Australian Year Book of International Law
Shiv R S Bedi
(Hart Publishing, Oxford, Portland Oregon, 2007, xiii + 488 pp)
The International Court of Justice is a Court of plenary jurisdiction, yet its contribution to the international protection of human rights has been vast: a contribution deserving of a book-length treatment. Shiv R S Bedi, the Head of the Archives Division of the Court, is particularly well placed to carry out such a work.
The book is divided into three parts, with Part I considering the legislative role of the judge and the relationship between human rights and international law; Part II examining the extent to which the Court has developed human rights law through its contentious cases; and Part III exploring the extent of the development through its advisory cases. Parts II and III also contain brief introductions to the contentious and advisory procedures respectively of the Court. Although Parts II and III are entitled ‘The Development of Human Rights Law by the International Court of Justice’, the approach of the book reflects its title ‘The Development of Human Rights Law by the Judges of the International Court of Justice’ (emphasis added) for, as the author notes, quoting Judge Nagendra Singh:
if the Court has ever omitted to refer to the concept of human rights or failed fully to deal with it in a case, the Members of Court have, at no point, failed to elaborate that aspect in their independent or separate supporting opinions, or even give vent to their thinking in dissenting opinions which fact is remarkable (p 151).
The work is very much about the contribution of the Judges of the Court to the development of human rights, from their individual opinions, as well as from their extra-judicial writings. Sometimes, however, the distinction between the Judges and the Court is taken too far, with the tendency to view a judgment with which the author disagrees as being the judgment of ‘seven judges’ rather than a judgment of the Court, which it remains (see, for example, p 124).
The structure does not aid the author’s analysis. Opting to analyse contentious cases in Part II and advisory cases in Part III, and chronologically within the Parts, the reader loses sight of the precise extent to which Judges of the Court have actually developed human rights law. For example, the author views the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) advisory opinion as correcting the contentious (in more ways than one) South West Africa Cases, yet there is a gap of some 140 pages between the analyses of the two. Similarly, if the reader wished to understand the contribution of the Judges of the Court to, say, the law on genocide, the reader would have to dip in and out of various contentious cases and advisory opinions scattered throughout the book. The author rightly departed from the structure to consider the Vienna Convention on Consular Relations, LaGrand, and Avena and Other Mexican Nationals line of cases together and the section is the better for it. The structure selected is a particular shame in light of the book’s summary and conclusion, in which the author extracts the various principles and draws together the underlying themes, evidencing his capabilities on the topic.
The author’s natural law persuasion is evident throughout, leaving no doubt as to where he stands on the choice, as he frames it, between judicial restraint and tough conservatism on the one hand, and judicial activism and benevolent liberalism on the other (pp 32-4). This leads him to depart from a number of orthodoxies, which those more positivistically inclined may find unsettling. For example, he considers that the Court has jurisdiction to indicate provisional measures whenever the life or dignity of the ‘ruled’ is in danger (pp 222-3); and human rights instruments are binding on all states regardless of consent, hence ‘to decide disputes involving human rights matter[s] the Court has jurisdiction ipso facto, ratione personae as well as ratione materiae’ (p 226). The reader is also treated to descriptions of the legal philosophy of various Judges, for example, Judge Jessup (‘a perfect blend of a positive law jurist and a natural law jurist’ (p 115)); Judge Spender (‘a narrow minded positivist’ (p 118)); Judge Fitzmaurice (‘no one can be a more tough conservative and legal formalist’ (p 123)); and Judge Weeramantry (‘a born natural law subscriber with an exceptional commitment to the promotion of human rights’ (p 334)).
There are some factual inaccuracies with which the reader may take issue: Oppenheim did not write the eighth edition of the classic international law work that bears his name (p 166); and the reason for the Court’s finding of a violation in 51 of the 52 individual cases in Avena is not the one put forward by the author (p 270). Some of the nuances in the Court’s views are also lost at times. There is a distinction between individual rights and human rights as the Court in Avena made clear (pp 265, 268), and the Court in Barcelona Traction, Light and Power Company, Limited referred to the erga omnes nature of basic human rights rather than all human rights (p 159). Particularly distracting is the number of typographical errors to be found, including in the names of cases and Judges, with one page containing four variations of the name of the Court’s current Vice-President (p 242).
Nevertheless, all relevant opinions are considered and a suitable degree of space and analysis is accorded to them, particularly those cases with which the author disagrees. Cases that are only tangentially related to the topic have been appropriately omitted. Unfortunately, the cut off date for publication was before the important judgments in the two Armed Activities on the Territory of the Congo cases and the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. These cases confirm the very real role of the Judges of the International Court of Justice in the development of human rights law.
SCHOOL OF LAW
UNIVERSITY OF NOTTINGHAM
James C Hathaway
(Cambridge University Press, Cambridge, 2005, li + 1184 pp)
The Rights of Refugees under International Law is not a slim volume. This is not surprising. It is the product of what Hathaway describes as a ‘mixed legal-empirical study’ (p xiii) conducted over a period of more than ten years with input from a cast of thousands (all duly acknowledged). The aim of the project was to produce a ‘truly comprehensive understanding of the refugee rights regime’ (p xiii) bringing together analysis of rights set out in the Convention Relating to the Status of Refugees (Refugee Convention), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant of Economic Social and Cultural Rights (ICESCR). The aim has been splendidly achieved in a work of analytical depth, which is determinedly positivist in approach precisely because it is grounded in a keen awareness of the lived experience of refugees and the political realities of the international legal system.
The task of reviewing a work of such length seemed daunting at the outset but seemed much less so once I realised that it was well-structured, well-signposted and comprehensively cross-referenced and indexed. Without more, the foregoing features make the book an excellent reference text. Fortunately for me, the addition of Hathaway’s lucid and engaging writing style also makes it possible to read the book through from cover to cover and emerge with sanity intact.
Chapter 1 of the book is entitled ‘international law as a source of refugee rights’. Hathaway’s positivist approach to international law is nowhere more apparent than in his discussion of human rights under customary international law (section 1.2.1). He is so rigorous in his insistence that there must be ‘constant and relatively uniform state practice’ (with words being an unacceptable substitute for action), that only freedom from systemic racial discrimination and ‘an extremely narrowly defined right to be free from slavery’ clearly make it on to his list of human rights with customary international law status (pp 36-38, 48). In chapter 4, the right of refugees to be protected against arbitrary or unlawful interference with the unity of their nuclear family is added to this list (pp 543-47). Freedom from genocide is described as ‘perhaps a close case’ because of the many contemporary examples of non-conforming state practice (p 37), but seems to make it on to the list as well (p 48).
Hathaway considers general principles of law to be a more promising source of universal human rights, suggesting that since a large number of states have undertaken by treaty to legislate regarding freedom from genocide, the right not to be arbitrarily deprived of life, freedom from torture, freedom from slavery and freedom from various forms of discrimination, these may be rights with such widespread formal protection within the domestic laws of states as to count as general principles of law (p 41). He points out, however, that official surveys of domestic law must be conducted to establish whether or not this speculation is correct. Next Hathaway considers the United Nations Charter as a possible source of human rights obligations, but is sceptical that the Charter provides a basis for adding any further human rights obligations to the list already compiled from other sources (section 1.2.3).
Finally, Hathaway turns to treaty law, which he regards as the only firm foundation for a robust refugee rights regime. He suggests that ‘many of the gains presumably of interest to those who posit expansionist theories of the sources of universally applicable law’ can be secured through properly applying the rules of treaty interpretation ‘in the interpretation of rules of undisputed authority’ (p 48).
The remainder of chapter 1 (section 1.3) then makes the case for the liberal interpretive approach adopted in the remainder of the book – one that rejects literalism in favour of reading treaty text ‘in line with the context, object, and purpose’ of the treaty (p 49). Most international lawyers probably already employ an approach to the interpretation of human rights treaties that is similar to Hathaway’s approach and rightly so. I am not convinced, however, that states are any less resistant to the widening of their obligations through a liberal approach to treaty interpretation than they are to the widening of obligations through an expansionist approach to the sources of international law. Even if domestic courts and tribunals are on-side in such an endeavour, they may not be able to have the final word (or even any input) on such matters within the domestic legal system of the state concerned. Australia is an example. Interestingly, Hathaway himself seems to concede this point in the epilogue to the book sub-titled ‘challenges to the viability of refugee rights’.
Chapter 2 is entitled ‘the evolution of the refugee rights regime’. Section 2.4 which deals with the history of the Refugee Convention is necessary reading since Hathaway’s approach to discerning the object and purpose of a treaty relies on an understanding of the original goals of the drafters as well as an understanding of the ‘normative legal context and practical landscape within which treaty duties are now to be implemented’ (p 67). Section 2.5, which deals with post-Refugee Convention sources of refugee rights, is also necessary reading. This section starts with a consideration of the Protocol Relating to the Rights of Refugees (Refugee Protocol) and emphasises the significance of the Protocol being a treaty to which states can be party without being party to the Refugee Convention. The section then considers the degree of authoritativeness of the Conclusions on International Protection adopted by the Executive Committee of the High Commissioner’s Program (EXCOM), the Handbook on Procedures and Criteria for Determining Refugee Status (Handbook) prepared by the Office of the United Nations High Commissioner for Refugees (UNHCR) and the Guidelines on International Protection issued by UNHCR’s Department of International Protection. EXCOM Conclusions are judged by Hathaway to have ‘strong political authority as consensus resolutions’ of UNHCR’s ‘governing body’ and, therefore, to be ‘deserving of real deference’ (pp 113-14). This proposition gives me unease for two reasons. First, it seems important not to ignore the fact that EXCOM is described in the Statute of the Office of the United Nations High Commissioner for Refugees (UNHCR Statute) as an advisory body rather than a governing body in relation to UNHCR. Second, it has increasingly become the case in recent years that EXCOM members ‘focus more on defending narrow national interests than on refugee protection’ in the EXCOM Conclusion drafting process. Turning to the status of views expressed by UNHCR, Hathaway notes that as the refugee law jurisprudence of domestic courts matures these courts are inclined to give less deference to positions adopted by UNHCR in the Handbook and, if in need of guidance, to seek it ‘increasingly (and appropriately)’ in the jurisprudence of other states parties to the Refugee Convention (pp 115-16). As for UNHCR’s Guidelines on International Protection, these are judged by Hathaway to be of ‘questionable legal pedigree’ and a source more of confusion than guidance (pp 116-18).
Most of the remainder of chapter 2 consists of a discussion of post-Refugee Convention developments in human rights law. The main point of the discussion is to demonstrate that the rights contained in the ICCPR and ICESCR valuably supplement, but are not an adequate substitute for the rights contained in the Refugee Convention. One of many examples of the usefulness of considering rights under the ICCPR and ICESCR concurrently with rights under the Refugee Convention is contained in chapter 4. While Hathaway endorses the rejection by the English courts in the European Roma Rights Centre Case of any suggestion that preventing persons from leaving their own country can amount to a breach of article 33 and/or the obligation of good faith in treaty implementation, he does argue that there may be a breach of article 12(2) of the ICCPR in these circumstances (pp 307-14). Another example is Hathaway’s thorough discussion and comparison of the process rights contained in articles 16, 25 and 32 of the Refugee Convention and similar rights contained in the ICCPR (sections 4.10 and 5.1) which convinced me of a point I had previously been inclined to doubt: the continued significance of Refugee Convention rights in countries that are also parties to the human rights treaties.
Chapter 3 is entitled ‘the structure of entitlement under the Refugee Convention’. Section 3.1 examines how the Refugee Convention, rather than granting the same rights to all refugees, attempts ‘to grant enhanced rights as the bond strengthens between a particular refugee and the state party in which he or she is present’ (p 154). After noting that the rights contained in articles 3 (non-discrimination), 13 (moveable and immoveable property), 16(1) (access to courts), 20 (rationing), 22 (education), 29 (fiscal charges), 33 (non-refoulement) and 34 (naturalisation) do not stipulate a required level of attachment between refugee and state party, Hathaway asks ‘does it follow that these rights bind state parties wherever they act?’ (p 164). His conclusion is that:
the governments of state parties are bound to honour these rights not only in territory over which they have formal, de jure jurisdiction, but equally in places where they exercise effective or de facto jurisdiction outside their own territory. At a minimum, this includes both situations in which a state’s consular or other agents take control of persons abroad, and where the state exercises some significant public power in territory which it has occupied or in which it is present by consent, invitation or acquiescence (pp 169-70).
The next level of attachment is physical presence. The rights contained in articles 4 (freedom of religion), 27 (identity papers), 31(1) (non-penalisation for illegal entry or presence) and 31(2) (only necessary restrictions on movements of refugees unlawfully present) are granted to all refugees physically present in the territory (land, sea and air) of the state party regardless of the domestic legal status of the refugee or the domestic legal status of the part of the state’s territory in which the refugee is present (pp 171-73). The third level of attachment is lawful presence and entitles refugees to the rights in articles 18 (self-employment), 26 (freedom of movement ‘subject to any regulations applicable to aliens generally in the same circumstances’) and 32 (protection against expulsion). Importantly, Hathaway argues that, notwithstanding the development of jurisprudence to the contrary in the courts of some states parties, the Refugee Convention requirement of lawful presence is met, inter alia, by a person who has made an application for recognition of refugee status which has not been finally determined even if the person’s presence is not lawful as a matter of domestic law (pp 175-83). Not only that, he argues that the Refugee Convention requirement of lawful presence must be deemed to be met also by persons whose refugee claims a state chooses not to examine (pp 183-85). The fourth level of attachment is lawful stay, which Hathaway argues does not require establishment of domicile or grant of permanent resident status but simply ‘officially sanctioned ongoing presence in a state party’ which would, for example, be met by ‘refugees in receipt of “temporary protection” who have become de facto settled in the host state’ (pp 188-89). This level of attachment attracts the rights contained in articles 15 (association), 17(1) (wage earning employment), 19 (liberal professions), 21 (housing), 23 (public relief), 24 (labour legislation and social security) and 28 (travel documents). The fifth and most demanding level of attachment identified by Hathaway is described by him as ‘durable residence’. Only the rights contained in article 7(2) (exemption from reciprocity), 14 (artistic and industrial property), 16(2) (access to legal aid etc) and 17(2) (exemption from restrictions on employment of aliens) require this level of attachment.
Sections 3.2 and 3.3 of chapter 3 examine the standards of treatment required by different provisions of the Refugee Convention. Article 12 provides that the personal status of a refugee (eg, legal capacity, matrimonial rights) shall be governed by the law of the country of domicile, or if the refugee has no domicile, by the law of the country of his residence (save that refugees are protected from loss of previously acquired rights). Section 3.2.4 contains a detailed and extremely useful analysis of this provision. Article 7(1) provides:
Except where this Convention contains more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.
Hathaway discusses this provision in section 3.2.1. According to Hathaway the provision goes further than simply requiring that refugees receive the benefit of all rights that a state party makes available to most non-citizens pursuant to domestic law or practice. He takes the view that the provision also requires a state party to accord to refugees the same treatment it is obliged to accord to aliens generally pursuant to other sources of international law binding on it (pp 197 and 229). The remainder of article 7 deals with exemption from reciprocity and is discussed by Hathaway in section 3.2.3. Articles 13 (moveable and immoveable property), 18 (self-employment), 19 (liberal professions), 21 (housing) and 22(2) (education other than elementary education) of the Refugee Convention specify the treatment accorded to ‘aliens generally’ as the baseline standard of treatment in that refugees must, in relation to these matters, be accorded ‘treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances’. Articles 15 (non-political association) and 17 (wage earning employment) of the Refugee Convention require still better treatment for refugees being ‘the most favourable treatment accorded to nationals of a foreign country, in the same circumstances’. This standard of treatment is discussed in section 3.3.2. The next step up is a requirement that refugees receive the same treatment as a national. This standard of treatment is specified in articles 4 (freedom of religion), 14 (artistic and industrial property), 16(2) (access to legal aid etc), 20 (rationing), 22(1) (elementary education), 23 (public relief), 24 (labour legislation and social security) and 29 (fiscal charges) and discussed by Hathaway in section 3.3.2. The remainder of the rights set out in the Refugee Convention are described by Hathaway as absolute rights because the standard of treatment is not defined by reference to a comparator group.
In section 3.4 Hathaway goes on to discuss the non-discrimination provision in article 3 of the Refugee Convention in light of the non-discrimination provisions contained in article 2 of ICESCR and articles 2 and 26 of the ICCPR. He argues that article 3 of the Refugee Convention still has an ‘important role’ to play though he concedes that the ‘Covenants provide the greatest value’ (p 259). Chapter 3 ends with helpful analyses of the articles in the Refugee Convention that deal generically with restrictions on refugee rights, that is, articles 8 and 9.
Chapters 4 to 6 contain an in-depth examination of refugee rights. Each chapter deals with a different level of attachment of refugee to host state and the rights which (theoretically) accompany that level of attachment. As Hathaway points out, using levels of attachment as an organisational principle makes sense not only because it mirrors the structure of entitlement under the Refugee Convention but also because it mirrors the unfolding refugee experience (p 12). In fact, in each of the chapters, discussion of a particular right commences with a survey of the extent to which refugees enjoy that right in various parts of the world. Subsequent legal analysis of the content of the right contains references back to these refugee experiences with comments on the international lawfulness or otherwise of the state practice giving rise to the experiences. However, given that Hathaway objects strongly to characterising states as bound by obligations to which they have not clearly consented, I was somewhat surprised by a general failure to specify the sources of the legal obligations that the states whose practice is discussed have towards refugees. For example, many of the Asian countries discussed in the course of Hathaway’s consideration of non-refoulement in chapter 4 are not actually party to the Refugee Convention or Protocol. Yet, Hathaway, who does not accept that non-refoulement is a customary international law duty (pp 363-67), describes the practice of these non-party states as being in breach of the duty of non-refoulement. If what he means to say is either (a) were they bound by such a duty they would be in breach or (b) they are in breach of a duty of non-refoulement imposed by some other treaty to which they are a party, it would be helpful to have this spelled out more clearly.
At 378 pages in length, chapter 4 constitutes more than one third of the substantive content of the book. While the chapter is entitled ‘rights of refugees physically present’ it deals also with the rights that refugees can assert against a state by reason only of being within its effective jurisdiction. Section 4.1 deals with the right of non-refoulement. Although an advocate of a liberal approach to treaty interpretation, Hathaway considers many of the more liberal interpretations of article 33 to cross the line that divides sound legal analysis from wishful legal thinking. Thus, for example, Hathaway rejects the contention in United States case law that article 33 provides protection against a narrower range of harm than contemplated in the refugee definition, but rejects also Lauterpacht and Bethlehem’s view that it provides protection against a wider range of harm than persecution (pp 304-7). Many other aspects of Lauterpacht and Bethlehem’s analysis of article 33 of the Refugee Convention and that of other commentators are also dismissed as unsustainable. In many cases, I agree with Hathaway. I am, however, inclined to the view that some of Hathaway’s interpretations of article 33 err too far in the opposite direction. It seems, for example, unnecessary to concede that there is ‘an implied limitation on the scope of the duty of the non-refoulement obligation where a state is at grave risk owing to mass influx’ (p 357) when states themselves have repeatedly asserted (including in EXCOM conclusions to which Hathaway believes great deference is due) that no such limitation exists.
Section 4.2 (freedom from arbitrary detention and penalisation for illegal entry) contains an extremely persuasive analysis of article 31 of the Refugee Convention. Sections 4.3 (physical security) and 4.4 (necessities of life) are essential reading for anyone desiring to ground a case for meeting the basic needs of refugees in rights discourse rather than appeals to humanitarianism. The remainder of chapter 4 together with chapter 5 (entitled ‘rights of refugees lawfully present’) illustrate how much more useful rights discourse is than humanitarian discourse in furthering the project of ensuring that refugees do not just have basic needs met but are able to lead lives of full human dignity.
Chapter 6 is entitled ‘rights of refugees lawfully staying’ but deals also with rights at the higher level of attachment described by Hathaway as ‘durable residence’. This is the chapter in which the downside of structuring the book to mirror the structure of entitlement under the Refugee Convention is most apparent. Most of the rights which, under the Refugee Convention only accrue at high levels of attachment of refugee to host state, are owed to ‘everyone’ by states parties to the human rights treaties, subject only to article 2(3) of ICESCR which provides that:
Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognised in the present Covenant to non-nationals.
However, those who are using The Rights of Refugees under International Law as a reference text may fail to realise that, depending on the treaties to which the host state is party and on whether or not it is a ‘developing country’, the rights dealt with in chapter 6 may be claimable even by refugees who do not have the Refugee Convention prescribed levels of attachment to that state. In fact, some of the Refugee Convention rights when closely analysed turn out to be of little use even to those refugees with the prescribed level of attachment to the host state, whereas their counterparts in the human right treaties actually have some bite. For example, Hathaway demonstrates, in section 6.4, that a refugee is better off relying on article 11 of ICESCR (right to an adequate standard of living, including adequate housing) than on article 21 of the Refugee Convention (housing) and, in section 6.7, that a refugee is better off relying on articles 19 to 22 of the ICCPR than on article 15 of the Refugee Convention (right of association).
Chapter 7 is entitled ‘rights of solution’ and deals with repatriation (section 7.1), voluntary reestablishment (section 7.2), resettlement (section 7.3) and naturalisation (section 7.4). In section 7.1 Hathaway makes the extremely valid point that it hinders rather than advances the cause of refugee protection, for UNHCR and others to avoid explicit acknowledgment of the fact that repatriation by host states of individuals to whom article 1C(5) or (6) apply need not be voluntary. In section 7.2 he makes the equally valid but often overlooked point that the standard for cessation under article 1C(4) is not met simply by a refugee choosing ‘even with complete freedom, to return to his or her country of origin’ but rather when he or she is ‘reestablished there’ (p 961). Finally, section 7.4 focuses on acquisition of host state citizenship because, as Hathaway explains, ‘the rights which are said to be the hallmark of the solution of local integration are the same rights which accrue by virtue of refugee status itself’ (p 978). Therefore, ‘local integration is not really an alternative solution to simple respect for refugee rights’ (p 979).
The book ends with an epilogue that reiterates the controversial proposal made by Hathaway and Neve for overhauling the mechanisms by which refugee rights are enforced.
All in all a book well worth reading even by those who have serious misgivings about some of Hathaway’s fundamental premises.
LA TROBE UNIVERSITY
Marco Sassòli and Antoine A Bouvier
in co-operation with
Susan Carr, Lindsey Cameron and Thomas de Saint Maurice
(International Committee of the Red Cross, Geneva, Vol I & II, 2nd ed, 2006)
Marco Sassòli and Antoine Bouvier have undertaken an ambitious project in compiling a comprehensive guide to teaching and learning International Humanitarian Law (IHL) and, to a large extent, they have succeeded.
How Does Law Protect in War is a useful and thorough text. Volume I offers introductions to the various topics: including the definitions of war, the roles of the various participants (and non participants) and the laws regulating the use of force. There is also a section offering a guide to teaching the subject, offering suggestions for courses of various length and depth.
Volume II is a collection of extracts of the relevant materials; cases, treaties and conventions as well as reports from various governments and international organisations. These documents are divided into two chapters focusing on general statements of IHL (chapter 1) and case studies on how such statements relate to real conflicts (chapter 2).
It is the second volume of this work that is the most useful as a teaching tool. The brief outlines offered in Volume I are just that – brief. Alone they are unsatisfactory in explaining the intricacies of the subject of ‘war law’. It is, however, their use in conjunction with Volume II that is the finest feature of this text.
With each legal issue the authors refer to the relevant cases and documents in the second volume. As is always the situation, the ability to read the judgments, treaties and declarations is likely to give students a better understanding of the law than a mere summary of the ‘rule’. By giving some background information regarding the events that prompted changes or refinement of the laws, the law is put in the context of real events. It would be both unrealistic and inexcusable to avoid this context.
As well as cases historically important to the development of the law, the case studies demonstrate how IHL is relevant and applicable in recent conflicts in Somalia, Yugoslavia, Chechnya and Sierra Leone.
The first English edition of How Does Law Protect in War was published in 1999. Since that time there has been debate about the applicability, interpretation and relevance of the law of war. This second edition has been expanded to include the controversial concerns regarding (among others), the role of non-state actors in Afghanistan, Guantánamo Bay and the notion of prisoners of war, together with the conceptual difficulties of the ‘war on terror’.
The case studies are vital for an understanding of IHL beyond the abstract principles, and show it to be a pragmatic and adaptive system, precariously balanced between its ideals of protection and its acceptance of the realities of combat and conflict.
The range of materials sourced in Volume II is both varied and broad. Beyond the expected international conventions, United Nations resolutions and judicial decisions, included are national government research papers, speeches and contemporaneous journalistic publications.
Volume II is where the book shines. The materials are arranged roughly chronologically and the case studies are easy to identify. Within each case study the various issues are specified, so an incident that involved consideration of several aspects of IHL is divided accordingly. Further, when relevant, the authors have included comprehensive footnotes that ‘link’ the issues and case studies, ensuring that the development of particular areas of law is clear.
Another benefit of this text is the interesting discussion questions relating to the various cases. These encourage students to consider the case studies in the context of the law and to draw their own conclusions as to the applicability and consequences of IHL. The discussion questions demonstrate that the answers in IHL are not always as clear as one might hope.
How Does Law Protect in War is not, unfortunately, without its faults. Although the two volumes are complementary, there is a certain frustration with the lack of detail offered in Volume I: requiring constant reference to the other volume. The brief nature of the introductory texts means that reference to the cases contained in the second volume is obligatory for even a cursory understanding of any particular area of the law. The introductory text refers to a topic as a whole and the specific rules tend to be given a heading followed by references to the various cases and documents in Volume II. As any one legal issue may involve several cases, and those cases are not necessarily concurrent, it becomes necessary to switch back and forth, between and within volumes.
The authors appear to have predicted these complaints and have included a ‘User Guide’ in Volume I to assist in understanding the structure and format of the text – itself indispensable.
To complement the brief introductory texts the reader is referred, not only to cases and documents in Volume II, but also to a range of additional writings. This allows the reader a starting point for a more in-depth understanding of particular issues. These suggested supplementary readings also ensure that the student of IHL is given the opportunity to view the subject from a range of perspectives as opposed to the neutral stance taken by the authors.
A final comment on the section dedicated to different teaching outlines is necessary. The authors provide a wide range of course lengths and structures, as well as examples of existing course outlines from various sources. Although certainly of interest to academics when setting up a course, it is rather unusual to have the suggested teaching outlines within the text itself.
Overall, How Does Law Protect in War is a useful text book. It offers a range of well edited and relevant documents and encourages a thorough understanding of IHL. It not only provides an overview of this complex and ever evolving area of law, the authors have also created a launching point for those who wish to explore the subject further.
DIVISION OF LAW, MACQUARIE UNIVERSITY
Alan Boyle & Christine Chinkin
(Oxford University Press, 2007, 441 + 30 pp)
The editors of Oxford’s Foundations of Public International Law series, Malcolm Evans and Phoebe Okowa, describe The Making of International Law as ‘agenda-setting work’. Unlike most international legal scholarship’s focus on sources to account for the creation of international law, Boyle and Chinkin are praised for their ‘wholly different perspective, focussing on the actors, systems, and processes by whom and through which international law is generated’. The authors also take up this task in their introduction, which begins with an example so as to showcase the book’s recurring themes. The case study of recent regulatory responses to terrorism manifests a number of law-making techniques (pp 3-10), including the role of multilateral versus bilateral treaties, the sway of soft law instruments such as United Nations General Assembly (UNGA) resolutions, the persuasive power of International Court of Justice (ICJ) decisions and the possibly instant law-making capacity of the UN Security Council (UNSC). Despite the fact that this example and the book’s many other cases highlight the diversity of avenues available to both states and non-state actors in creating and contesting law’s formation, the authors do not fear fragmentation. Instead, underneath the rich array of examples discussed is a faith in the unifying discourse of international law. Thus, although Boyle and Chinkin acknowledge the International Law Commission’s (ILC) work on fragmentation as discussed by Martti Koskenniemi, the book should be seen as an attempt to depict international law as a multifaceted, but still coherent practice of norm creation. In this review, the methodology, structure and subject matter of the book are considered before assessing the extent to which the book deserves the epithet of ‘agenda setting’.
The chapter 1 opening discussion about international law-making seeks to introduce the reader to both the book’s theoretical and methodological underpinnings. Before working through the example of terrorism, the authors outline the basis of their research. We are told that international law is a ‘constitutive process’ forged through various ‘processes, participants and instruments’ (p 1). The point of The Making of International Law, then, is to explore and demystify this practice. Boyle and Chinkin propose to fulfil such a task not ‘through a structured methodology’, but rather ‘an account of how international law-making responds to the demands of international relations at the beginning of the 21st century’ (p 1). Readers should be alive to this admission, as the book’s failure to engage with method is one of its most disappointing aspects. Its many pages are well-written and contain a wealth of useful material rarely presented in such a manner, but it is sometimes disappointing how larger insights about international law are left unexamined. For example, Boyle and Chinkin concede in the first chapter that any study of law-making will necessarily rely on ‘what one understands as comprising international law’ (p 10). We are then treated to a brief overview of some theoretical approaches to international law creation which are not discussed in the rest of the volume (pp 10-19). The point of this section is to show how existing approaches have proved inadequate to the task of explaining the law-making process.
What remains under-stated, however, is a robust account of the authors’ own approach to international law: what is their conception of international law and what is their theory of international law-making? One’s approach to international law as well as the chosen methodology – stated or un-stated – will inform one’s choice of cases and the book at times is not always forthright about its selection process. Although Boyle and Chinkin do not ever really answer these questions directly, the book instead tries to fill gaps in the literature through the refreshing angle they take to a variety of examples of the law-making process. The authors concede that this process takes place within a broader political context and so chapter 1 also considers the role of legitimacy in the law-making process. Like their earlier consideration of extant theories, the discussion about legitimacy generates some interesting questions, but is under-developed. It seems at times that the authors are sympathetic to the notion of substantive legitimacy, but ultimately they shy away from the task of exploring such a slippery theme. Instead, Boyle and Chinkin note the relevance of both ‘process legitimacy’ and ‘system legitimacy’ with only a cursory perusal of the literature available.
The strength of this book is not theoretical but empirical and this is demonstrated convincingly throughout the book’s five other chapters. For example, the second chapter offers a detailed account of how NGOs interact in the law-making process and they are singled out because ‘they alone among civil society actors are given international legal status under the UN Charter’ (p 45). The authors examine the inter-relationship between non-governmental organisations (NGOs) and UN member states, which rests on NGO consultative status granted by ECOSOC. Instead of charting the certain rise of NGO influence within and beyond the UN unquestioningly, Boyle and Chinkin instead recognise the ways in which NGO participation can actually reinforce existing power inequalities. NGOs hailing from the developing world – like their state counterparts – usually lack the resources of prominent western organisations. Furthermore, as the authors state at page 61:
NGO commitment to seeking access to international institutional arenas and change through international law strengthens both the institutions and body of international law. Since states retain their central position in international law-making it also paradoxically reinforces state power. It is not chance that the strongest civil society movements emanate from the most powerful states.
Despite these concerns, NGOs are noted for their effective role in law-making and the examples of Amnesty International’s role regarding the Torture Convention (pp 67-68) as well as the groundswell of NGO activism behind the Rome Statute are informative (pp 71-74). These examples and more support the chapter’s purpose in demonstrating the need to consider the relationship between NGOs and law-making seriously.
Chapter 3 returns to the theme of legitimacy, by asking ‘who makes international law?’ (p 99). The chapter singles out a number of significant multilateral institutions capable of generating law to explore how agendas are created, who is responsible for these agendas and who is able to participate in the eventual process of law-making. A wide variety of organisations are surveyed including the International Maritime Organization, the Food and Agriculture Organization, the World Trade Organization (WTO) as well as the UNGA and the UNSC. Here, there is a sensitivity towards the competing institutional and thematic agendas of UN agencies; the UN is not regarded in a monolithic fashion or simply as an organisation comprising only a few noteworthy arms. Furthermore, the authors caution against speedy conclusions regarding the influence and power residing in ‘soft’ compared to ‘hard’ legal instruments. Their consideration of World Health Organization (WHO) non-binding guidelines shows how such statements may well elude enforcement compared with UNSC resolutions, but because of its respected status, ‘WHO’s recommendations will normally be followed’ (p 129). The chapter also considers the process of multilateral treaty formation through international conferences and then the subsequent law-making powers sometimes generated by treaty bodies themselves.
In certain circumstances, initial soft law instruments generated by treaty bodies can be transformed into custom or general principles of international law, as explored in chapter 5, which considers law-making instruments. In this chapter, there is some very well-reasoned analysis of the interrelationship between overlapping norms and the perennial problem of norm conflict in international law. The authors note the tendency of tribunals to downplay such conflicts by opting for integrative approaches that rely on devices such as lex specialis (pp 253-54). They also highlight how, in certain instances, custom as well as general principles of international law can evolve quickly or without widespread state practice and/or opinio juris. Ultimately, however, they do not subscribe to the instant custom idea and argue that only the UNSC is able to ‘adopt immediately binding law in a non-derogable form’ (p 262).
At times, the extensive coverage of issues and organisations obscures a chapter’s broader point because the reader can become lost in the catalogue of examples provided. Of course, the rich array of case studies is also one of the book’s greatest strengths and the authors were clearly disinclined to write separate chapters, for example, on the WTO, UNSC and UNGA. Instead, the chapters are framed around an issue that is then elaborated through examples. Chapters 2, 3 and 5 reflect the authors’ aim to be wide-ranging. Chapters 4 and 6 are more limited in their discussion, largely focussing on the codification role of the ILC and the law-articulating and law-making role of the ICJ respectively. The detailed account of the ILC in chapter 4 is illuminating for the way it examines the work of the ILC, as well as noting how the ILC has been more immune than most entities to broader participation. Membership is also discussed vis-à-vis the ICJ’s legitimacy in chapter 6, which notes the highly specialised and particular sphere of international litigation. In this final chapter, there is a willingness to recognise some institutional idiosyncrasies within particular tribunals, as well as the proliferation of adjudicative possibilities available to potential participants. The chapter focuses on the role of the ICJ in the law-making process, but it also contrasts this body with more recently formed tribunals to interrogate the extent to which dialogue and cooperation occurs between institutional boundaries. Although Boyle and Chinkin are reluctant to admit complete institutional dialogue and synchrony, their chapter does at least confirm that fears of fragmentation in relation to tribunals and law-creation are misguided. In their interpretation and application of international law, tribunals have tended to display respect for their counterparts, but the ad hoc nature of litigation itself means that opportunities for bridge-building will only ever be partial.
It is disappointing that the book ends with an abrupt conclusion within its final chapter, but perhaps this is in keeping with its aim: the book showcases numerous processes and participants involved in law-making, but it does not aim to build a coherent theory of the process itself. As noted above, this book makes a significant contribution to the field of public international law in its thoughtful and well-informed use of case studies. At times, wider conclusions about the respective role of international institutions and norms are left unspoken, but the reader can readily learn a great deal from this book. The clear language, thorough referencing and helpful suggested reading at the end of each chapter, mean that this book should appeal to the undergraduate student as well as the specialist. Its accessible structure also enables the reader to read only parts of the manuscript and, for this reason, practitioners will also find this book useful.
Shaw and Okowa were correct in describing this book as ‘agenda-setting’ for the way in which international law is depicted as a dynamic process of creation and evolution across a range of actors and institutions. The expansive coverage of public international law attests to Boyle and Chinkin’s aim of affirming international law’s sufficiently coherent structure. It is disappointing though that this structure is rarely recognised at a theoretical level. Many questions remain unanswered in this book and yet the authors should be praised for their humility in not trying to stretch their research too far. In writing an innovative book that highlights the discipline’s oversights, the questions answered and unanswered will stimulate further research in this vital area of international legal scholarship.
PhD CANDIDATE, RESEARCH SCHOOL OF SOCIAL SCIENCES
AUSTRALIAN NATIONAL UNIVERSITY
(LexisNexis Butterworths, Australia, 2006, lxviii + 1081 pp)
International Law: Contemporary Principles and Practices by Professor Gillian Triggs is clearly the culmination of the author’s extensive teaching and research. Besides fulfilling, in the author’s words, a ‘lifelong ambition to produce a text on international law’, the work is a comprehensive, timely and authoritative addition to modern resources on international law.
There is, as the author notes, no shortage of generalist international law texts. Professor Triggs has elected to follow substantially the model of those existing generalist texts on international law. This choice perhaps reflects the reality that there are a limited number of ways in which to impart the classical foundations of modern international law. Nevertheless, the extended scope of its subject matter and the clarity of its expression provide whatever justification is necessary for the publication of Professor Triggs’ work.
The book seeks to treat international law as an integrated regime. Despite that laudable aim, the text is in truth a compilation of discrete topics. In its first 11 chapters, the text covers the standard topics of general international law: the nature of international law, sources, the national/international intersection, personality, territory, law of the sea, jurisdiction, state responsibilities, the law of treaties, the use of force and dispute settlement. Chapters 12 to 14 are devoted to discussions of the world trade organisation, the environment and human rights, each of which is a topic often lost in existing works. Of particular interest is the treatment of the nature of international law in the post-cold war environment.
In her opening comments, Professor Triggs responds to the traditional positivist critique that international law lacks the true essentials of a governing legal order. Her discussion incorporates recent and historical events, as well as theoretical argument, and seeks to demonstrate the existence of an emergent legal order whose subjects adhere to its norms out of a sense of legal obligation. The author relies on events as recent as the Second Gulf War and the construction of the security fence in the Occupied Palestinian Territories as modern demonstrations of the Nicaragua principle, suggesting that the departure by states from an international rule frequently provides some support for the existence of the rule itself.
The text notes as a significant feature of modern international law the existence of increased international litigation and resulting jurisprudence. The increase in litigation which has brought this about is attributed by the author to an increased provision for dispute resolution in treaties, coupled with an improved international climate, which has lead to an increased willingness by states to settle their disputes in the variety of international fora that have emerged since the 1990s.
It is certainly true that international dispute resolution can act as a means to interpret relevant international laws or rules, thus increasing the efficacy and progressive development of the international legal system. Even in a traditionally dualist system of law, the existence of independent international tribunals has a tendency to increase the prominence of international law in the context of the national legal system. Dispute resolution acts to legitimate the process of international law, by placing it in a more familiar context. It enables the explicit affirmation of particular propositions of international law. It can assist in the construction or drafting of national laws by clarifying and expanding upon basic treaty provisions and can attract new members to the treaty regime in question by providing a consistent and transparent means of interpreting and administering the treaty. If its decisions are reported, the administration of the treaty is likely to attract attention, thus improving the efficacy of the treaty. In the case of customary international law, the existence of a dispute resolution body can clarify state practice and declare the existence of custom. In that context, the discussion by Professor Triggs of human rights and World Trade Organization (WTO) dispute settlement takes on a heightened significance and represents a valuable contribution.
The author argues, correctly, in her discussion of the sources of international law that international law is more than just what is declared as the law by the various international courts, arbitral bodies and tribunals. She points to the binding and obligatory nature of the norms that such bodies ‘declare’ through their determinations. In doing so, she points to the recent Israeli Wall Case as a ‘copy book’ example of the methodology to be employed in ascertaining the sources and content of such norms.
In her discussion of customary international law as a primary source of law, Professor Triggs identifies what she considers to be an inevitable European and North American bias in the substantive content of customary rules. She points to the fact that many developing states do not publish or record their international affairs, with this leading to an inevitably skewed view of state practice in favour of those states that do collect their international law practices in yearbooks, journals, and government websites. The author points to the growth of the internet as helping to right this imbalance, as it now provides readily accessible information to material from the developing world that would have previously been unavailable.
In her exposition of the sources of customary law, the author gives careful consideration to the evidentiary weight to be given to declaratory resolutions of the United Nations General Assembly. She considers in detail the extent to which a declaratory declaration may be taken as evidence establishing the existence or emergence of the opinio juris necessary to provide a given international practice the quality of a rule of customary international law.
The author then proceeds to discuss the inter-relationship between domestic and international systems of law, commenting on matters such as the significant role of national law as evidencing state practice for the purposes of identifying norms of customary law. She also comments on the extent to which international tribunals are required to interpret domestic law so as to assess whether a state, by implementing or enforcing that legislation, has itself contravened an international obligation.
The author also discusses those states that directly incorporate international law into their domestic legal systems through either constitutional or legislative mechanisms, amongst them East Timor. She then proceeds to discuss more generally the status of both treaty and customary law in a variety of jurisdictions, including Australia. The author gives particular attention to Nulyarimma v Thompson, and argues that the majority’s rejection of the ‘automaticity’ of the incorporation of customary law was case specific, and puts emphasis (as did the majority judgment) on the fact that incorporating the particular obligation in question would have amounted to the creation of a crime. Such a course would conflict with the traditional presumption that there can be no crime unless expressly created by statute.
This seems to imply that there still remains, in other circumstances, the possibility that customary norms could continue to shape the development of common law doctrines in the more robust fashion that was seen in earlier judgments such as Mabo v Queensland (No 2). In this regard the author gives careful attention to the minority judgment of Merkel J in Nulyarimma, arguing that it and certain other recent judgments have demonstrated an evolving interest in the capacity of international customary law to influence the development of the common law.
The author’s discussion then proceeds to questions of recognition and international legal personality. Particular points of interest include her discussion of treaties of protection, with relevant and modern case studies (as well as the traditional reference to the Austro-German Customs Union Case), such as the delegation by states such as Western Samoa of the conduct of their foreign affairs to another nation: in that instance New Zealand.
The discussion of the right of a people to self-determination considers that the exercise of the right may have the effect of denying the capacity of a state in control of the relevant territory to alienate its natural resources or conclude treaties in respect of the territory subject to claims by national liberation movements. It is in the context of self determination that Professor Triggs first raises the Timor Gap dispute. She argues that the right to self determination, as first articulated by the Arbitral Tribunal in the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), may have had an application to the now superseded Timor Gap Treaty entered into between Australia and the Republic of Indonesia. The author argues that as an illegal occupier of East Timor, the Republic of Indonesia may have had no right to the petroleum resources, which were subject to the rights of the Timorese national liberation movement. She concludes somewhat controversially that as the resources in question were claimed by both Australia and Indonesia and thus were not yet subject to the sovereignty of the people of East Timor, the principle may have no application.
In the discussion of the status of international organisations such as the UN and the WTO, the author makes the point that their objective existence as international entities challenges the customary rule that treaties do not create obligations for non-party states. That is, the UN and other organisations such as the WTO can effectively impose obligations on states who are not signatories of their foundational conventions. Although, as the author notes, the near universal membership of organisations such as the UN means that this issue rarely arises in practice.
A related question addressed by the author is the legal capacity of international bodies under domestic law. The author discusses earlier United Kingdom authority which required that there be implementing legislation of some form, such as an Order in Council, before an international body could be recognised as a legal person before the courts of the United Kingdom. She notes the softening of this position by subsequent cases, which have required only that the organisation is incorporated under the laws of a member state, notwithstanding that the courts have gone on to recognise that the proper law governing that bodies’ existence, constitution, and representation was public international law and not the laws of the state in which the body was incorporated.
The author’s discussion of rights in relation to territory in its initial stages charts the development of concepts of sovereignty and the gradual erosion of notions of ‘absolute territorial sovereignty’. The author notes the growing recognition of qualifications on state action, both with respect to the obligation to protect within its territory the rights of other states, as well as obligations relating to human rights and the environment. By developing theories of territorial sovereignty by reference to international law’s increasing penetration of sovereign boundaries, Professor Triggs has added a new layer of relevance to the traditional manner in which the topic of sovereignty is approached.
In her discussion of maritime boundaries, the author makes reference to the customary status of the ‘equitable solution’ principle and its applicability to disputes concerning the delimitation of the continental shelf. She adopts many of the criticisms of its vagueness, concluding that the test is ‘circular and question begging’. As may be expected, there is a relatively detailed treatment of the Timor Sea dispute and its legal parameters.
A welcome inclusion in the text is its extended discussion of the WTO. The author charts the organisation’s history and key objectives, as well as focusing on the mechanisms governing dispute resolution. Amongst other matters, the author comments on the legal status of a panel or appellate body report following its adoption by a Dispute Settlement Body established under Article 6. She highlights the competing arguments about whether there is an international obligation to comply with the recommendations made in a report, or whether there is only a requirement to compensate the wronged party. She points to emerging customary practice of members who treat the reports as binding, though notes that economically weaker parties to a dispute may not be in a position to enforce their rights against a more robust party.
In summary, International Law: Contemporary Principles and Practices is a valuable addition to basic international law texts in this country. It covers the basic principles in detail and competently, and adds contextual, regional and contemporary standards to the existing scholarship. It will undoubtedly find a place on many academic and student bookshelves.
CANBERRA & SYDNEY
Edited by Geoff Leane and Barbara von Tigerstrom
(Ashgate Publishing, 2005, xi +284 pp)
The 14 South Pacific Island nations, which, along with Australia and New Zealand, make up the Pacific Islands Forum, are characterised by a geographic, cultural, ethnic and demographic diversity that makes any attempt to simplistically categorise them in a collective manner unrealistic. In total, these 14 nations cover more than 30 million square kilometres, but occupy less than two per cent of that area, having a combined land mass about the size of France. Twenty per cent of the world’s languages and cultures exist in the Pacific Islands, and one per cent of the world’s population. Less than eight million people live in these islands, and the population ranges from over five million in Papua New Guinea to less than 2,000 in Niue.
These nations face a wide range of political, social and environmental challenges including pressure on natural resources, limited domestic competition and lack of institutional capacity. For example, the Attorney-General’s Department of Tuvalu has a total of four lawyers and no legal drafters, and in the Southern Highlands of Papua New Guinea the local gangs are generally better armed than the local police. Yet despite the unique and complex characteristics of this region, it has generally escaped the attention, study and commentary of the international community.
Globalisation has changed the contours of international law, and created new global realities and new legal norms. As they have become increasingly exposed to the world, South Pacific states have both acquired many new international obligations, in areas ranging from economics and trade to human rights and security. These obligations require significant legislative and regulatory implementation by small island governments. As the introduction notes, this region represents ‘in microcosm, many of the contemporary issues and challenges that confront international law and lawyers everywhere’.
This book is the first publication from the International Law Group at the University of Canterbury School of Law in Christchurch, New Zealand. It seeks to stimulate debate about some of the international legal issues and challenges facing the South Pacific, and the variety of subject matter covered by the authors demonstrates the diversity of those challenges. The authors explore issues ranging from mass refugee flows and transnational crime, to climate change and international trade, and each of these global phenomena is related to the particular context of the South Pacific. The editors characterise the topics as ‘a range of mostly external global forces to which South Pacific countries are responding, either voluntarily or under pressure from either or both of regional or global powers’. The overall effect of the book is to identify comprehensively the questions that recurrently dominate issues of international law, highlighting through the microcosm of the South Pacific the undercurrents that are present in the macrocosm of international legal relations.
The introduction gives a brief but useful overview of the region and highlights some of the internal and external influences for and against greater regional integration. The authors point out, however, that the relationships both within and beyond the South Pacific are more significantly reflected in external challenges. In succinctly outlining the major theme of each chapter, the authors highlight the multifaceted questions that recur in each issue of international law: sovereignty, jurisdiction, vulnerability, viability, regional mechanisms, developed and developing nations, the inter-connectedness of international issues and the effect of regimes on non-members. While most chapters raise one or two of these questions directly, reading the book as a whole informatively reveals the way in which they arise in almost every international law issue, and the various subtleties associated with their expression in relation to small developing island states.
The first chapter, by Michael Barutciski, highlights the complex issue of sovereignty in light of the complicated moral and political issues produced by mass refugee flows. Having discussed the content of the right of non-refoulement and the particular situation of mass influx of refugees, the chapter turns to the question of refugee protection principles, legitimate state interests, and burden-sharing, with particular reference to the Australian ‘Pacific Solution’. The author takes a pragmatic approach to this topic, acknowledging that the concept of sovereignty continues to dominate the international system, and suggesting that temporary admission with assurances of burden-sharing from other states may be the only acceptable policy response for states experiencing mass refugee flows.
Neil Boister’s chapter on the significant regional effort to suppress transnational crime in the South Pacific raises the question of regional mechanisms. This chapter provides an overview of the only major regional (non-binding) instrument relating to transnational crime, and provides a useful analysis of the extent to which South Pacific states have been willing or able to develop legislation or mechanisms to implement the regionally agreed standards. Boister makes some interesting arguments about the relationship between transnational criminal law and sovereignty, and its effectiveness and necessity vis-à-vis developed and developing states.
Chapter 3, by Alex Conte, deals with the role of the South Pacific in relation to international terrorism. Terrorism has in the past manifested itself in the region (largely in the form of internal ‘terrorist’ acts), and the region itself is vulnerable to terrorist attack due to its isolation and limited resources. However, Conte argues that the most important role of the South Pacific in relation to terrorism is in contributing to the international framework on counter-terrorism. Having outlined the international instruments and resolutions that have rapidly evolved to counter terrorism, the chapter suggests that the response of South Pacific nations to this framework has been generally positive. This section would perhaps benefit from further analysis of the effect on small South Pacific governments of mandatory UN Security Council resolutions: especially those resolutions requiring rigorous domestic implementation. However, the chapter successfully highlights the interplay between international, regional and national security in relation to terrorism.
In chapter 4, Scott Davidson’s discussion of the law of the sea and freedom of navigation highlights the multifaceted question of jurisdiction. This chapter has a wider Asia-Pacific regional focus, and suggests that the region is a ‘crucible for the development of the law of the sea’. Outlining many of the developments affecting the freedom of navigation in the region, the chapter focuses on the tension between the rights accruing to coastal states and the legitimate desires of other states to engage in trade, naval activities, and resource exploitation. An extensive discussion on the effects of exclusive economic zones (EEZs) highlights a notable feature of the South Pacific; that ‘the EEZs of the archipelagic small island states are exponentially larger than the land territories on which they are based’. This lends meaning to the example given in chapter 3 that Kiribati ‘has an EEZ the size of the continental US and one Australian sponsored patrol boat to patrol it,’ and raises questions about the rights and ability of coastal states to exercise jurisdiction over vast areas of water, and the rights of other states to exercise their freedom of navigation in these areas.
In chapter 5, Geoff Leane raises the crucial question of vulnerability of small, developing, island states in a discussion of climate change issues in the Pacific Region. The global warming debate usually revolves around the environmental problems associated with it, such as carbon emissions, climate change and rising sea levels. However, this chapter highlights the importance of the development issues associated with and causative of global warming, such as population growth, land use, and energy consumption. The author argues that the South Pacific region contains obvious parallels with the wider international order, and notes in particular the notion of ‘common but differentiated responsibility’. A good example is climate change, in that highly vulnerable small developing states are seeking to mitigate the potentially disastrous impacts of climate change, and larger developed nations with high emissions are attempting to avoid entering into binding commitments on emission reduction. The bottom line to this issue is a sombre one; that climate change is and will remain an external issue for South Pacific states, one in which they are the most affected, and the least effective.
Chapter 6, by Michelle Rogan-Finnemore, raises more questions of sovereignty and jurisdiction, against the highly contemporary background of bio-prospecting activities in Antarctica and the Southern Ocean. This chapter makes limited reference to the South Pacific region generally, but relates instead to the claims of Australia and New Zealand (amongst others) in the Antarctic region. In contrast to the issues arising in other chapters, which deal with recognised sovereignty and jurisdiction, this chapter deals with a region that both lacks a generally recognised sovereign, and contains unknown potential for exploitation of natural resources and scientific research. In light of the bio-prospecting activities that are underway in Antarctica and the Southern Ocean, the author discusses the complexities of exploiting the ‘common heritage of mankind’ in areas that are beyond recognised national jurisdiction.
In the final chapter, Barbara von Tigerstrom comprehensively addresses the question of the viability of small, developing, island states in relation to their attempt to deal with the challenges of development and international trade. This chapter contains a lot of detail about the characteristics of the small South Pacific nations, and helpfully enumerates the many challenges facing them. Paying special attention to the way that the global trading system treats developing countries, the chapter also recognises that these countries do not always have shared interests, and discusses the possibilities for regional trade agreements in the Pacific.
The volume does not cover some important issues that one might expect would be raised in relation to the South Pacific, such as fisheries law, governance and corruption, relationships with major powers other than Australia and New Zealand, and regional efforts toward peace-building and development. However this does not detract from the overall effectiveness of the book, and will hopefully be covered in a second volume from this group.
This is a thoughtful compilation that raises important questions such as the capacity of tiny, remote, island states to exercise sovereignty effectively and the desirability of their doing so. The compilation also highlights the extent to which the nations most affected by an issue are often the least capable of taking any action to influence it, and the reverse problem of countries wielding influence out of all proportion to their size or contribution. This book is a timely contribution and raises contemporary questions about the region, which have to date been ignored by the international community.
OFFICE OF INTERNATIONAL LAW
COMMONWEALTH ATTORNEY-GENERAL’S DEPARTMENT
(Ashgate Publishing, 2006, 2nd ed, xi + 441 pp)
Ndiva Kofele-Kale’s second edition of the title The International Law of Responsibility for Economic Crimes, is the most thorough and important analysis of the international legal implications of, what the author describes as, indigenous spoliation – namely, the systematic plunder of national wealth by heads of state or other constitutionally responsible rulers. Although the title of the book implies a wider subject that includes the responsibility of business entities for international crimes, or foreign armed forces for illegal exploitation of natural resources, the text’s focus on indigenous spoliation is well justified. As Kofele-Kale ably demonstrates, in some instances heads of states have plundered as much wealth from their countries as foreign governments, military forces and corporate entities combined.
Kofele-Kale’s book has the great distinction of being the first substantial treatment of such practices and confirms his position as the leading authority on a subject that has not enjoyed the consideration it deserves. The book represents the beginning of attempts to regulate the deleterious social and humanitarian consequences engendered by indigenous spoliation and will remain the point of departure for all subsequent attempts to legally sanction such practices. Kofele-Kale’s treatment of the issues is comprehensive, far-reaching and of assistance to both practitioner and academic, even if he occasionally appears to fluctuate between state civil and criminal responsibility on the one hand, and between lex ferenda and lex lata on the other.
By way of introduction, the book plots the harrowing nature of the problem of indigenous spoliation (pp 1-22). In counties as diverse as the Democratic Republic of the Congo, The Philippines, Romania, Haiti and Ecuador, constitutional leaders have personally plundered billions of dollars worth of state funds while inadequate standards of health care, education and basic infrastructure either stagnate or deteriorate. Funds destined for development purposes are diverted to charismatic or simply brutal leaders at the expense of intended beneficiaries. This diversion of funds occurs to such an extent that, in some instances, foreign aid programs couple with klepocratic regimes to lock developing nations into an irreversible spiral towards economic collapse.
Kofele-Kale points the finger directly at the heads of state but the broader implications for foreign donors and indeed the international legal community are also apparent. On the one hand, Bretton Woods institutions and northern states continue funding plunderous regimes fully aware of such practices and their catastrophic impact. On the other hand, international law addresses the trafficking of stolen cultural property, wildlife and stolen art, yet fails to deliberately address the widespread incidence of indigenous spoliation that decimates entire nations (pp 2-3). In response, Kofele-Kale argues for the emergence of a separate crime of indigenous spoliation that adequately encapsulates the significance of and damage caused by these practices. Drawing on Ralph Lemkin’s seminal work on genocide, Kofele-Kale persuasively argues that ‘a new crime deserves a new name’ (pp 9-15).
In the first part of the book, Kofele-Kale addresses the basis for claiming the emergence of indigenous spoliation in customary international law. Given international law’s failure to address directly the phenomenon, Kofele-Kale’s project requires him to appeal to customary international law, drawing on a series of disparate norms contained in both international and domestic legal systems as evidence of uniform state practice accepted as law.
Kofele-Kale commences this undertaking by analysing the International Law Commission’s work on international crimes in order to show that indigenous spoliation demonstrates all the hallmarks of other international crimes (pp 35-69). He argues that, like other international crimes, indigenous spoliation is trans-national, involves serious effects, has the character of jus cogens and has received international recognition by the international community. Aspects of the argument are compelling. The sheer amount of national wealth expropriated through indigenous spoliation is shocking, destroys domestic economies, destabilises political institutions, sparks the displacement of large numbers of residents for economic or other reasons, and gives rise to the transfer of spoliated capital to ‘tax haven’ states (p 76). There is little doubt that such practices have serious and widespread international implications. Conversely and, as this review highlights below, the arguments that indigenous spoliation enjoys recognition as an international crime, let alone a norm of peremptory character, are more controversial.
Kofele-Kale argues that fundamental human rights standards serve as a basis for concluding that indigenous spoliation constitutes an international crime (pp 79-101). The book forcefully contends that such practices violate the right of peoples and states to freely dispose of their national wealth and natural resources. It contains a helpful articulation of aspects of the negotiations preceding United Nations resolutions on permanent sovereignty over natural resources before tracing those principles into human rights conventions. The author also highlights a difficulty in determining whether the state is the repository of rights to natural resources or whether individuals also have an enforceable right to the enjoyment of natural resources that is opposable to acts of the state. Nonetheless, Kofele-Kale does not seem to definitively resolve the tension between state and individual claims to natural resources within state boundaries, particularly when state officials are not democratically elected, in instances of state failure, or where the state loses territorial control to rebel or foreign armed groups. In addition, even if an individual human right to natural resources vests in the people, it does not necessarily follow that violation of this norm constitutes an international crime. The argument is certainly plausible and much of Kofele-Kale’s empirical evidence of the impact of indigenous spoliation supports the view that the only meaningful means of preventing indigenous spoliation is to criminally sanction such practices. This is, nonetheless, a different argument to suggesting that it has already achieved the status of an international crime in customary international law.
Kofele-Kale also bases the argument that indigenous spoliation constitutes an international economic crime on the law of fiduciary relations and its application in international law (pp 113-41). More specifically, he argues that indigenous spoliation violates the principle of customary international law that a fiduciary duty is owed to citizens of a state by their constitutionally responsible rules. According to Kofele-Kale, the principle is recognised by the world’s major legal systems and can properly be said to have ripened into an international custom. The chapter traces the development of the fiduciary relation from the private law institution of the trust, then addresses its application in international law through the League of Nations mandate system and the successor United Nations Trusteeship System, before relating the principle to indigenous spoliation. The examples of the principle’s application in state investigations of indigenous spoliation at the end of the chapter are of particular interest, although extrapolating principles applicable within the UN’s trusteeship system to create an international crime for what amounts to an abuse of office is perhaps a development that will require further state adherence before constituting a uniform practice accepted as law.
Likewise, the subsequent chapter, which sets out state practice in international fora with respect to acts of fraudulent enrichment (pp 157-97), appears to borrow heavily from sources that only indirectly point to indigenous spoliation. The chapter cites the Human Rights Commission’s Resolution 1992/50 and various regional and multilateral anti-corruption conventions as evidencing the emergence of state practice with respect to fraudulent enrichment. With respect to the Human Rights Commission’s resolution, however, the final resolution appears to be limited to indicating that the Commission ‘decides to keep in mind the question of fraudulent enrichment by top State officials’. The extent to which this evidences a commitment to a separate international offence is open to debate. Similarly, the various anti-corruption conventions such as the European Union Anti-Corruption Convention, the OECD Convention on Combating Bribery of Public Officials, the Inter-American and African Conventions on Corruption and the UN Convention, perhaps evidence a separate offence of corruption, but they would not seem to go so far as to support the emergence of a separate crime of indigenous spoliation. In fact, Koele-Kale’s appeal to state practice prohibiting corruption to support the existence of indigenous spoliation as an offence is slightly at odds with his central thesis that indigenous spoliation requires separate legal treatment precisely because it is different from ‘garden variety corruption’.
The final chapter of the first part of the book addresses state practice at the domestic level criminalising acts of fraudulent enrichment by top state officials (pp 207-52). In this regard, Kofele-Kale cites constitutional prohibitions, national legislation, special constitutional structures to combat spoliation, the existence of commissions of inquiry and statutory anti-corruption bodies and relevant jurisprudence on the topic. The chapter is a comprehensive and very helpful comparative study of national measures to discipline acts of bribery and corruption, most notably when perpetrated by constitutionally responsible state officials. The chapter significantly bolsters previous arguments about the existence of a fiduciary duty applicable to such individuals and that violations of this duty constitute punishable criminal acts. The interesting question, which has not received adequate consideration in international criminal law, is to assess the extent to which these types of criminal procedures within domestic systems constitute general principles of law. A court asked to adjudicate indigenous spoliation claims may be required to assess such issues in determining whether the national law criminalising acts of fraudulent enrichment by top state officials cited in Kofele-Kale’s comprehensive analysis evidences the emergence of a corresponding international norm.
In the second part of the book, Kofele-Kale focuses on the responsibility and accountability for the crime of indigenous spoliation by addressing the impact of sovereignty, judicial barriers to responsibility, rights and duties with respect to national wealth and the legal basis for asserting jurisdiction over such crimes. In the first of these chapters, he considers the problem of deposed heads of state asserting sovereignty as a protective shield that keeps perpetrators of acts of spoliation beyond the jurisdictional reach of domestic as well as foreign courts (p 261). The chapter argues that conditional funding on the part of major donors, most notably Bretton Woods institutions, allows these agencies to ‘legislate in areas previously regard[ed] as the exclusive domain of the sovereign even to the point of rewriting constitutions’. Kofele-Kale asks whether in this instance sovereignty is not a fiction that is conceded only as a matter of international courtesy. If traditional notions of sovereignty have become meaningless in many economically vulnerable states, why then should their constitutionally responsible leaders be allowed to hide behind the immunity doctrines derived from this notion? (p 267) Against this backdrop, Kofele-Kale then considers the state and sovereignty from historical and philosophical perspectives, in order to propose meaningful limitations on the doctrine of state sovereignty and its cognate doctrines of Act of State and State Immunity. According to Kofele-Kale, acts for which sovereign immunity is asserted must, as a minimum, advance the public interest in one form or another. As such, the chapter joins other calls for exceptions to rules of criminal immunity in instances of pillage of resources and corruption, and wider critiques of the application of sovereign immunity protections to international crimes.
The next chapter of part two of the book examines judicial barriers to holding heads of state individually liable for acts of indigenous spoliation (pp 281-311). In particular, Kofele-Kale considers the extent to which the defence of forum non conveniens, foreign sovereign immunity and bank secrecy laws impede judicial action to remedy acts of indigenous spoliation. While the analysis is helpful, particularly in relation to Swiss banking laws and their historical genesis, the chapter’s focus on barriers to ‘civil’ liability appears slightly at odds with the book’s focus on indigenous spoliation as an international crime. Certainly, civil liability for international crimes is a developing and important area, but the primary responsibility for criminal offences is penal. In this regard, international criminal law could benefit from an analysis of the factors that might have acted as impediments to bringing criminal prosecutions of former heads of state for acts of indigenous spoliation in addition to the book’s important focus on civil remedies.
The subsequent chapter of the book attempts to set out a legal and theoretical framework for holding constitutionally responsible rulers individually criminally liable for acts of indigenous spoliation. Much of the chapter appears to replicate the book’s first edition, which was written at a time when the concept was still controversial. Since then, the advent of the ad hoc international criminal tribunals, mixed tribunals and the international criminal court, together with domestic legislation implementing international crimes into national criminal law, all suggest that individual criminal responsibility of heads of state is no longer a particularly controversial legal debate. The extensive justification of the notion of individual criminal responsibility contained in the book and the theoretical analysis of leaders’ rights and duties vis-à-vis their citizens might, therefore, have been better directed by ascertaining how indigenous spoliation fits within established definitions of international crimes.
The final chapter assesses the legal basis of jurisdiction over crimes of indigenous spoliation and commences by discussing universal criminal jurisdiction over international crimes, then posits the duty of all states to prosecute acts of indigenous spoliation before assessing possibilities for individuals to bring civil actions against former leaders or a subsequent government (pp 343-70). As Kofele-Kale points out, ‘secure in the belief that they can never be brought before the courts of their hosts, many of the ousted heads of state have simply resumed their normal life in exile living quite comfortably off the funds stolen from their national treasuries’ (p 358). Here again, the text focuses more on civil liability for international crimes rather than assessing the potential jurisdiction of the International Criminal Court over such offences, the possibility that the ICC Statute could be amended to explicitly incorporate an offence of indigenous spoliation,
or the viability of bringing criminal charges before domestic courts based on national legislation implementing international crimes. A number of countries have enacted legislation that would appear to permit the prosecution of international crimes defined uniquely in customary international law, while other monist countries might enjoy the same ability without the need for implementing legislation. On this basis, acts of indigenous spoliation might be heard by a range of criminal fora, both domestic and international, to the extent that the offence exists as an international custom. Inclusion of such issues in a third edition of Kofele-Kale’s excellent title would render the work of even greater assistance to practitioners and academics who share his well-justified concern.
James G Stewart
APPEALS COUNSEL, OFFICE OF THE PROSECUTOR
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
(The views expressed in this review are those of the author alone and do not necessarily reflect those of the Tribunal or the United Nations generally.)
 Convention Relating to the Status of Refugees (28 July 1951), 189 UNTS 2545.
 International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS 172.
 International Covenant on Economic Social and Cultural Rights (16 December 1966), 993 UNTS 3.
 Although Prosper Weil is not mentioned, Hathaway’s work is imbued with the same sensibility which informs Weil’s seminal article ‘Towards Relative Normativity in International Law?’ (1983) 77 American Journal of International Law 413. However, unlike Weil, who rejects the concept of jus cogens out of hand as necessarily undermining the international legal system, Hathaway takes the view that ‘[p]roperly conceived’ the concept is a ‘helpful way of bringing order to international law’ with the challenge being to define it in a way which divorces it from its ‘parochial origins in natural law and which advances respect for the consensual premise of international law making’ (pp 28-29).
 At this point, I was wondering what could possibly count as a jus cogens norm of customary international law (which is a concept Hathaway is willing to accept: see above n 4) if there was such difficulty determining most human rights even to be ordinary norms of customary international law.
 Protocol Relating to the Status of Refugees (31 January 1967), 606 UNTS 8791.
 UNHCR therefore has the ability to reject EXCOM advice, and ought to do so where this seems necessary in order properly to discharge the duties imposed upon it by the UNHCR Statute: E Roxstrom and M Gibney, ‘The Legal and Ethical Obligations of UNHCR: The Case of Temporary Protection in Western Europe’ in N Steiner, M Gibney and G Loescher (eds), Problems of Protection: The UNHCR, Refugees and Human Rights (2003) 37.
 UNHCR, Note on Review of the Process for Drafting Executive Committee Conclusions on International Protection, 18 November 2005,  available at <http://www.unhcr.org/cgi-bin/texis/vtx/excom/opendoc.pdf?tbl=EXCOM & id=437c49f02> .
 In the epilogue, however, Hathaway says ‘the agency’s many standard setting exercises referenced throughout this book have been literally indispensable to the implementation of Convention duties’ (p 993). Presumably, he is referring to something other than the Handbook and the Guidelines on International Protection.
 European Roma Rights Centre v Immigration Officer at Prague Airport  EWCA 1989
(Eng. HC, 8 October 2002); R (European Roma Rights Centre and Others) v Immigration Officer at Prague Airport  EWCA Civ 666
(Eng. CA, 20 May 2003); R v Immigration Officer at Prague Airport et al, ex parte European Roma Rights Centre et al  UKHL 55
(UK HL, 9 December 2004).
 Cf G Goodwin-Gill, ‘State Responsibility and the “Good Faith” Obligation in International Law’ in M Fitzmaurice and D Sarooshi (eds), Issues of State Responsibility before International Judicial Institutions (2004) 75.
 As Hathaway points out, however, art 34 gives rise to a fairly weak right (pp 163 and 252).
 In his discussion of the lawful presence requirement, Hathaway also draws attention to the ways in which his interpretation of the requirement departs from those of other important commentators such as Goodwin-Gill and Grahl-Madsen.
 The Refugee Convention refers to ‘habitual residence’ or otherwise specifies a minimum period of residence of three years.
 Art 6 elaborates on the term ‘in the same circumstances’ making it clear that a refugee is exempt from ‘requirements which by their nature a refugee is incapable of fulfilling’. Hathaway discusses art 6 in s 3.2.3.
 Art 8 provides that a state party which is taking exceptional measures ‘against the person, property or interests of the nationals of a foreign state’ must not apply those measures to refugees who are de jure nationals of the foreign state ‘solely on account of such nationality’.
 Art 9 provides: ‘Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisional measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.’
 A position which is not shared by most other commentators.
 E Lauterpacht and D Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement’ in E Feller et al (eds), Refugee Protection in International Law (2003) 87.
 In usual formulations, local integration is specified along with repatriation and resettlement as one of the three durable solutions available to refugees.
 J Hathaway and A Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’ (1997) 10 Harvard Human Rights Journal 115.
 M Koskenniemi, Fragmentation of International Law: Difficulties Arising from Diversification and Expansion of International Law, Report of the International Law Commission, United Nations General Assembly, A/CN.4/L.682, available at: http://www.helsinki.fi/eci/A%20CN4%20L682%5B1%5D.pdf.
 Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, Niue, Palau, Papua New Guinea, Republic of the Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu. The states which constitute the Pacific Islands Forum are the focus of most chapters in this book, and the term ‘South Pacific states’ is used throughout this review to refer to these states.
 United Nations Office on Drugs and Crime, Pacific Profile, August 2003 (Section II: Pacific Islands), 25.
 Australian Parliament Foreign Affairs, Defence and Trade References Committee, Official Senate Committee Hansard, 18 October 2002, p 19 (McCall).
 UNODC report, above n 2, 26.
 Senate Committee Hansard, above n 3, pp 6, 22 (Nelson, McLeod).
 Kofele-Kale defines indigenous spoliation as ‘an illegal act of prediction which is committed for private ends by constitutionally responsible rules, public officials or private individuals’.
 See, eg, P Ocheje, ‘Refocusing International Law on the Quest for Accountability in Africa: The Case Against the “Other” Impunity’ (2002) 15 Leiden Journal of International Law 749; C Eboe-Osuji, ‘Kleptocracy: a Desired Subject of International Criminal Law that is in Dire Need of Prosecution by Universal Jurisdiction’, in E A Ankumah and E K Kwakwa (eds), African Perspectives on International Criminal Justice (Africa Legal Aid, 2005).
 Open Society Justice Initiative, Legal Remedies for the Resource Curse: A Digest of Experience in Using Law to Combat Natural Resource Corruption (2005) <http://www.justiceinitiative.org/db/resource2?res_id=102966> .
 As an example, a UN Panel of Experts found that the World Bank had turned a blind eye to Rwandan and Ugandan plunder of the Democratic Republic of the Congo despite notes exchanged between World Bank staff indicating that ‘the World Bank silence would blow up in the Bank’s face’. See Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, S/2001/357, 12 April 2001, -.
 See also S B Starr, ‘Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis Situations’ (2007) 101 Northwestern University Law Review 29-33; Ocheke, above n 2, 752-61.
 R O'Keefe, ‘Recourse by the ad hoc Tribunals to General Principles of Law and to Human Rights Law’, in Delmas-Marty et al (eds), Les sources du droit international pénal (2005) 297-302.
 Eboe-Osuji, above n 2, 131.
 M Henzelin, ‘L'immunité pénale des chefs d'État en matière financière Vers une exception pour les actes de pillage de ressources et de corruption?’ (2002) 12(2) Revue Suisse de droit international et de droit européen 179.
 C Hall, ‘UN Convention on State Immunity: the Need for a Human Rights Protocol’ (2006) 55 The International and Comparative Law Quarterly 411-26; L McGregor ‘State Immunity and Jus Cogens’ (2006) 55 International and Comparative Law Quarterly 437.
 E Mongelard, ‘Corporate Civil Liability for Violations of International Humanitarian Law’ (2006) 863 International Review of the Red Cross 665.
 Sonja Starr, for example, argues that grand corruption could constitute an ‘other inhumane act’ for the purposes of crimes against humanity: Starr, above n 5, at 45-54. Ilias Bantekas considers the relevance of corruption to other international crimes. I Bantekas ‘Corruption as an International Crime and Crime against Humanity: An Outline of Supplementary Criminal Justice Policies’ (2006) 4 Journal of International Criminal Justice 466.
 Ocheje, above n 2, 777-79.
 Art 6(3) of the Crimes Against Humanity and War Crimes Act (2000) defines crimes as humanity ‘according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations’.