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Australian Year Book of International Law |
Edited by
Ryszard Piotrowicz
Edited by W Michael Reisman
(Ashgate/Dartmouth, Aldershot, 1999, 637 pp)
This book is a collection of essays by 15 authors on aspects of jurisdiction in public and private international law. They range in age from the classic exposition by Hessel E Yntema of the historic bases of private international law (1953) to two essays on subjects of keen contemporary importance: David R Johnson and David Post on the law in cyberspace (1996) and Hari M Osofsky on international criminal jurisdiction (1997). The justification for the publication, in collected form, of essays previously published separately is given by the series editor, Robert McCorquodale:
The proliferation of legal and other specialist journals, the increase in international materials and the use of the internet, have meant that it is increasingly difficult for legal scholars to have access to all the relevant articles on international law, and many valuable older articles are now unable to be obtained readily. These problems are addressed by this series, which makes available an extensive range of materials in a manner that is of immeasurable value for both teaching and research at all levels.
While this may be thought by some to overstate the case somewhat — at least in relation to the essays collected in the present volume — it is undoubtedly useful to have such leading contributions to an understanding of jurisdiction brought together in the one book.
Jurisdiction is a fundamental concept in international law. The volume editor, Professor Michael Reisman, considers it as a constitutive process rather than as a set of basic principles or rules, and explains the concept in the terminology of the Yale, or policy science, School:
This type of decision process is constitutional or ‘constitutive’, in that its outcomes not only decide particular disputes but, beyond them, establish basic policies, structures and procedures for future decision-making in general. Like all law-making, this type of decision process has an inevitable political dimension in the sense that the participants in it seek to use their effective power, including whatever comparative advantages translate, in particular situations, to secure the legal confirmation of arrangements which they believe will discriminate in their favour. However, as in all law-making, the plurilateral or multilateral character of the process often reduces or contains the power of the strongest actors and forces compromises … In ordinary language, law imports stability through time, but many have noted a curious feature of the international law of jurisdiction: whenever consensus is reached with respect to the way law-making and law-applying competences are to be allocated for particular matters, it proves to be short lived. A critical reason for the comparatively high mortality rate of current international jurisdictional law is to be found, as we have seen, in the persistent disequilibrium between the numerator and the denominator of international jurisdiction: the interactions and interdependences of a global scientific and technological civilization are increasing rapidly, while the demand for state autonomy has held steady.
A clear test of these propositions is seen in the long-running controversy between the United States, on the one hand, and many other countries, both developed and developing, in relation to the assertion of United States jurisdiction over foreign defendants in anti-trust suits. It is interesting that, in the present volume, no view is argued generally favourable to the United States position: the opposing positions are developed in the articles by Professor Michael Akehurst and Dr F A Mann, both British scholars, and by Professor Karl Meessen, a German scholar. Yet another article in the volume by a British scholar, Professor J W Bridge, takes a critical look at the allied topic of United States export controls. A note questioning the wisdom of the ‘blocking legislation’ of various countries is, however, sounded, but by another British writer, Professor (now Judge of the International Court of Justice) Rosalyn Higgins. Undoubtedly it is the United States most of all that is using its power to test the limits of jurisdiction in relation not only to restrictive practices, but also in relation to the control by parent over subsidiary companies, trade and financial matters, and criminal jurisdiction. The sole American author represented on this subject, or rather on a related one, Patrick J DeSouza, ‘The Soviet Gas Pipeline Incident: Extension of Collective Security Responsibilities to Peacetime Commercial Trade’, takes a balanced view of the arguments in this case, which resulted in a substantial defeat for the United States position on bans on the export of sensitive technology to the Soviet Union by European subsidiaries of United States corporations.
The first essay of the six in this volume devoted to aspects of jurisdiction in private international law is the brilliant historico-analytical exposition by Hessel E Yntema of the bases of private international law. In it he shows how choice of law in judicial practice has come a full circle, albeit not a perfect or completely closed circle, back to the presumptive application of the lex fori. The truly internationalist application of the more effective and useful law as furnishing a rule of decision corresponding to the nature of the case, favoured by the scholars of Bologna about 1200, has waxed and waned through the centuries. Australian readers will be put in mind, in the broader context of internationalism versus parochialism, of Voth v Manildra Flour Mills,[1] where the High Court favoured the jurisdiction of the local forum where it was ‘not clearly inappropriate’, rather than that it should defer to a ‘more appropriate’ forum.
The other five essays on jurisdiction in private international law are by Arthur Taylor von Mehren, ‘Adjudicatory Jurisdiction: General Theories Compared and Evaluated’ (1983), Harold G Maier and Thomas R McCoy, ‘A Unifying Theory for Judicial Jurisdiction and Choice of Law’ (1991), Andrew L Strauss, ‘Beyond National Law: The Neglected Role of the International Law of Personal Jurisdiction in Domestic Courts’ (1995), Joseph Halpern, ‘“Exorbitant Jurisdiction” and the Brussels Convention: Towards a Theory of Restraint’ (1983), and Andreas F Lowenfeld, ‘U.S. Law Enforcement Abroad: The Constitution and International Law’ (1989). The first four are well chosen and reflect the depth of American scholarship in basic issues of jurisdiction in private international law. My reservation as to the fifth has nothing to do with its intrinsic excellence, but rather with the appropriateness of an essay on United States constitutional law in an international publication. To the extent, however, that the rest of the world must perforce dance to the tune of the United States Constitution in jurisdictional issues where the United States is involved, its inclusion is perhaps understandable.
In relation to the essays on the public international law aspects of jurisdiction, the first two are renowned classics and comments are hardly called for. Professor Michael Akehurst’s lengthy article ‘Jurisdiction in International Law’ from the British Yearbook of International Law (1983), and chapters 1–4 from Dr F A Mann’s celebrated Hague Academy Lectures ‘The Doctrine of International Jurisdiction Revisited After Twenty Years’ (1984) set a framework in which the later contributions can be considered. These two pieces, together with the next two — hardly less gems of the volume, Professor D W Bowett’s ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’ (1983) and Professor R Higgins’ ‘Allocating Competence: Jurisdiction’ from her Hague Academy Lectures (1993) — do, however, prompt the reflection that magisterial and comprehensive studies of this kind are becoming increasingly rare in the literature of public international law.
In relation to an important modern aspect of jurisdiction — international criminal law — it is somewhat disappointing to find that the sole essay included in the volume, among many other excellent essays that would have been available to the editor, is focused on United States law: Hari M Osofsky, ‘Domesticating International Criminal Law: Bringing Human Rights Violators to Justice’ (1997).
No representation of modern problems of jurisdiction would be complete without reference to the internet. The valuable contribution by David R Johnson and David Post, ‘Law and Borders: The Rise of Law in Cyberspace’ (1996), proposes that cyberspace should itself be considered ‘a place’ for the purposes of jurisdiction:
Many of the jurisdictional and substantive quandaries raised by border-crossing electronic communications could be resolved by one simple principle: conceiving of Cyberspace as a distinct ‘place’ for purposes of legal analysis by recognizing a legally significant border between Cyberspace and the ‘real world’. Using this new approach, we would no longer ask the unanswerable question ‘where’ in the geographical world a Net-based transaction occurred. Instead, the more salient questions become: What procedures are best suited to the often unique characteristics of this new place and the expectations of those who are engaged in various activities there? What mechanisms exist or need to be developed to determine the content of those rules and the mechanisms by which they can be enforced? Answers to these questions will permit the development of rules better suited to the new phenomena in question, more likely to be made by those who understand and participate in those phenomena, and more likely to be enforced by means that the new global communications media make available and effective.
The authors argue that the community of online users and service providers are up to the task of developing a self-governance system. In this they recall the analogous development of the lex mercatoria in the Middle Ages.
It is to be regretted that this otherwise useful collection does not conclude with a subject index.
Ivan Shearer
FACULTY OF LAW
UNIVERSITY OF SYDNEY
Edited by Martin Krygier and Adam Czarnota
(Ashgate (Socio-Legal Studies), Aldershot, 1999, viii + 344 pp)
The evolution and inter-action of legal systems, political structures and social conditions in what are now often referred to as the ‘transition societies’ in central and eastern Europe present some of the most significant issues of law and politics at the turn of the millennium. The political sea-change of 1989, with its subsequent phases of euphoria turning to disillusionment and uncertainty has unleashed a range of challenges at the international, European and national levels and it may be that the disintegration of the communist bloc will have as many long-term implications for legal structures as for political ideology. The subject-matter of this collection is therefore timely and of considerable interest. But, while the subject-matter remains important — in fact, increases in importance — some of these contributions are beginning to feel somewhat dated (often the risk with such edited collections) in the context of fast-moving developments and transitions. A number of the papers are based on earlier versions published elsewhere, usually in 1996, and a reader with some awareness of the upheavals in central and eastern Europe in the late 1990s may be left with a sense of the discussion not being informed by such well-known events. Moreover, although this book’s concern is with this crucial region of central and eastern Europe in general (and does seek to generalise from its specific studies), its focus more accurately is central Europe, or part of central Europe (primarily Poland and Hungary), so that the situation of the more-troubled former Soviet Republics and of the Balkan states does not come into the main picture. The coverage is thus rather more limited than a glance at the title might imply.
Having made that general point, there is a great deal that is of interest and value in this collection and it will serve as a good point of departure for the lawyer and political scientist probing this area for the first time. The editors have some nicely phrased insights to offer. In the first few pages they have illuminated some of the key issues of the subject. Their contention that the rule of law is not simply a matter of ‘legal-institutional “hardware” but of legal-and-broader-cultural “software” as well’, involving ‘social expectations, incentives and opportunities’, and requiring ‘infrastructure, money, capacity of legal enforcement’ and ‘will’ (p 2) is a telling note of guidance that the reader ought to commit to memory on entering this field. The same is true of their summary of the crucial challenge facing the ‘transition societies’: ‘how to ensure that the state is as strong and effective as it must be to do what it must do, while inducing it to be as restrained as it must be so as not to do what it must not’ (p 3). Such turns of phrase help to distil the essence of the problem.
There is also a clear and purposeful organisation of the collection, taking the reader in turn through the basic ideas of ‘rule of law’ and ‘constitutionalism’, then turning to key problems — the moral dilemma of how to deal with those left from the old order, and the growing challenge of crime in the transition societies — before finally considering the international dimension (but only one contribution on this last aspect). To some extent, the substantive coverage is selective and perhaps reflects some of the dominant concerns in those countries that have been studied in particular (that is, Poland and Hungary, and to a lesser extent the Czech Republic). Thus the emphasis is very much on new constitutional structures and drafting, the position of former communist personnel and the emergence of crime and corruption as pervasive phenomena. Issues of social polarisation and exclusion, movements of people and descending spirals of inter-ethnic violence (all very much prominent on the European Union’s ‘Eastern’ agenda at the turn of the century) are less evident in the discussion.
The various contributors then take the reader helpfully through these five main themes. In the first section, there is a strong consensus on avoiding too legalistic or narrow an understanding of ‘rule of law’ (Selznick argues for inclusion of substantive improvement values as well as negative restraint; Morawski also argues for a value-laden idea of rule of law; Örkény and Scheppele stress the importance of taking into account social and cultural underpinnings for an effective rule of law; and Krygier similarly stresses that institutional reforms need to be culturally grounded). For the most part, the contributors on ‘constitutionalism’ also emphasise the need to be aware of the specific political and historical context in planning institutional and constitutional change in order to guarantee an effective rule of law (Sós urges that the Hungarian Constitution and Constitutional Court cannot escape from daily politics; Skapska advocates constitutionalism ‘from below’; and Sadurski warns of incorporating citizens’ duties in new constitutions when the new political structures may not yet be very secure; only Paczolay stands more to one side in asserting priority for formal legality in the new constitutional contexts).
In the more specific third section, that deals with the issue of confronting the communist past, all three authors are wary of strong policies of ‘lustration’ (or screening) of those involved in the former regimes: Czarnota and Hofmanski ask whether formal legal reversal is the best means for ‘easing the wounds of the past’; Kaniowski asks whether individuals should be so closely associated with the political institutions they once served; and Siklová presents a critical study of lustration policies in the former Czechoslovakia. It is interesting, then, moving into the fourth theme of crime control, that Los and Zybertowicz, although once again seeking to probe beneath the surface legal picture, complicate the argument by pointing to the subterranean survival of old networks of nomenklatura and secret services that have been able to maintain their strategic positions despite the systemic changes taking place ‘overground’.
The other contribution to the fourth section, from Karstedt, takes in some respects a broader historical and social sweep, by finding parallels with the earlier transformation from pre-industrial to industrial society, in terms of the resulting phenomena of social disorganisation, in particular pauperisation of some elements of society and the appearance of crime waves.
Finally, Georgiev’s contribution in the last section discusses the way in which transitional societies have sought the content of the rule of law from international norms. His assertion that, since the end of the Cold War, there have been at the international level new opportunities for change in legal and political doctrine in this area, and an awareness of such opportunities, but no serious efforts in that respect (p 339) would seem to miss some of the significant normative dynamic that has developed during the 1990s. It is here in particular that the argument conveys an impression of being rooted in the early 1990s. Since then, of course, there has been the surge of belligerent moralism over Kosovo (though more muted expressions in relation to Chechnya), but also, and perhaps more significantly for the discussion in this book, a systematic attempt by the European Union to assess the general democratic health and state of the rule of law and protection of human rights in the applicant countries of central Europe through the development and application of the ‘Copenhagen criteria’ (especially in the tranche of Commission reports on the applicant states in 1997).
It is possible to detect a strong theme of argument in this collection: that achieving the rule of law in the former European communist states is much more than a matter of legal and institutional reform carried out on paper and that significant historical, cultural and political factors have to be taken into account. There are no easy options, whether it is a matter of drafting new constitutional provisions or confronting the communist past of present-day politicians and officials. Pervasive phenomena of crime and corruption will present a greater, not a lesser challenge. But already the discussion (whether based on theoretical or empirical research) is moving on from this stage of argument, useful as it is. This can be illustrated by just one reference to a recently published work in this field. Baker and Welsh have pointed out the implications of pervasive social exclusion in the transition societies not only for democracy and the rule of law but also for the European Union’s need to demonstrate democratic legitimacy as it takes on board a number of these countries in its Eastern enlargement.[2] There is much more literature now appearing in this vein and there are a large number of diverse countries, from the Baltic to the Balkans, to be included in such studies. The Rule of Law after Communism is a useful springboard for discussion of the normative aspects of this subject, but already it seems that it is time for a follow-up. Whether this should be another collaborative project or a more focused (but in some senses also more wide-ranging) monograph, may be an interesting point for the editors of this collection to consider.
Christopher Harding
UNIVERSITY OF WALES
ABERYSTWYTH
Stuart Kaye and Ryszard Piotrowicz
(Butterworths, Sydney, 2000, xxvi + 294 pp)
I am reminded of a decent pasta dish. A base of solid, no-nonsense nourishment, garnished lightly with a simple sauce. Kaye and Piotrowicz’s book does most of the basics and does some of them well. The book, however, does not scintillate.
It might be argued that the authors do not themselves seek to claim much more of the book: it is, they declare, intended primarily for students, with practitioners and academics possible bonus audiences (p ix). But they do add that they ‘want students to want to read it rather than they feel they ought’. This is a laudable sentiment (though perhaps, on reflection, surely one shared by all authors), but the authors could have better assured more ‘want’ and perhaps less ‘ought’ had they more thoroughly checked on the quality of the ingredients of the dish on offer. Even students — in fact students especially — need to eat well. The fare’s blandness is added to by the minimal use of secondary sources which, though deliberate and foreshadowed by the authors, is nonetheless overdone and leaves scant pickings for readers who would like to take their inquiry further.
The book comprises 14 chapters spread across three evenly sized parts, namely: Part I: the international protection of human rights in times of peace; Part II: international humanitarian law (‘international protection of human rights in time of war’ by another name?); and, Part III: human rights law in Australia. Given the title of the book, this triumvirate of headings covers the field well. The parts were written separately by one or other author and this shows — their writing styles are quite distinctive, as, clearly, are their relative writing skills. Though this, in the reviewer’s opinion, has not seriously detracted from the conceptual wholeness of the book, the synthesis of the subject matter’s treatment would have been aided by some overview or introductory statement as to why the parts were split as they are and how they relate to each other.
A somewhat cursory explanation is provided in the opening words of the Preface in regard to the necessarily shared domain of human rights across both the international and domestic legal spheres. There is, however, no equivalent attempt either to mark out the seam that joins international human rights law and international humanitarian law, or even, alternatively, to declare their partnership seamless. Given the nature of the book’s intended audience, even a brief consideration of this sometimes perplexing issue would have been appropriate either in the book’s opening chapter or the opening chapter of Part II (origins of human rights law and international human rights law, respectively).
The best sections of the book are found in those chapters dealing with international humanitarian law (chapters 6–9) — and they are very good indeed. The treatment of the nature and origins of human rights law (chapter 1) is also sound. Chapter 10 and most of chapter 14 also stand out largely due to their express recognition of the important roles of policy development in human rights protection and of certain non-legislative means for domestic implementation of international human rights standards — such as through common law (privacy and discrimination) and tort (trespass).
Chapter 1 reads well and covers a lot of philosophical and historical ground with economy and skill. The only quibble is that no attempt was made to bring to the reader’s attention the breadth of religious and cultural roots of the incarnation of human rights we use today outside the European (Greek-Roman, Judaeo-Christian) paradigm. There are strong arguments made by eminent scholars from both inside and (more crucially) outside these traditions to the effect that the essential element of an equal respect for the dignity of individuals can be found in all the world’s major religious canons.
Part II (chapters 6–9) constitute a very readable survey of international humanitarian law (IHL): its origins; its development (as well as the reasons for development); current issues and challenges for the future, including the role to be played by the nascent International Criminal Court. The narrative tone is engaging, jaunty and occasionally idiosyncratic (for which I must say, in moderation, this reviewer is a sucker) but never at the expense of elucidation and insight. Certainly, statements such as ‘International humanitarian law starts from a very sad premise’ (para 6.4) and IHL ‘is striking … for the extent to which it imposes personal responsibility on those who breach … rights’ (para 6.7) will alert a reader new to the subject and very likely successfully draw them in to the issue. Consistently throughout these chapters cases and controversies are raised in the most enterprising way and you yearn to know more. Indeed, so successful is this ploy that it leads to the one minor fault I had with these chapters, namely, that the generally clever use of cases to illustrate specific points of law will leave many readers wanting to know what was the ultimate outcome of the likes of Eichmann,[3] Tadic [4] and Pinochet[5] and this is not here provided. Finally, the inclusion of a chapter (chapter 8) on arms control and human rights is novel and utterly pertinent.
Unfortunately, other chapters in the book warrant less favourable attention. Chapter 2 is a dry, somewhat colourless, recitation of the principal human rights dimensions of the United Nations Charter bodies and certain provisions of the United Nations Charter (though not, interestingly, Article 2(7)). The two generalist Covenants are outlined briefly — perhaps too briefly in the case of the two pages devoted to the International Convenant on Economic, Social and Cultural Rights (ICESCR). The treatment of the International Convenant on Civil and Political Rights (ICCPR) and its Protocols, though longer, states curiously (and cursorily) at one stage that the ‘most notable Australian case’ under the ICCPR is Toonen;[6] A does not even rate a mention. Chapter 3’s coverage of specific international human rights measures is equally mechanistic. In search of relief, by way of practical illustration of the objectives and effects of the instruments, the reviewer was able to find only two or three cases referred to (and only referred to) throughout the whole chapter. There are some other important omissions in this chapter. For example, the Australian Elmi Case[7] is not referred to in the discussion on the Convention against Torture (CAT), and the Convention on the Elimination of Racial Discrimination (CERD) is not covered at all. The latter is clearly an editorial botch-up (but nonetheless inexcusable), as a discussion of the CERD is expressly foreshadowed earlier in the chapter (at para 3.5), but then forgotten about and apparently ‘replaced’ by a discussion of the Genocide Convention (which had not been previously heralded). That space in any case might have been more appropriately filled by a discussion of the Refugee Convention. In any event, not to include a discussion on the CERD in this chapter, for whatever reason, is a serious mistake.
Chapter 4 on regional protection of human rights is also problematic. It covers the traditional regimes of Europe, Africa, and America but ignores the more challenging, nascent initiatives in the Islamic world (rather than ‘region’) — in the form of the Cairo Declaration on Human Rights in 1993 and the Arab Charter on Human Rights 1994, and, most importantly in the Australian context, Asia — in the form of the two ‘Bangkok Declarations’ in 1993 and the Asian Human Rights Charter 1997. The case law of the European Court of Human Rights and the Inter-American Court on Human Rights is inexplicably shunned in favour of a step-by-step description of the processes by which these and related institutions operate. Yet it is the case law of these two Courts, and the human rights provisions they govern, that mark them out as internationally and domestically significant. The focus on mechanics reaches a somewhat bizarre level when an almost indecipherable flow chart on the pre-1998 European system is spread across two pages (pp 64–5) in the apparently mistaken belief that this represents the radically altered system of today. The European Commission was abolished in 1998 (a fact that the authors themselves expressly recognise in the paragraph immediately preceding the diagram).
Chapters 11 and 12 are also at times frustratingly defective. In the former, for example, the potentially path-breaking importance of Kirby J’s argument in Newcrest Mining[8] that the Constitution ought to be read where possible to comply with Australia’s obligations under international human rights law is overlooked at a point where its inclusion is clearly warranted (para 11.34). Equally, in chapter 12, no mention is made of the highly relevant Kartinyeri Case[9] in the authors’ discussion (at para 12.19) of the complex interrelationship between the CERD, the Commonwealth’s Racial Discrimination Act 1975 and the races power under the Commonwealth Constitution.
Finally, the superficial treatment in chapter 14 of the important effect and potential of innovations in statutory interpretation in respect of domestic law and international human rights law is a conspicuous oversight (paras 14.18–14.23). Certain cases are mentioned, but a whole raft of landmark cases on this point are ignored (for example, Dietrich[10]; De L v D-G, NSW Dept of Community Services;[11] Applicant A v Minister of Immigration and Ethnic Affairs;[12] and B v B,[13] or are misplaced — for example, Teoh [14] is discussed only in respect of administrative decision-making, when its most significant impact has been in respect of statutory interpretation).
All in all, the idea of the book promised more than was delivered. That having been said, the second edition might be worth waiting for.
David Kinley
CASTAN CENTRE FOR HUMAN RIGHTS LAW
MONASH UNIVERSITY
Marco Sassoli and Antoine Bouvier in cooperation with
Laura Olson, Nicholas A Dupic and Lina Milner
(International Committee of the Red Cross, Geneva, 1999, 1493 pp)
When you start to study International Humanitarian Law (IHL), you wonder how anyone can get hooked on trusts, wills and contracts. All of these fields contain interesting conceptual difficulties and offer the potential for fruitful and remunerative careers, but I have yet to hear of a student’s life being transformed instantly by the notion of an exclusion clause. When you start to study IHL, on the other hand, you should come out of the first class stunned: which single area of law addresses so many human dilemmas? The law of armed conflict is the history of the world writ large — by lawyers. And that law is imperfect, like the world in which it tries to ameliorate human suffering.
Developments in the law of armed conflict have been nothing short of astounding in the last decade — driven, sad to say, by armed conflicts. There have been notable advances in the landmines regime, with the potential for a complete ban (not that you would notice in the various mine-ridden conflict zones). The International Court of Justice has even tried to lay down the law on the legality of using nuclear weapons (more or less shooting itself in the foot in the process). Clearly, there has been movement. But the biggest moves have been in the trial and punishment of those who breach human rights during armed conflicts. The two ad hoc tribunals, for Rwanda and the former Yugoslavia, have demonstrated that, in its own, rather cautious and hesitant way, the international community can actually find the will to respond to massive violations of human rights, if not the courage to intervene at the time.
If the Hague and Arusha courts demonstrate a greater resolve, perhaps in the longer term their lasting impact will be as opening act for the International Criminal Court. Once (if?) the Court actually comes into being, we face the prospect finally of being able to punish, at the international level, those who commit the most serious offences during armed conflicts, and our reliance on the political will of states to cooperate should diminish. Surely this will have a deterrent effect on at least some potential criminals.
Armed conflicts law, then, has been evolving fast. But one suspects that the big changes have happened for the time being. Land mines are still used — but there is a strong treaty regime with the potential to attract increasing support. It is unlikely that the lawyers are going to go anywhere near nuclear weapons for some time after the debacle of the 1996 Advisory Opinion. And, while the ICC remains no more than a court in statu nascendi, the odds are that the first judicial appointments will be made in the next few years. Things are settling down, and the publication of this book is exceptionally timely. It takes account of all these major developments of the 1990s and promises to be an essential work in the field.
This book, the principal authors of which are current and former members of the International Committee of the Red Cross’ (ICRC) Legal Division, offers so much, and does so in such an interesting way, that it is difficult not to get sucked in. The main object of the work is said to be ‘to show that International Humanitarian Law is relevant in contemporary practice and that it provides — although inherently insufficient — answers to the humanitarian problems appearing in and in relation to armed conflicts’. It easily fulfils these aims but goes much further. It is also a superb reference tool and study guide.
The book is in three parts. The first is an outline of IHL. The authors’ method is to provide introductory texts for each topic, generally quite short, then suggestions for further reading and references to relevant primary materials, many of which are provided in Part Two. The primary materials comprise the bulk of the work and they are very extensive: first a section entitled ‘General Statements on International Humanitarian Law’, comprising, inter alia, multilateral treaties, ICRC materials, United Nations instruments, national legislation and national statements. Following this we have a section (800 pages) of cases and documents relating to past and contemporary conflicts, ranging from the United States civil war, a substantial section on the Israeli-Arab conflict, through to the Gulf Wars and nearly 200 pages on the former Yugoslavia alone. The one major (and deliberate) omission is the 1949 Geneva Conventions and 1977 Protocols. This is sensible (in helping to restrict the size of the book) and justified (given the ease with which these instruments can be accessed either in hard copy or on the Net). Throughout Part Two the authors make use of discussion sections designed to pick out the most important issues and encourage students (and, one hopes, lecturers) to ponder them.
The method works on several levels. First, the basic introductory material (the authors’ own and extracts from other works) draws one into the subject. Then, by dint of the excellent referencing, one is directed to relevant materials, both general and relating to specific conflicts, so that the thoughtful reader should be able to work things out independently. This is consistent with the authors’ expressly stated view in the User’s Guide that many of the issues raised do not have clear-cut answers. Of course, sometimes — especially when new to a subject — the desire is just to find out what somebody else thinks the answer is. This book does not aim to offer ready answers. It raises complex and controversial issues but offers the reader the tools to address them.
The book is also successful as a reference tool. Whatever one’s level of knowledge of the subject, it provides easy access to the most important materials. Its educational worth, though, is greater because this is not just a collection of cases and materials. The explanations, questions and suggestions for further reading make it an exceptionally valuable work.
One aspiration of the ICRC in publishing this book is to encourage practice-related teaching of IHL. Of course, the subject has been taught in several Australian law schools for some time, either as part of a general course on human rights or by itself. It was offered in at least one Scottish law school 20 years ago (I have the T-shirt). To some extent in Australia the ICRC might be said to be preaching to the converted. In other jurisdictions the position is not as healthy. International law remains an optional course, for instance, in German universities; IHL is sometimes a small part of the optional course. In some British law schools, centres of excellence such as the University of Essex notwithstanding, human rights is taught almost entirely in terms of civil liberties. There is occasionally a blithe indifference to the reality that the most serious violations of human rights may occur where there are armed conflicts or serious disturbances taking place. This criticism cannot be parried by pointing out that Western jurists are less likely to have been exposed to the reality of armed conflict, while they may well have direct experience of civil liberties issues. Although there is some ostensible merit in this, it does not explain why so much more seems to be done in Australian law schools. There is a road to be travelled and How Does Law Protect in War? helps to show the way.
This volume will certainly make it easier for the subject to be taught through substantial reference to practice. To promote this, Part Three even offers a variety of possible teaching outlines of IHL, both in length and context. Thus we are offered IHL in 20, eight, four or two lessons, or as a study of one armed conflict. This can be done; a few years ago I co-taught a whole course on international law by reference to the former Yugoslavia. We are also shown how to incorporate the study of IHL into a general course on international law, and how to incorporate it into specialised courses. There is even an outline on IHL for journalists. Now, one may disagree with the choices sometimes made as to the content of these courses, but they offer a very good foundation for teaching the subject, especially if one is relatively new to it. In this way, Part Three, although by far the shortest in the book, plays an important role in encouraging the teaching of IHL.
This is the right book at the right time. The authors demonstrate profound understanding of their subject as well as awareness of where IHL sits in the wider scheme of things. They are deliberately neutral, a stance that may perplex some given the issues they address, but this is quite in keeping, for better or worse, with the ICRC’s policies. They are against violations of IHL but their primary purpose is not to name and shame violators; it is to encourage respect for humanitarian law while maintaining the confidence of all the protagonists in a conflict. That neutrality serves a wider educational purpose here because each person who uses the book will have to work out their own answers.
Clearly, a vast amount of effort has gone into this work. It has been time well, and expertly, spent.
Ryszard Piotrowicz
UNIVERSITY OF WALES
ABERYSTWYTH
R Haller-Trost
(Kluwer, London, The Hague, Boston, 1998, 595 pp)
This magisterial volume appears in the International Boundary Studies Series of the International Boundaries Research Unit of the University of Durham, although much of the work appears to have been carried out at Monash University. It is obviously the result of many years of hard work; one is led to imagine that it was also a labour of love, so intimate a knowledge of the history and culture of the region and its peoples does it reveal.
The book takes as its starting point the publication by Malaysia, on 21 December 1979, of a Map Showing the Territorial Waters and Continental Shelf Boundaries of Malaysia (referred to for short as ‘the Malaysian Map’, or the ‘Peta Baru’). The publication of the map drew protests from Brunei, China, Indonesia, the Philippines, Singapore, Thailand, and Vietnam, all of them affected by particular aspects of the claims represented in the Map. It is the chief purpose of the book to examine these disputed claims.
As is often the case with disputed maritime boundaries, the real underlying dispute relates to territorial sovereignty. This is the case with respect to Malaysia’s dispute with Indonesia over the islands of Pulau Sipadan and Pulau Litigan (presently before the International Court of Justice (ICJ)), with Singapore over the island of Pulau Batu Puteh (Pedra Blanca) (also in the list of cases to be heard by the ICJ), and with China, the Philippines and Vietnam over the Spratly Islands. The author expressly excludes from the scope of the study the Straits of Malacca since these straits are not the subject of a territorial dispute, and in any event their status as an international waterway has been the subject of a considerable literature.
Chapter 1 details the genesis and development of the Malaysian Map. In it the author also explains the Continental Shelf Treaty concluded between Indonesia and Malaysia in 1969, which had to reconcile two different baseline systems - the archipelagic baselines adopted by Indonesia and an inferred straight baseline system adopted by Malaysia. The fact that the latter baselines have never been published is a point of criticism made of Malaysia by the author, as inconsistent with the requirements of the United Nations Convention on the Law of the Sea 1982.
Chapter 2 analyses the maritime delimitations already settled by Malaysia in international treaties with Indonesia, the Philippines and Thailand. These are not in dispute, nor could they be since they have the character of dispositive treaties (although the author notes the somewhat half-hearted endorsement of this doctrine by the Arbitration Tribunal in the Guinea-Bissau/Senegal Case (1989) that ‘there does not exist at present in positive international law any customary or any general principle of law that would authorise States that have concluded a valid treaty concerning maritime delimitation … to review its equitable character’). The disputes between Malaysia and these neighbours relate to areas or matters not covered by existing treaties. Also included in the chapter are boundary delimitations effected through British Orders-in-Council during the colonial period affecting Malaysia, Brunei, and Singapore. The chapter offers critical commentaries on the delimitations in the light of principles of international law, precedents derived from state practice and judicial and arbitral decisions, and their compatibility with the United Nations Convention on the Law of the Sea which all parties, with the exception of Thailand, have ratified.
Chapter 3 deals with maritime boundary declarations made unilaterally by Malaysia through the publication of the Malaysian Map in 1979. These relate principally to the west coast of the Malay Peninsula, the southern and eastern coasts of the Peninsula, and the coasts of Sabah and Sarawak. This chapter is similarly rich in critical analysis as well as in careful geographical detail.
The four chapters of Part II are the lengthiest and deal comprehensively with the territorial status of Sabah (chapter 4), Sarawak and Louisa Reef (chapter 5), Pulau Sipadan and Pulau Litigan (chapter 6), Pulau Batu Puteh (chapter 7) and the Spratly Islands (chapter 8). The richness of detail and citation make these chapters — or at least chapters 4 to 7 — suitable only for the specialist reader; yet anyone concerned with a particular dispute will find the relevant chapter an indispensible research source. The publishers of the book justly claim that it is the first extensive study of its kind.
The dispute over the Spratlys (chapter 8) is of more general interest, since it presents a destabilising element in the relations between four of the nine member states of ASEAN and in the relations between each of those four states and China. Moreover, the existence of the dispute, and the consequent uncertainty as to maritime claims and passage rights emanating from the disputed sovereignty over the islands, reefs and other features making up the Spratly Group, have consequences for maritime commerce and naval operations of other states. The author does not pull her punches with some of these claims. For example, she dismisses the Philippine claim as baseless in international law. She is hardly less dismissive of the Malaysian claim to some 12 features of the Group, six of which it occupies and two of which are occupied by Vietnam. Since these claims, directly or indirectly, are based by Malaysia on its claim to a continental shelf, they confuse the concepts of sovereignty and sovereign rights in relation to the continental shelf. Merely because a feature lies on a continental shelf that might be claimed, disregarding the feature does not, of itself, resolve the question of sovereignty over that feature. In the end the author finds all of the claims that have been made to the Spratlys by the six contestants more or less defective in international law. She thus turns to the dispute settlement mechanisms that have been, or might be, used. The involvement of ASEAN, the diplomacy of Indonesia (not a party to the dispute), proposals for joint development, and the use of ‘second track’ methods such as workshops on maritime cooperation in the region sponsored by the Council for Security Cooperation in the Asia-Pacific Region (CSCAP) and separately by the Canadian International Development Agency through the South China Sea project of the University of British Columbia, are all surveyed. Her conclusions on the Spratlys (pp 375–379) are that China is likely to emerge the dominant power in the Spratlys through a combination of creeping annexation of the less sensitive and unoccupied features and acquiescence. In this way, it will ultimately move to resolve the matter, as it declared in 1995, ‘by means of modern maritime law, including the United Nations Convention on the Law of the Sea’, but not until it has achieved a dominant position in relation to actual occupation of territory, without sovereignty over which maritime claims cannot be projected.
The author concludes with a survey of Malaysia’s position on maritime and territorial boundaries in the light of emerging developments. There are a number of more or less minor rectifications of the Malaysian Map under consideration by the Government, whereby it may also be moved to disclose the basepoints on land on which the maritime claims are grounded. The vexatious claim by the Philippines to the whole of the Malaysian State of Sabah, that the author dismisses after a close and detailed analysis in chapter 4, is unlikely to disturb future relations. The disputes between Malaysia and Singapore and Malaysia and Indonesia over islands are currently before the ICJ. For the rest, disputes between Malaysia and its neighbours, including the dispute with Brunei over Louisa Reef, are likely to be resolved within the forums of ASEAN. If not resolved through settlement of underlying territorial claims or by delimitation agreements, These may take the forms of joint development zones or incorporation within existing terrestrial ASEAN ‘growth areas’. The general reluctance of ASEAN countries to engage in confrontation among themselves makes ingenious solutions more likely.
The book contains 386 pages of text. The remaining 209 pages are devoted to valuable appendices containing a list of main treaties, legislation and other documents, the texts of some key instruments, maps, an extensive bibliography, and an admirable index. It will indeed stand as a definitive work.
Ivan Shearer
FACULTY OF LAW
UNIVERSITY OF SYDNEY
Christer Ahlström
(Iustus Forlag, Uppsala, 1999, 536 pp)
This book provides a thorough analysis of so-called ‘non-legal’ agreements that countries adopt to cooperate multilaterally to control exports of goods and technologies that can be used to make weapons, particularly weapons of ‘mass destruction’. It has its genesis in the author’s LL.D. dissertation at Uppsala University in Sweden. At the risk of oversimplification, a ‘non-legal’ agreement in the international context is an agreement between countries that does not meet the formal prerequisites in international law to constitute a treaty and thus is not binding in a formal legal sense. Based on an analysis of the question whether a distinction exists between legal and non-legal agreements, the author concludes that ‘legal doctrine does not possess enough authority to answer this question in any conclusive manner’ and that it might be ‘an issue that cannot be settled solely by legal analysis’ because ‘there is more to international co-operation than international law, and, as a corollary to this, international legal scholarship is not in a position to provide answers by itself to all questions raised by international co-operation’ (pp 36–37).
The non-legal agreements that the book examines fall vaguely under the phrases ‘non-proliferation agreements’, ‘arms control agreements’ and ‘export control regimes.’ A threshold impression might lead one to conclude that this is a field of interest to only a subset of specialist public international lawyers. To the contrary, export control regimes have broad practical significance, even to the transactional lawyer. They are typically implemented by domestic law governing international commercial transactions, in particular domestic law applicable to the export of goods and intellectual property. International transactions in goods and intellectual property tend to be heavily regulated,[15] and multilateral export controls form one of the fundamental regulatory regimes that apply to such transactions. Export control regimes would seem to be of significance to the international legal theorist and the social scientist as well, because the means by which countries have cooperated in this area have been through non-legal agreements, that set norms outside of formal international law or any formal legal regime. In this sense, non-legal agreements provide important insights on how to achieve multilateral cooperation in the absence of formal law and formal legal sanctions. The principal questions of the social scientist would be: do non-legal agreements actually affect the behaviour of countries, and it so, why? This book takes an important step in answering these questions.
The book is well written and well organised. It is divided into two parts. Part I provides theory. It analyses the legal issues relating to how to differentiate legal from non-legal agreements and it provides an interdisciplinary framework for theorising about multilateral cooperation, borrowing mainly from international relations theory. Part I is thus a combination of a more traditionally focused legal analysis and an approach that tries to cover the ‘social science’ of international cooperation. Part II covers the legal status of export control regimes under international law, and the legal status of export control regimes under Swedish constitutional law as a case study. Part II is intended as an application of the theory expounded in Part I.
On the whole, Part II is an excellent treatment of the legal issues. It does not go far enough, however, in applying the interdisciplinary theory set out in Part I. It does not address in detail how the theories are or are not predictive, or whether the evidence supports or does not support a particular theory. The theory should be about explaining the rules or ‘non-legal’ norms or else it is of little value. This potential weakness in the book is not a major drawback, however, for three reasons. First, the book makes a valuable contribution to understanding the use of non-legal agreements in export control regimes, and in understanding the concept of non-legal agreements at the international level generally. Future theoretical extensions in disciplines other than law should benefit from the substantive groundwork this book lays on norms at the international level. Second, the author cannot be faulted for writing a book he did not set out to write. In the main, the book is substantive and not theoretical; it is about export control regimes and not about international legal theory. Third, interdisciplinary approaches to analysing international legal problems are in their nascent stages. The author should not be faulted — indeed should be applauded — for attempting to take some of the early steps in the interdisciplinary program.
International legal scholars have yet to address how to distinguish between ‘good’ and ‘bad’ international legal theory. A test for making this determination, grounded in the analytical social sciences, would look something like this: (1) is the theory subject to proof using established evidentiary techniques such as hypothesis testing?; (2) is the theory (and supporting evidence) pragmatic — can it be used — does it help scholars and policy-makers understand what is actually happening by providing tools to apply to practical legal and policy problems?; and (3) actually part of the second characteristic, does the theory further our understanding of norm systems such as formal legal rules and legal institutions, informal norms or non-legal agreements? These three properties for good theory are simplifications of what social scientists do.[16] The original contribution of the legal scholar, that separates the legal scholar from other social scientists and social theorists, is the emphasis on examining the effect of norms on human behaviour, regardless of whether those norms are formal legal rules or informal norms that exist outside of a formal legal system. Other disciplines may also consider rules (particularly anthropology) but legal scholars take the analysis of norms as the central element of their research. The application of social science methods to international law is still in its infancy, and has not reached the point where these three criteria can be confidently met.
The lawyer’s autonomous contribution should not be underestimated. Their special contribution is that they explain how — while ‘pure’ social scientists explain why.[17] One difference between a strict or pure social science approach and a traditional doctrinal approach is that the traditional lawyers focuses at least part of their analysis on the intentions of the parties to an agreement, while social scientists focus on consequences or effects. Lawyers spend a great deal of effort in determining whether an agreement is legal or non-legal by looking at the intentions of the parties, while social scientists are interested in effects and function. Social scientists look at questions such as whether or not meeting formal legal requirements allows parties to avoid constitutional constraints, and whether a non-legal agreement in fact binds the parties. If a non-legal agreement actually binds the parties, it is unimportant to the social scientist whether the agreement is characterised as legal or non-legal. The author deals with intention at various levels (eg, p 237). One of the strengths of the book is that it spends a great deal of pages in dealing with ‘lawyer’ questions, and concludes that international law focuses primarily on the intentions of the parties in determining whether a non-legal agreement has come into existence, but also critiques a possibly excessive reliance in international law on the parties’ intentions. There is much in the book to satisfy disparate schools of thought, from the analytical positivist to the interdisciplinary researcher.
A line of inquiry that could extend the analysis of the book is a public choice perspective on export control regimes, which would examine whether government officials use non-legal agreements to avoid the constraints of the democratic process. Government officials may use non-legal agreements to circumvent laws that require a legislature to ratify a treaty. Indeed, the first paragraph of the book refers to a discussion by a United States State Department lawyer of ‘a recent phenomenon of increasing importance — [namely] the negotiation of regimes that do not take the form of treaties’ (p 19). The United States Constitution requires the ‘advice and consent’ of the United States Senate to all treaties entered into by the United States executive branch.[18 ]The author points out towards the end of the book that ‘it is primarily commentators from countries with a clear separation of powers and a relatively independent executive — most notably the United States — that advocate a more informal approach to the making of international agreements’ (p 426). The author seems normatively to prefer relatively independent executives within a separation of powers framework because such institutions facilitate ‘rapid formation of multilateral co-operative arrangements’ limiting the proliferation of weapons of mass destruction.[19] A normative preference for such institutions overreaches, however, because it may result in undesirable consequences in areas outside of non-proliferation, and the use of informal agreements runs the risk that an executive branch will avoid constitutionally mandated constraints on what it can and cannot do in the international sphere. Ultimately, such agreements may be undemocratic, and we should be sceptical about giving governments the power to use them. The author acknowledges this potential drawback in the first chapter of the book, and asserts that it is impracticable to look at the practices of every state, and instead opts to focus on Sweden as a case study (p 44). One potential extension of the research, however, would be a look at the evidence to determine whether states whose constitutions require ratification of treaties by a legislative body use non-legal agreements more than states that do not have such constitutional requirements. Such a study, although beyond the scope of this book, could be accomplished using available quantitative and empirical techniques.
Another possible extension of the research in the book would be to look at whether non-legal agreements simply confirm what governments would do anyway.[20] Do non-legal agreements involve no more than modest departures from what states would do regardless of the agreement? The kernel of this theory is set forth in the text, in the context of the analysis of the legal nature of unilateral declarations in international law (p 188).
To conclude, this book makes a valuable contribution to international legal scholarship. It furthers our understanding of the nature of international law and how and whether commitments that are not legally binding actually do affect the behaviour of states. While the book forays into international legal theory in its initial chapters, its main focus is firmly embedded in traditional legal analysis. The norms that it documents should be of interest to theorists as well as doctrinalists. It is well-written original research.
John Linarelli
UNIVERSITY OF EAST ANGLIA
CASES
Attorney-General of the Government of Israel v Eichmann (1961) 36 ILR 5 9
B v B (1997) FLC 92-755 10
De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640 10
Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 10
Elmi v Minister for Immigration & Multicultural Affairs [1999] FCA 469 9
Kartinyeri v Commonwealth [1998] HCA 22; 152 ALR 540 10
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 10
Newcrest Mining v Commonwealth [1997] HCA 38; (1997) 147 ALR 42 10
Prosecutor v Tadic (1996) 35 ILM 35 9
R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) [1999] UKHL 17; [1999] 2 WLR 827 9
Toonen v Australia 1 IHRR (1994) 97 9
Voth v Manildra Flour Mills Ltd [1990] HCA 55; (1990) 171 CLR 538 2
OTHER AUTHORITIES
Arab Charter on Human Rights 1994 9
Asian Human Rights Charter 1997 9
Continental Shelf Treaty concluded between Indonesia and Malaysia 14
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 9
Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 3
Convention on the Elimination of All Forms of Racial Discrimination 1965 9, 10
Convention on the Law of the Sea 1982 14, 15
United Nations Charter 1945 9
[1] [1990] HCA 55; (1990) 171 CLR 538.
[2] S Baker and I Welsh, ‘Differentiating Western Influences on Transition Societies in Eastern Europe’ (2000) 8 Journal of European Area Studies 79.
[5] [1999] UKHL 17; [1999] 2 WLR 827.
[6] 1 IHRR (1994) 97.
[8] Newcrest Mining v Commonwealth [1997] HCA 38; (1997) 147 ALR 42.
[9] Kartinyeri v Commonwealth [1998] HCA 22; 152 ALR 540.
[10] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292.
[11] De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640.
[12] ‘Applicant A’ v Minister of Immigration and Ethnic Affairs (1997) 142 ALR 331.
[13] B v B (1997) FLC 92–755.
[14] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[15] J Jackson, The World Trading System: Law and Policy of International Economic Relations (2nd ed, 1997) 11.
[16] It is beyond the scope of this book review to provide an extended discussion of international legal theory. The test set forth above can be culled from some of the many works in the philosophy of science and on methods in the social sciences. See, eg, C K Rowley, ‘Social Sciences and the Law: The Relevance of Economic Theories’ (1981) 1 Oxford Journal of Legal Studies 391–405; K R Popper, The Logic of Scientific Discovery (1992). Admittedly, the above test is biased towards the ‘analytical’ social sciences, such as economics, positive political theory, and some aspects of regime and neo-realist theory in international relations.
[18 ] US Constitution art II.
[19] The book explains, however, that the US model may be peculiar and that other countries may have different institutions.
[20] See G W Downs et al, ‘Is the Good News About Compliance Good News About Cooperation?’ (1996) 50 International Organization 379, 380; J L Goldsmith and E A Posner, ‘A Theory of Customary International Law’ (1999) 66 University of Chicago Law Review 1113, 1171–72; J M Grieco, ‘Anarchy and the Limits of Cooperation: A Realist Critique of the Newest Liberal Institutionalism’ (1988) 42 International Organization 485, 497–98.
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