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Piotrowicz, Ryszard --- "Book Reviews" [2006] AUYrBkIntLaw 11; (2006) 25 Australian Year Book of International Law 331

Book Reviews

Edited by

Ryszard Piotrowicz

Necessity, Proportionality and the Use of Force by States

Judith Gardam

(Cambridge University Press, Cambridge, 2004, xxiii + 259 pp)

The debate that preceded the invasion of Iraq by a ‘Coalition of the Willing’ in March 2003 concerned two principal questions: was the use of force necessary to fulfill UN resolutions demanding that Iraq be disarmed of weapons of mass destruction (WMD) and would the amount of force used by the Coalition be proportionate to the threat Iraq posed to its immediate neighbours and regional stability? Prime Minister John Howard argued that Iraq had consistently obstructed the UN’s efforts to verify disarmament and that resorting to force was the last resort. He also asserted that the Coalition would use the minimum amount of force required to defeat Saddam Hussein’s regime, and would not intentionally target civil infrastructure nor deliberately harm the civilian population.

Two days before hostilities commenced, I delivered an address at the United Theological Faculty in Melbourne and remarked that:

While there is much to be said for ‘containment’ – a policy that some claim has succeeded for the past decade notwithstanding the terrible cost borne by the Iraqi people, the price of a campaign against Iraq will not be fully known for some months and years. Is a war against Iraq just or just another war? We are, as yet, unable to say with confidence. The final determination cannot be made until we are acquainted with the information now known by the Australian Government, when we have seen the extent of WMDs that the ‘Coalition of the Willing’ alleges Iraq maintains, and when the full human cost of war has been calculated. This is not a good answer but it is the best I can offer in the most desperate circumstances.

After Saddam and his sons refused to leave Iraq, the ‘Coalition of the Willing’, which included Australian naval, ground and air forces, launched an offensive operation on Thursday 20 March 2003. The war lasted for a little over three weeks. The Coalition captured and occupied Baghdad on 9 April.

Although the dust produced by the conflict has not yet settled, it now appears very likely that by March 2003, Iraq no longer possessed WMDs although it was unable to account for the whereabouts of those it had previously declared. Iraq appears not to have had the means to launch military strikes against its neighbours nor has the Coalition been able to demonstrate that it had a motive for doing so. In terms of the broader objectives of the ‘Global War on Terror’, there was no clear or manifest intent or active preparation on Iraq’s part to injure the United States, while it posed no obvious threat to the territorial integrity or political sovereignty of the United States. Nor has any evidence emerged of direct Iraqi support for the Al-Qaida movement, or any other terrorist organisation posing a threat to the United States.

Although the Coalition did not use more force than was necessary to defeat Saddam’s regime and has displayed a commitment to building a democratic and free Iraq, the campaign has not satisfied at least three of the seven just-war criteria. The cause was more expedient than just; alternatives to force had not been exhausted; and, the cost may prove over the next decade to have been excessive. To claim that the point of the campaign was to liberate the people of Iraq from a cruel tyrant is dissembling. To recast an objective in the light of an outcome is disingenuous. That neither the United States nor Australia has moved to overthrow a raft of comparably offensive regimes elsewhere in the world suggests that its decision to remove Saddam was for a reason other than moral repugnance.

There were, of course, some abiding difficulties in employing the just-war tradition in the context of Iraq, principally the lack of information needed to determine whether a campaign was really necessary and the complexity of the political, strategic and economic issues involved in making such a judgment. Other than in the counsels of government, where information about a range of crucial matters is available, it is always very difficult for ordinary citizens to come to an informed and enlightened position on diplomatic, strategic and military affairs. There is also the unavoidable need of balancing known costs with unknown risks, and of the consequences of doing something rather than nothing.

Judith Gardam addresses these kinds of questions in her very timely book Necessity, Proportionality and the Use of Force by States. The book’s focus is the operation of necessity and proportionality as legal restraints on the use of force by states. She concentrates on two key questions that have not, in her view, received the attention their importance deserves: ‘once it has been determined that there are legal grounds for the resort to force, how does the extra requirement that force be necessary operate in the practice of states? Additionally, how does proportionality act as a constraint on the nature and degree of force that states may utilize in their response?’

In answering these questions, Professor Gardam examines the evolution of proportionality and necessity, and their present application in respect of both the laws of armed conflict and international conventions applying to the handling of disputes. The first chapter assesses the relationship between necessity and proportionality in resorting to force and in the conduct of armed conflict. Chapter two outlines the evolution of these concepts and the way in which they influenced international relations before the UN Charter was adopted in 1945. (It is, of course, notable that neither word is used in the Charter.) The third chapter examines the way in which proportionality operates in the context of contemporary International Humanitarian Law (IHL) with respect to combatants. The following chapter addresses proportionality in relation to non-combatants and civilians and whether notions of criminal responsibility might apply to breaches of IHL. Chapter five examines claims of necessity and proportionality cited in support of unilateral resorts to force in the context of the conditions imposed on such action by the UN Charter. The final chapter assesses collective as opposed to unilateral actions, including those conducted under the UN’s auspices.

It is plain from Professor Gardam’s analysis that international relations are now at a stage in which attention can and ought to be drawn to issues arising from the limits, or more accurately the parameters, in which force can legitimately be used to regulate and resolve intra-state conflicts as well. But the matter of balancing estimates of the numbers likely to be killed in a proposed action with judgments about the importance of principles to be upheld is a vexing one. It is extraordinarily difficult to make, and then defend, judgments about necessity and proportionality when lives might also be lost through inactivity.

By way of example, President Harry Truman’s decision to use atomic weapons on Japan in 1945 was substantially influenced by judgments on the estimated number of American casualties that would result from an opposed invasion and disputed occupation of the Japanese Home Islands, and the extent of probable civilian casualties. There is also the consequence of ‘casualty aversion syndrome’. This was operative after the United States lost 18 military personnel when two Black Hawk helicopters crashed during a UN operation over Mogadishu in October 1993. This led to the entire American contingent in Somalia being withdrawn. No doubt with this experience in mind, the US avoided casualties in Bosnia by engaging in high-altitude bombing of Serbian forces. There were no US casualties but many innocent Bosnians died because they were either mistakenly targeted or suffered through ‘collateral damage’.

Professor Gardam teaches public international law at the University of Adelaide Law School and is an acknowledged authority on both IHL and the UN Charter. This work amply demonstrates that she knows her subject well. She also writes with clarity and precision. There are no superfluous words in her crisp and measured prose. She gets to the point quickly and outlines her conclusions succinctly. This is a book I wish I had written. Not only is Professor Gardam familiar with law and statute, she has a sound appreciation of diplomatic imperatives and military realities. This book focuses on the real world – her discussion of recent conflicts in Kosovo, Afghanistan and Iraq are first-class – while holding to certain legal and ethical principles that demonstrate considerable human warmth and personal empathy. The arguments are reasoned and cogent; the conclusions are compelling and persuasive. The table of case illustrations, the list of acronyms, the comprehensive bibliography and the more than adequate index make this a very accessible work.

My only criticism is the manner in which the narrative ends. There is no general conclusion or polemical climax. While the book finishes satisfactorily, I thought Professor Gardam might have extrapolated her discussion with some thoughts on the way in which necessity and proportionality might continue to evolve as philosophical concepts and legal precepts, as well as some comment on the influence they might exert on the future shape and substance of IHL and the laws of armed conflict.

Necessity, Proportionality and the Use of Force by States assists in making sense of conflicts in which the participants are striving to create confusion or seeking to hide their ambitions. It is a handsomely produced volume that is highly recommended for the scholar, the civil servant and the Service officer. I hope it is read widely.

Tom Frame



The Power to Protect: Trade, Health and Uncertainty in the WTO

Catherine Button

(Hart Publishing, Oxford and Portland, Oregon, 2004, xxxii + 258 pp)

It is a refreshing to see a book by an Australian author about an international trade law issue of particular importance for Australia, which not only has a very strong quarantine regime, but also keenly supports World Trade Organisation (WTO) trade liberalising rules.

In the 1998 Salmon Case[1] Canada, supported by the European Union and the United States, successfully challenged Australia’s restrictions on live and fresh salmon imports as a WTO-illegal restraint on trade. Further, as this review was being written, there were two related developments. First, New Zealand announced that it would be taking WTO action over the long-standing issues of Australian restrictions on the importation of New Zealand apples – quarantine restrictions ostensibly based on the possibility of New Zealand apples introducing the disease of fire blight into Australian crops. Second, Japanese restrictions on the import of foreign apples based on possible fire blight were, in an unfavourable sign for Australia, for a second time found to be incompatible with WTO trade rules. Japan had changed the measures previously held to be WTO-inconsistent, almost certainly to buy time for its domestic products rather than with any hope of reversing its previous loss.

The complexities of the subject are great. Button first surveys the applicable WTO law. She examines the regulation of health measures under the General Agreement on Tariffs and Trade 1994, essentially the updated 1947 GATT trade agreement. GATT 1994 seeks to balance the WTO Members’ trade obligations with a general Article XX(b) exception for measures necessary to protect human, animal or plant life or health (provided that they are applied in the least trade–restrictive way reasonably available). It is a fairly unsophisticated balance of interests in modern conditions.

Button then examines the operation of the newer Uruguay Round agreements that more specifically try to strike the balance between the norms of health protection (as an increasingly important part of governmental policy), and the goal of trade liberalisation. One of these is the Technical Barriers to Trade (TBT) Agreement, which deals with mandatory and non-mandatory standards imposed by states, including labelling and other requirements relating to human and plant health or safety. As Button notes, it does not set minimum standards, and focuses mainly on procedural guarantees in the process of WTO Members setting their standards.

Most of the book deals, quite properly, with the Uruguay Round Sanitary and Phytosanitary Standards (SPS) Agreement. This agreement is designed to ensure that measures related to human health (sanitary measures) or plant health (phytosanitary measures) are scientifically based, in the sense of there being an ‘objective or rational relationship’ between the SPS measure and the scientific evidence. To this end, the SPS Agreement requires that action taken on health grounds be based upon a scientific ‘risk assessment’ process. In general terms, the touchstone of the ‘genuineness’ of such measures in the trade context, is their scientific justification in terms of a risk assessment actually conducted.

Further, the SPS Agreement in principle achieves its more sophisticated balancing act by allowing each country to determine its own chosen level of protection – the level of ‘carefulness’ in its health requirements. But, once a country has done this, it must scientifically determine by a risk assessment whether that standard would be endangered by allowing in a particular item. Australia could therefore, as was acknowledged in the Salmon Case, adopt a ‘zero risk’ approach, but it would have to adopt that standard consistently for domestic and imported products alike, and also apply its measures in the least trade restrictive way possible. Under WTO scrutiny, however, the scientific risk assessment is often found to be fatally flawed, the trade restrictive measures are found to be unsupported by the risk assessment, or the measures are regarded as more onerous than they need to be to meet the chosen level of protection.

The central thrust of Button’s book is that the SPS Agreement, as currently interpreted and applied in the WTO, still does not achieve the correct balance between health protection and trade freedoms. Button considers that WTO negotiators probably ascribed a greater value-neutrality and certainty to science than even scientists would claim for it, and that a purely scientific approach, and a focus on the risk-assessment process alone, does not take sufficient account of the complexity of government regulatory policy. Her succinct consideration of risk regulation, and its three aspects, risk assessment (the more ‘technical scientific’ phase to determine the factual basis for risk regulation), risk management (the more ‘overtly political or value-laden stage’) and risk communication (the exchange of information and opinions), is very useful in setting the SPS risk-assessment requirements in their context, and expressing their limits.

The author raises the particular issue concerning the extent to which public perceptions of health risks, should be able to be taken into account by regulators, particularly as part of the risk-management process. The author supports shifting the balance so that societal preferences should be allowed to be taken into account during risk regulation (so that traditional local unpasteurised cheeses might, for example, be tolerated, while imports must be pasteurized because society does not accept the same risks in respect of them), while pure ‘public fear’ should not be so indulged. There are obvious difficulties in consistently and cohesively making such distinctions, quite apart from the fact that consumer views on such issues, even if they can be accurately ‘polled’, may themselves reflect trade-protective notions, or misinformation that the government has no obligation to correct. The author recognises some of the difficulties. Button notes, for example, that the media may fan the flames of a health crisis affecting imported food, and that long-term measures responding to consumer fears for which there is no credible evidence, should not be allowed to subvert the scientific focus of the SPS Agreement. So again we come back to the issue of where the balance should be struck.

In this context Button then considers whether the precautionary principle may play its part in striking the balance between the scientific evidence and the broader needs of regulators. Her consideration of the principle is in some respects lighter than would be expected in a book of this length on this subject. She does not independently consider the status of the principle at international law: the ICJ Danube Dam Case,[2] for example, but focuses on European Union case law. Button notes, however, the view of the Appellate Body in EC-Hormones,[3] that while some of the terms of the SPS Agreement are probably an expression of the precautionary principle in specific form, the principle cannot override the specific terms of the SPS Agreement.

Button notes the European Union’s advocacy in the WTO of the precautionary principle, and the United States’ suspicions of it. She concludes that the principle by itself raises too much risk of protectionist measures. She further considers that it would need to be so disciplined by at least a procedural review of the steps taken to apply the principle that the process may itself become a considerable and very unwelcome intrusion on the proper functioning of domestic regulators.

Finally, the author concludes with her own proposal, as an alternative both to the current approach, which she considers too rigidly focused on scientific issues, and to the precautionary approach, with its risk of disguised protectionism. Her suggestion is to test measures against a more ‘variable’ standard, that of what the ‘reasonable’ regulator would do, presumably taking into account the consumers’ preferences and concerns of the consumers in that market. Button finds some support in WTO jurisprudence for such an approach, but elevates it to a standard of review, and this is by no means her most closely articulated chapter.

There are some obvious difficulties: the consideration of what a ‘reasonable’ regulator would make of the scientific evidence itself yields greater discretion to WTO panels and the Appellate Body than WTO Members may be willing to accept, as we all tend to construct the reasonable person in our own image. Even if one is looking to the regulatory background in the particular regulator’s country, rather than some mythical reasonable regulator sitting outside any particular country’s regulatory background, the perspective may differ among different parts of the bureaucracy, since every part of the bureaucracy has its own constituency. In a European Community-United States dispute, for example, it would be very difficult to say what the reasonable regulator’s background and conclusions would be, much less, perhaps, in a case involving a developing country. Science is perhaps more consistent internationally than what regulators do with it, and that is probably one reason why science is so central to the SPS Agreement promulgated by a consensus-based organisation.

Finally, as civil services become ever more politicised in their advice and decisions, is the ‘reasonable regulator’ the one who is immune to the lobbying of domestic interests and fully attuned to its international obligations in the area of international trade law, rather than the currents of domestic politics, or is it the one who best serves the interests of the government of the day? Such issues could be the start of a new book, rather than the conclusion of the one to hand.

Nevertheless, this book is a thoughtful, lucidly written and interesting account of a very important and difficult issue. Catherine Button seeks to find answers to one of the most intractable issues of international trade law: how to allow states to secure the health of their citizens and the environment against genuine threats, whether domestic or foreign, while preventing that general freedom from being abused as a cover for protection of domestic producers against competition from foreign products.

The book could fairly be described as pro-regulator, but that probably balances other works from a more pure trade policy focus, and Button’s recognition of the complexity of the regulatory task is a useful thing to bring to the table when addressing these difficult issues.

Michael Lennard



Companies, International Trade and Human Rights

Janet Dine

(Cambridge University Press, Cambridge, 2005, xix + 319 pp)

Some sing along in Live Eight concerts, some wave banners in Seattle or Edinburgh, some make donations once in a while, but most of us most of the time turn a blind eye to the Third World plight, the grave injustices of this world. And this is not on the whole because of callousness, psychopathic tendencies or a sense of we-deserve-better-than-them, but perhaps because of a lack of real avenues for individuals to chip in to bring about real change, and a resignation to the inevitable, to higher forces beyond our individual control. Janet Dine is not resigned; her new book Companies, International Trade and Human Rights is premised on the fundamental optimism that something can be done, that rational debate – exposing the causes of this injustice, the flaws of the corporate structure and the globalisation process and revealing the hypocrisy in the willingness of the West to benefit from the tarnished exploits of their transnational corporations (TNCs) – can lead to positive change.

Dine sets the perspective and tone of her book by quoting from Thomas Pogge’s World Poverty and Human Rights:

We, the affluent countries and their citizens, continue to impose a global economic order under which millions avoidably die each year from poverty-related causes. We would regard our imposition of the present global order as a grave injustice unless we have a plausible rationale for a suitable double standard. We do not have such a plausible rationale.

In making such an accusation against each one of us, the Leitmotif of her book, Dine sets herself apart from most other legal treatises in the commercial field and in particular on transnational corporations, which often – in the name of objectivity - come across as clinical and detached. There is no doubt with whom Dine sides and neither is there any doubt that her measured passion, which shines through most of the book, adds to, rather than detracts from, its merits. In that sense Dine’s book reads like an academic counterpart to Joel Bakan’s popular book and documentary The Corporation. But unlike Bakan, Dine does not shift the blame to some monster institutions out there but rather points the finger right back at the reader: for example, she argues that companies are moral deflection devices that can take the blame ‘for the reprehensible acts while those who invented them and profit from them can express moral outrage, thus feeling good about taking the moral high ground’ (p 42). This makes for an uncomfortable read at times.

Dine’s book supplements the recent timely surge of academic literature on TNCs and human rights law, such as Sarah Joseph’s Corporations and Transnational Human Rights Litigation, Bottomley and Kinley’s edited collection Commercial Law and Human Rights and Frynas and Pegg’s edited volume Transnational Corporations and Human Rights. These treatises broadly examine the role of TNCs as human rights violators and existing or potential mechanisms to shield against such violations. Dine’s book goes beyond the established literature by blowing the boundaries of established legal fields, boundaries clearly spurned by a belief that the causes of the TNC problem defy simple answers. For example, the discussion in the first chapter, ‘A Global Crisis’, ranges from a detailed analysis of statistical data evidencing growing poverty and inequality worldwide, to an examination of the effects of companies on environmental and labour concerns and their relationship to institutions such as the International Monetary Fund and the World Bank, as well as governments, concluding with a jurisprudential critique of Rawls’ notion of a ‘just society’ and its application to the unequal international economic order. Similarly, the second chapter, ‘Why We are Here’, opens – in the process of examining common moral deflection devices – a number of traditional legal boxes such as orthodox company law, public international law and the convenient notion of the ‘sovereign, equal and independent state’, international trade law and the fiction of the ‘universal’ benefits of trade liberalisation, jurisprudence and the distortion of individualist philosophy by free-market economists. Dine goes on to expose linguistic tricks in neoclassical texts, which make the company simply invisible, as a way of hiding its powerful reality.

Dine impresses not just by the sheer research effort which has gone into the discussion, but also by revealing connections between seemingly unrelated fields. Occasionally Dine’s excursions seem slightly strained: is there indeed anyone who would dispute the injustice of the extreme inequality of wealth worldwide so much so as to require a jurisprudential justification? Perhaps also the main message within each chapter could have been brought out more strongly. Nevertheless, Dine’s approach is bound to challenge positively readers who prefer the familiarity of their own boxed expertise. Again, ‘uncomfortable’ springs to mind, but we have Dine’s sympathy: ‘How much easier for ‘experts’ on corporate law not to talk to philosophers, chemists, sociologists and human rights proponents’ (p 238).

Dine is suspicious of simple fixes (and indeed on occasion seems to admit defeat (p 224)). For example, in Chapter 3 she focuses on three powerful international institutions, the International Monetary Fund, the World Bank and the World Trade Organisation and shows, amongst other things, that it is far from conclusively proven that free trade, foreign direct investment or the conditionality policies attached to loans benefit developing countries and not just, as is clearly proven, TNCs. But rather than joining unrealistic calls for the abolition of the WTO, she argues that ‘reform of the WTO is much more likely to assist the poor of both developing and developed countries’ (p 133). An interesting solution put forward by Dine is the possibility of state bankruptcy: ‘[t]here is no reason why an international bankruptcy regime should not be established as a way to permit a state to ‘start again’ free of all debit, and every reason why this should be the case’ (p 123). Dine promises the reader more on this in the last chapter, however she does not seem to come back to the topic. But then Dine covers a lot of ground.

Chapter 4 explores human rights in the corporate context and the reasons why TNCs can on the whole not just trample them with impunity, but indeed use human rights rhetoric for their own ends. Chapter 5 takes the air out of the now fashionable window-dressing, which is the voluntary Corporate Social Responsibility commitments made by companies, which are ultimately the concern of their public relations departments rather than their boards. Dine argues in favour of a radical reconceptualisation of companies as one solution to achieve lasting change, a theme picked up again in the final chapter. Here she defends, inter alia, the idea of requiring ‘the organisation to internalise outside conflicts in the decision-making structure itself to take into account the non-economic interests of workers, consumers, and the general public’ (p 265), which would also free directors from some profit-maximisation pressure. She advocates compulsory consultation and the duty to create risk assessment systems that could be enforced by the protected beneficiaries. For the international level, Dine advocates the building of equitable restraining institutions to protect those unable to compete in international competition, coupled with abandoning the morally and perhaps legally indefensible notion that governments have a right or even duty to put their national interest first regardless of the repercussions for others states. In practice, this may be realised through a more considered use of votes in fora such as the International Monetary Fund or the World Bank.

While these ideas may offer effective solutions for many of the worst corporate excesses, it is likely that they would face significant opposition from the business world simply because they are burdensome and costly. And this then may raise a fundamental nagging doubt: can reasoning and appeal to morality trump opposing economic forces? Dine herself cites with approval Eric Williams’ thesis that ‘West Indian slave trade and slavery in the West Indies was abolished only when the sugar colonies which used slaves became uneconomical and humanitarian voices were joined by those who benefited economically from its abolition’ (p 4). And, as Dine points out, governments of both developed and developing countries are vulnerable to corporate pressure backed by the threat of their withdrawal. Does this mean that anything but a concerted worldwide regulatory effort would be national economic suicide? And how realistic is such a concerted effort? Of course, it would be a poor academic who does not believe that rational discourse is meaningful and can affect and change the world we live in. Dine is not one of them. Her book is uncomfortable and for that reason alone a worthwhile read for anyone interested in unravelling the corporate mystery. Enjoy your read!

Uta Kohl



The Political Interpretation of Multilateral Treaties

Shirley V Scott

(Martinus Nijhoff Publishers, Leiden/Boston, 2004, ix + 221 pp)

This work is a moderately sized book produced by Shirley Scott, a name well-known to participants in the annual Australian and New Zealand Society of International Law conferences. Dr Scott’s work reflects her own participation in the conferences, that of an international relations scholar with a deep interest in the linkages between that discipline and international law. This work is an attempt at ‘building bridges’ between international law and international relations and, as the author acknowledges, it is by no means the first attempt to do so.

Linkages between international law and international relations are both obvious and difficult. Both disciplines involve the analysis of the behaviour of states and the discourse between the members of the international community, so there is potentially much benefit in greater collaboration between the two. On the other hand, practitioners of both have on occasion expressed negative views of the other, although rarely these days to the extent that Hans Morgenthau expressed of international law a number of years ago. Dr Scott has always adopted a constructive approach to links between the disciplines and this work continues in that vein.

This work seeks to apply an international relations-based analysis to the negotiation and operation of multilateral treaties. It does so through what Scott describes as ‘a new, artificial unit of analysis’ whose ontology ‘consists solely of ideas’, the Cognitive Structure of Cooperation (CSC). The CSC is ‘a set of inter-related cognitive elements integral to a set of political relationships centred on a particular issue of mutual concern’. From an emerging CSC, foundational principles for any multilateral treaty relationship can be derived, and around these the rest of the new treaty forms. As such, multilateral treaty-making could be said to rest upon the foundation of the CSC.

The application of the CSC to various treaty regimes in order to identify and then demonstrate the application of CSCs in a number of contexts takes up the bulk of the remainder of the work. Dr Scott uses a number of very different but significant multilateral treaties as demonstrations of the use of her CSC concept. These regimes are each very different and straddle a number of the sub-disciplines in international law. They are the Antarctic Treaty, the International Convention on the Regulation of Whaling, the Nuclear Non-Proliferation Regime, the Basel Convention on the Transboundary Movement of Hazardous Waste, and the Convention on the Elimination of Discrimination Against Women.

The Antarctic Treaty System is the subject of most analysis. Scott charts three CSCs that have emerged within the negotiations dealing with the Antarctic over the course of the twentieth century, examining the primary-source material from those times in great detail. Her consideration of the other regimes is less detailed, and the work would have been improved with a more substantial consideration of the other regimes. This is particularly the case in the context of the nuclear non-proliferation and whaling regimes, which have been under some degree of pressure in recent times.

Scott makes it clear that the utility of CSC theory to states comes from its validity as a tool for the evaluation of a treaty’s perceived effectiveness in meeting state interests. She asserts:

Regime effectiveness has been a central concern of inter-disciplinary analysis for over a decade. CSC Theory has implications for the analysis of regime effectiveness most fundamentally because it has problemized the notions of a ‘problem’ and ‘goals’. While there is no universally accepted definition of regime effectiveness, most definitions incorporate the common-sense criterion of problem-solving: a regime is effective to the extent that it has solved the problems it was meant to solve, or achieved its goals. CSC Theory has suggested the need to reconceive and render more politically sophisticated the notion of regime objectives, goals, issues and problems so as to distinguish the stated ‘legal’ goals of the parties – as expressed in the preamble to the multilateral agreement – from the primary political goals of the negotiating States.

A tool for the evaluation of regime effectiveness is clearly a useful one for international lawyers and international relations scholars alike, and Scott’s work sets itself an ambitious goal. On balance, she goes some way to achieving it in this thoughtful, and thought-provoking, book.

One element of the work that might prove disappointing to some readers is its length. Scott’s identification of the CSC concept, and then its application to a number of significant treaties all takes place in under 250 pages. Her analysis, while logical and thorough, is understandably curtailed, operating within this restraint to the broadest consideration of the treaties. A work of greater length might have been able to plumb other treaties, for example, the international trade system, which would have provided an intriguing subject of analysis. Dr Scott’s succinct and considered application of the CSC to the treaties she has chosen is over all too brief, leaving the reader wanting more. Further applications of CSC theory to other areas of international law may hopefully be forthcoming, and gratefully received.

On the whole, this work is a thought-provoking addition to international relations literature that will also be of interest to scholars of international law. It does, as Scott stated was her intention, attempt to build bridges between two related but often antagonistic disciplines. For that reason alone, it would be a useful addition to most libraries. However, the use of CSC theory as a tool may prove most useful in multilateral treaty analysis, making Scott’s work a most significant component of the collections of political scientists and international lawyers alike.

Stuart Kaye



Listening to the Silences: Women and War

Edited by Helen Durham and Tracey Gurd

(Martinus Nijhoff Publishers, Leiden/Boston, 2005, xv + 276 pp)

The editors of Listening to the Silences: Women and War chose the perfect title for this compilation of personal testimonies and academic articles on women’s perceptions of armed conflicts. Rather than a manifest promoting of the gender viewpoint in a political and militant way, this book presents the various opinions of women who participated actively or passively in armed conflicts. In comparison to many books written on the subject, this one is refreshing for its varieties of free opinions in addition to classical academic texts. Yet, the book remains one of women, by women, for women and is unfortunately unlikely to catch men’s interest. To reach this aim, it would have been necessary to give at least one man a voice, that of comparison and (mis)understanding.

The first part of the book endows women with a voice, that of witnesses telling their stories the way they saw and felt them. While some believe in the necessity to publicise them so that they are not forgotten and, hopefully, not repeated in the future, others simply report them without too much emphasis on the consequences of their words. It is in this framework that the reader discovers the straightforward stories of a former ‘comfort woman’, a female soldier in Iraq, a Sri Lankan businesswoman appealing for peace and a Guatemalan peace negotiator. Even the indirect voices of other women, such as that of an Ethiopian woman who lost her husband and finds peace with herself and the world by seeing his remains and being provided with an explanation as to the causes of her husband’s death, magnificently come through. Amazingly, none of these women ever wished to be in the limelight. They all got involved in gender issues by chance or mischance. The work carried out by women such as Luz Méndez or Neela Marikkar is a case in point. Longing for a sustainable peace for their own people, they almost accidentally added women’s concerns to their political agenda and endowed women with a powerful voice, that of peace.

Unlike other books on women that concentrate on sexual offences, this one shows the variety of issues faced by women in times of armed conflict. Although the first part starts with the story of a comfort woman and, thereby, conveys the impression that this is one more contribution to the eternally discussed issue of sexual violence, the following voices prove the contrary. In particular Charlotte Lindsey’s contribution regroups in an organised fashion these testimonies to women’s plights and joys, amongst others, the life of widows (p 27), women’s honour (pp 32-33), and women as victims and perpetrators (p 35).

The second part of the book focuses on the impact of the law on how women’s voices are heard. In other words, the following articles explain why the voices we heard early on may be so distorted that the recipients hear another story, or worse do not hear anything. The contributors are almost all without fail noted academics who have offered in the last few years a moderate, albeit powerful, feminist voice in legal gender discourse. Unlike previous generations of feminists who claimed that violence committed against women in times of armed conflicts was neither prohibited nor prosecuted, these women insist that current international law protects women from such offences (p 59). Further, they admit that women are not always in favour of peace (p 63). Another stance commonly accepted by classical feminists and rejected by the authors of the book is that the concept of gender only refers to women and, hence, gender programs only take into account women instead of covering violence linked to the male or female condition (p 69). Hence, gender violence also affects men, though to a lesser extent (p 98). Unfortunately, again most contributors cannot avoid speaking about sexual offences, a topic discussed in almost every single article.

After introducing the main concepts in the first contributions in the second part of the book, the editors turn to the law that may (or may not) distort women’s voices and experiences. While Helen Durham, Judith Gardam and Kelly Askin lament the lack of national enforcement of legislation protecting women and therefore the lack of prosecution of such crimes, only Gardam directly attacks the legislation inasmuch as she argues that the law is inappropriate because it does not take into account women’s perspective. In particular, Gardam is critical of the fact that the law is increasingly accepted as it is, despite the fact that it does not reflect the reality on the ground. In this regard, she stands in stark contrast to other contributions in the book, which take a more moderate line. Interestingly, each of the editors, while more or less repeating the same core arguments and interpreting the same provisions, pinpoints a particular issue that is left untouched in international humanitarian law and international criminal law. For example, Durham focuses on the impact of the law pertaining to means and methods of warfare, a topic that has, up until now, rarely been debated in relation to the protection of women. While recognising the multiple dimensions of sexual offences and arguing strongly in favour of clarity in legal terminology, Askin advises international tribunals to ask women under which provisions they wish certain of these crimes to be charged. In other words, women should have the right to determine themselves their status as survivors, an idea also propounded by Jeanne Ward in a non-legal context (p 86).

A second way to distort women’s voices or to empower them with a voice is the methodology used to report their words. Two contributions by Patricia Viseur-Sellers and Georgina McEncroe on the importance of investigators, interpreters and interviewers enlighten the way women are asked about their experience and the importance of building trust to ensure that women tell their own stories (p 155 & 165). This stress on how to elicit information is of utmost importance as women tend to denigrate their own lives and prefer to report those of others, a fact demonstrated later by Hayli Millar (p 171) in her contribution on women’s testimonies before the Truth and Reconciliation Commission of South Africa. Therefore, Viseur Sellers and McEnroe’s articles are highlights in the book because they broach a topic rarely discussed in the literature. Millar also criticises the way women’s voices were reported and acknowledged in so-called transitional judicial mechanisms. Because of the rationale behind such an accountability mechanism that aims to publicise the crimes and create forgiveness, women are reluctant to testify or simply report their experiences. Hence Millar recommends that women be consulted before a particular accountability mechanism is established (p 175).

The third and last part of the book concentrates on how to use women’s experiences to shape and maintain peace after a conflict. This part is particularly representative of the new wave of writers focusing on women’s issues. In the 1990s the feminist movement focused on the law and the prosecution of those who committed crimes against women. The new century started with women striving for, and with a voice for, peace, as well as for an appropriate place in post-conflict societies. Hence, all contributions to this part stress the importance of including women at the peace negotiation table, an issue already mentioned earlier on in the book, yet without in-depth discussions (eg Luz Mendez and Hayli Millar). Li Fung argues that women’s contribution to peace is marginalised she also admits that the presence of women at peace negotiations does not ensure attention to gender issues (p 230). Mendez’s story about how she got involved in gender issues supports Fung’s point of view. Swanee Hunt also warns that different women experienced different situations and, thus, have different aspirations and expectations. A general solution is consequently unlikely to reflect women’s voice(s). Rather, the peace process must aim to empower women to speak out, to make their experience visible and to integrate their opinions in shaping the new post-conflict society. While Rina Amiri and Hunt look for solutions, Fung attacks what she considers the roots of the problem, the ‘male’ definition of concepts such as peace and security. She is also one of the few contributors to the book to refer to the public/private divide when she explains that men are usually involved in peace negotiations at the political level while women remain active through grass-roots and community initiatives. In other words, men decide when to stop war at the political level and women maintain the peace at the local level. Hunt explains why listening to women’s voices is important. Nonetheless, unlike other authors who simply assert that women are endowed with certain skills and characteristics linked to their culture and upbringing, Hunt supports her opinion by referring to various programs and projects carried out in several countries (pp 256-59). Her contribution works well as a conclusion to the book, for she makes suggestions for the future as to which kind of practical and political assistance women need to build peace.

All in all, this is a very interesting book likely to interest any person already engaged in women’s issues. Moreover, its practical and moderate points of view make it a good starting point for those who would like to learn more about women’s experiences and their implementation in post-conflict situations without being plunged into feminist theories that may scare off some novice readers.

Noëlle Quénivet



Principles of International Criminal Law

Gerhard Werle

(TMC Asser Press, The Hague, 2005, xxii + 485 pp)

At a critical point in the development of international criminal law as a free-standing discipline, this book provides a welcome and detailed overview of the field and its workings. It also provides a clarification of its precise ambit and the legal mechanisms which govern it.[4] In this sense, it is highly useful as a textbook for the student and practitioner alike, who seek to develop a rigorous understanding of the field from a predominantly juridical perspective. Owing to the fact that international criminal law stands at the intersection of philosophy, history, politics, diplomacy and law, the book achieves a sound balance between providing academic insight, and charting the historical genesis of the field, while weighing heavily on the legal and procedural elements of the discipline. It is therefore a book that happily marries the theory and the practice of the discipline and, perhaps for the first time, provides a concise guide to its practice in the light of its theory.

The latter, of course, can never be severed from the former, and hence a legal practitioner must be acutely aware of the historical and philosophical underpinnings of her work in this particular field without necessarily becoming an historian and/or a philosopher. The notion of individual criminal responsibility under international law is inherently transgressive. Due to the politicised dimension of this legal discipline and its conceptual challenge to traditional notions of sovereignty, citizenship and boundaries, there have, since its inception, been tremendous problems with its legitimacy.[5] Only a very rigorous and thorough grasp of the legal workings of the discipline by those seeking to apply it, grounded in a sound awareness of the historical, political and diplomatic context within which it exists, will permit international criminal law to be advanced as a coherent field of law and thereby to eradicate impunity for those accused of egregious human rights abuses. In this regard, a helpful preliminary chapter charts the historical and conceptual foundations of the discipline before moving on to discuss issues of procedure and specific offences. This is done in a thorough and accurate, yet also simple and approachable, manner.

Perhaps the most significant feature of the book is the way in which it defines the ambit of ‘international criminal law’, placing great importance on the authority of the Rome Statute of the International Criminal Court (ICC), the latest major achievement in the field. It therefore focuses mainly on the most serious offences defined under the statute, and does not credit the discipline with a more general scope, which would include offences such as: slavery, piracy, economic crime (money laundering, fraud and counterfeiting with an international/transnational element) and drug trafficking. The ambit of the book should include criminal human rights abuses dating back to the origin of the notion of individual criminal responsibility under international law for such acts. In this sense, the book does not cover as much ground as other textbooks in the field, but arguably provides a more detailed and technical analysis of the more constricted field that it does cover.

The book’s practical dimension is a very welcome feature. On this note, it would appear important that future editions of the book should contain an analysis of the practicalities relating to the apprehension of fleeing suspects, which invariably concerns any lawyer practising in this field, and raises many crucial issues in relation to securing the suspect’s human rights. In particular, the International Arrest Warrant and the European Arrest Warrant, both crucial and controversial developments in the domain of international criminal law, merit further attention. This is particularly true given that the book is aimed predominantly, though not exclusively, at a European readership.

It would be very useful for the book’s future readers to be informed of some of the most recent developments in the context of tribunals designed to try cases in this field, which could in turn serve as a platform for discussion about the discipline’s future direction. United Nations ad hoc tribunals are, by their very nature, closing down, and there is a move to situate the judicial process in domestic fora. The current importance of the complementarity principle therefore cannot be over-emphasised, especially in the light of the fact that judicial systems within many states afflicted by atrocities have now been sufficiently rebuilt. The faults and inherent contradictions of administering justice ‘at a distance’ from the scene of atrocities has very significant practical consequences and tends to have a difficult relationship with those societies affected by the atrocities concerned. But the transfer of cases from international to national legal fora can also be fraught with complexity. A discussion of the recent endeavours of the State Court of Bosnia and Herzegovina both in taking on cases transferred from the International Criminal Tribunal for the former Yugoslavia (ICTY) under Rule 11bis of the ICTY’s Rules of Procedure and Evidence, as well as prosecuting its own alleged war criminals under its own criminal procedure code, would serve to orient the book towards the future. This is because the Bosnian model, being a domestic court staffed in part by international judges, in other words an ‘internationalised domestic tribunal’ as opposed to the previously known ‘domesticated international tribunals’,[6] is a novel and progressive development in the practical implementation of this field. It builds on the complementarity between international and domestic legal domains by assisting domestic judges and lawyers in prosecuting cases, but at the same time leaving the administration of justice firmly within the grasp of domestic authorities.[7] It could therefore serve as a model for future tribunals dealing with international crimes, and hence the future of international criminal law. History will be the final arbiter of the Bosnian model, but some commentary on this would prove insightful.

Readers would also undoubtedly be assisted by a thorough analysis of case-law. International criminal law has largely developed jurisprudentially. Key cases, in particular Akayesu in the International Criminal Tribunal for Rwanda, Furundzija and Krstic in the ICTY, the Pinochet litigation in the English courts and Al-Adsani v UK in the European Court of Human Rights are highly significant milestones and merit detailed analysis and attention.[8] For a significantly practical dimension, the author could also focus on specific issues, such as the taking of judicial notice (otherwise known as ‘adjudicated facts’ or ‘established fact’), and provide readers with an overview of judicial practice in this regard. Rather like drawing attention to the recent Bosnian experience, an analysis of important case law may also act as a template for the future development of the discipline.

The difficulty that every book on the subject faces is that of any legal textbook in a digital age. That is, as soon as such a book is published, it is already out of date. Nowhere is this more pertinent than in the context of international criminal law, which is continually in a state of flux. In order to enhance the utility of his work, the author would therefore be well advised to construct an online version of his book, which he would be able to update on a regular basis. This could also be accompanied by a weblog for professors, students and practitioners, giving an electronic voice to those who may want to debate developments in the field. The genesis of international criminal law runs in tandem with the increasing predominance of cyberspace.

Almiro Rodrigues




Customary International Humanitarian Law

Jean-Marie Henckaerts and Louise Doswald-Beck

(Cambridge University Press, Cambridge, and

International Committee of the Red Cross, 2005, vol 1 ppliii + 621 pp;

vol 2 ppliii + 621 and xxxiv + 4411)

Sometimes life consists of waiting. Maybe for Godot; maybe for The Beatles to get back together (not as long as John Lennon remains dead, as George Harrison once said before he went off to join Lennon in the great Cavern in the sky); maybe for the USA to realise it may be counter-productive to act like the USSR. But for those interested in international humanitarian law, when the big poll was conducted on long-awaited events, there could only be one winner: the publication of the ICRC’s study on customary international humanitarian law. There was even a rumour that Grotius and Dunant were turning in their graves as they awaited their complimentary copies (and at the price CUP is charging, they would have to be complimentary), while Pictet was said to be biting his nails to the quick in the celestial camp for the permanently displaced.

But finally, finally, the wait was over. Lawyers gathered outside bookstores at midnight to buy their freshly published first editions, sweeping the latest Harry Potter to the floor in their rush to learn exactly what differentiates a combatant from a civilian and just how far the rules of international and civil wars have converged.

So has it been worth the wait? I certainly think so. I have not read the whole book and have not the slightest intention of doing so. Life is too short. But I have read chunks of it and I use it as a reference book, which is what you should be doing with it, although it is heavy enough to use in self-defence if you have to. The editors, Jean-Marie Henckaerts and Louise Doswald-Beck, have (with the cooperation of many people across the world, including several in Australia) produced a massive, two-volume, three-piece work that surely must become the first port of call for anyone wishing to take a serious look at any of the principal areas of international humanitarian law.

The first volume (621pp) sets out what the editors regard as the main rules and offers detailed explanations. This volume may be purchased separately, at very reasonable cost, and will be enough for most people who ever turn to IHL. But for those with a more specialised interest, the second volume, containing the state practice said to substantiate the rules, will be a must (all 4411pp of it).

I have heard criticisms of this work; some are probably justified. But in a venture so great, so ambitious, it would be impossible to avoid offending someone. Anyone with a specialised interest in IHL could look in their particular area of expertise and start to find some rules they might question, or else query whether the state practice cited actually supports the rule asserted. Perhaps the rule might be expressed differently. But could anyone have done a better job? I seriously doubt it, because inevitably there will be differences in attitude towards the weight of various types of state practice; other perspectives on whether opinio juris is really present; varying views on whether a rule has in fact crystallised. Yet I am confident that the reaction would have been similar no matter who had engaged in this venture. So the book may not be perfect but I do not think it could be, especially when setting out rules of customary international law. Inevitably, where there may be doubts about the status of a rule, perhaps one that has been emerging recently, there may be disagreements. But at least the editors have set out in great detail the extensive practice on which they have relied. We can make our own judgments, but we would be foolish to pretend that this book is anything less than a massive contribution to elucidating IHL as it is, or at least was in 2005.

I have one or two problems with chapter 38 (Displacement and Displaced Persons), an area with regard to which my bonnet contains several bees. I was struck, for instance, by the reliance on sources derived from human rights law to substantiate rules of IHL. This seems to strengthen the link between the two and enforce the notion that the protection of human rights during armed conflicts is not the monopoly of IHL. However, there are certainly some people in the ICRC who insist on the separate character of the two bodies of law, and the use of human rights law to substantiate rules of IHL might be risky because it could make the effectiveness of such rules depend on the strength of human rights law (from which, of course (unlike IHL), derogation is sometimes permitted). For sure, it is perfectly true to say that human rights law continues to apply during armed conflicts, but that is different from founding rules of IHL on human rights sources.

Another issue is, with regard to internally displaced persons, the frequent reference to the Guiding Principles on Internal Displacement[9] as support for the relevant rules. The Guiding Principles (at para 3) are said to ‘reflect and [be] consistent with international human rights law and international humanitarian law’. Which came first: the chicken or the egg? The chapter as a whole is nevertheless highly persuasive.

So, it is certainly possible to take issue, but this is nevertheless a magnificent work. The editors, and their collaborators, deserve to be warmly congratulated for producing a book that will make a massive contribution to the dissemination of IHL, and perhaps to its development (although they assert that they are merely stating existing customary international humanitarian law). It has been worth the wait.

Ryszard Piotrowicz



Living by the Sword? The Ethics of Armed Intervention

Tom Frame

(UNSW Press, Sydney, 2004, 243 pp)

The author of this book is the Anglican Bishop to the Australian Defence Force. It is based on a series of lectures delivered by him in 2003 at New College, University of New South Wales. In it he offers a theological approach to the use of armed force in contemporary situations of conflict, with special reference to the Australian experience in order to bring practical clarity to the discussion. Dr Frame is a former naval officer and is also a military historian.

The first two chapters contain a survey of Christian attitudes towards the use of force and the morality of military service from the time of Jesus until the present. The first period surveyed is the ‘pacifist’ era to 450 AD. The second takes the reader from the writings of Saint Augustine, Bishop of Hippo, credited with the beginnings of the just war theory, to the present day. The author concedes that the Church has taken an often confused and contradictory stance in relation to the morality of the use of force, but states that the changing nature of social organisation and political institutions, and the advent of new weapons and fresh tactics, have posed more complicated questions and have added to the ethical dilemmas to be resolved.

In chapter 3 the author assesses the continuing debate between pacifists and those who believe in the concept of a just war and asks ‘whether the two approaches can be consistently and conscientiously applied given the complexity of modern life and the almost inevitable moral complicity of citizens in virtually every public activity undertaken by the nation-state’ (p 45). In this chapter the author defines what he understands by the criteria of a just war; he sees them as a ‘tradition’ rather than as a fixed position or static doctrine, and as needing to be responsive to developments in international relations and to technological advances.[10] Thus understood, he advances his own summary of the tradition in its modern application as consisting of nine criteria:

1. The authority waging the war must be legitimate.

2. The cause being pursued must be just.

3. The ultimate goal must be peace.

4. The motivation must not include hatred and malice.

5. The use of force must be the last resort.

6. Success must be probable rather than likely.

7. The means employed must be absolutely necessary to achieve the end.

8. The means employed must be proportionate and discriminating.

9. The means must respect the provisions of international law.

An international lawyer might object that the last three criteria belong to the jus in bello and not to the jus ad bellum, and thus do not belong to the just war concept as a guide to when resort to force is justifiable at all. A war might be just in origin but be conducted in disregard of international humanitarian law (the jus in bello). This would not retroactively invalidate the legitimacy of the resort to war, but would engage the application of national and international war crimes laws and, nowadays, in many instances, the jurisdiction of international war crimes tribunals. Would, in the author’s view, even relatively minor or infrequent infractions of international humanitarian law fall under criteria 8 and 9, or must the violations be deliberate, systematic and egregious? Even if the latter, they do not belong in the list. In the present reviewer’s opinion, the seventh criterion could only belong to the just war concept if reformulated: ‘The means that would necessarily have to be employed to achieve the end must not be inherently disproportionate or indiscriminate.’

On this last point, the author is disappointingly brief in his evaluation of the use of nuclear weapons against Japan in 1945. He states (at p 92):

The acute moral dilemma created by the development and deployment of nuclear weapons was based on two fundamental propositions. First, it is always wrong to intentionally kill innocent people. Second, a nuclear weapons strategy involves intentionally killing innocent people, either directly or indirectly. Therefore, a nuclear weapons strategy is always and everywhere wrong, notwithstanding the number of lives – both civilian and military – that might be saved if such weapons are used to shorten the duration of an already bloody conflict.

Thus put, there is no dilemma at all: only a straightforward syllogism. The author does not discuss the advisory opinion of the International Court of Justice in the Nuclear Weapons Case (1996), where the dilemma is clearly posed.

Chapter 4 takes for analysis, against the just war criteria outlined above, the two very different Gulf wars of 1991 and 2003. The author concludes that the 1991 Gulf War was ‘definitely necessary and certainly just, whereas the 2003 Gulf War was neither manifestly just nor, it can be argued, even necessary’ (p 147). He states that the invasion of Iraq did not satisfy three criteria at least: the cause was more expedient than just, alternatives to force had not been exhausted, and the cost may prove over the next decade to be out of proportion to the outcome. He confesses that, at the time, he had felt that the Australian government had made a compelling case for the use of force to disarm Iraq, but that the failure to find the claimed weapons of mass destruction and the later revelations as to the faulty evidence on which such claims were made, have caused him to revise his opinion on the necessity of the case. This conclusion sits a little uneasily with the author’s concession that, in such cases, ‘we must act on the best evidence that is available, even though we know it is not complete or conclusive’. Although noting the role of the Security Council in authorising the use of force in the 1991 Gulf War but not in the case of the 2003 Gulf War, the author does not treat this difference as necessarily decisive in the satisfaction of the first criterion: ‘legitimate authority’. He joins Archbishop Rowan Williams in considering that legitimate authority cannot be confined to the Security Council in view of its unrepresentative composition. He sets out his views on the Security Council more fully in chapter 7.

In chapter 6 the author deals with the topic of humanitarian intervention. He endorses American theologian Paul Ramsey’s view that force can justifiably be used when it is an act of love on behalf of fellow human beings who are suffering unduly. He states that:

armed humanitarian interventions are not merely permissible within the just war tradition; they are the very circumstances for which the tradition evolved and exists … Humanitarian intervention is morally justified when the conscience of ordinary people (rather than politicians) is shocked and offended. Gross violations of human rights, including “ethnic cleansing” and genocide, justify armed intervention; military coups, election riggings and political disenfranchisement do not. When a nation or organisation resorts to force to uphold values – rather than merely to protect their interests – there is an almost inevitable ethical quality to the action that implies justness. Regrettably, too little is often done far too late by those with a capacity to assist and a duty to do so.

Chapter 7 asks ‘Would an International Constabulary Prevent Pre-Emptive Military Strikes?’ The effective date of completion of the writing of this book appears to be late 2003. Thus, recent developments in the United Nations in response to the Secretary-General’s initiative of 2005, especially debates regarding the composition of the Security Council, could not be taken into account. However, in this – and in the previous chapter – account should have been taken of the Report of the International Commission on Intervention and State Sovereignty (2001), co-chaired by former Australian foreign minister Gareth Evans and Ambassador Mohamed Sahnoun of Algeria.[11]

Finally, in Chapter 8, the author deals with the issue of conscientious objection. He covers both objection to military service in general, and objection only in relation to a particular war. The case of Ex parte White was an Australian case in which a citizen objected to the draft in relation to the Vietnam war.[12] The author states that the issue has become redundant in Australia following the abolition of compulsory military service. However, the recent case in the UK of an Australian-born doctor in the RAF, already a member of the armed forces, who refused an order to serve in Iraq on the ground that the intervention there was ‘illegal’, could conceivably arise in Australia in the form of a court-martial for disobedience of orders.[13]

Bishop Frame’s book is a valuable contribution to the debate in Australia, and elsewhere, on the morality of the use of force and the ethics of forcible intervention. It is attractively written, cogently argued, and amply referenced. It does not pretend to be a legal analysis. International lawyers will want also to take into account such significant recent contributions to the debate from a combined legal and ethical perspective as those by Thomas M Frank[14] and Simon Chesterman[15] for a fuller understanding.

Ivan Shearer



The International Covenant on Civil and Political Rights:
Cases, Materials and Commentary

Sarah Joseph, Jenny Schultz and Melissa Castan

(Oxford University Press, Oxford, 2004, 2nd ed, lix + 985 pp)

In a little under four years, Sarah Joseph, Jenny Schultz and Melissa Castan have produced a second edition of The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, first published in 2000. In the second edition of this work, the authors continue their significant contribution to the systemisation and illumination of the work of the United Nations Human Rights Committee in supervising implementation by states parties of their obligations under the ICCPR.

In the second edition, the authors update the jurisprudence of the Human Rights Committee to 1 October 2003. New material – primarily in the form of extracts from decisions of the Human Rights Committee pursuant to the First Optional Protocol to the ICCPR, as well as synthesis and discussion – comprises over one quarter of the book. The second edition also includes extracts from and discussion of recent General Comments adopted by the Committee. These include General Comment 28 concerning the equal rights of men and women (art 3); General Comment 29 concerning derogation (art 4); General Comment 30 on states parties’ reporting obligations; and General 31 concerning the general obligation of states parties to respect and ensure enjoyment, without distinction of any kind, of the substantive rights in the Covenant (art 2). Each of these General Comments makes an important contribution to elucidating the normative content of states’ parties obligations under the Covenant, and illustrates the ongoing and serious challenges to the authority of the Human Rights Committee in supervising implementation by states of their human rights commitments. As Professor Ivan Shearer notes in his Foreword to the second edition, General Comment 29 on Derogations during a State of Emergency is of special interest in relation to the compatibility of action against terrorism with human rights.

The second edition also includes, where especially helpful in elucidating the normative content of provisions of the ICCPR, concluding observations of the Human Rights Committee in relation to periodic reports of states parties, as well as the work of the Committee on the Elimination of Racial Discrimination (CERD) in supervising implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. An example of the latter in Chapter 18 ‘Freedom of Expression – Articles 19 and 20’ is material both from the Human Rights Committee in relation to articles 19 and 20 of the ICCPR, as well as from the CERD Committee in relation to the proscription of racial vilification in article 4 of CERD.

The introductory chapter, Chapter 1, has been extensively revised. In relation to the interpretation and development of ICCPR norms generally, the authors note that a disproportionate number of individual communications received by the Committee have concerned a handful of states and a narrow range of subject matters. The result is that the Committee’s jurisprudence has focused on articles 7, 9, 10 and 14 (concerning the prohibition of torture, and cruel inhuman or degrading treatment or punishments, the prohibition of arbitrary detention, and the guarantee of a fair trial), and relatively little jurisprudence has developed in relation to articles 21 and 22 (concerning freedom of assembly and association). Nonetheless, the Committee has produced a large body of jurisprudence touching on important aspect of most ICCPR rights, including in relation to laws prohibiting Holocaust denial, restrictions on media reporting of parliamentary proceedings, deportation and extradition in various contexts, passport controls, detention for reasons of military discipline, detention of illegal immigrants seeking asylum, immigration controls impacting on family unity, prohibitions on gay sex, recognition of same sex marriages, amnesty laws, extended detention on death row, mandatory death sentences, special terrorist courts, language requirements privileging certain linguistic groups, incursions into indigenous lands, recognition and settlement of indigenous claims, and non-discrimination. In subsequent chapters of The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, the jurisprudence of the Committee in relation to each of these issues is the subject of meticulous recording and analysis by Joseph, Schulz and Castan.

In Chapter 1, as well, the authors identify some of the difficulties inherent in the manner of composition and work methods of the Human Rights Committee. These include the absence of a consistent interpretive philosophy due, at least in part, to new members joining the Committee every two years; occasional inconsistent decisions; sparse reference to decisions of comparable human rights bodies such as the European Court of Human Rights; lack of systematic coordination between human rights treaty bodies with overlapping mandates; poor compliance by many states with concluding observations and views adopted by the Committee; and lack of knowledge of and publicity for the work of the treaty bodies in many countries. Many of these issues have been canvassed by the contributors to P Alston and J Crawford (eds), The Future of the UN Human Rights Treaty Monitoring System Cambridge University Press, Cambridge 2000.

Of course, as the authors comment, any fair appraisal of the substantive output of the Committee must begin with an acknowledgment of the inadequate level of funding and resources provided by states parties to the human rights treaty bodies, as well as the part-time and unremunerated work performed by treaty body members. However, whilst one can readily concede the significant structural constraints under which the Human Rights Committee operates, it is at the same time legitimate to observe that the methodology adopted by the Committee often produces decisions which are of limited precedential value, and do not conduce to the development of a coherent body of human rights principles. The Committee’s decisions (or ‘views’) tend to reproduce almost verbatim, in exceptional detail and at great length, the submissions of the complainant and the state party concerned, before proceeding to very brief conclusions as to whether the ICCPR has been breached or not. Frequently, there is little by way of findings of fact, or discussion of evidentiary standards and approaches. Likewise, there is often little exposition of the reasons underlying the decision reached. For practitioners in the municipal sphere, accustomed to the duty of domestic courts and tribunals to give reasons for their decisions, this can be somewhat perplexing. Similarly, for those seeking to invoke the Committee’s work in domestic fora, it can be frustratingly difficult to discern a ratio decidendi capable of application in other cases to different facts. In the absence of a rational, coherent exposition of reasons, it can seem that outcomes are driven more by the political and other values and sensitivities of Committee members, rather than the text of the ICCPR and a rational, coherent (albeit developing) body of interpretive jurisprudence.

In this respect, the authors comment that the greater frequency of individual opinions, both dissenting and concurring, is a welcome development, as these opinions are often better reasoned than the plenary decision. However, whilst this development is perhaps to be welcomed in principle, it can at times exacerbate the problems in discerning any ratio decidendi, with partial dissents and partial concurrences by different members in different combinations. A recent example is the decision in Comm No 1090/2002 concerning New Zealand legislation for the preventive detention of serious sexual offenders. To the majority decision in that case were appended an individual opinion of five members (dissenting in part), an individual opinion of one member (dissenting in part), an individual opinion of another member (dissenting in part), an individual opinion of one member (dissenting), and an individual opinion of two members (dissenting in part, and in which another member joined).

However, as the second edition of The International Covenant on Civil and Political Rights: Cases, Materials and Commentary makes plain, such criticism of the Committee must be seen in perspective. As the painstakingly compiled tables and appendices demonstrate, the Committee continues to make a singular and indispensable contribution to the rendering of an international body of human rights jurisprudence in the face of many states whose commitment to the universality of human rights, and to their protection and promotion, cannot be assumed.

The authors are to be congratulated for their thoughtful and insightful analysis, and for their meticulous work in continuing to render the work of the Human Rights Committee accessible to a wide audience of civil servants, scholars, practitioners, and activists.

Sarah Pritchard



Public International Law: An Australian Perspective

Edited by Sam Blay, Ryszard Piotrowicz and Martin Tsamenyi

(Oxford University Press, 2005, 2nd ed, xl + 424 pp)

This book is the second edition of a work, the principal aim of which is ‘to give the reader an introduction to the main areas of international law with particular emphasis on the Australian dimension’ (p xxxiii). In 16 chapters contributed by 18 authors – all of whom are or have been Australian or Australian-based international lawyers[16] – the collection provides a wide-ranging overview of many fundamental areas of public international law. The editors note that this volume is primarily aimed ‘at undergraduate students of international law with little or no knowledge of the subject’.

The book succeeds admirably in its goal of providing a companion text for introductory courses in public international law in the Australian context, and would be profitably used together with whatever collections of primary materials are used. But the work has more than this to offer, and many of the chapters contain insights for the experienced international lawyer as well.

One of the major challenges facing authors seeking to produce a work on international law from a particular national perspective is to avoid the dangers of parochialism. In this work, the editors and their authors have done an excellent job of both providing an overview of a number of areas central to international law with plentiful references to Australian examples to illustrate these general points, and also referring to distinctive Australian contributions to the development of international law. Similarly, the challenges of avoiding significant duplication of material has largely been met, and the quality of contributions is overall very high. Each chapter concludes with a set of discussion questions, and references to relevant sources and websites. Full citations to cases referred to in the individual chapter’s citations appear only in a list of cases at the front of the volume;[17] there is also a helpful subject-matter index.

In Chapter 1 (‘The Nature of International Law’) Sam Blay provides a concise and accessible overview of traditional approaches to international law by describing the nature of international law, the appropriateness of its designation as ‘law’, the reasons why states generally comply with international law, and the theoretical underpinnings of the international legal system. He stresses the facilitative and conflict avoidance dimensions of international law, and rehearses the now standard critique of Austinian positivism which would deny international law the designation ‘law’, by highlighting the inadequate conception of law that underpins that critique both in relation to domestic and international laws. He points out (p 11) that in any event states treat the rules as binding norms, and that doing so serves state interests in regularity and reciprocity, and predictability, and both narrow and broader national interests. He concludes with a discussion of consent as a critical underpinning of the international legal system, noting its limitations in relation to objective territorial regimes and the binding nature of existing customary international law norms on new states, and a discussion of natural law theory, its relevance to the development of international law, and its (limited) relevance in the practice of international law by states. Throughout he draws on both general examples and ones of particular relevance to Australia.

In Chapter 2 (‘The Structure of the International Legal System’) Ryszard Piotrowicz describes the major institutions and actors in the international legal sphere. While providing some historical background, his major focus in the first part of the chapter is providing an overview of the post-1945 world, in particular the United Nations organisation.[18] He recounts the fundamental principles and objectives of the UN, and describes the principal UN organs and their functions. While he candidly recognises that the UN has failed in many cases to live up to the perhaps unrealistic expectations that attended its founding to eliminate the international use of force, he underlines the contribution that the organisation has made in this area. He also draws attention to the limited independent capacity which the UN as an organisation has in these matters: if member states are not willing to support particular efforts, there is a limited amount the Organisation itself can do (pp 22-23). He stresses the need to look beyond this field to the many other areas in which the UN and its related bodies have contributed to improvements in the lives of many around the world (p 23).

The second part of the chapter considers the range of actors involved in the international legal system, their status and international legal personality. This section provides a concise overview of the difficult issues relating to the status of individuals and other non-state actors under international law without attempting to resolve them all. The author notes that, while states are still the central players in many respects, international organisations also play an important role. The status of individuals as the bearers of rights under international law is addressed, and the point made that individuals have been accorded significant procedural capacity in a number of areas, above all under human rights treaties.

It would have supplemented the discussion if the chapter had referred to sub-state entities with some international legal personality (eg, Hong Kong and Macau Special Administrative Regions of the People’s Republic of China), as well as to a body such as the International Committee of the Red Cross (whose status and special roles are recognised in the Geneva Conventions), and to National Human Rights Institutions (a category of national institution which has been accorded some level of international capacity).

In Chapter 3, Don Greig provides a succinct and elegant overview of the major issues relating to the sources of international law in a discussion which takes as its framework the traditional one of article 38 of the Statute of the International Court of Justice (ICJ). Greig’s analysis is accessible to the student reader while at the same time pointing to the theoretical difficulties and inconsistencies that arise in this area, in particular those that arise from the judgments of the ICJ in relation to the determination of rules of customary international law generally, and in particular how participation in treaty regimes may generate customary rules binding on non-states parties to those treaties. His discussion of the status of UN General Assembly resolutions and how they relate to the process of authoritative interpretation of the UN Charter and the development of customary international law more generally brings clarity to a complex area. He also includes in the discussion the important sources of international law not explicitly mentioned in article 38, namely international organisations, which generate significant bodies of internal law and which also potentially have an impact externally in a manner distinct from the actions of their member states acting individually or collectively. One subject that might have been briefly addressed in the chapter is the role of the International Law Commission (ILC) in the codification and progressive development of international law, in particular how the work of the ILC generates state practice through the response of member states to the proposals formulated by it.

In Chapter 4 Wendy Lacey provides a solid overview of the fundamentals of the law of treaties, through a description of the major features and content of the Vienna Convention on the Law of Treaties (VCLT). She engages in an extended discussion of issues relating to reservations, and the recent work of the ILC and of some of the UN human rights treaty bodies on that topic. There is a discussion (pp 100-1) of the principles of treaty interpretation under articles 31-33 of the VCLT: this section is rather too brief and would have benefited from the inclusion of a number of examples (including some Australian ones, perhaps). The major grounds for avoiding liability under the VCLT are discussed; it would also have been useful to refer to the relationship between the Convention and the law of state responsibility (see the Gabčíkovo-Nagymaros Case and the ILC’s Articles on State Responsibility). The chapter also contains a good description of the reforms to the Australian treaty ratification process that were introduced in 1996, in particular the requirements for the tabling of treaties before the Joint Standing Committee on Treaties.

In Chapter 5, Rosalie Balkin provides an excellent analysis of the formal status of international law under Australian law and its impact in various contexts. She reviews the approaches of the Australian courts to the status of customary international law and notes that they view it as a ‘source’ rather than as a ‘part’ of domestic law, and explains the reasons for this attitude. A useful further reference in relation to customary international law might have been the judgment of Merkel J in Nulyarimma v Thompson (a case referred to later in the chapter on other points). The latter part of the chapter looks in particular at the influence that unincorporated treaties may have on statutory interpretation, and the exercise of administrative discretion. Inevitably, there have been recent developments in these areas that occurred too late for inclusion: in particular, Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri[19] and the subsequent High Court decision in Al-Kateb v Godwin[20]. Balkin discusses the High Court’s decision in Teoh and its political and legal aftermath in some detail; that discussion would now need to be supplemented by the reference to the deprecation of the Teoh decision by a majority of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam[21]. Another issue that might be mentioned in any future edition is the relevance of international law to constitutional interpretation, which gave rise to some spirited discussion in the High Court in Al Kateb.

In Chapter 6, ‘Peaceful Settlement of Disputes in International Law’, Stuart Kaye provides a concise overview of the various procedures used by states to deal with disputes between themselves. He sketches the processes of negotiation, mediation, conciliation, inquiry and arbitration. The chapter concludes with a more detailed discussion of the powers and functions of the ICJ, and usefully refers not just to many leading ICJ cases but also to those cases in which Australia has been involved. While the ICJ continues to be the pre-eminent judicial tribunal, the chapter might usefully have been supplemented by references to some of the many other judicial and quasi-judicial tribunals, which now form an important part of international dispute resolution: for example, the International Tribunal for the Law of the Sea and, although not strictly an international court, the dispute settlement bodies of the WTO (see the Project on International Courts and Tribunals at

In Chapter 7, Ivan Shearer provides a wide-ranging and clear exposition of the topic of jurisdiction. He provides an overview of traditional approaches to jurisdiction and weaves into his discussion examples of recent Australian developments of importance in the area (in particular amendments adopted to the Commonwealth Criminal Code in relation to extraterritorial jurisdiction). In addition, he provides an introduction to the topics of extradition, mutual legal assistance and the recognition and enforcement of foreign judgments, and also discusses the issues of conflicts of jurisdiction (illustrated by reference in particular to the contentious area of extraterritorial exercise of anti-trust jurisdiction, which led to some tension between the United States and its traditional allies in the 1980s). The chapter also outlines the various exceptions to the territorial jurisdiction of a state for diplomatic and consular officials, international organisations and visiting armed forces under status of forces arrangements, and discusses the development of the doctrine of state immunity and its embodiment in current Australian legislation. The chapter concludes with a short section on admiralty jurisdiction.

In Chapter 8 (‘The Creation and Recognition of States’) Robert McCorquodale provides a good introduction to the centrality of the state in the international legal system. After reviewing the criteria set out in the Montevideo Convention for the existence of a state, he examines the relevance of the right of self-determination to the existence of a state under international law. He notes the importance of the concept of self-determination to the appearance of new states during the process of decolonisation, and also refers to cases in which the right has been invoked in non-colonial situations (p 189). He then states that ‘[t]he right to self-determination is now part of the criteria for statehood because, in many instances the exercise of the right will either create a state or it will be a determinant in the creation of a state.’ This seems a curious claim: while it may be the case that many (even most) new states that have emerged recently have involved the exercise of a right to self-determination or a claim that such a right is being exercised, this does not demonstrate that this is a necessary legal criterion for the emergence of a state in the modern world.

McCorquodale then takes up the relevance of respect for human rights to a claim by an entity to be recognised as a state (p 191). Relying on the EC Guidelines on the Recognition of the New States in Eastern Europe and in the Soviet Union (on a couple of occasions also mistakenly referred to as the ‘Badinter Committee’), he suggests that ‘an entity that refuses to accept the need to protect [fundamental] human rights that are customary international law … could be considered not to accept fundamental principles of the international legal system, and so does not meet the criteria of statehood’. (p 191) This seems to be drawing a rather long bow. The author bases this claim at least in part on Opinion No 2 of the Badinter Commission, stating that it ‘decided that international law requires that states ensure respect for the rights of minorities, and that if these rights are not protected in the draft constitutions of an entity, then that may prevent that entity becoming a state’. (p 191) While language reflecting the first part of this quotation certainly appears in Opinion No 2, the Commission did not in that Opinion formulate a conclusion along the lines of the italicised words above: it simply affirmed the obligation to ensure those rights were guaranteed but did not explicitly state that this was essential to statehood as a matter of law. The preparedness of an entity to embrace human rights principles seems more appropriately to be seen as related to the political aspects of recognition of a state.

McCorquodale also takes up the subject of recognition and non-recognition of states and governments, and provides a good overview of the development of practice in this area, as well as the extent of support for the declaratory and constitutive theories of recognition of states. In this context he once again analyses the EC Guidelines, concluding that ‘recognition remains a powerful political instrument, even when it is framed as a matter of applying guidelines’. (p 196) He refers in passing to the case of Taiwan, stating that it has chosen not to seek recognition as a state and that it purports to represent the whole people of China, yet nevertheless possesses international legal personality reflected in its membership of bodies such as the WTO (as the separate customs territory of Chinese Taipei). The recent practice of Taiwan – which has full bilateral diplomatic relations with some two dozen states – has been not to assert a continuing claim to sovereignty over the whole of China, but to assert that it is a sovereign state based in Taiwan.[22]

In Chapter 9 (‘State Responsibility’), James Crawford provides a concise overview of the law of state responsibility. The first part of the chapter outlines the principal concepts and themes, drawing on the ILC’s 2001 Articles on State Responsibility (for which the author was the Commission’s Rapporteur). In addition to traversing the issues of the nature of state responsibility, attribution of conduct, breach of obligations and circumstances precluding wrongfulness, Crawford also touches on state responsibility issues as they pertain to federal states such as Australia. The second part of the chapter takes up the topic of the law of diplomatic protection – also currently under consideration by the ILC – and concisely addresses the question of the international minimum standard and the conditions for bringing claims of diplomatic protection. He also points out that the growth of bilateral investment treaties and other international procedures for the protection of investors has meant that the need for traditional diplomatic protection in the field of foreign investment has decreased over the years (p 217-18). He concludes with a reference to the issue of whether states may be under an obligation to exercise diplomatic protection, noting the decision of the English Court of Appeal in the Abbasi Case in which the Court was not prepared to grant an application to require the Secretary of State to take all steps possible to obtain the release of a British detainee in Guantánamo Bay. To this reference one could now usefully add the judgment of the South African Constitutional Court in Kaunda & Others v The President of the RSA and Others[23] and the comments of Collins J in Hicks v Secretary of State for Home Affairs[24].

Tim McCormack undertakes in Chapter 10 (‘The Use of Force’) the task of providing an overview of the law relating to the use of force (jus ad bellum) and the law of armed conflict/international humanitarian law. Throughout the chapter the author provides helpful illustrations from Australian practice. He provides an accessible overview of the development of the law under the UN Charter relating to the use of force and the difficult issues that have arisen in recent years in relation to the extent of the right to use force in self-defence (and in particular, the extent to which anticipatory or pre-emptive self-defence forms part of contemporary international law). He addresses the unilateral use of force to assist nationals and the issue of the use of force in the context of humanitarian intervention. The discussion then moves to the collective security arrangements under the Charter in particular the role of the UN Security Council under Chapter VII, but also the role of regional organisations in promoting peace and security. Here it would have been helpful to refer to the developments over the last few years relating to the concept of the responsibility to protect, which was given broad currency by the 2001 report of the International Commission on Intervention and State Sovereignty and which was recently endorsed by the 2005 World Summit.

The second part of the chapter provides a good overview of the basic elements and sources of international humanitarian law. The account covers the restrictions on the use of particular weapons and notes the importance of specific prohibitions, given the reluctance of military establishments and courts to find prohibitions on specific weapons in general principles of humanitarian law (a point illustrated by the ICJ’s approach in the Nuclear Weapons Advisory Opinion). The discussion of the standards relating to the treatment of non-combatants in particular the Geneva Conventions of 1949, is given contemporary relevance by the discussion of the legal status of the Australians who were detained in Guantánamo Bay. The chapter concludes with a brief overview of the enforcement of international humanitarian law through the two ad hoc tribunals for former Yugoslavia and Rwanda, and the International Criminal Court.

In Chapter 11, Pene Mathew provides an overview of the theory and practice of international human rights law. The opening section of the chapter considers the position of the individual under international law, issues of universalism and cultural relativism, and common critiques of rights approaches. This is followed by an overview of the historical development of international human rights law, with an emphasis on post-1945 developments in the UN and outlining the different ‘generations’ of human rights and the political and jurisprudential background to them. This is followed by a description of the UN Charter-based human rights bodies (now, of course, to be updated as a result of the replacement of the Human Rights Commission by the Human Rights Council in 2006), and the UN human rights treaty bodies. The author then provides a brief overview of major regional human rights systems, noting that Asia and the Pacific do not have such a system but also drawing attention to the important – and increasingly significant – role played by the Asia Pacific Forum of National Human Rights Institutions (p 278). She then discusses the institutions and procedures for the implementation of human rights in Australian law and practice, outlining the legislative practice, and the role of the Human Rights and Equal Opportunity Commission. The discussion then moves to the role of the judiciary in implementing human rights law, covering some of the material also covered in Chapter 5 (especially in relation to unincorporated treaties). The chapter concludes with a discussion of Australia’s experience with and response to a number of cases brought against Australia before UN human rights treaty bodies, as well as to the views of some of the committees in the reporting procedures, something which has promoted renewed activity by the Australian government in relation to treaty body reform, discussed earlier in the chapter.

In Chapter 12, Sam Blay and the late Peter Nygh provide an introduction to international law relating to refugees, with a particular emphasis on its implementation in Australia through domestic legislation and judicial decisions. The chapter first provides the historical background of the 1951 Refugees Convention, considers the approach that should be taken to its interpretation in the light of recent developments and the need to reflect the broad understanding of the drafters while ensuring that the Convention also provides assistance to those subject to persecution who may not have been within the contemplation of the drafters. The authors stress that the primary obligation under the Convention is that of non-refoulement, rather than a decision to grant permanent residence, and they outline the qualifications on the obligations under the Convention where a person possesses dual nationality or can access effective protection in some other country. The issue of the territorial scope of Convention obligations is addressed in the context of the Tampa incident of 2001, an issue that has become controversial once again with the amendments proposed in 2006 to excise the whole of the Australian mainland from the relevant migration zone for those arriving unlawfully by boat.

Much of the chapter is devoted to an exegesis of the definition of refugee for the purposes of the Convention and the glosses put on this by Australian legislation. The authors outline the two dominant approaches to the question of effective protection: the accountability theory (under which the persecution relied on must be attributable to the state), or the protection theory (under which persecution may exist if the state fails to provide adequate protection against private, Convention ground-based harm, or discriminatorily fails to provide protection against other private harms). The chapter examines in some detail the issues of the nature of the assessment to be made by a decision-maker assessing a claim to refugee status, considering the various grounds in the light of Australian case law addressing these issues.

Some reference to the role of the Office of the UN High Commissioner for Refugees and the process of international resettlement of refugees would have rounded out this (already quite lengthy) chapter. A brief discussion would also have been useful of the obligation of non-return under article 20 of the Convention against Torture (not subject to any exclusions such as those listed in article 1F of the Refugee Convention), and its relationship to the obligation of non-refoulement under the Refugee Convention. This is an issue which has arisen in a number of cases, and the UN Committee against Torture has gone to some lengths to stress the different and independent nature of these obligations (the CAT obligation not being explicitly incorporated in Australian primary legislation).

In Chapter 13 Martin Tsamenyi and Brian Opeskin provide an excellent overview of the basic principles of the international law of the sea. An introduction to the historical development of the law of the sea, the place of customary international law and the 1958 conventions and the relation between the earlier law and the 1982 Convention on the Law of the Sea, is followed by a clear and accessible description of the current status of the law in relation to the various maritime zones. The authors then outline the principles relating to maritime boundary limitation, explored in the context of Australia’s maritime delimitations. The chapter then discusses the legal framework regulating different maritime activities – navigation, fishing and pollution – and concludes with an accessible account of federal-state issues relating to maritime zones.

In Chapter 14, Rosemary Rayfuse takes up the related topic of ‘International Environmental Law’ (IEL). She provides first a brief account of the sources of IEL, noting the importance of ‘soft law’ in this area, and of the historical development of the field – which she divides into four major periods: pre-1972, 1972-1982 (from the Stockholm Declaration on the Human Environment of 1972 until the adoption of the World Charter for Nature 1982), 1982-1992 (culminating in the Rio Declaration and Agenda 21 in 1992), and from 1992 to the present. The author then discusses basic concepts and principles of IEL, including the general duty to prevent environmental harm, the precautionary principle, the duty to cooperate in transboundary situations and the duty to compensate for damage caused. The chapter then considers the law regulating the protection of different parts of the environment: air and atmospheric pollution, pollution from nuclear activities, pollution of the marine environment, transboundary movement of hazardous substances, and the protection of biological diversity. All in all, this chapter provides an excellent overview of the range of areas and activities falling under the rubric of IEL.

In Chapter 15 (‘Antarctica and International Law’) Don Rothwell provides a clear account of the international legal regime relating to Antarctica, with a particular focus on Australia’s practice in relation to the region and the Australian Antarctic Territory (AAT) in particular. After providing a brief history of Antarctic exploration, the author outlines the issues faced in applying the traditional law relating to the acquisition of territorial sovereignty to Antarctica, and briefly describes the history and current status of the claims made to Antarctic territorial claims. This is followed by a discussion of the genesis and content of the Antarctic Treaty regime in 1959, with its underlying principles of the peaceful use of Antarctica and freedom of scientific investigation, and its suspension of existing territorial claims as of 1961 and prohibition on the assertion of new claims. The chapter then goes on to describe the other treaties that have been adopted in relation to Antarctica, in particular those related to the conservation of Antarctic seals, on the conservation of Antarctic marine living resources, and environmental protection of the region. The chapter concludes with a discussion of the application of the law of the sea to Antarctica, with a particular focus on Australia’s practice with relation to the AAT, and the legitimacy of the existing legal regime.

The final chapter in the book, ‘Current Trends in International Legal Theory’, by Hilary Charlesworth rounds off the book by returning to theoretical perspectives on international law with which it opened. Professor Charlesworth provides a succinct overview of some of the major theoretical developments in thinking about international law in the last 50 years. She briefly sketches the general contours of the approach of the New Haven School of Myres McDougal and his colleagues, endorsing Falk’s assessment of the limitations of that school and its tendency in its application to endorse United States foreign policy rather than providing an ‘impartial scientific inquiry’ into what the substance of international law should be (p 403). She then turns to the ‘New Stream’ of legal theory, which has its intellectual roots in the critical legal studies movement, and describes the efforts of scholars adopting these approaches to make visible the underlying power structures that international law has been used to legitimate, and the contingency of international law and international legal argumentation. Charlesworth explores in particular the analysis of the Finnish international legal theorist, Martti Koskenniemi in his 1989 work From Apology to Utopia, in which he argues that international law ‘cannot live up to its neutral objective promise, and, in fact, is premised on a number of substantive political values’ and that international lawyers need to admit and confront this fact by taking a stand on political issues (p 405). Charlesworth concludes that Koskenniemi’s approach ‘does not provide any criterion to distinguish between competing understandings of the appropriate resolution of any particular dispute’ and suggest that his audience is a ‘very narrow one’, namely ‘Western male international legal advisers to States’ rather than those who work with groups who do not enjoy the privileged status of the Western sovereign state (pp 405-6).

Charlesworth then briefly refers to critiques from the South of the Northern bias of international law. These have their roots in the period of decolonisation during the 1960s and 1970s and the perceptions by many developing countries that the prevailing rules of international law reflected the interests of the powerful, Western countries, and find their (post-)modern form in the writings of the ‘Third World Approaches to International Law’ (TWAIL) movement. Charlesworth concludes with a succinct overview of feminist approaches to international law, a field in which she herself has been a leading figure. She broadly outlines the major feminist critiques, focusing on the exclusion of women and issues of concern to women from the decision-making processes and priorities of the international legal system, and explores the public/private division at the national level to the international domestic distinction internationally, arguing that this reinforces gendered patterns of power and this leads to significant women’s interests being rendered invisible by international law. The chapter provides a good introduction to the theories it addresses, though there are other approaches that might also have been mentioned here, in particular the impact of critical race theory on international law, the interface between international law and international relations (and the recent emergence of a hard realist school exemplified by works such as Goldsmith and Posner, The Limits of International Law), and economic approaches to international law (see the The Methods of International Law (No 36 in the ASIL series). But this is a chapter, not a book and the volume already runs to 400 pages.

Overall, the quality of the editing is very high throughout, with only a few minor slips.[25] In sum, this is an extremely useful companion for students taking international law. It would provide an excellent accompanying volume to a collection of primary materials, whether the teacher’s own or one of the standard collections of cases and materials collections, be it Harris’ Cases and Materials with its Australian supplement or the more recent single-volume Cases and Materials by Anton, Mathew and Morgan from Oxford University Press.

Andrew Byrnes



Dispute Settlement in the UN Convention on the Law of the Sea

Natalie Klein

(Cambridge University Press, Cambridge, 2005, XXXIII + 418 pp)

While it may seem a mind-numbing subject to some, dispute settlement under the United Nations Law of the Sea Convention (UNCLOS) is actually a fascinating study. As a compulsory and wide-reaching dispute settlement system that is an integral part of a substantial international legal regime with broad participation, it is relatively exceptional. As a means of affecting, and possibly tempering, governmental action touching on law of the sea it is undoubtedly an influential factor. As a means of holding other states to account, while risking exposure of a state’s own actions, it offers a world of complexities for international lawyers and policy makers.

This new substantial work from Natalie Klein tackles this intriguing subject head-on and comprehensively. The book is based on Klein’s doctoral dissertation at Yale Law School, and published by Cambridge University Press as an instalment of the Cambridge Studies in International and Comparative Law under the general editorship of Professors James Crawford and John Bell.

One of the principal aims of this work is to assess the opposing views of those who celebrate the new era ushered in by UNCLOS, and its compulsory dispute settlement procedures, and those who doubt its impact on international relations has been so dramatic. In seeking to do this, Klein explores the interrelationship between the substantive aspects of the Convention and the procedural avenues available to interpret and apply those substantive rules. The connection between substance and procedure is a theme throughout the book and offers interesting insights into the way the Convention was drafted, what actually emerged from the Third Conference and what the future holds for the interpretation and application of UNCLOS.

The book follows a trajectory from an historical perspective, to analyses of the individual articles of Part XV of UNCLOS, including as they relate to several of the more important subject areas of the Convention, through to assessing the impact of the dispute settlement system for UNCLOS and international relations more generally.

The short history of law of the sea and dispute settlement in international relations, from mare liberum and use of force to complex interacting rights and obligations and reliance on third party processes, provides useful context to the remainder of the book. UNCLOS is undoubtedly a notable achievement of international negotiation and agreement, providing a complex regime for the regulation of ocean space and uses. Its dispute settlement provisions, often entailing compulsory procedures capable of rendering binding decisions, were both remarkable for their time and indicative of the increasing trend to rely, for certain disputes, on the rule of law. However, the focus on the compulsory procedures entailing binding decisions can ignore the spectrum of other resolution techniques available under the Convention and in international relations generally. From a quick glance at Section III of Part XV, it is clear that the participants at the Third Conference did not consider mandatory jurisdiction as essential for all substantive aspects of the Convention. Klein makes the point that, while not perfect, the dispute settlement regime is carefully tailored to specific issues in very practical ways. The lack of compulsory procedures does not result in normative rules governing ocean uses being empty of content or force.

The second chapter of the book delves into the first and second sections of Part XV, that is, the general obligations relating to the peaceful settlement of disputes and the compulsory procedures entailing binding decisions. Klein highlights the emphasis placed in Part XV on traditional consent-based methods of dispute resolution, a simple recognition that negotiation remains the most used and most effective form of dispute avoidance and resolution. The procedural and jurisdictional overlaps between UNCLOS and dispute resolution under other treaties are addressed through an analysis of the jurisdictional decision in the Southern Bluefin Tuna cases. Klein argues that the decision can be viewed as a reaffirmation of the fundamental importance attributed to the role of consent in international dispute settlement. Furthermore, the circumstances of the case lent themselves to the argument that the dispute settlement procedures under UNCLOS were less necessary for a separate agreement that fleshes out the normative obligations in the Convention. Such an approach to the Southern Bluefin Tuna decision of course avoids the opposing argument that the UNCLOS dispute settlement procedures were entirely necessary to clarify the obligations under both UNCLOS and the Convention for the Conservation of Southern Bluefin Tuna.

Some of the most interesting discussion in the book, from a dispute settlement practice viewpoint, is that on provisional measures and prompt release proceedings. Klein examines in some detail the provisional measures decisions in Southern Bluefin Tuna, Land Reclamation and MOX Plant as they relate to issues like prima facie jurisdiction, the standard for prescribing provisional measures and the types of measures that may be prescribed. She also reviews the more substantial prompt release jurisprudence in terms of jurisdiction, admissibility and factors affecting an assessment of the reasonableness of the bond. ITLOS has demonstrated that it is an adjudicative forum willing to take some supervisory or facilitative role over the disputes submitted to it.

Chapters 3 and 4 of the book analyse the role and content of Articles 297 and 298 of the Convention, namely the limitations on, and optional exceptions to, applicability of compulsory procedures entailing binding decisions. These two articles receive considerable attention in the book, close to 200 pages, because these, perhaps more than most other provisions within Part XV, help define the scope and nature of the dispute settlement regime as it relates to the compromises made in the substance of the Convention. Article 297 primarily addresses how the dispute settlement system interacts with the freedoms of the high seas in the exclusive economic zone (EEZ) and on the continental shelf. Within these two maritime areas the possibility of conflict is high due to the overlap in rights and obligations between the coastal states and other states whose vessels and nationals use these areas. How coastal states and other states resolve these competing interests through allowing for, or restricting, access to compulsory procedures reflects on much of the Convention itself. For example, Klien points out that compulsory procedures are generally available to protect potentially fragile rights like navigation, overflight and the laying of cables and pipelines where they coexist with another state’s sovereign rights, but is very limited where the coastal state has broad discretion and authority, namely the conservation and management of the living resources in the EEZ. When it comes to the protection of the marine environment, the dispute settlement regime is a complement to both the non-specific obligations under Part XII of the Convention and the norms in other related environmental treaties. The optional exceptions to compulsory dispute settlement were additional political requirements for areas of the law of the sea, like maritime delimitation and military activities that touch particularly on core issues of sovereignty for states.

Klein finishes her analysis of the UNCLOS dispute settlement system with an examination of the discrete deep seabed mining regime. Chapter 5 compares the alternative regime established by the industrialised states and the regime that emerged from the Third Conference and the 1994 Agreement. A primary goal for the deep seabed has been to create a stable legal regime to allow for investment and development, and a compulsory dispute settlement mechanism that complements the institutional arrangements has been important in this regard.

A principal conclusion reached by the book is that the dispute settlement system under UNCLOS is not comprehensive, nor is it, or should it be, the cement that holds the whole thing together. It is, however, an indispensable and politically realistic element of UNCLOS seen as a complex and remarkably successful package deal. Klein identifies two fundamental purposes of the compulsory system: to guarantee the balances created in the Convention; and act as a mechanism to develop aspects of the law of the sea where provisions are broad or normative.

In assessing the impact of the dispute settlement system, it would be too easy to look simply at the use made of the compulsory procedures. Traditional forms of dispute settlement continue to dominate international relations generally, and the law of the sea and ocean uses are no exception. The risk alone of airing one’s dirty laundry through compulsory procedures, plus the knowledge that a third-party process may arrive at an unexpected and unsatisfactory decision, is enough to put most states off the idea. The existence of Part XV has not entailed an explosion in adjudication nor radically altered dispute settlement more generally and therefore its direct impact can be hard to assess.

What emerges from a reading of Dispute Settlement in the UN Convention on the Law of the Sea is a nuanced consideration of dispute settlement and its role under UNCLOS, distanced from the unrestrained triumphalism, and negativism, of other commentators. Overall, Klein’s work offers the combination of a functional legal analysis with an attempt to understand the political, diplomatic and practical origins of, and consequences for, Part XV. It does not provide a detailed textual analysis of Part XV that some practitioners may look for, but engages the reader with thoughtful and original approaches to an understanding of UNCLOS dispute settlement. One is never weighed down by extensive footnotes and Klein manages to maintain interest with a lucid writing style. The book will certainly rank alongside A O Adede’s, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea, as a research and reference tool. So too will it lay the foundation for thorough and contextual interpretations of the Convention. Australian practitioners will no doubt be reaching for it the next time they are faced with a complex dispute or, indeed, appearing in Hamburg or The Hague.

Philip Kimpton



The Governance of World Trade:
International Civil Servants and the GATT/WTO

Xu Yi-Chong and Patrick Weller

(Edward Elgar, Cheltenham, United Kingdom, 2004, x + 311 pp)

According to the authors, nearly ten years were spent in researching this book (three field trips were undertaken to Geneva in 1994, 2002 and 2003), so it would be normal for readers to expect considerable insight into the workings of the GATT/WTO system and the role therein of Secretariat employees. Whether this is the case may depend upon the sophistication of the reader.

The authors set out to examine ‘how and under what circumstances the international civil servants can influence the decision-making’ and ask: ‘(1) whether the traditional view of international civil servants is accurate; (2) whether they are able to exert as significant influence as their domestic counterparts are in shaping public policy; (3) if their influence if different, why and in what way it is different; (4) if without them a multilateral negotiation could not take place, what precisely are their options, their opportunities and their goals; and, (5) what [might be] the likely future influence of the WTO Secretariat.’ Xu and Weller indicate that the main contention of their project is:

that the GATT/WTO Secretariat is more than a clerk to state delegates, carrying out what it was asked to do from time to time. International civil servants, as a distinct group of citizens, do have a certain degree of autonomy that allows them to pursue collective interests rather than the interests of specific states. Yet the condition under which they can play a significant role in decision-making varies depending on the issues at question, their timing and the broader international economic and political environments and, more importantly, their relationship with the key actors, such as Directors-General, chairmen of negotiation groups or committees, and key state representatives.

My own immediate reaction to reading this ‘main contention’ is that it is common sense that does not need ten years of research to be supported. I do not think that the civil servants of the GATT/WTO are unique or different from any other group in this respect: issues (and your mastery of them), relationships (with people who count), and the broader environment will determine practically anyone’s ability to influence decision-making.

What does the book document? It documents the fact that in the case of the GATT/WTO there are some particularly friendly relations between the secretariat and the state delegates and that this has led over the years to a very high level of trust in relations between the two groups. The very high number of state delegates involved in this ‘member driven’ organisational context accounts for a lot of this. There are, for example, more than 20 professionals in the United States Mission in Geneva working on WTO compared to a single individual that spends just half his time on ILO matters. The annual WTO-delegate ski race is legend in Geneva. So, it is only natural that the particular circumstances of the organisation contribute to this trusting and friendly relationship.

The authors note that the often highly technical nature of issues which the secretariat employees are required to master contributes to the willingness of committee and negotiating group chairmen to place their trust in the secretariat. As one who has spent a good deal of time working with the system both from the outside and on the inside, I can agree that this is true: but I think one would find the same dynamic in other settings and I am also aware that this trust is also conditioned on the ability of the secretariat staffer to perform what is expected of him.

To support their contention that the WTO secretariat plays an important role in policy development, the authors make much of the secretariat staff’s frequent opportunities to draft background notes or undertake studies. Anyone who has ever participated in a policy-making exercise – in any context – knows that the drafter of a position paper is in a potentially powerful position. What our authors tend to ignore is that in the case of the WTO, the secretariat does not ask itself to draft these notes or studies, they are requested either by the state delegate members of the organisation or by the chairman and, in my experience, they are not requested unless the requesting members or chairman has a pretty good idea that the papers will support a policy position they themselves endorse. Most state delegate members still hold the Soviet-style view in respect of the secretariat: initiative is punishable. This does not come through clearly in the book.

There are a number of curiosities and unsubstantiated assertions in this book. For example:

Most IOs [International Organisations], especially those 16 specialized agencies of the UN, put more emphasis on merit than the geographic origin of their staff (p 33).

I spent nearly 20 years in Geneva and my own observation is that where staff came from was very often the most important factor in staffing in the 16 specialised UN agencies: to the extent that persons from countries considered to be over-represented in the organisations were not even permitted to apply for vacancies. One reason why WTO members consciously decided not to make the new WTO a specialised agency of the UN was a desire to focus on merit and not geographic origin of staff.

Most of the staff [of the GATT] came from European countries, a few from the US and Canada. The small number who came from developing countries tended to be among the most effective performers (p 88).

I have no idea where this comes from, but it is again not true. The secretariat staff who drove the GATT in its crucial days and who were generally regarded as being the top performers were those from the United Kingdom and one or two other European countries. A look at who was in charge of the key GATT divisions during the Uruguay Round will confirm this.

The GATT Secretariat seldom asked for an increase in its budget mainly to avoid confrontations with the contracting parties (p 88).

As the Deputy Chief of Mission for the United States for ten years (1989 to 1999) and later as the Deputy Director-General responsible for budget and administration, I can also say that this is not accurate. In my personal experience of 13 years on this point, I would say that in no more than two years did the GATT/WTO settle for a zero-growth budget and even then it was usually in reaction to state delegates indicating that they would not support a real increase in funding.

Very few state delegates, including those who had pushed the issues on board, had a good understanding of those new issues and the implications of bringing them into trade negotiations (p 109).

This is a very curious and unsubstantiated statement. The United States was one of the main drivers of new issues in the GATT/WTO system and in my experience, American negotiators were well aware of the implications of bringing these issues into the system. In many cases, (government procurement and trade in services stand out as examples) a considerable amount of work was done in the OECD before the issues were surfaced in the GATT/WTO. In the case of services trade, the fact that NAFTA preceded the end of the Uruguay Round gave us some very relevant experience with how the issue would be handled in the GATT/WTO.

Does this book make a meaningful contribution to the literature available on the ‘governance of world trade’? My answer to this question would be that it does to the extent that it details the process of the negotiations in the Uruguay Round in several important areas: one of which (Functioning of the GATT System) is typically overlooked in other accounts. But if the central message of the book is not the agreements and how they were negotiated but instead some unique account of the role of the secretariat of the GATT/WTO, then, I would say that this message is often lost in the detail of the subject-specific negotiating histories.

Probably the most significant contribution of this book to the literature on GATT/WTO is its detailed account of the critical roles played by the GATT’s first three Director-Generals, Eric Wyndham-White, Olivier Long and Arthur Dunkel in shaping the GATT/WTO and the culture of the Secretariat. These men understood what some of their successors did not: there is an important role for the Director-General and the secretariat, but it is not a role characterised by overt policy initiative. Rather it is the role summed up by an anonymous WTO Director at the very start of the book: Esse, non videri (To be, but not to be seen).

Andrew L Stoler





The Creation of States in International Law

J Crawford

(Clarendon Press, Oxford, 2006, 2nd ed)

The new and much expanded edition of James Crawford’s seminal 1979 publication is an invaluable contribution to the theory and practice of international law. In The Creation of States, Crawford explores the place and personality of international law’s perennially pre-eminent subject, states. Although such a topic might seem somewhat narrow within the complex world of non-state actors and intergovernmental agencies, Crawford’s monumental study acknowledges such developments in the international arena, while convincingly demonstrating that the study of statehood remains at the core of the discipline. The second edition covers the field up until 30 June 2005 and explores a number of subjects, which have expanded rapidly through state practice and legal scholarship since the original edition’s publication. After discussing the scope and aims of the work, this review will preview some of these new developments before assessing the contribution and utility of the work to scholars and practitioners alike.

Within the framework of three parts comprising 17 chapters, Crawford provides the reader with a thorough analysis of the current legal issues relating to the creation and capacity of states in international law. Theoretical discussion is combined with an impressive array of detail from international jurisprudence, treaty law and policy. It should be recognised as an aside that some of the author’s theoretical positions were the product of his experience as an advocate in many of the disputes examined throughout the study. The chapters are clearly structured and include internal summaries allowing the reader to delve into specific parts of the book and cross-referencing assists those unwilling to commit to the book’s 723 pages. However, despite succinct summaries at the beginning of each chapter and as well as at the end of specific topics, I was sometimes left disappointed at the end of chapters, where Crawford thought it unnecessary to revisit his general observations. So as to advance his theoretical claims about international law, both the ends of chapters as well as a more developed conclusion could have continued the themes explored in the first part of the book. Given the book’s size as well as the many demands made of such a work though, the reader nevertheless is always able to grasp the central point of Crawford’s focus throughout his study.

The preface along with the first three chapters forming Part One provides the reader with the conceptual tools to approach specific topics explored later on. More importantly, the first part can also be used as a discrete point of reference for those interested more generally in understanding the role of the state within international law. Although researchers wishing to gain specific knowledge of state practice or treaty law might gloss over these chapters, it is important at least to identify Crawford’s underlying theoretical approach to his study as a whole. The essence of Crawford’s assumptions and motivations are clearly articulated in his Preface, where in response to criticism arising out of the first edition, he ‘tries to come off some of the fences on which the young scholar rather awkwardly sat’ (p vi). First, Crawford reveals his rejection of the doctrine of recognition by instead declaring he ‘believe[s] that international law is, at least to this minimal extent, a coherent system’ that transcends the dictates of states (p vi). On page 6, he presents his central research question: ‘This work investigates the question whether, and to what extent, the formation and existence of States is regulated by international law, and is not simply a “matter of fact”.’ After an informative tour through the canonical texts and cases dealing with state creation from an historical perspective, Crawford answers his own question on page 93: ‘An entity is not a State because it is recognized; it is recognized because it is a State.’ The second position identified in the preface is a methodological justification for his exploration of certain topics that some may seek to characterise as obsolete in our UN era. Crawford chooses to ‘defend the history’ (p vii) and explains his rationale accordingly: ‘The past was experienced as present – not in swathes but in particulars, and a careful account of the particulars still carries useful lessons even if we believe our circumstances now to be new ones’ (p vi).

Crawford’s sensibilities towards these particulars along with his vision of a relatively coherent system of international legal rules, allows him to appraise the current law on state creation. Far from simply amassing countless examples to construct a definitive set of rules for the reader however, Crawford’s analysis concedes that complexity and a degree of incompleteness continue to mar this area of law. For example, he points out that there is still no satisfactory legal definition of statehood (p 37). The terminology of sovereignty has been even less useful and has often been used in political discourse to support ‘untrammelled authority and power’ (p 33). Rather than view states as the foundations of the international legal system, Crawford instead shows that the undeveloped requirements of statehood exist in an interdependent relationship with other norms and principles of international law. States undoubtedly remain the primary actors at an ontological level, but this does not entail that they are the masters of their selfhood; rules only partly a product of state practice structure the creation and continuation of statehood in the international system. Thus, in chapter three, Crawford demonstrates how states are not only restricted by norms such as pacta sunt servanda, but that the last 50 years has also seen the structuring effect of the jus cogens norms relating to self-determination, the use of force and human rights. Along with his later discussion on state succession in chapters fifteen and sixteen, Crawford’s presentation of these topics does not remain the final word and instead should be seen as a call to encourage further research on these issues; the book is lengthy, but Crawford recognises that it cannot definitively cover all of the issues raised.

Along with a number of chapters on the traditional concerns relating to the modes of acquisition in Part Two, The Creation of States builds on this heritage in Part Three to explore topics of concern in the recent past and present: decolonisation, self-determination and the role of international organisations. Given that the process of decolonisation has ended (Palestine and Western Sahara notwithstanding), this part of the book is a useful and up-to-date examination of the process over the last half century. UN practice has developed significantly during this period and so has the jurisprudence of the World Court and Crawford provides both an overview as well as many examples. Crawford’s lengthy treatment of the status of Palestine is also useful for the way it clearly explores the legal complexities of the case without becoming sidetracked by the political quagmire paralysing the current conflict. Part Four continues the theme of state creation in the recent era, but necessarily turns its attention away from issues of decolonisation. More recent examples of state creation have included the states arising out of the Soviet Union’s demise and Crawford uses such cases to explore the complex law on state succession, continuity, reversion and commencement. In the case of the final category, Crawford shows us that it is not possible to rely on the legal rules prescribing the acquisition of territory because these are secondary rules arising as a consequence of statehood itself. ‘There is thus a primary regime associated with statehood, which logically and in practice takes priority over the rules relating to transfer of territory between existing States’ (p 665).

Crawford concludes his lengthy work with a short conclusion that identifies some of the ongoing problems of controversies in this field of study. Of particular note is his brief rebuttal of the ‘quasi-states’ thesis in the work’s final pages. Here, he offers a passionate defence against the more recent vestiges of arbitrary intervention and reminds us that the ‘evils of the last century were overwhelmingly due to strong regimes’ (p 722). Crawford reminds us of his earlier discussions on political regimes such as protectorates, and colonialism as well as the rule of recognition more generally to convince us that historical knowledge is relevant in confronting even the latest developments in international law. The reader may be left somewhat disappointed that these ideas were not developed further, but in defence of Crawford’s scholarship, it is indubitable that the book fulfilled its purpose commendably. The Creation of States is a vital resource for academics and practitioners whether as a text, a theoretical overview, an impressive bibliography or a reference to dip in and out of for case-specific explorations. This book’s perceptive and often too brief discussion of broader international law issues will hopefully serve – like its first edition – as the source of future debate for many decades to come.

Michelle Burgis



[1] Australia: Measures Affecting Importation of Salmon, Report of the Appellate Body,WT/DS18/AB/R, 20 October 1998).

[2] Case Concerning the Gabčíkovo-Nagymaros

Project (Hungary v Slovakia) [1997] ICJ Rep 3.

[3] European Community: Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body, WT/DS26/AB/R, WT/DS48/AB/R, (16 January 1998).

[4] The discipline is traditionally loosely defined and therefore confused with ‘international justice’, ‘transitional justice’ and ‘post-conflict resolution’.

[5] Such legal pitfalls can be easily exploited by those accused, most notably, in recent months, Saddam Hussein, who challenges the jurisdiction of the Iraqi Special Tribunal. Much potential also exists for the rule of law to be abused in international criminal trials if the precise legal mechanisms governing such trials are not rigorously adhered to.

[6] A pertinent example being the Special Court for Sierra Leone, which, although a progressive step in the direction of bringing the process of justice closer to those affected by atrocities, has not avoided the difficulties encountered by the Nuremberg and Tokyo tribunals and the UN tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY).

[7] This is a stark departure from the practice of ‘hybrid’ tribunals, such as those in Sierra Leone and East Timor, which had taken a step in this direction by fusing international and domestic laws, but had arguably not gone far enough, as they remained, in essence, international tribunals.

[8] Akayesu, ICTR Case No. 96-T (1998); Furundzija ICTY Case No. 95/17-1 (1998); Krstic, ICTU Case No. IT-98-33 (2000); R v Bow Street Metropolitan Stipendiary Magistrate and others, Ex part Pinchet Ugarte No 3 [1999] UKHL 17; [2000] 1 AC 147; Al Adsani v United Kingdom (2002) Eur Court HR 11.

[9] UN Doc E/CN.4/1998/53/Add.2.

[10] Cf Oliver O’Donovan, The Just War Revisited (2003) 14, who treats just war theory as ‘a proposal’.

[11] The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (International Development Research Centre, Ottawa, 2001). That report is also available on the web site of the International Crisis Group: <>.

[12] [1966] HCA 69; (1966) 116 CLR 644.

[13] On 13 April 2006 Flight-Lieutenant Malcolm Kendall-Smith was convicted before a court martial of disobedience to a lawful command and sentenced to eight months imprisonment and dismissal from the service. <> .

[14] Recourse to Force: State Action against Threats and Armed Attacks (2002).

[15] Just War or Just Peace? Humanitarian Intervention and International Law (2001).

[16] I should disclose that I am presently or have at one time been a colleague, collaborator or student of the authors of Chapters 3, 9, 11, 14 and 15.

[17] Though there is the occasional omission, eg, Re East, ex parte Nguyen referred to at p 123, does not appear to be in the table of cases.

[18] While the author notes (p 22) that Switzerland was the last state to join the UN (on 10 September 2002), in fact Timor-Leste joined slightly later, on 27 September 2002. This was still the situation as of the end of 2005.

[19] [2003] FCAFC 70.

[20] [2004] HCA 37.

[21] [2003] HCA 6.

[22] See Question of the representation of the 23 million people of Taiwan in the United Nations, UN Doc A/59/194 (2004), especially draft resolution (Annex II).

[23] (2004) 44 ILM 173.

[24] [2005] EWHC, C090872005.

[25] At p 143 the former Indonesian Foreign Minister Ali Alatas is referred to as ‘Ali Alitas’. And we are told at p 134 that the notion of legitimate expectation in relation to unincorporated treaties was ‘introduced by Mr Hugh Court’ in the Teoh Case! One slightly irritating feature is the occasional appearance of quotations from writers without citations or footnotes (eg, at p 5 quotations from Greig and Gregoriev), while on other occasions they are given (eg, at p 10 (Akehurst) and p 14 (Anglo-Norwegian Fisheries)).

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