases to represent Indonesia’s position on particular issues. This is hardly a substitute for having an international lawyer to represent the Indonesian position,[42] but, in fairness to the publishers, it is difficult to find a lawyer who would be prepared to argue the Indonesian case before a public, international forum. The Australian position in relation to East Timor also comes under sustained criticism throughout the collection, particularly by Christine Chinkin, who concludes that it “has been fashioned by expediency and the desire to have a share in the maritime resources of the territory, rather than by principled application of norms of international law”.[43] Again, there is no contribution from an international lawyer defending Australia’s position.[44]
While the non-representation of both the Indonesian and Australian positions on East Timor in the collection is to some extent understandable, the same cannot be said for the lack of an Indigenous East Timorese contribution to the collection. The two chapters by Portuguese nationals with a pro-East Timorese position should not represent and speak for the Indigenous East Timorese point of view. While this unfortunate state of affairs may have been the position before the ICJ,[45] it should not have been the case in respect of this collection.[46]
A further criticism is that an academic collection such as this could have included a detailed examination of the theoretical issues raised by the East Timorese situation. While the contributions of Christine Chinkin, Paula Escarameia and Gerry Simpson do touch on some of these aspects, nowhere is there any sustained discussion of the broader theoretical international law issues. Yet the clash between sovereign autonomy and the international community[47] is critical to any deeper understanding of international law's role in East Timor. Similarly, the realist/critical legal critique of international law is important: does the lack of action by the world’s powers, despite Indonesia’s clear violations of a number of fundamental international legal norms in East Timor, demonstrate that international law is merely rhetoric? And what about a feminist analysis of the Indonesian occupation of East Timor?
Despite the above criticisms and problems, the book has enough strengths to make it a worthwhile collection of essays on what continues to remain a fundamental issue for the international community, and for international lawyers in particular. One can only hope that in the near future the rule of law will prevail and justice will be delivered to the troubled people of East Timor.
Sam Garkawe
SCHOOL OF LAW AND JUSTICE
SOUTHERN CROSS UNIVERSITY
Edited by Sam Blay, Ryszard Piotrowicz and B. Martin Tsamenyi.
(OUP, Melbourne, 1997; pp.xl and 436))
In his Forward to this book, Gavan Griffith accurately notes that ‘we have moved to the point where public international law now comprises a core subject for any course of legal training even for those with strictly domestic career ambitions’ (p. vi). Australian law schools are slowly acknowledging this situation and, at last, moving towards making international law a compulsory subject within the law curriculum. In the course of this movement, the issue of how international law should be taught in Australia has been debated. Should international law be taught as a universal legal system that is not tied solely and tightly to national perceptions and national trends or should it be taught as a self-standing Australian international law? The editors of this book argue strongly that ‘there is as much an “Australian” international law as there is an Australian law of torts. Moreover, even within the field of international law, some issues are of particular importance to Australia: typical examples would be Antarctica and the notion of terra nullius” (p. xxxv). Whilst I was initially dubious about this claim (see Yearbook[48]), after reading this textbook I have been convinced by the editors. This book, while offering a relatively comprehensive coverage of the elements of international law, also offers insights into the practice of Australian governments sufficient to offer an Australian perspective on international law that is neither narrow and misleading by omissions nor unwieldy and incoherent by inclusions. Each of the editors and chapter authors are to be congratulated for this achievement.
Much emphasis is given by the editors to the fact that the first two chapters are devoted to the nature of international law and to the structure of the international system so that students can understand how the international legal system works. This is an excellent approach in keeping with the idea that international law is a legal system and is not just a random selection of legal rules with regard to States but it is a distinctive and unusual legal system. It is a framework for a series of norms that the international community, in its behaviour, accepts as a means to regulate the international community. This aspect of international law is reinforced by the structure of this book and by its reasonably seamless integration of the Australian practice within this system.
The sixteen chapters cover most of the standard areas taught in undergraduate units in international law plus a few areas, such as refugees and Antarctica, not often dealt with in any depth in those units. It does not deal to any significant extent with the important areas of international economic/trade law and acquisition of territory. The editors justify the exclusion of the latter by arguing that the chapters on Antarctica, refugees, human rights and law of the sea ‘are illustrative of broader principles encompassing acquisition of territory...and have greater relevance to Australia and can more readily be used to demonstrate Australia’s role and practice in the international system’ (p. xxxvi). This justification is not persuasive, particularly as the modes of acquisition of territory are referred to in passing in a number of chapters without sufficient explanation (e.g. p.382 and 385), it means that there is no real explanation of sovereignty and the notion of terra nullius is never fully explored, despite being described by the editors as an issue of particular importance to Australia.
In addition, the order of some of the chapters is at times surprising. While it is good that the Law of Treaties and International Law in Domestic Law are dealt with after Sources, as they all are part of an international constitutional law, there seems no rationale for having a chapter on the Pacific Settlement of Disputes, which largely deals with international conflict resolution, prior to dealing with the law of international conflict. Similarly, having Current Trends in International Legal Theory as the last chapter does not work well, particularly as the first chapter (on the Nature of International Law) introduces the reader to some of the theories of international law. This division between the nature of international law and current theories implies that it is possible to understand the nature of international law removed from a theoretical understanding and/or that the only two theories that a reader needs to know before embarking on substantive international law are the two “classical” theories - positivism and natural law - covered in the first chapter. Further, some of the authors of the other chapters deal with “current” international legal theories (such as in the chapter on Human Rights) without the reader having the benefit of an explanation of those theories. Similarly, a few of the chapters (such as the one on Use of Force) would benefit from reflecting on some of these current theories, particularly as Charlesworth in the last chapter notes that ‘international lawyers need to be self-conscious about the theories of law and obligation that they assume as they practise their craft so that they better understand the political and social implications of their work and the inevitable partiality of their perspective’ (p.417).
In other respects, the structure of this book is first class. A standard structure and format for each chapter aid a sense of coherence between chapters, with clear headings and sub-headings. There is minimal overlap between chapters and some appropriate cross-referencing. There are very few spelling or grammatical errors (though the use of “human-rights” as against “human rights” is irritating and there needs to be consistency in the use of “States” and “countries”) and a general uniformity in style, though there are, at times, too much assumption of knowledge of events by students (eg p.25) and an occasional overuse of “well-known” or “famous” when referring to events (e.g pp.152, 213 and 240).
A few unusual aspects of the formatting deserve comment. The lack of footnotes is amazing in a legal textbook, as is the inclusion within the text of references to cases by use of short-form names (with the full name and citation given in the Table of Cases). However, after a couple of chapters, this approach becomes both functional and welcome, and certainly makes the text more accessible to first time readers of international law. Yet there are instances where some form of direct referencing is needed, particularly where there are quotations from cases without locating the page or paragraph or from a treaty without specifying the relevant article. This format also tends to inhibit longer quotations from decisions or treaty provisions and makes some references rather cryptic (e.g. p.149). The Further Reading” offered at the end of each chapter is necessarily limited and would be better if included in the Bibliography. Finally, the provision of Questions for each chapter does not advance knowledge as no suggested answers are given and some of the questions are rather banal.
It often happens in an edited book that there are great variations in the quality of the chapters. This is not the case here. The quality of the chapters is generally high. The best chapters have excellent introductions that introduce the reader both to the key issues for the topic and to the context within which the issues are discerned, including reference to the theories of international law. Thus the chapter on Sources by Greig incisively deals with the key points in this topic in an interesting and engaging way so that some of the difficult areas are clarified and are presented within the context of developments in the international legal system. Similarly, the chapter on Jurisdiction (by Shearer) offers pertinent analysis and conclusions as do the chapters on International Environmental Law (by Rayfuse) and on Current Trends in International Legal Theory (by Charlesworth). The chapter on International Law and Domestic Law by Balkin uses case law and statutes extremely well, though a greater clarification of monism and dualism would have been helpful.
The Chapters on Refugees (by Musgrave), Law of the Sea (by Opeskin) and Antarctica (by Rothwell) are clear, well-written and informative, though the first two would benefit from a conclusion and a more explicit recognition of the geo-political context of their topics, and the latter is far too detailed for a first time reader with sections (such as p.383-5) which seem unnecessary (and section 12.10 in the chapter on Refugees is problematic). The task of the authors of the chapters on the Structure of the International Legal System (Piotrowicz), Use of Force (McCormack) and Human Rights (Matthew) is considerable as each has to reduce a vast amount of material to a few sections. On the whole they do this well. Piotrowicz could have provided historical background prior to 1945 and, Matthew, while acutely alert to the theoretical dimensions of her topic and their context, at times expresses too many ideas within a single paragraph and does not provide enough sub-headings to break up the material. McCormack, on the other hand, provides an excellent historical context to his topic and offers very amusing insights into his views of other writers (e.g. the “ludicrous argument” by D’Amato on p.246) but he tends to present the law in a manner to suit his own argument and neglects to clarify the status of key treaties such as the Geneva Conventions (p.267). In regard to Chapter 1 on the Nature of International Law (by Blay), his immediate assumption that international law is law is to be welcomed and he deals clearly and well with all the key issues students ask and which need to be addressed. But, as indicated earlier, the partial introduction to some theories of international law does not work and at times he over-reaches himself in drawing conclusions which may be hard to substantiate.
The other chapters in this book have significant strengths but are let down by a variety of factors. The chapter on Treaties is very focussed on the Vienna Convention on the Law of Treaties and so barely acknowledges issues such as unilateral declarations (p.97) or the use of the law of State responsibility as grounds for termination of a treaty (see the Rainbow Warrior Arbitration). It would also have been helpful to have examples of Australia’s reservations and an explanation of national interest statements (p.114). Chapter 8 on the Creation and Recognition of States is helpful in terms of raising the key issues of this topic but too often it fails to provide any coherent answers to these issues (e.g pp.195-7) or fails to suggest alternative meanings, such as for the capacity to enter into foreign relations (p.197-8). It is surprising that the chapter on Pacific Settlement of Disputes makes no reference to the vast international commercial arbitration systems dealing with issues between states and corporations (e.g. ICSID, ICC, UNCITRAL) and there is no discussion of the benefits of intervention in ICJ proceedings in terms of the broader interests of the international community (p.158). Some of the references in this chapter to cases and treaty provisions are too cryptic for a first time reader. A similar problem is found in the chapter on State Responsibility, where decisions from a variety of tribunals, arbitrations, courts and individuals are used as if they are all of equal weight in terms of their impact in the development of international law and as if the decisions were clear cut. As well, the status of the ILC Draft Articles is never clarified, although they are heavily relied upon by the author, and insufficient attention is given to alternative ways of viewing State responsibility (see Allott) and of the linkages between State responsibility and other areas of international law, such as human rights and the environment.
Overall, this is an excellent book. It meets its objectives and proves that there is an Australian international law that includes experiences and developments beyond Australia. Above all, it is a book that is practical, understandable and accessible to student readers and so should be essential reading for any core International Law unit taught in Australia. I recommend it.
Robert McCorquodale
FACULTY OF LAW
AUSTRALIAN NATIONAL UNIVERSITY
[1] Deutsche Welle TV, 26 August 1997 (on SBS TV World Watch).
[2] The authors visited the Max-Planck-Institute for Comparative Law and International Law in Heidelberg from 1991 to 1992.
[3] See above all the comprehensive account in Chapter 3 (“The Frontiers of Germany”) which deals almost exclusively with the German-Polish border.
[4] Chapter 6 on the restitution of property was contributed by Dr Gunnar Schuster, lawyer in Frankfurt/Main and chapter 7 on the criminal prosecution of GDR officials was written by Dr Andreas Zimmermann, Research Fellow at the Max-Planck-Institute for Comparative Law and International Law in Heidelberg.
[5] Accession is used to describe the process by which the East German states joined the West German Constitution.
[6] Lustration is the term used for investigations of officials who served in the previous regimes.
[7] Since its fortification in 1963 to 1989, the year of the “fall of the Berlin Wall”, 193 East Germans were killed in the attempt to cross the border.
[8] See for instance, Beddard R and Hill D eds, Economic, Social and Cultural Rights: Progress and Achievement (1992); Craven M, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995); Drzewicki K, Krause C and Rosas A eds, Social Rights as Human Rights: A European Challenge (1994); Eide A, Krause C and Rosas A eds, Economic, Social and Cultural Rights: A Textbook (1995); Matscher F, The Implementation of Economic and Social Rights: National, International and Comparative Aspects (1991).
[9] Under the chairmanship of Professor Philip Alston, the Committee has been active in analysing Government Reports, on occasion being prepared to condemn particular government actions. It has also commissioned work on the implementation of particular rights. As to the work of the Committee, see Craven, n 1 above.
[10] As to the NGO neglect, see Alston P, The United Nations and Human Rights: A Critical Analysis (1992) p 502.
[11] Vierdag EW, “The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights” (1978) Netherlands Yearbook of International Law 69; Bossuyt M, “International Human Rights Systems: Strengths and Weaknesses” in Mahoney K and Mahoney P eds, Human Rights in the Twenty-First Century (1993).
[12] For a discussion of how the distinction between economic, social and cultural rights and civil and political rights entrenches discrimination against the marginalised, see Jackmon M, “The Protection of Welfare Rights Under the Charter” (1988) 20 Ottawa L Rev 257.
[13] Scott C and Macklem P, “Constitutional Ropes of Sand or Justiciable Guarantees: Social Rights in a New South African Constitution” (1992) 141 U Pa L Rev 1 at 85–86.
[14] Frances Mullin v Union Territory of Delhi [1981] INSC 12; [1981] 2 SCR 516, at 529.
[15] Scott C, “The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights” (1989) 27 Osgoode Hall Law Journal 769.
[16] Steiner HJ and Alston P, International Human Rights in Context: Law Politics Morals (1996) preface at v.
[17] Ibid, at vii.
[18] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.
[19] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353.
[20] Students are asked to comment on the polarisation of the debate into these extremes at p 255, Steiner and Alston, n 1 above.
[21] East Timor (Portugal v Australia), Judgment of 30 June 1995, ICJ Rep 1995, p 90 (the ‘judgment’).
[22] For a collection of articles that refers more specifically to the ICJ’s decision, see Brewster M and Shearer I eds, “The East Timor Case in the ICJ” International Law Association, Sydney, Martin Place Papers No 4 (1995).
[23] See Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom and United States) ICJ Rep 1954, p 31.
[24] Scobbie I, ‘The Presence of an Absent Third: Procedural Aspects of the East Timor Case’, Chapter 12, p 223; and Simpson G, ‘The Politics of Self-determination in the Case Concerning East Timor’, Chapter 14, p 251.
[25] In paragraph 29 of the majority opinion, the right to self-determination is acknowledged to be an essential principle of international law, having an erga omnes character. In paragraph 37 of the opinion, the court notes that “for the two Parties, the Territory of East Timor remains a non self-governing territory and its people has the right to self-determination”.
[26] Judge Weeramantry, ICJ Rep 1995, p 90 at 139 and Judge Skubiszewski, ibid, at 224.
[27] “Australia and East Timor in International Law”, Chapter 15, p 269.
[28] “The Substance of the East Timor Case in the ICJ”, Chapter 13, p 243. For a contrary view see Fonteyne JP, “The Portuguese Timor Gap Litigation before the International Court of Justice: A Brief Appraisal of Australia’s Position” (1991) 45(2) Australian Journal of International Affairs 170.
[29] Davidson G, “Historical Reality and the Case of East Timor”, Chapter 1, p 11.
[30] Taylor J, “Decolonisation, Independence and Invasion”, Chapter 2, p 21.
[31] Aditjondro G, “Prospects for Development in East Timor after the Capture of Xanana Gusmao”, Chapter 3, p 50.
[32] This Chapter 10 (p 181) by G Nettheim is somewhat misnamed “International Law and International Politics”.
[33] “The Meaning of Self-determination and the Case of East Timor”, Chapter 6, p 119.
[34] Namely, administrative autonomy, cultural autonomy, territorial secession, territorial integration and internal democracy. See p 146.
[35] See Namibia (SW Africa) (Advisory Opinion) ICJ Rep 1971, p 16; Western Sahara (Advisory Opinion) ICJ Rep 1975, p 12 and Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali) ICJ Rep 1986, p 4; (1989) 80 ILM 441.
[36] Bowring B, “Self-determination and the Jurisprudence of the ICJ”, Chapter 7, p 151 at 163.
[37] See paragraphs 29 and 37 of the majority judgment, and the dissenting judgments of Judges Weeramantry and Skubiszewski.
[38] “The ‘Decolonisation’ of East Timor and the United Nations Norms on Self-determination and Aggression”, Chapter 4, p 65.
[39] “International Humanitarian Law and the Indonesian Occupation of East Timor”, Chapter 11, p 205.
[40] See pp 309–314.
[41] Marks S, “Kuwait and East Timor: A Brief Study in Contrast”, Chapter 9, p 174.
[42] There is one Indonesian represented in the collection, George Aditjondro, who is not a lawyer and whose views hardly coincide with those of the Indonesian government.
[43] “Australia and East Timor in International Law”, 269 at 289.
[44] However, some of the chapters do refer to the article by Fonteyne JP, n 8 above, which does defend (at least in part) the Australian position.
[45] Only States may be parties before the ICJ (Article 34(1) of the Statute of the ICJ), and in this case, there was also no provision to have a representative of the East Timorese provide direct input into the proceedings.
[46] Some writers have referred to the East Timorese as the indispensable “fourth” party to the ICJ proceedings. See, for example, Simpson G, “Indispensable Sovereigns: Third and Fourth Parties in the East Timor Case”, in The East Timor Case in the ICJ, n 2 above, pp 75–92. The separate opinion of Judge Vereshchetin in the ICJ is also relevant. In his opinion, the fact that there was no evidence as to the views of the East Timorese people before the court was also a reason why the case should not proceed. See ICJ Rep 1995, p 90 at pp 135–138.
[47] For example, see Fitzgerald B, “Portugal v Australia: Deploying the Missiles of Sovereign Autonomy and Sovereign Community” (1996) 37 Harvard International Law Journal 260.
[48] McCorquodale R, “Book Review” (1996) 17 Aust YBIL 263.
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