New Zealand Yearbook of International Law
Title: Towards an ''International Legal Community''?: the Sovereignty of States and the Sovereignty of International Law
Publisher: British Institute of International and Comparative Law, 2006, ISBN-10: 0-903067-79-X
Editors: Stephen Tierney and Colin Warbrick
This book sets itself a number of ambitious goals as might be expected from the broad nature of the title. According to the book’s blurb, the questions discussed include whether the international legal system is “a self-generating and increasingly sovereign force” as well as whether we can now speak of international law as an embryonic “[q]uasi-constitutional” system, generated by an international legal community.
These are issues of fundamental importance for international law as globalisation continues apace. A volume such as this is clearly apposite, particularly as it addresses these issues by bringing together what it describes as “a number of the UK’s leading international legal theorists”.
The book is a collection of seminar and conference papers presented at a variety of UK institutions and is organised into two distinct sections. The first comprises three chapters dealing with theories of sovereignty and is by far the largest, taking up two thirds of the book’s pages. The second, which is again three chapters, but only half the size, examines the question of whether we are heading towards the international legal community mentioned in the title. The substantive chapters are introduced by an introduction from one of the co-editors, Stephen Tierney. Colin Warbrick, the other co-editor, contributes a single page preface.
Tierney’s introduction gives us some interesting insights into the currency of the issues discussed and a review of the rest of the book. He also attempts to link the chapters by the use of themes, but as Warbrick hints in the preface, this is no easy task, as the papers are “at first sight, disparate contributions”. In fact it would not matter how long you looked at these papers, they would always seem disparate and despite Tierney’s sterling efforts, no amount of explanation can avoid this reality. This makes it a difficult book to review, as it is in fact no more than the sum of its parts. There is no real attempt to link the chapters and each is very much an individual piece. This is a collection of seminar papers, nothing more, nothing less.
The papers themselves vary dramatically in their focus. The first section of the book comprises long contributions from Patrick Capps, Amanda Perreau-Saussine and Samantha Besson. The first two are focussed on particular aspects of British judicial doctrine. Capps presents a critique of the traditional application of dualism in the English courts while Perreau-Saussine questions the orthodoxy that grants the UK Executive immunity from UK law when exercising authority outside the national jurisdiction. Both chapters are good academic pieces but their relevance outside the British context is questionable.
Next we move to an even larger chapter by Samantha Besson entitled ‘Sovereignty in Conflict’. The paper examines the concept of sovereignty, although it is focussed almost entirely on the European Union, and argues that changes to the nature of international law (or more accurately the development of the European Union) can be seen as falling within a contested definition of the concept. She develops the thesis that sovereignty is so contested that a variation of it described as ‘cooperative sovereignty’ can be constructed to encompass the development of the Union. The author obviously thought this was such a good idea that it was worth publishing twice as the same paper is published in the European Integration Online Papers Electronic Journal.
Despite my reservations as to the need to repeat the argument, it is an interesting idea, which seems to bear some resemblance to co-operative federalism. However, whether the concept put forward by Besson could still be described as sovereignty in the generally accepted sense of the word is open to debate. If it ‘oinks’ and has a curly tail, no amount of claiming the creature is a duck is likely to convince the audience. Again the applicability of these ideas outside the European context is open to question and no attempt at a wider application is made in the chapter. However, to assess the argument I recommend that readers consult the freely available online article themselves.
The book concludes with three short chapters under the heading ‘Towards an International Legal Community?’ These begin with a piece by Bowring arguing for the rejection of neo-Marxist arguments for procedural rather than substantive human rights. This chapter is rather specialist in its focus although it has some interesting insights.
Finally, the reader is rewarded by two surprising gems authored by Tsagourias and McCorquodale. Tsagourias provides a thoughtful discussion on the recognition of States in international law and notes how a privileged few export their ideas of Statehood and thus ‘clone’ themselves. This is followed by a final chapter by McCorquodale which examines the realities of the international community. As McCorquodale succinctly shows, this consists of far more than the nation-State actors that comprise the traditional world order and requires a rethink in our approach to international law.
Although the last two chapters provide interesting reading, they do not redeem the volume as a whole. The problem is that this work is not actually a book at all. It is a collection of individual seminar papers, one of which is published elsewhere. Each stands and falls on its own merits and as such one cannot help but be dissatisfied with the collection as a whole. There are gems to be found within it but given that it is expensive, it does not explore the themes it claims to and a quarter of it is available free on the internet, it is questionable whether it is worth the cost. One cannot help but wonder whether the chapters within it would not have been better published as journal articles (one author obviously agreed) and thus have received the wider audience that they deserve.
University of Canterbury
Title: Swords Into Plowshares: Building Peace Through the United Nations
Publisher: Martinus Nijhoff Publishers, 2006, ISBN 90 04 15001 3
Pages: viii + 174
Editor: Roy S Lee
This book is a collection of papers delivered at the Columbia University Peace Seminar and the Summer Institute of the United Nations Institute for Training and Research held in 2004 and 2005, edited by the leading international law scholar, Roy S Lee, who also contributes a piece.
The book not only carries a meaningful title, remindful of the work from Inis Claude in 1956 with the same name, but also partly quotes a verse from the bible, as cited in the Preface. Furthermore, the title of the book evokes the image of the bronze sculpture placed in the garden of the United Nations headquarters in New York, symbolizing man’s desire to end war. The cover incorporates a picture of the Armillary Sphere, the symbol of the United Nations office in Geneva, illustrating the different constellations of the Universe. These two sculptures, situated in the headquarters of the United Nations, could be interpreted as a combination, or better unification, of the United Nations’ work to build universal peace.
The book contains 11 pieces which address a variety of concerns. These concerns include: the recent occurrences in Iraq and its effects on the United Nations, nuclear verification in North Korea and Iran and the issue of counter terrorism in the Security Council. It also covers the issue of human rights with regards to economic and social development, as well as sustainable development, multilateralism and the United Nations partnerships. Several of the contributors are current or former officials of the United Nations. Each piece varies in length and presents a different viewpoint on peace building through the United Nations.
Danilo Tuerk opens the book with a piece in which he demands an improvement in the Security Council’s decision making process. He starts with a short historical background of the Council, its composition and relationship to the Charter of the United Nations, identifying as a core issue the need for the Council to interpret and apply the Charter and its aim of ensuring peace and security. Tuerk advocates a teleological interpretation of the Charter, outlining previous examples of the Council’s practice in determining whether a threat to peace exists. He notes that there have been mistakes and failures in the Council’s responses, but does not analyse them in more detail to find concrete answers to his claim.
The rather short paper by Hans Corell stands in contrast to the previous piece with its strong political perspective. Corell analyses the effects on the Security Council resulting from the attacks on Iraq by the United States of America and its allies. He examines the legal background for the use of force in the United Nations Charter and the Security Council Resolutions relating to Iraq. Furthermore, he outlines the dilemma of the paralysed Security Council during the events, concluding that, as the title states, “Bush’s war has damaged the United Nations”.
Eric Rosand is one of the two scholars in the book discussing counter terrorism and the Security Council. Rosand focuses on the Security Council’s counter terrorism efforts, identifying within its strategy four different ways of dealing with the issue, namely; the condemnation of discrete acts of terrorism, imposition of binding counter terrorism obligations on all States, capacity building and the imposition of sanctions. In addressing these areas Rosand gives examples of Security Council resolutions and analyses their effects. In this context he not only touches on the discussion about the Security Council as ‘global legislator’ but also examines the Counter Terrorism Committee as well as the measures taken towards Al-Qaeda, the Taliban and their associates. After naming the problems faced by the Security Council in dealing with counter terrorism effectively, Rosand concludes that serious consideration should be given to the creation of a permanent international counter terrorism organization.
Amir Dossal’s contribution presents an overview of various external partnerships of the United Nations in the context of achieving peace and broad development goals. Different to the previous papers, he focuses on the United Nations and its outside world, emphasising the importance of partnerships with the private sector and civil society to solve a variety of global problems. He identifies and analyses the rising influence and importance of non-State actors for solutions to today’s challenges, which he sees as interconnected, being too complex to be solved from one perspective only. He calls for the Millennium Development Goals to serve as a framework for partnerships, focuses on the United Nations Fund for International Partnerships and gives examples for the promotion of the values and activities of the United Nations.
Compared to the other pieces, Newton Bowles’ approach is philosophical. He discusses the recent work of the United Nations and the Security Council in particular, while using metaphors, referring to Freud, circling the matter of hope and raising rhetorical questions. He mentions the outcomes of Iraq, briefly analyses the High-Level Panel on threats to Peace and Security, considers areas which the United Nations can develop upon and looks to the future, and in this way returns to the subject of hope.
The stated aim of the book is to influence “the policy and decision makers to take the necessary action towards the solution of these problems” by analysing “some of the most pressing issues in the present world”. These goals are met, although perhaps not as boldly as title and cover art-work might suggest. Despite the abundance of literature on the issue of the United Nations’ role in peace building, this book does add to the body of knowledge. However, while the differing perspectives presented by the contributors are of interest, the purchase of this book will perhaps only be a must for experts in the immediate area and libraries.
University of Canterbury
Title: International Migration and Global Justice
Publisher: Ashgate, 2006, ISBN: 0 7546 4671 8
Author: Satvinder Singh-Juss
International migration is undoubtedly a contentious issue and as recognized by the New Zealand courts, the mass population movements of the 20th century present a unique challenge for the international framework. It commands nightly attention as television images of displaced communities in Darfur, asylum seekers fleeing Cuba and refugees from Iraq encroach on our disinterested compassion. The universal impact of current migration issues which previously commanded cursory dinnertime contemplation have been elevated to one of the “major political and economic issue[s] of our time” necessitating “a lens through which these phenomena may be understood in the interests of international peace and security”. Singh-Juss offers his contribution as a “fact based, non-partisan assessment of the impact of migration” and his efforts are worthy of the praise afforded by Goodwin-Gill (“Juss identifies the most pressing questions highlighting the approach from principle”) and James Hathaway (“Juss makes a passionate and well-reasoned case”).
International Migration and Global Justice is a monograph in the Law and Migration series, also edited by Singh-Juss. This collection looks at the policy issues relating to the broad category of international migrants including refugees, asylum seekers and displaced persons. The work acknowledges that the motivation for migration can be as varied and diverse as the migrants themselves. Singh-Juss opts for the security of a logical and comprehensive approach that provides a platform from which future monographs may step. The only criticism is the confusing inter-chapter structure, which stands in contrast to the flow and development of his argument. Chapters 4, 5 and 6 examine the idiosyncratic nuances of the traditional categories of migrants concluding that all groups are in need of greater State protection. Singh-Juss argues:
for a new conception of a humanitarian refugee whereby those in the northern hemisphere can think in terms of solidarity with those in the south and work towards a right to development throughout the whole world.
Early concerns and queries are ultimately addressed as the reader progresses. For example, the scope of Singh-Juss’ use of the populist term “refugee” is initially unclear. However, this was clarified as it became apparent that Singh-Juss employed the term to include all migrants as potential beneficiaries of his proposed ‘development theory’. I felt however, that the central thesis of the monograph would have greater impact had the thesis of chapters 4, 5 and 6 been flagged at the start of the book.
While earlier monographs such as Phuong’s The International Protection of Internally Displaced Persons (Cambridge University Press, 2005) explore migration pursuant to a traditional classification, Singh-Juss bravely acknowledges the shame of current international practice, or lack thereof, that effects all migrants to a greater or lesser extent. He optimistically explores a framework of universal application that, if adopted, would overcome inconsistencies in protection offered under the current framework.
It is the tone of pragmatic optimism forever present in Singh-Juss’ work that is most compelling; see for example, the cheerful discrediting of Hathaway and Neves’ work as “immoral”. In presenting contemporary sovereignty as an elastic doctrine, Singh-Juss’s treatment is not novel, for absolute sovereignty is undoubtedly being displaced as the international framework flirts with expanding State responsibility. In encouraging responsible sovereignty to remedy the deficits of current migration protection, Singh-Juss presents a unique spin on the perceived tension between sovereignty and migration.
Singh-Juss argues that the human rights imperative establishes migrants as a broad group in need of international protection. He identifies failures in the regime of protection under the Refugee Convention and the frailties of the non-binding Guiding Principles on Displacement. These shortfalls are exacerbated by the multiplicity of motivations behind migration which extend beyond the single popular perception of escaping political persecution.
An impatient reader could, with the author’s assistance, simply extract the book’s ‘Development Theory’ for isolated contemplation (contemplation it deserves). This ‘Development Theory’ is subtly introduced in chapter 3 and then pursued in greater depth in chapter 8 and looks to the motivation needed to ensure State protection of migrants. Although Singh-Juss suggests that the motivation for States’ to protect migrants is as diverse as the reasons that motivate migration itself, he cannot escape the pragmatic and inescapable conclusion that States will adopt such protective measures only when an economic imperative, commensurate to the human rights imperative, presents itself.
The author’s enthusiasm is catching, his pragmatism inescapable and his contribution to the “need for rational and informed debate of this widely misrepresented and little understood area” of law, significant.
University of Exeter
 Chandra v Minister of Immigration  2 NZLR 559 at 568.
 In the Foreword at xv.
 Available at <https://www.ashgate.com/shopping/title. asp?isbn=0%207546%204671%208> (last accessed, 18 May 2007).