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Australian Year Book of International Law |
Edited by
Ryszard Piotrowicz
Edited by Sarah Pritchard
(Zed Books Ltd, London, and Federation Press, Sydney, 1998, xi and 243 pp)
Since the assertion of sovereignty by the British over the Australian continent, relations between indigenous peoples and governments have been continually renegotiated and redefined within the settler legal and political system.[1] In 1997 this process found expression in the political arena through two dominant issues. The first of these was Bringing Them Home[2] which brought to national attention the existence and impact of the assimilation policy of successive federal and State governments throughout this century. The release of the Report was followed by an inadequate, even intransigent, response to the Report and its recommendations by the Federal government. The second issue concerned the appropriate legislative response to the High Court’s Wik[3] decision. As the political and public debate around these issues continues, the capacity of the municipal system to provide both protection of existing indigenous rights and to redress past wrongs stands in sharp relief against a background of recent developments of the common law and the emerging significance of international law as a forum for exploration, if not resolution, of domestic human rights conflict. Particularly pertinent examples of these developments include the High Court decision in Teoh,[4] the Toonen/Croome case[5] and the slow but purposeful negotiation of the Draft Declaration on the Rights of Indigenous Peoples.
This very point is firmly echoed in one of Mick Dodson’s contributions to the recently published Indigenous Peoples, the United Nations and Human Rights. Dodson graphically refocuses attention on what he describes as the “ultimate meaning of human rights”[6] in the contemporary lives of Australia’s indigenous peoples — “the runny eyes, the angry, frustrated faces, the lost knowledge, the desecrated land and the hopelessness”.[7] While using this characterisation of human rights as a starting point, Dodson goes on to provide a highly political context for the remainder of the book. That is, he graphically and strategically argues why international human rights regimes matter in the lives of indigenous Australians. Taking a broad view of human rights to include health and the conditions in which indigenous people live, education as well as criminal justice and incarceration issues,[8] he suggests that these provide the grist for the international mill and its human rights regimes. While recognising that “the system of international law is not perfect”,[9] Dodson refers to elements of the regimes that might be used to address this vast range of human rights issues and provides an indigenous voice which offers a context for the detail of these regimes taken up in subsequent chapters of the book.
The book emerged from a 1995 conference in Sydney “designed to increase awareness of the United Nations human rights system, especially amongst Indigenous Australians,”[10] and sets out to provide something of a “how to” guide[11] to international institutions and fora relevant to indigenous peoples’ struggles. This purpose is clearly articulated in the preface and the first two chapters of the book, which make clear that the practical focus and tone of the various contributions is an essential aim of the publication: “the focus is on practical outcomes, and some might find it strange to find a technical discussion of international law”.[12] Similarly in these early contributions, the rather ambivalent response of States to the human rights agenda and the gap between the description of the international institutions, instruments and procedures and their operation and effectiveness is explained and emphasised in order to add a dose of reality to the ensuing contributions.[13] In keeping with its focus and anticipated audience, the contributions to the book generally assume little or no prior knowledge of the arcane world of international law although the book may also be a valuable tool for those who have had previous experience in the international arena.
The book is divided into five parts, each representing a step in the human rights system. Apart from the introduction, the second part covers the UN Charter-based human rights system, while the third covers the treaty-based system and the role of individual complaints. Part IV covers the role of reporting in the system while the final part covers some specific human rights standards. This structure initially introduces the reader to some general elements of international law and then to the context of human rights claims by Australia’s indigenous peoples as the basis for the examination of the procedures of the UN Charter-based and treaty-based human rights regime in the succeeding chapters. The book is directed to an audience with little knowledge or experience of international law and its domain. Consequently, Pritchard’s outline of “the significance of international law” is something of a whirlwind tour, touching the main elements required to understand the ensuing discussions. Although necessarily brief, she does manage to convey succinctly not only information on the key doctrines of international law, but also issues of enforcement and the process through which international law becomes domestic law. Pritchard draws attention to the somewhat ambivalent attitude of domestic law makers to international standards[14] and the uneasy but evolving relationship between States, non-government organisations and individual claims.[15] The chapter suffers from the lack of references to current domestic issues and the ways in which they might interconnect with some of the principles referred to and thus enhance the utility of the information. Given the introductory nature of this opening chapter this is a minor criticism, although a recurring and more significant lack in subsequent chapters.
Nettheim’s overview chapter on the UN Charter-based human rights system provides something of a road map of the system with references to both the major institutions and instruments in the system and the methods of operation of the relevant institutions, including the many limitations, inadequacies and hurdles inherent in the system. At various points on his map, Nettheim stops to examine the relevant history of the various instruments and institutions, as well as their limitations, including some useful advice along the way. For example, of the processes of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Nettheim says that “the process is slow, complex, secret and vulnerable to political pressure”[16] but suggests that there are strategic decisions to be made about the likely responses of governments to this confidential procedure.[17] Similarly, he emphasises the benefits of having communications prepared by lawyers or researchers for non-government organisations (NGOs) who are familiar with the Sub-Commission’s operations and have members involved in lobbying members of the Sub-Commission.[18]
The brief references to the place of the Sub-Commission’s Working Group on Indigenous Populations, the site of significant activity for Australia’s indigenous peoples, and the role of experts and special rapporteurs in the Sub-Commission’s activities[19] provides a useful lead into Pritchard’s chapter devoted entirely to the Working Group. Once again this chapter is full of significant information about the composition and methodology of the Working Group and its central pre-occupation, namely, the Draft Declaration on the Rights of Indigenous People. Pritchard places the Draft Declaration within the UN process in a clear and comprehensible way, allowing both the benefits of the Draft as well as the immense hurdles to its adoption to emerge. The chapter’s lack of an Australian focus is balanced by Mick Dodson’s commentary on the Working Group’s activities which he describes as a “small revolution” within the UN system.[20] Perhaps more importantly, Dodson provides insights into the operation of the Working Group from the perspective of indigenous people as participants in the process, emphasising the significance of the Group as a meeting place and as a site of solidarity for the indigenous peoples,[21] transforming the struggles of indigenous peoples into a “global struggle … between the world’s Indigenous peoples and the world’s colonial governments”.[22]
The balance of the book is devoted to the treaty-based human rights system including the system of individual complaints and human rights standards. Although implicit in much of the book, Charlesworth is explicit about this tension between the possibilities and the reality of the international human rights system in her overview chapter. She provides a dose of reality about both the processes for formulation of standards and the problems associated with the partial operation of the UN bodies charged with implementing the processes,[23] suggesting the system is in crisis.[24] This suggestion provoked a defensive response from O’Flaherty,[25] who at the time of the conference giving rise to the book was Secretary of the Committee on the Elimination of Racial Discrimination. Unfortunately O’Flaherty’s response is very short and not particularly convincing but at least there is an attempt to engage directly and create something of a dialogue on this central and controversial issue of effectiveness of the system.
The three chapters on individual complaints and communications[26] are among the most practical and useful in the book, providing significant detail on the requirements that applicants must meet in order to mount their complaints in relation to the three treaties under which individual communications are available. Charlesworth’s chapter details the admissibility requirements and outlines the hurdles to be negotiated within this phase and the fact that they can be reconsidered at the merits phase of complaints. The chapter is practical, clearly written and easily understood. It gives something of a step-by-step guide to the admissibility phase of the process, as well as a flavour of the nature of the proceedings and the difficulties to be overcome. As in her earlier chapter, Charlesworth refers to some of the underlying tensions in this (and other) processes in human rights law, including the conflict between collective and individual rights and cultural and religious rights and women's rights.[27] While the chapter is somewhat frustrating for the professional reader in its lack of citations, this very approach enhances the readability of the chapter which is after all primarily directed at a non-professional audience.[28] The chapter would have been enhanced by reference to some topical issues that might form the basis of a complaint described in the chapter. Some of the issues raised by Dodson in overview chapter two might have been considered as a means of explicating the procedures. However, as it stands, the chapter provides the reader with some concrete starting points as well as some sobering reflections when contemplating such a complaint.
Evatt’s chapter, like Charlesworth’s, is practical, readable and easy to understand. There is some small overlap with the Charlesworth chapter, although Evatt’s is largely directed at providing more detail of the individual communications procedure under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Evatt directly addresses the relevance of the procedures and the issues arising in prospective communications by indigenous Australians[29] and the difficulties likely to be experienced by, or conflict with the values of, indigenous Australians by the requirements of procedures, such as the lack of collective or communal claims.[30] The great strength of the chapter is Evatt’s “insider’s view” of the procedures, the attitude of the Human Rights Committee to aspects of the process and her tips for those preparing communications. The material is comprehensive and provides something of a check list for those intending to take communications to the Committee.
O’Flaherty’s contribution is similarly accessible and useful. It does not contain the detail of Evatt’s chapter but is also practical, particularly in relation to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), taking a list approach to the development of communications. Further detail is given in relation to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT) but it is not immediately clear in what circumstances in Australia the basis for such a communication might arise. This omission is similar to Evatt’s failure to link her discussion to current issues of concern to indigenous Australians that might form the basis of a communication. As with Charlesworth’s contribution on this issue, the utility of the chapters would have been enhanced by such references. It may not be appropriate for Evatt or O’Flaherty to undertake this analysis, but the end might have been achieved through a commentary on the procedures, a technique used at various points in the book to expand or comment on contributions. For example, a contribution similar to that of Dodson’s comment[31] on Pritchard’s chapter on the Working Group on Indigenous Populations,[32] drawing attention to the manner in which the processes might relate to the native title issue and potential extinguishment by legislation or the Government’s response to the Bringing Them Home[33] report, would have given the chapters a sharper, practical and relevant focus.
There are three chapters dealing with periodic reporting and enforcement issues generally under the ICCPR and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),[34] the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC)[35] and the CERD.[36] Again these chapters contain useful practical information about the process of reporting, as well as its effectiveness in achieving compliance. As in her earlier chapter on individual communications, Evatt provides a step-by-step description of the procedure and identifies both the points at which individuals and NGOs might intervene in the process, and the manner of the intervention. O’Flaherty, in particular, emphasises the important role to be played by NGOs in these processes, identifying, by implication, a significant aspect of the work of local indigenous and support organisations in the domestic political environment and the significance of links and alliances between these local groups and NGOs operating in the international arena.[37] These three chapters are also useful because they bring the reader back to the elusive and problematic issue of enforcement of international obligations generally.
The final two chapters in the book are among the most informative. O’Flaherty’s discussion of the substantive provisions of the CERD provides some substance to the earlier discussions of the procedures under the Convention. This discussion might have been usefully incorporated in the earlier discussion of reporting and communications under the Convention. In addition, the chapter ends abruptly without any cross-referencing to the earlier discussion. However, it is full of information that helps to fill in the gaps in the earlier discussion. Through his consideration of the first seven articles of the Convention, O’Flaherty considers the type of issues that might bring the Convention into play and refers to some of the specific difficulties in the Australian context such as the federal system and the constitutional powers of the States in many of the areas that involve indigenous peoples.[38] Each of the contributions on the Convention provides the reader with a little more knowledge and understanding of its content and operations. It is unfortunate that these contributions are not gathered together in a more coherent way.
Pritchard’s final chapter considers the provisions of the ICCPR in much the way that O’Flaherty does with the CERD. This discussion gives substance to the provisions of the Covenant as it considers the meaning of fundamental concepts such as self-determination as well as measures to give effect to these concepts. It also provides examples of how some of the provisions might be relevant to Australia’s indigenous peoples in relation to the criminal justice system under Articles 7, 8 and 9,[39] religious and cultural considerations under Article 18[40] and equality issues such as native title under Article 26.[41] Some of the problems associated with the Covenant, such as the equating of indigenous and ethnic minority rights,[42] expand the comprehensibility of the Covenant articles while ensuring the difficulties associated with seeking to use the Covenant remain to the fore. The discussion of Australia’s second report to the Human Rights Committee provides a clear and useful exposition of the way in which reporting works and the way the Committee responds to such reports. This two-page section is one of the most helpful in the book, enabling the reader to obtain a clear picture of precisely how the Covenant provisions, the enforcement procedures and domestic activity interconnect. Its clarity only serves to emphasise the lack of similar material in most of the other contributions to the book.
In addition to the specific chapters dealing with particular aspects of the UN human rights system, the book is full of relevant and useful information including a bibliography and extensive appendices. For ease of reference, the bibliography is helpfully divided into a general human rights bibliography and separate bibliographies for each convention discussed in the book. The appendices include extracts from the procedural rules for the Human Rights Committee, the Committee against Torture, the Committee on the Elimination of Racial Discrimination, a model form for a communication to a Committee and an example of a Secretariat reply. There is also a useful diagram illustrating the relationship of indigenous peoples to the UN human rights system. These items, together with the experience and status of the contributors to the book, are important elements in providing the practical guide to the UN human rights system it seeks to achieve.
There is no doubt that this book is a significant contribution to the understanding of international law and the inaccessible world of its institutions, instruments and procedures. It contributes significantly to the demystification of the processes in a practical and realistic way, taking care to discuss both the value and difficulties associated with the use of international fora as a source of addressing indigenous concerns in Australia. The reader is clearly presented with a complex set of formal and informal rules, the navigation of which requires both technical and political skills. However, one of the book’s great strengths is in its emphasis on the role of NGOs and the building of alliances and solidarity between indigenous peoples across States. This focus enables the book to meet its stated objective of providing practical information and outcomes through providing technical information about the system.
The book is primarily directed at indigenous people and its accessibility should ensure its utility for this target audience. However, it should also be useful for legal and other advisers of indigenous groups unfamiliar with international law and for those practitioners outside the law for whom knowledge and understanding of the system is an essential aspect of their professional and political activity. The book should also have value to others who are engaged in human rights work domestically or in the international arena.
In spite of the recurring criticism of the lack of detailed reference to domestic Australian issues, the book’s purpose in enhancing understanding of how UN processes “might be used to advance the human rights of all people, especially Indigenous individuals and communities”[43] is largely achieved through both the tone of the work and the breadth of subject matter covered, giving it a utility for indigenous people in identifying issues and the potential sources of international law to address them. The book contributes to this process substantially by providing the necessary resource, namely knowledge of the system, to empower indigenous peoples in this pursuit. The point is emphasised by Dodson in the conclusion to his chapter “Linking international standards with contemporary concerns”: “So I close where I began. It’s not perfect. It’s far from perfect. But I’d suggest that Indigenous Australians could do a lot worse than have a few billion people of the international community on our side.”[44]
Maureen Tehan
LAW SCHOOL
UNIVERSITY OF MELBOURNE
By CG Weeramantry
(Kluwer Law International, The Hague, 1997, x and 453 pp)
“Justice” is a tricky subject; “Justice without Frontiers” trickier still. One can painstakingly work through the question of what justice involves with the methodology of one or other of the normative disciplines, or one can adopt a “know it when we see it” approach, which leaves deep questions to one side and gets on with the business of doing, in the circumstances rather rough, justice. International human rights appears to hold the promise of a middle way, a concept both grounded objectively in political consensus and legal standards and about which there can be useful debate towards their implementation: command and compliance come together. However, to be tied to the practical experiences of politics or law is to run the risk that the idealism of the project will be diluted: that we shall deal not with high morality but low compromise, not with the articulation of generalised norms but with the nit-picking detail of their application. By and large, Judge Weeramantry has preferred the high ground and the general perspective. Accordingly, he is speaking in these essays not to lawyers but to those who share his unarticulated optimism and who think that by saying things should be so, sufficiently clearly and sufficiently often, then they will be so. He has two great concerns: the processes of inculcation of an appreciation of human rights in a wide audience; and the threats to the enjoyment of human rights which come from beyond the State, such as centres of media power or the uncontrolled embrace of technological change.
Judge Weeramantry has been a prolific writer throughout his career; he did not start on his long and widely-referenced pieces with his judgments in the International Court of Justice. This collection of essays is a small sample drawn from some of his earlier, mainly academic, work, not all of it published before. They have been written over a long period and bear testimony to an approach to human rights which has hardly wavered during this time. The concept of human rights that they encapsulate is an aspirational, universalist ideal, informed as much by intuition about the good life as it is by philosophical speculation or legal enquiry. Judge Weeramantry has been concerned for much of the time with the impact of technology on individuals and societies and he has sought in the generalities of human rights some means of mitigating what he detects as the disadvantages of scientific progress: weapons production and the arms trade, and the changing features of the production and projection of the media, for instance. The sources of his ideas of human rights are as much likely to be comparative constitutional law as they are straightforward international human rights law, with the ambiguities which inevitably result from relying on national standards for international purposes. The Universal Declaration of Human Rights (UDHR) is given high prominence but the difficulties about its interpretation and its uncertain legal status are alluded to only obliquely.
There are sixteen essays in two sections: “General perspectives” and “Specific human rights problems”. Even those in the second part, including ones on the right not to be tortured, the right to development and the right to know, do not aspire to much by way of detail or analysis. Rather, they are of a piece with the general injunctions of the first part, including two on human rights education and one on Islamic jurisprudence and another on Japanese practice. Another is titled, “National and international systems as denigrators of human rights”. Together, these catch the difficulty of producing coherent and practically useful universal standards without enlisting States in their elaboration, with all the reservations that that will involve. In the struggle between apology and utopia, there is no doubt about on which end of the rope Judge Weeramantry is pulling. Human rights law, though, pulls both ways: requiring the apologetic State to sign on for its obligations but then seeking to move those that do to “utopianish” compliance. Perhaps not surprisingly then, not only is reference to international law sparse, some of the claims about international law will surprise: that it is “the invisible college of international lawyers” which is responsible for “the set of principles which they consider more obligatory than even the commands of the sovereign state”. This all the more surprising when, though not eo nomine, Georg Schwarzenberger is called in aid as the source of the principles of international law: that it is a crime against international law to sell heroin on the street.
That Judge Weeramantry is committed to the better life for the many is beyond doubt. He is capable of identifying the threats and obstacles to that better life beyond the usual bogey of the authoritarian executive: that is a feature of these studies. But these forces can be taken on only by the State, which needs its strength, whether against an overweening media or an amoral terrorist group or to tame the excesses of technological change. Too much reliance on exhortation, that this or that “needs to be done”, undermines any sense that Judge Weeramantry’s convictions will be readily picked up by those with the power to act decisively. Nonetheless, with tighter editing to exclude some of the more dated papers and better up-dating of those that remained, this would have been an accessible collection for those with a general interest in human rights. As it is, any audience which will profit from it will not include many international lawyers, who understand the limits of their discipline but are not unmindful that such of its achievements as there have been have resulted from a rather different concept of the lawyer’s role than that assumed by Judge Weeramantry.
Colin Warbrick
LAW DEPARTMENT
DURHAM UNIVERSITY
By Surya P Subedi
(Clarendon Press, Oxford, 1996, xlvi and 271 pp)
This book is a revised version of a doctoral thesis submitted in 1993 at Oxford University. It examines State practice relating to the creation of land and maritime zones of peace with a view to determining the extent to which principles have evolved in international law governing the creation of such zones and the relationship between such zones and other principles of customary international law.The central arguments in the work are: first, that such zones are consistent with existing principles of international law and the Charter of the United Nations; and second, that they can be created with effects erga omnes within national territory by the unilateral declaration of the State concerned and, in maritime zones, by the “consent” of the international community as expressed through United Nations General Assembly resolutions.
The subject is undoubtedly one of considerable importance although, as Professor Ian Brownlie observes in his preface, it is one which has hitherto been “more or less neglected in the anglophone literature”. The importance of the study is clear from the adoption by the United Nations General Assembly of a resolution declaring the Indian Ocean a Zone of Peace in 1971[45] and, in 1986, the adoption of a further resolution with considerably greater support declaring the South Atlantic to be a Zone of Peace and Co-operation.[46] Outside the United Nations, reference can be made to the 1971 Declaration of the Association of Southeast Asian Nations on the creation of a Zone of Peace, Freedom and Neutrality in Southeast Asia. A historical examination of these resolutions is contained in Chapter 1. Land zones of peace have also been proposed by Nepal in 1975, by the Dalai Lama in relation to Tibet, and by the Kuala Lumpur Declaration of 27 November 1971 where the member States of ASEAN agreed to take steps to secure the recognition of Southeast Asia as a Zone of Peace, Freedom and Neutrality. As Subedi observes, the latter proposal is particularly significant as it envisages the transformation of a region consisting of a number of separate States into a single permanently neutral zone.
Subedi identifies the basic objective of the maritime declarations as being “to transform the marine areas covered by them into demilitarized zones, with exception being made for the peaceful navigation by all ships of all States”. While Subedi acknowledges that the precise legal content of a zone of peace will depend upon that agreed upon by interested States, he also isolates certain common purposes, namely:
• to demilitarise, denuclearise and neutralize the particular zone;
• to impose restrictions upon the activities of navies within the zone; and
• to acknowledge the freedom of navigation and overflight of the high seas by all States and the right of self-defence in accordance with the United Nations
• Charter and general principles of customary international law
The creation of such zones gives rise to a number of difficulties which have formed the basis of opposition by some Western powers. Each of these are considered in the work.
The first difficulty concerns the lack of a precise definition of the waters to be included within the zones of peace declared by the resolutions and, related to that, the question whether the zones extend, or should extend, to national waters. With respect to the latter, there is an acknowledgment of the necessity to secure the consent of the State to the application of such a regime to that State’s territory.
Second, the difficulties which exist in defining the content of the obligations which might be imposed upon States in such zones are discussed. The importance of this cannot be overestimated given that one of the purposes of such zones is to impose restrictions upon activities which might be carried out in the zones. As the author points out, unlike the position with respect to Antarctica and outer space, which have not been militarized, the creation of a zone of peace in maritime areas threatens to affect the existing balance of power. Given these matters, it is perhaps not surprising that the extent to which Western nations have supported the creation of zones of peace appears to have been dictated by the political expediencies of the particular time. Such support as has been given by the Western powers, Subedi observes, has now largely disappeared, it being said by those powers that there is no longer any rivalry between the great powers in the Indian Ocean and therefore no necessity for such regimes.
Third, the question has arisen whether such declarations impose restrictions upon naval access to the zones which are inconsistent with general principles of international law concerning freedom of navigation upon the high seas and the right of innocent passage within the territorial sea. This issue is considered in Chapter 2 where Subedi demonstrates that, in a number of respects, established principles governing the activities which may be carried out in the various maritime zones are consistent with those sought to be embodied in the zones of peace. However, in other respects the degree to which activities may lawfully be engaged in offshore depends upon the legal content of principles which are controversial. In particular, Subedi argues that the principle of the use of the high seas for peaceful purposes contained in Article 88 of the United Nations Law of the Sea Convention “…should be interpreted in accordance with the noticeable trend in the development of international law and practice towards the prevention of militarization of the seas and other uninhabited parts of the world, in particular in accordance with the use of the term in similar disarmament treaties, namely the Outer Space Treaty, the Antarctic Treaty and the Moon Treaty, which do imply ‘non-military’.”[47] Consequently, he takes the view that the principle does not mean merely “non-aggressive”, in which case it would add little to obligations already existing under the United Nations Charter, but should be construed as “non-military”. Ultimately, however, he concludes that the principle of the use of the seas for peaceful purposes alone is insufficient to achieve demilitarization of the seas although it provides a legal basis for progress in that direction, such as through the application of the concept of a zone of peace.
In Chapter 3, Subedi argues further that maritime zones of peace can be regarded as collective measures designed to prevent threats to the peace under paragraph 1 of Article 1 of the United Nations Charter. Contrary to the position taken by some States, he contends that the right of self defence cannot be raised to justify the deployment of navies in zones of peace, but can justify the creation of a regional zone of peace which, by definition, involves no threat or use of force.
On the basis then that zones of peace are consistent with, but go beyond, existing principles of customary international law, Subedi then considers the extent to which the principles contained in the declarations of zones of peace have crystallised into principles of customary international law. To pose the question thus, however, oversimplifies the issues and does not in fact reflect the approach that the author takes. Rather, having considered the extent to which the principles embodied in the United Nations resolutions regarding maritime zones of peace merely reflect existing customary international law, the questions are then to what extent might practice in relation to the resolutions contribute to the development of principles relating to the law of the sea and, further, in what circumstances will customary international law recognise and give effect erga omnes to resolutions, treaties, and other arrangements which impose restrictions upon the uses to which particular areas of the seas may be put.Land zones of peace are the subject of separate consideration in Chapter 4. The objectives of such zones are similar to those of maritime zones of peace, including non participation in military alliances, the absence of foreign military bases, a prohibition upon the use of the area for military purposes by outside powers and a prohibition on the acquisition and deployment of nuclear weapons and weapons of mass destruction. Subedi characterises such zones as measures designed to promote and maintain peace and security consistently with the obligations imposed upon members of the United Nations, especially by Article 2 and, in relation to regional zones of peace, consistently with Article 52(1). In Chapter 5 these zones of peace are compared with the traditional concept of permanent neutrality. One of the most important and interesting aspects of this discussion concerns the potential for conflict between the obligations assumed under a regime for permanent neutrality or a zone of peace, on the one hand, and obligations imposed upon member States by the United Nations Charter (in particular, to provide military assistance upon the request of the Security Council) on the other hand.
Finally, the work discusses the capacity of a regional group of States or of the United Nations General Assembly to create a zone of peace binding upon all States irrespective of their consent, that is, with effect erga omnes. As land zones involve the application of a particular policy to the national land territory of a State, Subedi quite correctly concludes that, strictly speaking, a unilateral declaration or regional agreement should suffice to establish the zone of peace. International recognition, in other words, is not necessary although the objectives of a land zone of peace are less likely to be achieved in the absence of international recognition.
However, the position is different with respect to maritime zones of peace. This area is one of considerable controversy, some States having taken the view that the United Nations resolutions declaring maritime zones of peace are not constitutive but provide only a framework or outline for the beginning of a process to establish such regimes.
It is argued in Chapter 6 that land and maritime zones of peace "could be regarded as regimes having objective character just as State practice and international case law regard similar international regimes, for example, demilitarization,permanent neutralization, and denuclearization, as having objective effects.”[48] While there is evidence of State practice suggesting that, in limited circumstances, certain regimes relating to the use of particular territory may acquire effects erga omnes in this sense, the chapter perhaps suffers from an insufficiently critical analysis. First, it is assumed that regimes on a wide range of disparate subjects including boundary treaties, treaties of cession, international settlements and navigation of rivers have acquired such effects by reason of the same or a similar principle. Second, the chapter does not differentiate between whether the regimes in question have purported to create rights for third parties, to impose obligations upon them, or to affect or restrict rights otherwise existing under international law, even though the extent to which a group of States may establish a regime binding third States may be affected by such matters. Third, the extent to which other principles of international law might account for particular regimes having acquired effects binding as against all States is not considered in this context, even though they are considered generally in Chapter 7. The author himself notes that “[t]he crux of the problem is the absence of some unifying legal basis to which the validity of all types of objective regimes can be attributed.”[49] That problem, however, may exist precisely because there is no unifying legal basis by virtue of which it can be said that the very different types of regimes examined in Chapter 6 might acquire effects erga omnes.
Chapter 7 contains what is probably a more helpful discussion of the means by which a zone of peace might be established. However, the division of subjects between Chapters 6 and 7 is somewhat curious as it is difficult to reach any conclusions about the existence of any principles of international law simply from the fact that the diverse regimes examined in Chapter 6 had in largely unexplored ways come to be accepted as having some (and possibly only limited) effects erga omnes. It would perhaps have been preferable to have concentrated only upon State practice relating to the establishment of regimes more closely analogous to land and maritime zones of peace, and to have examined the circumstances or manner in which those particular regimes came to be regarded as having effects erga omnes (if at all) more closely. Thus, for example, it is not generally clear from the discussion whether the regimes examined were regarded as having effects erga omnes from their establishment or whether that occurred later through subsequent State practice. The discussion in Chapter 6 might also have been stronger if it had differentiated more clearly between early and modern State practice, the latter, of course, necessarily having greater weight and relevance.
The core of Subedi's argument is found in Chapter 7. In that chapter he argues that land and maritime zones of peace can come to acquire effects erga omnes by a number of different means. In relation to zones of peace over land within a State, Subedi argues that such zones can be established by unilateral declaration by analogy with declarations of permanent neutrality, at least when followed by acquiescence or recognition by other States. Third States are then said to be under a duty to respect such a zone on the basis either of acquiescence or a duty to respect a regime lawfully created by other States.
The position taken with respect to maritime areas is more controversial. Subedi contends that General Assembly resolutions can, and have, established zones of peace over maritime areas. Building upon his discussion in Chapter 6, he sees the United Nations General Assembly as having assumed a role not dissimilar to that adopted by the Great Powers in concluding peace settlements which contained provisions affecting the status of territory in the general interest. This chapter contains an interesting discussion of examples of this, including the practice of the United Nations with respect to the creation and termination of trusteeships. Nonetheless, and perhaps inconsistently with this, Subedi seems to regard consent of States to the application of such a regime to territories of a res communis character as essential. This is not to suggest, of course, that the consent of a State to whose territory such a regime might be applied is not necessary.
Having taken the view that consent is necessary, Subedi then argues that the form in which consent may be expressed is not material. He contends that recognition of a zone of peace could be given through the casting of a vote to a General Assembly resolution purporting to attach a special character to a territory, or through the subsequent failure to object to such a resolution through the operation of the principles of estoppel and acquiescence.
Subedi does not, however, go so far as to suggest that the form of “consent” is irrelevant. It is clear that it could not be for the form in which a State chooses to express its “agreement” to a particular regime may well go to the question whether consent was intended to be given at all and to the basis on which the State might be regarded as bound. Equally the importance of the terms of the statement or instrument by which a State has expressed its concurrence and the subsequent conduct of that and other States cannot be underestimated.
Subedi's essential argument is that the creation of land and maritime zones of peace are consistent with existing principles of international law and with obligations under the United Nations Charter.Indeed, it is argued that acceptance of the obligations contained in declarations of the maritime zones of peace may assist in giving content to certain general principles relating to the use of maritime areas. In its more controversial aspects, Subedi contends that the United Nations declarations of maritime zones of peace may have had constitutive effect. A more critical analysis of State practice supporting that contention could have strengthened the work, although deficiencies in that regard may be due to the fact that the topic was undoubtedly an ambitious one, particularly in embracing the very wide body of State practice on many different regimes discussed in Chapters 6 and 7. The Antarctic treaty regime, for example, has generated a substantial body of state practice and literature and, while much store is placed upon that regime as a precedent for the constitutive effect of so-called objective regimes, only limited materials and evidence of State practice are discussed.
The work is written in a clear style with the ideas being well expressed. An extensive bibliography and helpful index to the work also assist in making it a most useful text. The extensive use of acronyms was, however, confusing at times although the glossary of such terms at the start of the work addresses this difficulty to some extent.
Overall, the work constitutes a timely and significant contribution to an area of importance and provides much food for thought. It is a work clearly to be recommended to those interested or working in the fields of international law and relations.
Melissa Perry
BAR CHAMBERS
ADELAIDE
Edited by Shirley V. Scott and Anthony Bergin
(Australian Defence Studies Centre, Canberra, 1997, 165pp)
While the relationship between international law and international relations is necessarily close, it has also been uneasy. The failure of the mechanisms established in international law by the Peace of Versailles to prevent the Second World War led in part to the rise of realism in international relations theory. Realist publicists, such as Hans Morgenthau,[50] suggested that the role international law had in the regulation of State behaviour was marginal at best. While political science theory has receded somewhat from this limited view of the value of international law with what has been described as a neo-realist approach and the development of notions such as regime theory and epistemic communities as aids to the prediction of State behaviour, norms of international law are still perceived as being of limited utility. To international lawyers, the thought of the very subject matter of their expertise being irrelevant or marginal is deeply troubling. As practitioners of a field of study that can trace its origins back to classical times, and which has arguably existed as a clear and separate legal discipline since the time of Grotius, some were naturally suspicious of such suggestions.
A consequence of this uneasy relationship has been the limited degree to which there has been collaboration between international lawyers and political scientists. While there have been some notable exceptions, particularly in the approach to international law adopted by publicists writing from within the New Haven School and more recently post-modern reexaminations of international law from writers such as Koskenniemi, works combining international relations theory and traditional international legal scholarship have proved to be the exception rather than the rule. One such exception is International Law and Australian Security edited by Shirley Scott and Anthony Bergin.
The collection of essays making up International Law and Australian Security were drawn from papers presented at a conference held in Canberra in July 1995. The collaboration between international law and international relations is accomplished more deeply than by simply drawing together practitioners from both camps and reproducing their papers. Rather international lawyers, both academic and in government service, are obliged to consider their sub-specialisation through the prism of three approaches to international relations theory, and to evaluate the utility of these theoretical approaches based on their experience.
Obviously, adopting this methodology requires a clear and succinct exposition of contemporary international relations theory to provide the overall context. In this, the editors were fortunate to have the participation of Professor Christopher Joyner, a political scientist with excellent credentials in public international law, to set the scene. Joyner briefly considers the two most influential paradigms (and the recent “neo-realist response”) in international relations theory in the twentieth century, and then links these theories with the role of international law in contemporary world affairs. In addition, he draws in a discussion of the roles of the international legal adviser and the academic in this context.
The series of papers that follows covers a wide spectrum of core international security issues: economic, environmental, and military. Interestingly, each subject area is examined by multiple authors, in each case drawn from academia and government, occasionally providing an interesting juxtaposition of views. Also, each treatment emphasises Australian security issues and interests, but this by necessity compels consideration of wider world interests with some regularity. Initial consideration is given to economic factors, with articles by Joan Hird and Veronica Taylor considering the GATT and WTO, and the legal dimensions of APEC respectively. Each gives a brief but informative account of international law and its impact upon these trade arrangements, while referring back to Joyner’s earlier analysis to maintain the overall context. While the order of the pieces is logical, it is perhaps a little unfortunate for this referencing approach that the first piece after Joyner’s paper expresses some doubt as to the utility of idealism, realism or neo-realism in dealing with trade issues under the GATT.
Three papers then follow examining environmental security. Peter Lawrence examines regional arrangements in the South Pacific for dealing with hazardous waste, Donald Rothwell considers the plethora of instruments dealing with environmental protection in Antarctica, while Gregory Rose examines the provisions of the Law of the Sea Convention with respect to the environment. Each paper is relatively short considering the subject matter, but when it is borne in mind that each is intended to consider the impact of international law in the field, within an international relations theoretical framework, each does a good job of succinctly indicating the content and application of the law.
The third category examined is that of military security, again with three papers: Casagrande undertakes a case study of the international law aspects of the Australian contribution to Australian peacekeeping in Somalia in the early 1990s; Mathews and McCormack consider Joyner’s analysis in the light of Australia’s participation in a number of international instruments directed at controlling the use and proliferation of weapons of mass destruction; and Cartledge discusses operations law and the law of armed conflict. As before, the papers are brief but more than adequately serve the purpose for which they were intended.
The book concludes with a brief note from Henry Burmester on the role of the legal adviser in government, which is of particular interest given this is the role he has filled as the principal adviser on international law matters to the Australian government for several years. Joyner also responds briefly to some of the papers, and endeavours to tie together the differing papers within the framework he established at the outset.
This book would not be of tremendous assistance for use solely as a reference work. The papers within it are brief, and the footnoting of them varies between extensive and somewhat quixotic. That said, the book is not intended to fulfil such a role, but rather to draw together international relations theory and international law in an attempt to provoke different insights into the conduct and practice of international law in Australia. In this it succeeds very well, and would be a useful addition to the collection of anyone wishing to obtain a slightly different perspective on international law in Australia.
Stuart Kaye
FACULTY OF LAW
UNIVERSITY OF TASMANIA
Edited by Jerzy Makarczyk
(Kluwer Law International, The Hague, London, Boston, 1996, 1008 pp)
This volume was published at the end of 1996 to mark the 70th birthday of one of the most brilliant international lawyers of his generation, Krzysztof Skubiszewski. I should declare an interest: as a doctoral student I benefited greatly from Skubiszewski’s insights and views and developed the utmost respect for him. Otherwise, $A300 is a lot of money to part with for a book, at least one without pictures. Read on to see if it was money well spent.
Skubiszewski has been widely known amongst international law academics for decades. A member of the Institut de Droit International, he has contributed a vast volume of work in many languages to the literature of international law. His list of publications runs to 24 pages near the beginning of the book. While much is in Polish and therefore not so accessible to those outside Poland (and parts of Lithuania, Israel and The Vatican), some of his most influential work has been published in English, French and German and is readily available. In 1989, though, he embarked on a new career as Poland’s foreign minister in the first more or less freely elected government in Eastern Europe since the war (not that freely elected governments were a particularly common phenomenon in the region before then). As such he participated in some of the most momentous events of the century: Helmut Kohl was actually in Warsaw when the Berlin Wall was opened that November and there is no doubt that Skubiszewski played a pivotal role in developing a positive and supportive Polish policy on German unification — something that his predecessors in foreign affairs simply could never countenance, if it ever occured to them. Indeed, it was the apparent threat posed by German unification towards Poland’s post-war territorial gains that was frequently cited by communist governments as a reason for keeping the West Germans at arm’s length.
Skubiszewski was having none of that. He participated in the 1990 negotiations for German unification when the matter of Germany’s external boundaries was under discussion and there could not have been a more knowledgeable person to do so. Skubiszewski was probably the right person in the right place at the right time, a view certainly expressed very clearly by Hans-Dietrich Genscher, the German foreign minister with whom Skubiszewski worked closely at the time, in his memoirs. After several years running foreign policy a third career beckoned, as the successor to the late Manfred Lachs in the Polish seat at the International Court of Justice. Skubiszewski’s candidacy was withdrawn at the last minute for domestic political reasons and the moment was lost. Yet he has since become known as an ad hoc judge at the ICJ, first in the East Timor case then in the Gabcikovo-Nagymoros case. He is also the President of the Iran-US Claims Tribunal.
This book is to honour Skubiszewski first and foremost as a professor of international law, and many of the writers, as is customary in a Festschrift, commence their contributions by alluding to the subject of the book. Skubiszewski’s own work in diverse areas of international law is frequently acknowledged, though few mention the area which, for me, best demonstrates the acuity of his thought: his work on legal issues relating to the division of Germany and the German-Polish frontier. In a perceptive essay, Reflexions sur la souverainété, Jerzy Kranz does allude to it as a starting point for his analysis of the meaning of sovereignty. But that is about it. Now, nobody is suggesting that these issues are still open, but Skubiszewski’s vast range of work on the subject should be acknowledged. Apart from two books, there are many articles which demonstrate the clarity of his thinking and, even more importantly to a Western reader, the fact that this person was prepared to say things, in a very controversial area central to Poland's foreign policy, which did not so much fail to toe the government line as ignore the line altogether and write what he believed in the face of the most stringent communist political correctness. So there is a lesson there, about the willingness to say what you believe even when it makes you unpopular, which is valid for everyone but perhaps especially tenured academics in Western universities who have nothing to lose but their carefully cultivated reputations for never saying the wrong thing.
This ignores the brilliance of the work: his article, published in the 1973 American Journal of International Law, is probably the best piece on the German-Polish frontier by anyone, in any language. It is a lesson in legal analysis and logic which is so simply written that at first you do not appreciate the depth of learning behind it. There were plenty of other Polish writers publishing in this area (far too many, in fact): rarely did they do much beyond rendering their government’s German policy in legalese.
The book actually starts with an introductory essay by the editor, Jerzy Makarczyk, giving an account of Skubiszewski’s professional activities. This is very informative, though some of the biographical detail, including a listing of the subject’s influential and distinguished ancestors, does not read too easily to an Australian eye. Nevertheless, we do get a fairly detailed picture of a very distinguished career.
The book is divided into five main sections: general theory, sources, international institutions, adjudication and issues of theory in the development of the law in new areas. The contributors include many distinguished authors and — don’t worry — they are all written in English or French. In a work of such length it is impossible to list all of the contributors, of whom there are 57, but many important names do appear. The first section of the book, on general theory, includes an essay by Amerasinghe who uses the forum as an opportunity to consider the nature of international law as a legal system, even alluding to perhaps the leading bête-noire of the discipline, John Austin. In “Enhancing the Role of the General Assembly of the United Nations in Crystallizing International Law”, Louis Sohn refers to Vitoria, Suarez and Grotius as the three fathers of international law. This would probably make Austin the prodigal son. Whatever one may think of Austin his views are useful at least in forcing us to analyse what it really is about law, international or otherwise, that inclines us to recognise it as such. Another interesting contribution comes from Boutros-Ghali. In “Pour un Droit International de la Democratie”, he offers what he calls an outline of the emergence of democracy as a binding principle in the behaviour of States. Of course, the notion has been discussed substantially in the literature in the last ten years or so, but Boutros-Ghali reminds us that the idea of instituting democratic values in the international order goes back much further. But the idea that some kind of democratic foundation in the Western, as opposed to socialist, sense of the term is necessary to give a government international legal legitimacy (as opposed to domestic political legitimacy), going in other words beyond effective control of the national territory, has really only started to gain momentum with the demise of communism and the earlier renunciation of the Brezhnev Doctrine by Gorbachev. Boutros-Ghali’s contribution is thought-provoking for his concept of how democratic values can and should work at the universal level, rather than focusing on the specifics of how we justify such a principle.
Part Two of the book, on sources, has a wide variety of contributions, including Oscar Schachter on “New Custom: Power, Opinio Juris and Contrary Practice”. Getting to grips with custom is the international law equivalent of nailing jelly to the ceiling, but that has not stopped a great many international lawyers getting out their hammers and nails and taking on the challenge. Professor Skubiszewski did so himself, with great effect, in his article Elements of Custom and the Hague Court (1971). Schachter in only a few pages makes some telling remarks on the subject. He raises the famous dictum of the ICJ in the Nicaragua case, that the opinio juris should be confirmed by general practice. This has been widely challenged as turning the whole thing on its head, since it is supposed to be the practice that leads ultimately to the emergence of the opinio juris, yet it is at least arguable that if the opinio juris represents the binding element in custom, then the practice is what we use to confirm that, or provide the evidence. Certainly for the custom, “once established”, to remain in effect there will have to be practice which shows, or confirms, that the custom retains its binding effect. Schachter, against this background, considers several aspects of what he calls the contemporary customary law process, perhaps the most interesting being his speculations as to why certain human rights norms manage to retain their customary status despite substantial contrary practice, in the form of persistent and widespread violations.
Sir Robert Jennings contributes an essay on the role of international legal scholars in the development of international law, making some very important remarks about the failure of too many of us to appreciate the limited role of international law in international dispute settlement and the regulation of international affairs, as well as our failure to recognise the need to involve experts from other disciplines in solving problems. His core point is that law is only one element in regulating our affairs, a simple remark but one he makes with devastating, and critical, effectiveness. His essay, and this is in no way to belittle a fascinating contribution, contains enough quotes which only need to be lifted out and have the word “discuss” added at the end to keep one in exam questions for years.
Part Three, on international institutions, contains seven contributions the most contentious of which is the essay by Renata Szafarz, who rather plaintively bemoans the West’s unwillingness to follow up the euphoria of the central European revolutions with speedy integration of the countries concerned into Western institutions. She rightly draws attention to the importance attached by Skubiszewski, as Foreign Minister, to the development of strong, even irrevocable, ties with the West. Of course, NATO has in the meantime opened its doors a little, or widened its umbrella, to include the Poles, Czechs and Hungarians. But the general picture is one of the West really being quite undecided how to adapt to the arrival of the poorer East European neighbours. Szafarz’s view is that stability for the whole continent is best promoted by the willingness to develop political and legal integration.
Part Four contains essays on adjudication. The editor, Jerzy Makarczyk, the Polish judge at the European Court of Human Rights, contributes a scathing attack on the reformed Court, along with some more general remarks on the international judicial function. He brings a welcome dose of Realpolitik to his assessment of how judges should be elected to the ICJ, pointing out the reality that professional competence is really less important for the functioning of the court than adequate representation of the various power blocs. Mind you, a bit of competence can be useful too. This relates, at least indirectly, to one of Makarczyk’s most important points — that “independence and impartiality [of judges] are above all a state of mind”. As certain judges, whatever freedoms they are assured, may nevertheless lack impartiality so others, despite extreme pressures, remain true to the genuine judicial function. As an academic in Poland, Skubiszewski adhered rigorously to these canons of independence and impartiality. Of course, if the judges are truly independent then their provenance should be irrelevant, but how many States would retain confidence in a court which lacked the semblance of representativeness?
Finally, Makarczyk has a go at the 70 year age limit for judges in the new, improved, European Court. After all, Skubiszewski himself, whose 70th birthday is commemorated by this Festschrift, would have to retire from the Iran-US Claims Tribunal were the rule to be applied there. This is a difficult one. Some judges have obviously reached the limits of what they have to offer at this stage, while others are so clearly wise and experienced that their continued activity is a boon to all. Yet, as Makarczyk noted earlier, competence is not the (only) issue. Surely, at some stage, judges should step aside and allow younger minds their chance to get it wrong?
The final section of the book examines issues of theory in the development of the law in new areas. It contains several interesting contributions addressing international humanitarian law from the perspective of the mid-1990s. These have, consequently, in places been overtaken by events. That, however, is a minor matter. The strength of the analysis means that these works remain useful contributions to the literature. Yoram Dinstein’s essay, “Crimes Against Humanity”, is an excellent consideration of the development of that offence. This section of the book is completed by two very interesting essays: the first, by Fitzmaurice, “The Contribution of Environmental Law to the Development of Modern International Law”; the second, by Mullerson, “On Cultural Differences, Levels of Societal Development and Universal Human Rights”. That many have cited cultural pluralism as an excuse for abusing the rights of others is beyond doubt. It comes close to the moral relativism of maintaining that there was no substantive difference, pre-1989, between the USA and the USSR, NATO and the Warsaw Pact (except that most residents of Warsaw Pact countries were well aware of the difference). Mullerson, himself a former resident of the USSR, brilliantly exposes the complexities of the issue. His final sentence, after a considered analysis of why different societies may indeed have different perspectives on human rights, makes the simple point that, in some cases, human rights emergencies are not caused by cultural differences: they are, bluntly, the consequence of thirst for power.
So there is much in this book. Apart from the contributions already mentioned, there are essays by many highly distinguished international lawyers from around the world, clear evidence of the high regard in which Skubiszewski is held. There is, though, one problem: some of the editing could have been more careful. A number of errors either irritate or, more seriously, obscure the meaning. For instance, Higgins’ essay on the intertemporal rule in international law refers at one point to the doctrine of “international law” rather than “intertemporal law”. That is an obvious mistake with which one can cope but, further on, the word “now” is printed as “not”, as in “We may not begin to see that the intention of the parties…” This clearly alters the meaning completely and, having spent $300, I was more interested in thinking about Higgins’ ideas than whether her words were rendered accurately. One such error in 1000 pages would not matter but it is not the only one, and Skubiszewski deserves better.
That aside, this is a book which should be in any decent law library which has not had its books budget totally annihilated by university administrators who think that if it ain’t online it ain’t worth it. It may seem a bit of a luxury at that price — like so many other Kluwer publications — and yet, it contains so many interesting and thought-provoking contributions from many very distinguished international lawyers that the money deserves to be found. It is fortunate that Kluwer has published a volume to honour a person who so merits it, and it is equally fortunate that Makarczyk has gathered a fascinating and diverse collection of essays which make a most valuable contribution to many of the big questions. But the bigger question, for those of us who actually like to buy law books now and again, remains: why are they so expensive?
Ryszard Piotrowicz
DEPARTMENT OF LAW
UNIVERSITY OF WALES, ABERYSTWYTH
Edited by Yoram Dinstein and Mala Tabory
(Martinus Nijhoff Publishers, The Hague, 1996, xiv and 489 pp)
Upon receipt of this book for review, I admit that I was not entirely convinced of its ongoing relevance. The contributions were based on revised papers from a seminar held at the Buchmann Faculty of Law at Tel Aviv University in December 1993. International criminal law has developed dramatically since then and it was difficult for me to imagine how much of the book would still have contemporary value and significance.
Consider the following developments since December 1993 — all of them illustrative of the sea change in global attitude and approach to the question of the prosecution of alleged war crimes: the creation of the International Criminal Tribunal for Rwanda and the first trials by international tribunals since Nuremberg and Tokyo; the French trials of Touvier and Papon; the extradition of Erich Priebke from Argentina for trial in Italy; the increasing willingness of States to rely on universal jurisdiction to try individuals for alleged atrocities in contemporary armed conflicts; the historic judgments of the House of Lords that Augusto Pinochet has no Head of State immunity in respect of charges of responsibility for torture and crimes against humanity and can now face proceedings for possible extradition to Spain. Suddenly and dramatically, the enforcement of international criminal law is expected of States both individually through their domestic criminal law systems and collectively through multilateral processes. In this new environment, 1993 seems to belong to an entirely different era.
Perhaps it is unfair to make these comments in 1998. The book was published late in 1996 and several of the chapters were updated prior to publication. In any case, my doubts were somewhat misplaced. It is true that a number of chapters have become seriously dated. However, the book contains some excellent contributions that provide telling reminders of the ongoing relevance of general principles and of earlier jurisprudence of both national and international tribunals. In addition, the volume includes some important contributions on the Israeli experiences in the trial of John Demjanjuk.
Perhaps the chapter most adversely affected by the passage of time is by Bengt Broms on the establishment of an international criminal court. The author of this chapter provides a detailed analysis of the International Law Commission’s (ILC) 1993 Draft Statute. With the detailed Ad Hoc Committee discussions, the extensive Preparatory Committee process and, finally, the adoption of the Rome Statute itself in 1998, an analysis of the original ILC Draft Statute is of limited practical value. In fairness to the author, this is a relatively easy comment to make late in 1998. Prior to the Rome Diplomatic Conference there was no guarantee about the conclusion of the negotiations. It should be said though that, with or without the Rome Statute, detailed analyses of earlier versions of the Statute must still be useful in understanding some of the history of the negotiations and cannot be said to be devoid of merit simply as a consequence of the subsequent developments.
Other chapters also suffer, albeit to lesser extents. For example, two chapters of the book (by Leslie Green and Christian Tomuschat) analyse the ILC’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind. The ILC undertook a major revision of the 1991 Draft Code in 1996 so that many of the criticisms Green makes of the 1991 version were dealt with by the ILC while the book was in press. Tomuschat considers the position of “recalcitrant third states” in relation to the Draft Code. Some of his analysis of the Code’s provisions are clearly dated but many of his comments about recalcitrant third States are undoubtedly relevant now in relation to those States which choose not to become parties to the Rome Statute.
Similarly, Fania Domb contributes an interesting chapter on the role of amnesties from prosecution for alleged war crimes in peace settlements. This issue is as relevant now as it was in 1993 but we now have the benefit of recent practice — particularly the Dayton Peace Agreement, the South African Truth and Reconciliation Commission and the House of Lords’ decisions in the Pincohet Case — none of which the author had available for analysis at the time of writing. This recent practice has introduced new approaches, most of which entirely support her thesis. But Domb’s analysis, through no fault of her own of course, is stuck in an early 1990’s mindset. It is no longer the case that an amnesty is automatically guaranteed to accompany a peace settlement. Even where an amnesty is granted, we now have the South African model of selective amnesty on the basis of a number of criteria which only apply after full disclosure by the perpetrator of the offence.
Another author, Kenneth Mann, uses the experience of the trial in Israel of John Demjanjuk to examine the use of hearsay evidence in war crimes trials. The issues he writes about have also confronted the ad hoc tribunals for the Former Yugoslavia and for Rwanda. Mann’s criticisms of a domestic court’s approach may not necessarily apply to international tribunals sitting outside the territory where the alleged offences were committed and lacking the powers to procure the same sources of evidence as domestic courts. Nevertheless, his arguments about the tendency to relax rules of admissibility of evidence in war crimes trials is a useful one.
On the subject of the Demjanjuk case, Mordechai Kremnitzer has provided a thought-provoking and insightful critique of the judgment of the Israeli High Court acquittal of the defendant. In particular, the author is critical that the Court, having acquitted the defendant on the charge of perpetration of genocide at Treblinka for lack of evidence, refused to convict on the “alternate” charge of complicity in genocide at Sobibor against the Court’s own finding that the defendant participated at Sobibor. The author offers a number of possible explanations for the Court’s approach and, in so doing, exposes some of the complexities of national war crimes trials in the jurisdiction of victims of the atrocity.
In relation to more general issues, one recurrent topic of analysis is defences to charges of war crimes. The defence of superior orders, for example, is discussed by three different authors: by Yoram Dinstein in his introductory chapter, by Albin Eser in a chapter dedicated to the issue of “defences” and by Jerome Shestack in a chapter on the Statute of the International Criminal Tribunal for the Former Yugoslavia. The different approaches taken by these authors encapsulate the international disagreement in respect of superior orders. Dinstein and Eser both forcefully assert that post Nuremberg and Tokyo the defence is no longer part of international law even if it continues to have relevance in mitigation of sentence. By contrast, Shestack presents the prevailing US view in favour of the “manifest illegality” test for a limited but real exculpatory defence. This is precisely the debate that occurred at Rome[51] and, despite Dinstein’s dismissal of any possibility of an exculpatory defence, the US position has been accommodated in the final text of the Rome Statute: reluctantly on the part of the so-called “Group of Like-Minded States” but included nonetheless.
In my view, one of the most significant chapters in the book is by Shabtai Rosenne, who tackles the complex and under-studied issue of individual versus State-based responsibility for war crimes. Article 19 of the ILC’s Draft Articles on State Responsibility is well known on this topic but few commentators have grappled with the issues. Rosenne considers the Genocide Convention which envisages both individual and State responsibility for violations of the Convention. Article VI envisages penal sanctions against individuals and Article IX includes the infamous compromissory clause now the subject of two separate cases before the ICJ: the first an Advisory Opinion in 1951, the second the current contentious proceedings between Bosnia-Herzegovina and Yugoslavia (Serbia and Montenegro). Rosenne analyses the legislative history of Article IX to demonstrate that States were contemplating civil responsibility in Article IX without ever explaining what they meant by that concept. Now that the ILC plans to revisit the Draft Articles on State Responsibility, which will undoubtedly involve substantial work on Article 19, this particular chapter makes an important contribution to the literature.
Rüdiger Wolfrum contributes an interesting chapter on national prosecution of war crimes. Although he does not engage in a comparative analysis of actual trials and only refers to national legislation in a selective way, he does present telling arguments about the failure of States to fully implement their obligations under the repression or grave breaches provisions of the Geneva Conventions and Additional Protocol I. Perhaps the book would have benefited from greater focus on national approaches. Wolfrum’s chapter and the contributions on the Demjanjuk case are complemented by a chapter from Michael Bothe on the prosecution of war crimes in non-international armed conflicts. Bothe demonstrates the disparity of national approaches to this issue but makes the important point, valid even after the Rome Diplomatic Conference, that national courts will continue to play a fundamental role in the prosecution of alleged war crimes.
Yoram Dinstein draws on extensive jurisprudence from the immediate aftermath of the Second World War in his introductory chapter on the distinctions between war crimes and crimes against peace. This chapter is an important reminder of the foundation that had already been achieved and that was fundamental, in my view, to the more recent developments I referred to earlier. I recommend the book in spite of its limitations and have no doubt that several of its chapters will be cited for years to come.
Tim McCormack
FACULTY OF LAW
UNIVERSITY OF MELBOURNE
Edited by Brian R Opeskin and Donald R Rothwell
(Melbourne University Press, Melbourne, 1997, xviii and 379 pp)
The title of this book of essays is somewhat misleading. It suggests a treatment of problems at the interface of international law and Australia’s federal status. Yet only the first essay specifically addresses this topic while the remaining ten range more widely. Broadly, the essays address two major themes: first, the relationship between international law and (Australian) domestic law; and, second, the problems of treaty making in Australia. At the risk of overlooking the detail and richness of some of the contributions, it is helpful to discuss the book in the context of these two general themes.
The stage is set for the discussion of this topic in Chapter 2, where Professor Ivan Shearer elegantly provides an incisive and comprehensive overview of this subject from an analytical, comparative and historical perspective. Three aspects of the treatment of the topic in this book are of particular interest. First, the debate about the incorporation versus transformation theory in its application to customary international law, a debate addressed not only by Shearer but also by Sir Anthony Mason (Chapter 7) and Professor Margaret Allars (Chapter 8). All three point to the uncertainty of the situation in Australian law. Unlike English law which shows a preference for the incorporation theory (pp 44-47, 213), Australian law tends to follow the transformation theory (pp 48-51, 215-218), although Allars suggests that the judgment of Gaudron J in Minister for Immigration and Ethnic Affairs v Teoh[52] provides some authority for the incorporation theory (pp 239, 264-265). Sir Anthony draws attention to a considerable body of High Court jurisprudence based, impliedly, on the transformation principle (pp 215-218); and both he and Shearer cite Sir Owen Dixon’s obscure view, derived from the writings of Brierly and Holdsworth, that international law is not a part, but one of the sources, of the common law.[53] Sir Anthony adds his authority to Sawer’s[54] criticism of this view which seems to be based on a peculiar usage of “source” of law (p 215).
Does it matter which view is accepted? At first blush, it seems that it should not, simply because much of modern international law has been, or is being, codified in treaties. But there remain many norms of modern international law, especially in the human rights and environmental fields, for which customary international law status is claimed and which, potentially, have significant impact on domestic law.[55] Indeed, Shearer points out (p 51) that the practical importance of the incorporation/transformation debate ought to be tested in the context of deciding if human rights norms, which have the status of customary international law, are automatically part of the common law, as the incorporation theory would have us believe. Yet Shearer’s conclusion, that the debate is unlikely to resolve itself unambiguously, must be right. Pointing to the decision in Dietrich v R,[56] he opines that “human rights norms, whether customary or conventional in character, tend to require adaptation (as distinct from adoption) to the environment of existing common and statutory law, so that it is not always going to be clear when the judges, whether motivated by the automatic incorporation or transformation doctrines, are grappling with issues of the application of international law or with the exercise of the leeways of judicial choice in developing the common law” (p 51). Thus, whether seen as an issue of incorporation versus transformation or as a determination of the content of the developing common law, the decision in any particular case is likely to be the same. In this reviewer’s opinion, the judgment of Gaudron J in Teoh is illustrative of this ambiguity of approach.
A second important aspect of the relationship between international and domestic law is the indirect influence of international law on domestic law, especially via statutory interpretation. After stating the accepted rule that, in cases of ambiguity, domestic statutes should be interpreted so that they accord with international law, Sir Anthony recognises that the identification of ambiguity is itself a matter of interpretation and opens the door to teleological approaches (p 221). This accords with the general approach to statutory interpretation in the United States where evidence of the purpose of a statute can be used to determine whether or not the words are unclear in the first place.[57] It means, of course, that where a domestic court takes a broad approach to ambiguity, international law has a greater role in influencing the development of domestic law. Sir Anthony points out that the High Court has recently taken this broad approach. Indeed, Allars notes that it is largely through the application of principles of statutory interpretation that the role of international law has been strengthened in Australia (p 269).
A third important aspect of the relationship between international and domestic law is the decision of the High Court in Teoh’s case. This is the focus of Allars’ powerful essay; the topic is also mentioned by Shearer (pp 57-59) and Mason (pp 224-226). As is well known, Teoh concerns, specifically, the relationship between international law and administrative discretion. It decides that Australia’s ratification of an international convention gives rise to a legitimate expectation that decision makers will comply with the terms of the convention, even though legislation has not incorporated it into Australian law. The decision is extremely controversial. Successive governments of different political persuasion have voiced their hostility to it by threatening to reverse its effect by legislation. Professor James Crawford points out in his helpful and insightful summary (Chapter 11) that the governmental response was a “clear over-reaction” since it “did not involve a major departure from the trend of judicial review” (p 335). That trend does not restrict “legitimate expectation”, as an aspect of natural justice or procedural fairness, to affording a complainant an opportunity to present his or her case. Rather it “may serve to reveal what, by way of natural justice or procedural fairness, was required in the circumstances of the particular case”.[58] In Teoh, legitimate expectation infused procedural fairness with the specific content that the decision maker expressly invite the complainant to address a particular issue.[59] In other cases, the specific content may be different. While the particularity of this approach accords with that in other areas of the law[60] and thus contributes to the organic unity of Australian law, it also has a potentially wide application in the context of the developing international law of treaties. Allars puts this well:
The achievement of Teoh’s Case is the creation of an opportunity for public administration to embrace human rights norms as an educative tool under the umbrella of procedural fairness, without hampering executive discretion by interfering with substantive outcomes (p 270).
Herein lies the controversy. Teoh is the law in Australia. This reviewer believes that it will remain so simply because any legislative reversal is bound to damage Australia’s international image. It is difficult to believe that any Australian government would seriously contemplate passing legislation which provided that Australia’s signature to an international instrument gave rise to no legitimate expectation that administrative decisions would be made in conformity with that convention. Such legislation could easily be perceived as express notice to the world that, by signing a treaty, Australia does not necessarily intend to seek its implementation in domestic law. It is the sort of legislation which has no place in a globalised world. If this is so, the real question becomes the extent to which Teoh is workable. The concerns are summed up in Aronson and Dyer’s rhetorical questions:[61]
Will [Teoh] impose an unrealistic burden on administrators? Will it unduly discourage the government from ratifying such treaties and thereby prevent Australia from playing a proper role in international affairs? Will it tend to focus attention on those treaty obligations which are most easily characterised as giving rise to ‘rights’ enforceable by individuals and thereby divert resources away from the fulfilment of broader social obligations? Will the provision of a hearing, where administrators decide not to comply with treaty obligations, have any instrumental value?
The first of these concerns has persuaded some English courts not to go down the path indicated by Teoh.[62] Sir Anthony is, however, unrepentant. He writes:
On the assumption that there is force in the English view that administrators cannot be expected to know or apply particular conventions, one would have thought that it would be enough to impose on a party seeking to rely on a convention as a basis for establishing a legitimate expectation an obligation to advance the submission and identify the relevant convention provision (pp 225-256).
This does not, of course, address the substance of the concern.
The bulk of the essays in this book deal with the general theme of treaty making in Australia. That theme can have at least three facets. First, it can deal with the distribution of powers within the federation. Second, it can raise the question of separation of governmental powers, in particular between the executive and legislative branches of government. Third, it can direct attention to the relationship, from the perspective of international law, between the possession of international personality and the implementation of treaties in unions. All of these topics are addressed in the book. The book also covers a necessary premise of these three topics, namely, the possession by Australia of treaty-making power. Both Anne Twomey (Chapter 3) and Crawford (pp 325-330) consider at some length the historical development of Australia’s international personality.
Donald Rothwell (Chapter 4) exhaustively analyses the first topic, the evolution and expansion of the external affairs power in section 51(xxix) of the Constitution, which, effectively, gives the Commonwealth what Professor Brian Galligan and Ben Rimmer (Chapter 10), writing from a political science perspective, call “a virtually unrestricted ability to incorporate international regulatory regimes into Australian domestic law” (p 314). But, while legally the power of the Commonwealth to conclude treaties is plenary, it leaves open the question of the extent to which consultation with, or the participation of, the States in the treaty-making process is necessary to preserve the “federal balance”, as is suggested by recent attempts to secure such involvement. No doubt, leaving aside technical legal issues relating to the methods of State involvement, one’s answer to this question will ultimately be determined by one’s own political opinions. Galligan and Rimmer’s opinion is that “the Commonwealth’s potential power from external affairs is being severely constrained in practice”, but that this “is evidence of the continued vitality of federalism and the significance of the States” (p 314). Professor Hilary Charlesworth’s (Chapter 9) essay may form a practical illustration of what Galligan and Rimmer have in mind. According to Charlesworth, the lack of implementation of human rights treaties in Australian law is attributable, at least partly, to the fact that “all political parties have paid considerable deference to the states’ suspicion of international legal standards in this area” (p 298).
The second aspect of treaty-making power in Australia relates to the separation of governmental powers. Not surprisingly, Twomey, Bill Campbell (Chapter 5) and Galligan and Rimmer address the “democratic deficit” argument, namely, that greater parliamentary involvement in treaty making (rather than treaty implementation) is needed to avoid Executive domination. A considered view of this issue must be shaped by the nature of the involvement proposed and, ultimately, by political conviction. In forming a conclusion, it seems to this reviewer essential to bear in mind Crawford’s warning that in reality it is difficult to see how effective Parliamentary involvement can be secured, especially in the case of multilateral treaties, where review is simply out of the question (p 337). While this debate addresses more recent controversies concerning the division of executive and legislative powers, Geoffrey Lindell (Chapter 6) exhaustively examines the judicial power in matters involving or affecting the conduct of foreign affairs. In doing so, he revisits and breathes new life into some old favourites, such as the “act of State doctrine” and the “public law doctrine” in private international law.
The third aspect of treaty-making power relates to the way in which international law deals with the making of treaties by federations such as Australia. In 1965 Professor DP O’Connell wrote:[63]
International lawyers have struggled to reconcile a unitary international capacity with a disjunctive exercise of political power, and the struggle has assumed an almost metaphysical character as varying strains of 19th century theories of the State are interwoven in the discourse. Australia’s experience, as her international personality has evolved, has illuminated many of the classical questions; and to this extent an Australian contribution on the interaction of international law and federalism cannot fail to be instructive to those newer countries whose complex political organizations are akin to her own.
Brian Opeskin’s important essay (Chapter 1) is such a contribution. In it he deals with the way in which international law constructs separate rules to accommodate the needs of federal States particularly in the negotiation and implementation of treaties, contrasting this with areas (such as State responsibility) in which international law treats federal and unitary States alike. He also covers the devices used by federal States to confront the difficulties confronting them in entering into treaties (by the use of reservations, declarations, federal and territorial clauses).
The treatment of these three aspects of treaty making is supplemented by Campbell’s essay which focuses on the factors relevant to treaty implementation and the legislative means of doing so. Written in a common-sense manner by a government lawyer with experience in the field, this is an invaluable contribution that contains a good deal of information which is not readily obtainable elsewhere.
Quite simply, this is a superb book. The broad scope of the essays is matched by their outstanding quality and clarity. In this reviewer’s opinion, the book represents one of the most important contributions of Australian scholarship to international law generally and, in particular, to the problems of treaty making within a federation such as Australia.
The book deserves a wide audience. Clearly, it will be of interest to international law specialists both in Australia and abroad. It should be of interest to lawyers and all those concerned with the changing nature of law at the end of the twentieth century, for international law is likely to be the most significant agent of that change. The point is well made by Galligan and Rimmer (p 313) in paragraphs worth quoting at length:
Globalisation is not confined to or unique to Australia; it is being experienced by every country in the international community, albeit to a greater or lesser degree. Surprisingly, the experience of other countries in the face of similarly perceived ‘problems’ has received little attention here. Debates over the loss of sovereignty to supra-national bodies rarely refer to similar debates in Europe concerning cession of sovereignty to the European Union. Debates over lack of state participation in the treaty-making process conveniently ignore much Canadian literature which rejects Canada’s current model of provincial involvement in treaty making and implementation and praises a more centralised model.
Perhaps more surprisingly, positive aspects of the globalisation process are rarely considered. For all that what is written concerning the Nicholas Toonen and Australia (Toonen Case)[64] decision and the advisability of Australia’s accession to the First Optional Protocol to the International Covenant on Civil and Political Rights 1966 (ICCPR), little was said concerning the global effect of incremental improvement of international human rights standards. The effect of Australian accession is broader than the domestic effects alone. It is part of an international improvement in human rights in all countries, that now sees human rights abuses placed firmly on the international agenda.
It is important to appreciate, as this book testifies, that the current political significance of international law in Australia is but a shade of its potential.
This book demonstrates that potential. It is hoped that its narrow title will not dampen its appeal and influence.
Michael Tilbury
INSTITUTE FOR COMPARATIVE AND INTERNATIONAL LAW
THE UNIVERSITY OF MELBOURNE
Edited by David Kinley
(Federation Press, Sydney, 1998, xxxiii and 366 pp)
Human rights concern us all. Human rights are not just an issue in areas of armed conflict, religious or racial tension, or oppressive government. The human rights of all, including those who live in Australia, must be protected. One means of protection is through legal processes.
This book sets out many of the key areas where Australian law can and should protect human rights. As the chapters make clear, human rights law is not separate from other areas of law but is part of them. Thus the chapters deal with human rights in a number of subject areas of law and legal practice. This approach, as the Preface argues, “has to be adopted if the object of protection and promotion of human rights through law is to be fully appreciated and more effectively pursued”.
The way this approach is demonstrated in this book is to examine three major elements of human rights in Australian law. In the first part, there are four chapters dealing with broader aspects of the nature of human rights and the nature of the Australian legal system. The second part concerns eight specific areas of substantive Australian law where human rights issues are apparent and the final part has three chapters on legal practice and procedure where human rights issues are relevant.
In the first part, after an excellent chapter by David Kinley on the difficult area of the nature and legal dimensions of human rights (though mainly limited to its dimensions within an Australian legal system), there is a chapter by Anthony Mason on the role of the judiciary, one by Stephen Gageler and Arthur Glass on constitutional law and one by John McMillan and Neil Williams on administrative law. The latter three chapters tend to overlap, perhaps not surprisingly, and offer a slightly optimistic view of the potential for human rights protection that exists within the current Australian legal system and institutions. It is hard to accept this optimism, even where qualified by the authors to an extent, while Australia remains the only common law country with an independent judiciary that has no broad constitutional or legislative protection of human rights. Without such a standard, the Australian legal system will continue to provide a partial, ad hoc and incoherent protection of a few human rights, and is dependent largely on the whims of a political elite, who are generally unwilling to agree to any restrictions on their powers.
The subject areas dealt with in the second part are: indigenous Australian peoples by Jennifer Neilson and Gary Martin; criminal law by Simon Bronitt and Maree Ayers; immigration law by Mary Crock and Penelope Mathew; family law by Juliet Behrens and Phillip Tahmindjis; labour law by Therese McDermott; environmental law by Nicholas Brunton; information technology law by Chris Arup and Greg Tucker; and health law by Ian Freckleton and Bebe Loff. These are all good and enormously useful. While there is some repetition in the chapters, this is understandable, as many readers will choose to read only the particular chapters of interest to them. As well, some chapters tend to focus on only certain parts of their subject areas — for example there is not much on human rights in HIV/AIDS testing — or lack a secure justification for the relationship between the subject area and specific human rights (such as in relation to pollution).
The third part has a chapter on the operation of anti-discrimination laws in Australia by Peter Bailey and Annemarie Devereux, a chapter on using human rights law in litigation from a practitioner’s perspective by Kate Eastman and Chris Ronalds and a chapter on human rights research and electronic resources by Michael Bliss and Shahyar Roushan. These chapters are valuable additions to the book with the last chapter being an essential resource for anyone seeking information on human rights issues.
This is an excellent book. It is useful for those readers who want a sound overview of human rights in Australian law and for those who want specific information on particular areas of Australian law. There is a generally consistent standard across the whole book, with a clear structure in each chapter. This is remarkable in an edited book with 26 authors. While this book does show how deficient the Australian legal system is in protecting human rights, it also shows how inventive and innovative Australian lawyers can be to discern and use human rights within this system.
Robert McCorquodale
FACULTY OF LAW
AUSTRALIAN NATIONAL UNIVERSITY
[1] For some explorations of this process see H Goodall, Invasion to Embassy: Land in Aboriginal Politics in New South Wales, 1770-1972 (1996); H Reynolds, The Law of the Land (1987); H Reynolds, Aboriginal Sovereignty (1996).
[2] Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait
Islander Children from Their Families (1997).
[3] Wik v Queensland (1996) 141 ALR 129.
[4] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[5] United Nations Human Rights Committee, Communication No 688/1992, Doc CCPR/c/50/D/488/1992 (4 April 1994). For analysis of this action see W Morgan “Identifying evil for what it is: Tasmania, sexual perversity and the United Nations” (1994) 19 Melbourne University Law Review 740.
[6] M Dodson, “Linking international standards with contemporary concerns of Aboriginal and Torres Strait Islander peoples” in S Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (1998) 18-29.
[7] Ibid.
[8] Ibid. at 26.
[9] Ibid. at 22.
[10] See Pritchard, n 6 above, at vi.
[11] Ibid. at viii.
[12] S Pritchard, “The significance of international law”, ibid. at 2.
[13] Ibid. at 4 and 7; Dodson, n 6 above, at 22.
[14] Ibid. at 7.
[15] Ibid. at 4.
[16] G Netttheim, “The UN Charter-based human rights system: an overview”, in Pritchard, n 6 above, at 37.
[17] Ibid.
[18] Ibid.
[19] Ibid at 38.
[20] S Pritchard, “Working Group on Indigenous Populations: mandate, standard-setting activities and future perspectives”, in Pritchard, n 6 above, at 62.
[21] Ibid. at 63.
[22] Ibid. at 64.
[23] H Charlesworth, “The UN treaty-based human rights system: an overview”, in Pritchard, n 6 above, at 71.
[24] Ibid. at 70.
[25] Ibid. at 73.
[26] H Charlesworth, “Individual complaints: an overview and admissibility requirements”, in Pritchard, n 6 above, at 74-80; E Evatt, “Individual communications under the Optional Protocol to the International Covenant on Civil and Political Rights”, ibid. 86-115; and M O’Flaherty, “Individual communications: the Convention against Torture and the Convention on the Elimination of All Forms of Racial Discrimination”, ibid. at 116-128.
[27] Charlesworth, ibid. at 80.
[29] Evatt, n 26 above, at 89.
[30] Ibid. at 90.
[31] Pritchard, n 20 above, at 62-64.
[32] Ibid. at 40-64.
[34] E Evatt, “Periodic reporting: the International Convention on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women”, in Pritchard, n 6 above, 135-150.
[35] P Alston, “Periodic reporting: the International Covenant on Economics, Social and Cultural Rights and the Convention on the Rights of the Child”, ibid. 130-134.
[36] M O’Flaherty, “The Committee on the Elimination of Racial Discrimination: non-government input and the early warning and urgent procedure”, ibid. at 151-160.
[37] Ibid. at 155-159.
[38] M O’Flaherty, “Substantive provisions of the International Convention on the Elimination of All Forms of Racial Discrimination”, ibid. at 173.
[39] S Pritchard, “The International Covenant on Civil and Political Rights and Indigenous peoples”, ibid. at 191.
[40] Ibid. at 192.
[41] Ibid. at 194.
[42] Ibid. at 196.
[43] Pritchard, n 12 above, at 2.
[44] Dobson, n 6 above, at 29.
[45] UN General Assembly Declaration on the Indian Ocean as a Zone of Peace, Resolution 2832 (XXIV) of 16 December 1971.
[46] UN General Assembly Declaration on the South Atlantic as a Zone of Peace and Co-operation, Resolution 41/11 of 11 October 1986.
[47] SP Subedi, Land and Maritime Zones of Peace in International Law (1996) at 59.
[48] Ibid. at 205.
[49] Ibid. at 175.
[50] Eg, see H Morgenthau, Politics Among Nations (1972).
[51] See Article 33 of the Rome Statute of the International Criminal Court. Full text of Statute available at http://www.un/org/icc/
[52] [1995] HCA 20; (1995) 183 CLR 273.
[53] See Chow Hung Ching v R [1948] HCA 37; (1949) 77 CLR 449 at 477.
[54] See G Sawer, “Australian constitutional law in relation to international relations and international law” in DP O’Connell (ed), International Law in Australia (1965) 50.
[55] See G Triggs, “Customary international law and Australian law” in MP Ellinghaus, AJ Bradbrook and AJ Duggan (eds), The Emergence of Australian Law (1989) 392-393.
[56] [1992] HCA 57; (1992) 177 CLR 292 (right to free counsel in case of serious crimes).
[57] See PS Atiyah and RS Summers, Form and Substance in Anglo-American Law (1987) 101-102. For a recent overview of the purposive approach in American law, see A Scalia, A Matter of Interpretation: Federal Courts and the Law (1997).
[58] See Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 672 (Gaudron J).
[59] See Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 291-292 (Mason CJ and Deane J), at 302-303 (Deane J).
[60] Eg, estoppel, on which see especially P Parkinson, “Estoppel”, in P Parkinson (ed), The Principles of Equity (1996) Ch 7.
[61] M Aronson and M Dyer, Judicial Review of Administrative Action (1996) 422-423.
[62] Eg, R v Chief Immigration Officer, ex p Bibi [1976] 1 WLR 979 at 985 (Lord Denning MR).
[63] DP O’Connell, “The evolution of Australia’s international personality” in n 3 above.
[64] United Nations Human Rights Committee, Communication No 688/1992, Doc CCPR/c/50/D/488/1992 (4 April 1994).
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