New Zealand Yearbook of International Law
Last Updated: 10 August 2015
The Philosophy of International Law
Edited by Samantha Besson and John
[Oxford: Oxford University Press, 2010. 632pp.
ISBN 978-0-19-920858-6. £77.50]
The Philosophy of International Law is an edited collection of 33 essays by uncommonly eminent international lawyers, non-international lawyers and non-lawyers. The essays are relatively short, averaging just 20 pages each, but dealing with extremely weighty issues. The first half of the book deals with general subjects including history, democracy, legitimacy and international responsibility; the second half looks to more specific ones like economic law, environmental law and human rights. The editors, John Tasioulas and Samantha Besson have required that rather than pursue a comprehensive review of the topics, individual authors should limit scope to enhance depth (p 20). The resulting essays vary in their appeal.
The book works best where the insights of non-international lawyers are brought to bear on subjects with which international lawyers have become jaded or which they sometimes take for granted. In Anthony Duff ’s contribution on International Criminal Law (ICL), it does not pall, for instance, to be told by a non-international lawyer something about one’s own discipline. Duff provides a snapshot view of what it might mean to apply his own theory of criminal justice as a process of communication to ICL in a way that makes one interested to read more of his work. On occasion, the contributions of disciplinary outsiders are less successful: Jeff McMahan’s comment that the ius ad bellum is “crude and simplistic” (p496), for instance, is unlikely to endear him to an audience of international lawyers.
However, it must be said that the editors present the collection as a work of philosophy and as such it is supposed to have a readership beyond the discipline of international law. Philosophy, they point out “is a discipline with its own distinctive questions, approaches, and traditions of thought” (p 20, n 52). More specifically, the sort of philosophy espoused is analytical legal philosophy (p 20) in the Anglo-American tradition: with two or three (continental Europe) exceptions, all the contributors are from Universities in the US or the UK.. This sets it apart from works of similar, though less definite, title: Anthony Carty’s Philosophy of International Law [Edinburgh University Press, 2007] and Fernando Tesón’s A Philosophy of International Law [Westview Press, 1998].
The book has an aim: it is designed to plug a gap in legal philosophy as regards international law (p 2). The core contention of the editors is that normative inquiry into international law has been marginalised (p 4) by sceptical realist or postmodern approaches (p 3). Tasioulas and Besson seek to return to questions about whether international law is ‘really’ law and how its norms can be distinguished and identified (pp 6-7). This project is determinedly at odds with the strands of, broadly understood, critical theory that have dominated thinking about international law for the past couple of decades.
Critical theory is largely excluded from this book, though sometimes appears as the elephant in the room. This seems deliberate. The editors state that the book is concerned with “[t]he articulation and defence of the moral and political values that should guide the assessment and development of international law and institutions” (p xiii). All this is not to say that writers who wear their normative commitments on their sleeves cannot engage in critique. There are some fine examples of criticism among the contributions, and the editors’ adoption of a dialogic form opens an opportunity for this. Indeed, it seems that dialogue is intended to replace critique (or “scepticism” as it is labelled by the editors).
The structure of the book is intended to generate dialogue (p 19) by pairing authors with “radically contrasting views” (p 20). This is subject to question given the editors’ endorsement of Rawls’ view as “reasoned discussion” among “a family of traditions” (p 6). In this respect, the editors’ distinction between radical and moderate scepticism (p 14) is interesting, as is their willingness to engage with certain forms of the latter but not of the former (pp 15-18). This brings out one of the core commitments of the editors’ exploration of the philosophy of international law: a commitment to objectivity (p 16). This is revealed in the form of a somewhat belligerent attitude to “value scepticism” in Tasioulas’ chapter on Legitimacy in which he repeatedly refers to ‘critical theorists’ in inverted commas (pp 106-107).
The collection is crammed with big names: this has its drawbacks as well as its attractions. One issue is that contributing authors sometimes merely précis their better known works or reproduce ideas explored elsewhere. This is to be expected when one commissions, for instance, Will Kymlicka to write about Self-Determination and Minority Rights or Allen Buchanan on Legitimacy. This suggests that the preference is for authoritative ideas rather than new ones. As mentioned above, this is not always a problem: Duff ’s piece serves as a gateway to a body of literature international lawyers may profit from reading. Similarly, Danilo Zolo’s piece on Humanitarian Intervention has one googling for his book on the same topic [Invoking Humanity: War, Law and Global Order (2002) Continuum International].
Against this, the high-profile character of the contributors coupled
with the brevity of the essays can lead to redundancy.
The contribution of
Timothy Endicott on Sovereignty demonstrates the dangers of going too far back
to basics; while his retread
of John Stuart Mill and his conclusion that
sovereignty may be more about autonomy than freedom (p 250) may be a useful
to an undergraduate reading list, it is hard to see what academics will
gain from it. The contributions by international lawyers,
no less august than
their collaborators (Professors Paulus, Franck and Crawford are among their
number), must tread the same line
between redundancy and representativeness:
Franck’s thoughts on humanitarian intervention will not come as a surprise
who has read Recourse to Force, for instance.
On the other hand, the contributions by international lawyers are often a welcome antidote to what often seems a rather patronising view of the discipline of international law as theoretically underdeveloped (the editors refer to it as a “poor relation” in this respect (p 2)). The relative sophistication of, for instance, Crawford and Watkin’s piece on International Responsibility when compared to that of Liam Murphy suggests that productive thinking about the philosophy of international law requires an understanding of the subject matter as well as a grounding in the concepts and methods of analytic philosophy.
Of course, it is not only international lawyers who will be reading this book and it may be that the pieces by international lawyers serve as a gateway for non-international lawyers. Although the editors made a deliberate choice not to “adopt a policy of ensuring that at least one of the authors on any given topic is a professional international lawyer” (p 20, n 52), a reconsideration of this policy may have made for a more broadly appealing book that avoided alienating (or annoying) readers with different disciplinary backgrounds.
The editors’ ambition to present dialogues in substance as well as form also requires more consideration. For instance, by using a proposition – response – rejoinder format, the editors might have been able to present a more convincing picture of dialogue. While the second-writer on a particular subject (for instance, David Lef kowitz on Sources) may make footnoted acknowledgements of the essay of the other (in this case, Besson), these connections are less dialogic than confirmatory. The use of others’ views for “scholarly footnotes”, professed the editors in their introduction, was something they intended to avoid (p 20). However, confirmation and consensus seems par for the course when a book is confined to such a narrow tradition.
The aim of producing dialogue does not always fail. In many cases, the pairings complement one another. The section on Human Rights is an instance of this where – exceptionally – three rather than two writers battle it out among one another. Raz and Griffin in particular really engage with one another. A different form of complement is at work in the section on Sovereignty. Jean L Cohen’s piece begins where that of her co-locutor, Endicott, left off: After a quick recap of the absolutist factual conception of sovereignty, she sketches out the legalist response to it. Her focus is on the work of Kelsen (with a polite nod to HLA Hart’s contribution) as it allows her to segue into a critique of monism which ends up in a dilemma between a global state or supreme sovereign states.
This introduction leads her to borrow from EU scholarship in order to reveal the excluded middle in this dilemma: constitutional pluralism. This requires us to build a more complex picture of legal orders whereby it does not make sense to talk of the supremacy of either the international or the national, but instead to talk of “an ethic of political responsibility premised on mutual recognition and respect” between a plethora of legal orders existing at both national and international levels (p 275). While discussion of pluralism among international lawyers is not unknown, it has been suggested that it is underdeveloped [by Koskenniemi in “The Fate of Public International Law: Between Technique and Politics” (2007) 70 MLR 1, 20] and to this extent, Cohen’s piece adds to the field.
However, Cohen’s work cannot easily be characterised as analytical philosophy. She shares this in common with the writer of another particularly interesting contribution: that of Danilo Zolo on humanitarian intervention. Zolo is well known for his critique of human rights as ethnocentric and lacking a grounding in objectivity. In this respect, he seems to veer dangerously close to the “scepticism” the editors wish to avoid. Indeed, it would seem difficult to imagine much dialogue between Zolo and, for instance, John Skorupski writing in the section on Human Rights whose position is that “human rights must be essentially universal moral rights” (p 373). On the other hand, the success of these writers from outside the family demonstrates that outsiders can add to, rather than dilute, the richness of discussion.
The editors certainly achieve the desired disputation in some cases. Zolo’s reply to the late Thomas Franck pulls no punches in rejecting “humanitarian militarism” (p 562) using a critique of Operation Allied Force to demonstrate the flaws in the thinking of those who support – however tentatively – a right to humanitarian intervention. Somewhat acerbically, Zolo names Allen Buchanan and Michael Glennon as sharing a similar approach to humanitarian intervention as Franck (p 554): He summarises this approach a victory of Western ethics (a political tool) (p 553) and an a posteriori calculus of lives (p 555) over the authoritative international law laid down in the Charter (p 559). It was interesting to see a defence of the more formalistic position from outside the discipline of international law: Particularly on a subject that often elicits the unsatisfying illegal-but-legitimate conclusion.
Also proving that dialogue can be characterised by friction as well as consensus, is Henry Shue’s piece in the section on the Law of War. This essay sits alongside the offering of Jeff McMahan already alluded to, and is notable for its playful description of the current attitude of the law of war as “shit happens” (p 516). Shue’s rebuttal of McMahan’s rather abstracted and earnest thesis advocating asymmetrical treatment of “just” and “unjust combatants” (p 509) is a tonic of practicality and sense: He ends with the aphorism, better a modest goal attained than an ambitious goal unattained (p 527).
This aphorism could well be applied to the present edited collection: Besson and Tasioulas aimed at reclaiming normative questions about international law and, in so doing, creating something that could be called the philosophy of international law. However, two factors have weighed against them in achieving this object; one practical and one conceptual. The practical point is that 600-odd pages is insufficient to provide serious reflection – let alone dialogue – on such sprawling issues of international law. The conceptual point relates to the general exclusion of critical voices. The point was made by Koskenniemi in 1990 that “the way back to Victoria’s or Suarez’ unquestioning faith is not open to us” [M. Koskenniemi, “The Politics of International Law” (1990) EJIL 1, 31]. And while the dust jacket is adorned by GF Watts’ Hope and not by the companion work, Faith, the attempt to return to normativity and drive out scepticism seems to imply a hope underscored by faith.
Dr Isobel Roele
Lecturer in Law, Cardiff University
The Tokyo International Military Tribunal: A Reappraisal
Neil Boister and Robert Cryer
[Oxford: Oxford University Press, 2008, 358pp. ISBN 978-0-19-927852-7 £63.50]
For 60 years there has been relatively little analysis in English of the International Military Tribunal for the Far East, abbreviated by the authors of this book as the “Tokyo IMT” because it conducted its war crimes trial in Tokyo over 1946-1948. This lack of attention to the Tokyo trial is true especially in comparison with its European counterpart, the Nuremberg trials over 1945-1946. There are several reasons for this, as suggested in this important new book (at pp 2 and 301). First, the extensive literature about the trial in Japanese is not well known outside Japan. Secondly, there is a degree of Euro-centrism in the scholarship on international criminal law. Thirdly, and uncomfortably for the Western powers, one Judge on the tribunal – Justice Radhabinod Pal from India - condemned atrocities by the Allies, especially the use of the atomic bomb. This dissension distinguished the Tokyo tribunal from its Nuremberg counterpart, which allocated blame exclusively to the Axis powers.
Given this lacuna in the literature on international criminal law and regarding the Tokyo IMT generally, a short explanation of the main aspects of the Tokyo War trial may assist. As helpfully outlined in chapter 1 of the book, the trial cannot be understood without some knowledge of the domestic politics and constitutional arrangements in pre-war Japan and their impact on Japan’s foreign relations from the 1920s – especially its expansion into Manchuria and China through the 1930s, Indo-China in 1941 and, after Pearl Harbor, into Malaya, Singapore, the Philippines, Indonesia and elsewhere in the Pacific. Atomic bombs were dropped on Hiroshima and Nagasaki on 6 and 9 August 1945 respectively. Russia declared war on Japan on 8 August and took over Manchuria. Japan surrendered on 15 August 1945, leading to the transformative US-led Occupation of Japan under a new Constitution.
The legal foundations for punishing Japanese aggression took on a tangible form when the leaders of the United States, China and the United Kingdom adopted the Potsdam Declaration of 26 July 1945, later adhered to by the Soviet Union.. This provided for the punishment of Japanese ‘war criminals’, but not expressly for the establishment of an international criminal tribunal, nor for the prosecution of crimes against peace. These came six months later through “a time-fractured procedure by which General MacArthur, Supreme Commander for the Allied Powers [SCAP], promulgated the Tokyo International Military Tribunal’s Charter”.. Initially by a Special Proclamation on 19 January 1946, he established the Tokyo IMT for “the trial of persons charged individually or as members of organisations or in both capacities with offences which include crimes against peace, war crimes and crimes against humanity”.
The Tribunal’s Charter provided for the constitution, powers and procedures of the Tribunal itself, based largely on the Nuremberg Charter, as explained in chapter 2 discussing the Tokyo IMT’s ‘nature and jurisdiction’. The bench consisted of eleven members nominated by the respective Allied powers: the United States, Soviet Union, the United Kingdom, China, France, the Netherlands, Canada, Australia (with Justice William Webb of the Supreme Court of Queensland serving as the Tokyo Tribunal’s President), New Zealand, India and the Philippines. A sense of the Judges’ different backgrounds emerges gradually throughout this book, but more clearly in chapter 10 reviewing “the Tokyo IMT and legal philosophy” (at pp 277-291).
Chapter 3 shows how the selection of the 28 defendants was a problematic aspect of the Tribunal’s preparatory work. Boister and Cryer’s view is that the selection was too broad, as Japanese officials were charged merely by virtue of their position without reference to the nature or extent of their individual involvement in the war effort. But it was also insufficiently broad, as many prominent Japanese military, political and industry figures – including the Emperor, as well as individuals who had engaged in biological and chemical warfare – were not charged. The indictment, drawn from the authority of the Potsdam Declaration, Japan’s Instrument of Surrender and the Tokyo IMT Charter, was not well managed and over-ambitious. It revealed the prosecution’s basic conspiracy thesis that Japan – dominated by a militaristic, racist clique – sought, along with Germany and Italy, to rule the world.
Hundreds of individual charges were laid, many duplicatory, for crimes against peace (chapter 5), murder (chapter 6) and war crimes (chapter 7). The majority of the Judges on the Tokyo IMT extended liability to individuals if they shaped or influenced a war of aggression, whereas the Nuremburg Tribunal required individuals to have controlled or directed the war. The Tokyo IMT also took an expansive approach to the count of murder, defined as killing as part of an illegal war, whereas subsequent tribunals have punished for murder only when this amounts to a war crime or crime against humanity. The authors disagree with the Tokyo IMT on both points when discussing its overall ‘legal legacy’ (pp 301-311); but they note that several of the principles it established regarding war crimes were later adopted by international tribunals, such as the liability of a commander if lack of knowledge of a situation was due to negligence. The authors also criticise several views of the Tokyo IMT on ‘general principles of liability and defences’ (chapter 8), especially the (still controversial) notion that mere conspiracy to commit crimes against peace was punishable.
Boister and Cryer support most widespread criticisms of ‘the conduct of the trial’ (chapter 4), including some apparent bias on behalf of some Judges – including President Webb. However, they note that subsequent international war crimes tribunals are “run, like the Tokyo IMT, largely on an adversarial process and also take a non-technical approach to evidence” (p 310). They also warn that experience from the Tokyo Tribunal shows that time and other pressures tend to build up in favour of loosening evidentiary rules once written witness testimony largely replaces oral evidence (p 311).
Lastly, when the Tokyo IMT concluded its deliberations in 1948, sentencing practices were undeveloped and the Tribunal had minimal guidance from its Charter (chapter 9). Of the accused, seven were sentenced to death, sixteen to life imprisonment, one to 20 years and one to seven years imprisonment. In 1958 the surviving parolees were released unconditionally.
The main aim of this book is “to provide a legal analysis of the Tribunal in the hope that it will help renew interest in the Tokyo International Military Tribunal and thus contribute to a fuller understanding of international criminal law”. It revisits “the very jaded view of the proceedings” taken in Victor’s Justice: The Tokyo War Crimes Trial1 by an influential political scientist, Richard Minear (p 1). In our view, the authors of the present work – experts in public international law from the University of Canterbury (Boister) and the University of Birmingham (Cryer) – have convincingly fulfilled their primary objective. Boister and Cryer conclude that the trial undeniably had “weaknesses in a number of areas”, but they succeed in showing that some of “its determinations of law are of continued relevance and worth” (p 2) for contemporary international tribunals and international law more generally.2
The authors also candidly note two limitations of their work, yet the book serves two corresponding and wider purposes. First, Boister and Cryer point out that they do not read or write Japanese and therefore were “unable to engage fully with that scholarship” (p 3) – although they acknowledge the great assistance provided to them by Dr Noboyuki Murai by “investigating, summarizing and discussing” aspects of that literature in Japanese.3 Similarly, the authors do not hold themselves out as scholars of Japanese law or politics. Yet their work is interesting from those disciplinary perspectives as well.
Discussing the ‘political legacy’ of the trial in chapter 11, Boister and Cryer suggest that if indeed a major purpose was to vindicate the Allied cause and condemn Japanese imperialism, then the Allied cause was not well served as “the perception was that justice was not done” (p 322). They acknowledge that some therefore have seen the trial as a political failure that contributed to resurgent nationalism, but suggest that recent literature shows how the trial was used in more complex ways within the Japanese political process. Students of Japanese politics will not be surprised at the latter perspective, as numerous other examples show how government and non-state actors within Japan often have used ‘foreign pressure’ (gaiatsu) to expand or create domestic forces (naiatsu) for achieving their own policy preferences.4
For scholars more interested in Japanese law, the work of Boister and Cryer also offers tantalising new perspectives. Discussing the “didactic function that some of the prosecuting states asserted was the reason for the trial”, they note that early evidence indicated that this was not being achieved – “the trial tended to be watched by the accuseds’ families, law students, and ‘courtroom habitués’, while it took SCAP pressure to ensure coverage in Japanese newspapers” (p 315). Yet the educational objective was not just to instruct Japanese citizens about good and bad forms of political or economic organisation. Presumably, it also aimed to reinforce a broader shift towards ‘Western’ rights-based legal order that commenced in earnest after Japan reopened fully to the world with the Meiji Restoration of 1868. A more targeted program of legal reforms was already well underway during the post-War Occupation, steered by American lawyers within SCAP, beginning with the drafting and enactment of a new Constitution in 1947 that incorporated US-style features such as judicial review of legislation and a Bill of Rights.5
That constitutional reform also continues to generate controversy among historians over the degree to which the outcome was imposed by ‘foreign pressure’, with another parallel debate about the Constitution’s contemporary significance reflected in calls for constitutional amendments.6 A major sticking point nowadays remains the ‘peace clause’ in Article 9. It provides that “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes”; to that end, “land, sea, and air forces, as well as other war potential, will never be maintained [and] the right of belligerency of the state will not be recognized”. One wonders what reciprocal influence there might or should have been between the drafting of Article 9 and the trial then underway in the Tokyo IMT dealing with Japan’s crimes against peace.
Expansive interpretations of Article 9, resulting in Japan now having one of the largest armed forces (‘Self-Defence Forces’) in the world, began to emerge anyway from the Japanese government, some courts and commentators during the Korean War, and especially from around 1960 when the Japan- US Treaty of Mutual Security and Cooperation replaced the bilateral treaty of 1951.7 This arguably flexible approach to constitutional law interpretation had a major impact on jurists interpreting other legal norms in Japan, especially tort law and other provisions in the Civil Code, where a ‘balancing of interests’ approach to applying the law (rieki koryo-ron) became increasingly influential.8 As a whole, Japanese law remained comparatively open-textured during much of the post-War period. This may have undermined a strict version of the ‘rule of law’, although some argue that it supported community norms – both good and bad – better than in more legalistic societies such as the United States.9 Yet there has also been a strong undercurrent of more formalist or positivist approaches to law among jurists in Japan. A deluge of statutory amendments as well as large-scale reforms to the justice system over the last decade or so may favour that counter-tendency.10 Intriguingly, Boister and Cryer remind us that similar jurisprudential debates were apparent on the international law plane in Japan from the days of the Tokyo War Crimes Trial. The tension existed not only among the Judges on the tribunal, but also among the counsel. The leading American prosecutors adopted an avowedly ‘natural law’ approach, while most defence counsel – especially the Americans – responded with more formalistic arguments (pp 272-277).11
The second self-confessed limitation of the work by Boister and Cryer is that they are “lawyers, not historians” and that “the history and conduct of Japan in the run-up to and during World War II is highly controversial” (p 1). They do not enter substantively into those controversies. But the book is also valuable for those interested in this history. It draws renewed attention to a voluminous and unique body of documentation of great historical importance that sheds much light on Japan’s domestic politics during 1928-1945 and on its external relations in the Asia-Pacific region (especially with China) and globally. Speculating on the trial’s ‘historical legacy’, the authors observe that “an often overlooked aspect of the Tokyo IMT’s proceedings and their contribution to history is their record of evidence heard, rather than the judgments themselves”.. They also note the irony that “one of the things that the Tokyo IMT has frequently been criticized for, the admission of documentary evidence over live testimony, is one of the reasons its proceedings have historical value” – and indeed some present-day relevance (p 314).12
Indeed, for New Zealanders with a sense of history, the Tokyo IMT proceedings and their documentation have a particular significance. In 1962, as a Charles Upham scholar at Canterbury University, one of the present reviewers (Richard Nottage) wanted to write a thesis towards an MA (Hons) on some aspect of the Pacific War. The professor of history, Neville Phillips, suggested that the IMT papers might provide a basis for this. After the Tokyo IMT trial ended, the New Zealand nominee on the tribunal, Justice Erima Harvey Northcroft, had donated his nearly complete set of trial documents to the then Canterbury University College. In a letter of 27 January 1949 to the chairman of the Canterbury University College Council, conveying his bequest, Justice Northcroft wrote: “these [records of the trial] are not likely to be of value or interest to ordinary degree students, but may be of assistance to research students both in International Law and, more particularly, in History”. The bequest, one of the most complete sets of IMT documents in the world, contains some 380 volumes and 110,000 pages. In 1962, it was housed in several rooms of the old, then unused, Ilam homestead, which is now the University’s staff club.
The late Professor S A M Adshead, who had arrived recently from the UK to take up a lecturership in history, was assigned as thesis tutor to Richard Nottage. C W Collins, the Librarian, made the papers available and provided keys to the homestead. Adshead devoted weeks of his own time assembling the tribunal papers into an orderly form, and provided much valuable guidance and advice as Richard wrestled with a thesis entitled China and Japanese Politics 1934-39. Richard spent several months in 1962 alone in the grand old mansion, and was probably the first student or staff member to utilise this unique archive. Subsequently, in 1963-1965, he used the UK set of IMT documents while a post-graduate scholar at Oxford University, producing a thesis on the establishment of Japanese puppet governments in China (1935-1940) which was supervised by the late Professor Richard Storry. At that time little was known or written about the various ultimately unsuccessful attempts by local Japanese armies in China to establish puppet regimes there. Yet Japan’s political failure in China was a major cause of the Pacific War.
The Northcroft Collection was ‘re-discovered’ in 2005 by the manager of the Macmillan Brown Library, Jill Durney, and Jeff Palmer, the library archivist. They recognised its significance. It was inscribed recently on the Regional (Asia/Pacific) Register of UNESCO’s Memory of the World Programme, the first item from New Zealand to receive such recognition and a testament to the enormous value of the collection. It has also been identified as Canterbury University’s most urgent e-heritage project for archival scanning and full text digitisation.13 This will be of immense benefit for scholars and others in New Zealand, the Asia-Pacific region and beyond, as they seek to understand the on-going historical debates as well as the divisions and ambiguities in Japan about its culpability in the war. Fortunately the original Collection has survived the devastating earthquake that struck Christchurch on 22 February 2011.
Researchers in the history of international law should also note that there
is a small selection of Tokyo IMT and related papers published
in New Zealand in
1982.14 Of special interest amongst these is a paper assessing the Tokyo
Tribunal dated 8 April 1949 written
by the assistant to Justice Northcroft at
the Tokyo trial, the late Quentin Quentin-Baxter. (He later served as a New
including a posting back to Tokyo; as professor of
international and constitutional law at Victoria University of Wellington; and
on the UN International Law Commission.15) Quentin-Baxter’s paper is a
more succinct version of the lengthy report Justice
Northcroft sent to New
Zealand’s Prime Minister in March 1949, in which, amongst other things, he
advocated the establishment
of a permanent international criminal court.
It is, therefore, one of the most important results achieved by setting up
the Tokyo Tribunal that it conducted an historical enquiry
into the actions of
Japan and ascertained the proximate causes of those actions. There is set upon
its findings a seal of authority
and impartiality which cannot attend the work
of any historian of recent events; for the Tribunal’s decision was reached
all the available evidence and after the fullest opportunity had been
afforded for the presentation of opposing views.
Readers of The Tokyo International Tribunal: A Reappraisal will be able to come to their own judgments on this particular conclusion. Overall, this meticulously well-researched, well-structured and generally well-written book certainly deserves a wide readership – not just among its primary target audience of international lawyers, but also among students of Japanese history, politics and law.
Richard Nottage CNZM; Deputy Chairman, Asia New Zealand Foundation; Chairman, Archives Council; former New Zealand Ambassador to Japan and Secretary of the Ministry of Foreign Affairs and Trade
Luke Nottage Associate Professor, Sydney Law School; Comparative and
Global Law program coordinator, Sydney Centre for International
Director, Centre for Asian and Pacific Law at the University of Sydney
Co-Director, Australian Network for Japanese Law (ANJeL)
This review draws partly on a shorter book review by Richard Nottage published in (November-December 2010) New Zealand International Review 27-28.
Adjudicating Climate Change: State, National and International Approaches
Edited by William C G Burns and Hari M
[Cambridge: Cambridge University Press, 2009, 412pp.
ISBN 9780521879705. £53]
The multifaceted issue of climate change has steadily acquired an exceptional strategic salience and visibility on the 21st century geopolitical agenda of complex and compelling ‘global’ problems. Yet substantial disagreements and controversies persist over the precise nature of climate ‘space’ as well as the appropriateness of the ‘scale’ at which the causes as well as consequences of climate change could be approached, understood and addressed.
In academic and popular discourses alike, ‘climate change’ is often framed as a paradigmatic ‘global’ environmental challenge. This allegedly transnational character of climate change is also contrasted with a spatiality of global politics that remains predominantly territorial and state-centric. Despite the overwhelming natural-science evidence in support of a de- territorialising nature of climate change, as graphically revealed through various assessment reports of the Intergovernmental Panel on Climate Change (IPCC), emerging geopolitical as well as geo-economic discourses on climate change tend to re-territorialise a whole gamut of issues at stake. These discourses have been critiqued by the analysts on account of their state-centric nature; their neglect of environmental justice issues; their tendency to territorialise carbon flows and their generation of a climate of fear. What has been rather conspicuous by its absence until quite recently in the bourgeoning scholarly literature on global warming however, has been a critical engagement with the complex, controversial and contested role of climate change mitigation as part of regulatory discourses.
This outstanding volume, Adjudicating Climate Change: State, National and International Approaches, edited by William C G Burns and Hari M Osofsky, is a highly laudable attempt that fills this gap with the help of meticulously researched contributions by some of the leading experts. It provides an insightful survey of evolving legal landscapes in the area of litigation and raises a series of critical questions.
What does the scale mean in the context of climate change litigation? Who deploys the rhetoric of climate change and why? What is the politics behind the written geographies of climate change, especially those that tend to privilege a particular scale and marginalise others? Will there be winners and losers in climate change? What are the implications that various ‘scales’ (ie sub-national, national and international) carry for climate change mitigation and adaptation? Which scales are more appropriate for regulating various aspects of the challenge of climate change? How fixed and/or fluid these scales are (or could possibly be) when confronted with the multi-scalar problem of climate change? What role can climate litigation play in ensuring that the impacts of policies to address climate change are perceived as equitable by key groups in society and do not result in further marginalisation of much less fortunate losers of globalisation?
The two editors present at the outset a concise and competent overview of how in the last few years, climate change litigation has emerged as a major force to reckon with in transnational regulatory governance of greenhouse gases. In the absence of a proactive and precautionary approach to climate change by the national governments, many state and non-state actors have been compelled to look beyond traditional international treaty mechanisms for solutions to anthropogenic climate change and resort to litigation and other legal actions at sub-national, national and transnational levels. Given the key focus of the volume on litigation as a multiscalar regulation of climate change, the contributing chapters are divided into three parts; each comprising contributions representing examples at subnational, national and supranational levels.
In part one the chapters focus on subnational litigation and act as a forceful reminder to those who believe that climate change is a challenge, bordering on a ‘threat’, to ‘national’ security and can only be met through national/federal level responses. The chapter by Stephanie Stern presents the state of Minnesota’s efforts during the 1990s to include carbon dioxide in environmental cost valuation as an inspiring example of how even ‘weak’ state regulation can play a significant role in mitigating climate change by simultaneously questioning the lack of both corporate social-ecological responsibility and effective federal policies. For those who are highly critical of the posturing and policy of the United States on climate change (and for good reasons), the example of the state of Minnesota may provide the proverbial ‘silver lining in the dark cloud’.
What follows is the chapter by Lesley K McAllister, dealing with the three legal cases involving climate change in Australia, with all of them claiming that the issue of the assessment of environmental impacts of coal mines should be treated as integral to the project of climate change mitigation in Australia.. This extremely well written chapter reinforces the critical contention that the futuristic focus and thrust of climate change should not be allowed to push into oblivion the long-standing history of deeply entrenched ecological irrationalities and injustices in diverse societies. In other words, it is critically important to ensure that the issues of ecologically sustainable, socially just and culturally appropriate ‘development’ are not derailed and dismissed by the discourses of climate change. No doubt several questions remain unanswered while insisting that project based environmental impact assessments as a form of regulation should be integral to climate change mitigation, but the fact also remains that “indirect greenhouse gas emissions may be more significant than the direct greenhouse gases”.
For those interested in the grass root level assertions for climate justice and role of local communities in climate change mitigation and adaptation, the chapter by Katherine Trisolini and Jonathan Zasloff, dealing with the dispute over the sitting of a wind farm in New Zealand is an excellent example of how important issue-areas such as the implications of localities in climate change regulation can be examined through a theoretically informed analysis. Is theory necessary to understand and analyse the local politics of climate change? If so, what kind of theory? Rescaling the climate change debate and discourses, the chapter introduces the cities and municipalities as new and important actors and forcefully argues that in some cases localities are not only questioning the hegemonic and homogenising geopolitical impulses of unified state actors but also proving themselves as influential policy makers and litigants in their own right. One among several outstanding insights that this chapter offers is the usefulness of thinking theoretically about climate change. It also shows how combining IR theories with Urban Theory can be both intellectually stimulating and practically prudent.
Thinking about climate change, one cannot help perhaps visualising a future marked by more uncertainty, large-scale dislocations, displacements and destructions, especially in the Global South. As increasingly acknowledged by critical social science perspectives on climate change, beyond the alleged scientific ‘consensus’ on ‘facts’ related to climate change lies the realm of contentious politics revolving around value judgments, moral beliefs and cultural understandings. The challenge of climate change forces us to revisit and rethink the classical notions of security and sovereignty and to acknowledge that a timely and effective response to climate change is morally required as well in the context of both inter-generational and intra-generational equity. The chapter on ‘atmospheric trust litigation’ by Mary Christina Wood is a compelling engagement with the ethics of climate change in the realm of jurisprudence. The ‘legal space’ of climate change, according to the author, is anchored in the visualisation of “atmosphere as one of the assets in the trust, shared as property among all nations of the world as co-tenants”, and what lies at the heart of public trust jurisprudence is the core value of protecting this trust through judicial oversight. This thought provoking chapter makes a powerful appeal to lawyers to imagine new legal concepts and theories to address climate change as a ‘planetary emergency’.
Section two of the book deals with national level case studies and contains rich information and valuable insights. The chapter by Hari Osofsky examines the Massachusetts v EPA case involving dispute over the ‘appropriate’ scale of climate regulations. One of the key strengths of the chapter lies in its concise and critical engagement with the complex and contested concept of ‘scale’ in the literature on geography and ecology. The chapter persuasively illustrates how the intersection of scale, science and law in the case of Massachusetts v EPA reveals a complex labyrinth of multiscalar, multiactor questions, which, in turn, challenge public/private, domestic/international and local/state/ federal dichotomies.
The contribution by Brendan R Cummings and Kassie R Siegel examines the role of domestic wildlife law in addressing greenhouse gas emissions, taking the Endangered Species Act (ESA), passed by the US Congress in 1973, as an example. It shows how the ESA, enacted long before the threats of climate change to biodiversity came to be widely recognised, proved instrumental in getting polar bears listed as endangered by the US Fish and Wildlife Service (an executive branch agency within the Department of Interior) in May 2008. The very fact that the US Supreme Court has acknowledged that the ESA is the most comprehensive legislation for the preservation of endangered species ever enacted by any nation, throws up the possibility of exploring the prospects of using domestic wildlife law to bring the subject of climate change into courtrooms. David Grossman’s chapter on applying tort law to companies, such as the auto and power industries emitting greenhouse gases, reinforces the point that litigation could prove to be a powerful instrument in some countries to address the causes and impacts of climate change.
Some critical analysts, however, are sceptical over the ways in which climate change science is depicted as ‘certainty’.. They argue that certainty and uncertainty are by no means natural or universal concepts and representations. The insurance industry, for example, possesses considerable potential to mobilise discourses of ‘truth’ and to impose its structure of understanding of climate change. It also possesses the ability to manage uncertainty at all levels of business around the globe. Jeff Stempel’s competent analysis of climate change and insurance law uses the California v General Motors case to explore at length the liability insurance issues potentially raised by climate change litigation.
Is there a human right to security from climate change? Amy Sinden raises this important question at the outset and goes on to forcefully argue that the ruling by the Federal High Court of Nigeria in November 2005, ordering Shell and the Nigerian National Petroleum Corporation to “take immediate steps to stop the further flaring of gas”, upholds the contention of the Nigerian communities living close to flaring sites that this practice violates their fundamental right to life and dignity guaranteed under the Nigerian Constitution. Both this chapter and the one by Hari M Osofsky in part three of the volume (taking as a case study a petition filed with the Inter-American Commission on Human Rights in December 2005 on behalf of Inuit in the United States and Canada) reinforce the argument made by some scholars that a ‘human-rights’ centred analysis of climate change has profound implications for our understanding of the kind of action that should be taken, and who is obligated to pay for the cost of mitigation and adaptation. Osofsky argues that the Inuit petition raises profound ethical issues related to the legitimacy of behaviour and responses of the nation-state system and international institutions and individually oriented human rights approaches in the context of indigenous peoples’ perspectives on climate change. For Osofsky, the Inuit petition provides an important model for how dialogic spaces can be created for much needed conversations between the government agencies and the communities located on the margins, in the hope that conventional confrontational models of litigation competing for a ‘win’ in the United States will be replaced by a much more nuanced understanding of issues and values involved.
Part three of the volume, containing supranational case studies, begins with Erica J Thorson taking up the example of the World Heritage Committee being approached by the NGOs of several countries with four petitions and a report to the effect that certain world heritage sites should be relocated to the “in danger” list as a result of climate change. At the heart of these petitions is the appeal to all State parties to the World Heritage Convention (WHC) to ensure drastic cuts in their national emissions so that the World Heritage Sites can be protected. Thorson’s well researched analysis maps out the relevant WHC provisions, examines the nature and extent of obligations enshrined therein, explores the failures of the World Heritage Committee’s climate change efforts to date and concludes on the note that both the Committee and the State Parties need to take a more proactive mitigation action; that too sooner than later.
The contribution by Jennifer Gleason and David B Hunter takes the reader to a relatively under researched transnational site of climate change mitigation, namely, international financial institutions (IFIs). It examines the efficacy of accountability mechanisms by focusing on the World Bank Inspection Panel and the International Finance Corporation’s (IFCs) Compliance Advisor and Ombudsman (CAO). In the chapter to follow William C G Burns analyses potential causes of action for climate change impacts under the 1995 United Nations Fish Stocks Agreements (UNFSA); yet another major international forum in which the implications of climate change demand attention. The chapter identifies the potential impacts of climate change on fish species and straddling stocks, and examines various provisions of UNFSA, potential actions for climate change damages under the Agreement and potential barriers to such actions.
What are the potential international judicial forums where victims of global warming or losers of climate change could bring lawsuits on wide-ranging issues including allocation of losses and adaptation costs? Is the International Court of Justice, with its unique status and visibility, one such forum? What are the awareness building impacts of climate litigation on climate law and policy? Those interested in these questions will find some excellent analysis in chapters by Andrew Strauss and David B Hunter. Together they suggest that climate litigation strategies, in existing as well as potential variations, have heralded a new era in climate politics with implications that need to be studied further through multidisciplinary theoretical perspectives.
The concluding reflections by Hari M Osofsky are remarkably concise and insightful and return to the intricacies of scale and space in climate change regulatory discourses.
Looking ahead, there are a number of issues that would demand a serious and systematic attention in the context of climate change mitigation. One such issue relates to climate change induced displacements and growing concerns, bordering anxieties, over ‘climate migrants’ and ‘climate refugees’ and raises a number of perplexing questions. Who is a refugee? Where and why does (or should) the category of ‘economic refugee’ end and the category of ‘climate refugee’ begin? What are the ethical, legal and geopolitical concerns and considerations that define the category termed ‘climate refugee’ and differentiate it from ‘climate migrant’?
Some liberal thinkers are currently engaged in a debate largely focused around the very concept of environmental and climate refugee in the strict terms of international and domestic law. One of the key questions here is this: can (or for that matter should) the concept of the refugee, traditionally used to provide salve for those seeking migration on the basis of political or religious persecution, be extended to cover climate refugees? Some would argue that these rights, endorsed by the UN, will provide additional protection for those seeking to migrate across national borders, and being granted asylum accordingly by nation-states operating in liberal co-operative fashion. Such international cooperation, despite being highly desirable, may not be easily forthcoming owing to the fact that categories such as ‘climate refugees’ are being increasingly perceived as serious threats to ‘national security’ and borders. In other words, intended or unintended, such fears and anxieties, especially in the Global North, are likely to be induced (and in turn used) by certain actors and agencies (both state and non-state) to securitise environmental issues and climate change.
The standard definition of ‘environmental refugees’ as those who have been forced to abandon their traditional habitat, temporarily or permanently, as a result of marked ‘environmental disruption’ (natural and/or triggered by people) that jeopardised their existence and/or seriously affected the quality of their life is unlikely to work in the context of climate change and displacements induced by it. What remains equally unclear is how the definition of ‘environmental disruption’, implying any physical, chemical and/or biological changes in the ecosystem (or the resource base) that make a particular human habitat unsuitable to sustain human life is going to apply to the gradual, incremental effects of climate change. While the legal status of environmental or climate migrants will remain quite ambiguous, those who choose to believe that they have been displaced by ‘climate change’ might find in climate change mitigation their last resort of seeking justice.
This edited collection, by virtue of its extraordinary merit, is bound to
receive international attention across diverse disciplines
and act as a catalyst
for further research on the role of climate change mitigation through
litigation. The fact that a large number
of case studies are drawn from the
Global North, especially the United States, should not come in the way of well
of the major contribution that this volume has made to a
nuanced understanding of emerging critical legal engagement with climate
Professor of Political Science, Panjab University, India
Gender Stereotyping, Transnational Legal Perspectives
Rebecca J Cook and Simone Cusack
[Philadelphia: University of Pennsylvania Press, 2010, 288pp.
ISBN 978-0-8122-4214-0 $49.95]
Remarkable legal developments have been achieved over the past century in the
area of gender equality and anti-discrimination. In
most jurisdictions, these
achievements have been most notably (but not exclusively) on the grounds of
sex, in developed countries,
as well as on the international scene.
Despite an explosion of legal instruments supporting gender equality, true equality is far from being reached anywhere in the world.16 Equal opportunity legislation has contributed to women’s ability to increase their financial independence with access to the labour market, yet data confirms that jobs continue to be highly segregated and women remain primarily employed in a small number of occupations which have been traditionally low paid. At the same time, women remain grossly under-represented in managerial occupations. Thus, the so-called ‘glass ceiling’ continues to hinder women’s access to leadership positions in private companies. Job segregation, precarious contracts, involuntary part-time and low-paid jobs continue to fuel pay inequalities,17 thus contributing to the gender pay gap. Regardless of their paid work commitment, women also continue to bear the bulk of domestic and family responsibilities. Occupational inequalities further entrenches the feminisation of poverty especially (but not only) in retirement and old age. Occupational discrimination is further duplicated by a pervasive lack of equality in political governance. Women are under- represented in almost all decision-making positions in governments around the globe. Moreover, in many developing countries women have no or limited access to basic resources such as water and sanitation. Access to other resources such as education and healthcare remains highly segregated; resulting in women representing the majority of the world’s illiterate population and in countries where female illiteracy dominates there are also significant maternal mortality rates. In sum, in addressing ‘gender inequalities’, one must consider the universal persistence of various forms of violence (physical, sexual, psychological and economic) against women, both within and outside their homes.
Although an array of national and international legal instruments exists to counter these discriminations and enhance equality between men and women, the issues continue. I share the view with others that the law has a considerable capacity in contemplating, constructing and reinforcing assumptions about male and female gender characteristics but it also has the power to challenge, and more importantly, to modify or remove such stereotypes.18 So what is going wrong? Why are these legal mechanisms ineffective in tackling sex discrimination and gender inequalities? Problems linked to the implementation of the law, be they individual rights, difficulties in accessing judicial help or adequate remedies to the problems are commonly put forward to explain the lack of progress.19 Could the shortcomings of the legal instruments be explained by a more fundamental failure of the overall legal system, namely its inability to flush out its universal patriarchal nature? In other words, is it possible that gender inequalities are so deeply embedded in social, cultural and legal factors that legal systems are simply a product of this?
In Gender Stereotyping, Transnational Legal Perspectives, Cook and Cusack tackle this issue from a translational and international approach, arguing that the elimination of wrongful gender stereotypes is essential to ending discrimination against women. They denounce the use of gender stereotyping as one of the main sources of discrimination against women and other forms of violation of women’s rights. In order to argue their point, Cook and Cusack use the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the United Nations General Assembly, as the primary framework for their analysis. This international legal instrument is one of the earliest and still relatively under-developed international human rights treaties, which impose a positive obligation (see arts 2 and 5) on the signatory States to eliminate wrongful gender stereotyping which may result in gender discrimination. The premise of the argument developed by Cook and Cusack is that the elimination of gender discrimination and the violation of women’s rights must necessarily include the elimination of prejudices, customs and practices based on stereotypes about the inferiority or appropriate sex role for women. The abolition of wrongful forms of gender stereotyping needs to be carried out by both state and non-state actors, and by treating women according to their individual needs, abilities, priorities and circumstances rather than using generalisations or stereotypes of what it means to be a woman.
The book is framed in a pedagogical way, which takes the reader through convincing methodological reasoning. The structure of the book follows Cook and Cusack’s prescriptive process designed to eradicate gender stereotypes; namely “naming the stereotype, identifying its form, exposing its harm, and developing appropriate remedies for its elimination” (p 175). The book is divided into six chapters. Cook and Cusack first consider different understandings of stereotypes by exploring the various reasons for their use. In the second chapter Cook and Cusack explain that understanding the nature of gender stereotyping, and the ability to identify and expose stereotypes, are the first steps toward their elimination. They consider how gender stereotyping harms both men and women by contributing directly to the denial of many benefits and opportunities. This is the case, for example, when women are refused entry in a profession by reason of their average height, strength or any other physical characteristics. Moreover, stereotyping can impose a burden on women by forcing them to bear an unequal share of the caring and domestic responsibilities. Further, it can lead to degradation in women through reducing their dignity or marginalising them and diminishing their status within marriage, family and society. Such a situation is found particularly in circumstances where the law does not provide adequate legal capacity to women in matters related, for example, to marital property or parental authority over children. In chapter 3 Cook and Cusack consider the nature and the scope of States’ obligations to eliminate gender stereotyping under CEDAW. They also address States’ and non-state actors’ liabilities resulting from this obligation. Finally, they provide a critical outline of the range of remedies available for breaches of the obligations. In chapter 4, Cook and Cusack explore specific obligations to eliminate gender stereotypes and discrimination against women. They make reference to a number of law cases in order to illustrate the difficulties of first, assessing the breach of the States’ obligation, and then the broad nature of the justification available to the States as a defence. Indeed, differential treatment based on gender stereotypes is not always considered to be illegal, either because the State can justify its action in accordance with a legitimate purpose which is both genuine and proportionate to the aim of the policy, or because the harm is not sufficiently serious enough to justify legal protection. Building on these critics, Cook and Cusack devote chapter 5 to the work done by the CEDAW Committee in eliminating gender stereotypes. In particular, they highlight the role of the CEDAW Committee in reporting and interacting with States and non-State actors. A number of legal cases are used to illustrate the work and practical outcome of the CEDAW Committee. Finally, in their concluding chapter, Cook and Cusack outline the difficulties of eradicating wrongful gender stereotypes and provide guidance on the way forward. Much of this focus draws on the work done by the CEDAW Committee, which monitors States parties’ compliance with CEDAW. In particular, Cook and Cusack argue that the CEDAW Committee has contributed to the development and the implementation of a comprehensive methodology pivotal to the eradication of wrongful gender stereotypes.
This book is an interesting addition to the very sparse legal literature surrounding gender stereotyping. Cook and Cusack’s recent transnational research rides against this tendency by bringing together gender stereotyping as a construct within the law. This work is significant because it directly and clearly connects gender stereotyping as: a form of discrimination, a barrier to equality and ultimately a denial of human rights. It also contends that gender stereotyping can be eliminated with the help of international law. Moreover, the work is significant on a comparative level as it takes into account transnational legal approaches to gender and stereotyping. It addresses international and comparative law (specifically comparative constitutional law) but the book’s methodology is said to be transnational, designed to challenge accepted social and legal norms. It represents an interesting comparative piece of research that provides a rare view into why and how stereotypes exist internationally and nationally and some of the legal options available to change these socio- cultural structures. This book represents a significant step towards further research in the area.
The topic of this book is very timely in particular because the removal of negative gender stereotypes is presently a hotbed for political and legal debate and discourse within various jurisdictions, including the European Union.20 Many arguments developed in favour of the adoption of legislation against negative gender stereotypes have their foundation in CEDAW, which the European Union supports.21
Overall, this is an excellent text that is comprehensive and easily
accessible on the important topics of gender, human rights and
the topic of stereotypes is controversial in nature because it addresses changes
in socio-cultural behavior entrenched
over centuries, the discussion presented
by Cook and Cusack is well articulated and should prompt reflections on the
of international law, including the too often forgotten CEDAW
convention. Refreshingly, this book does not limit itself to reflect
Anglo-American world-view but instead it attacks the issue from a transnational
point of view, reviewing cases from the
Pacific, Africa and Asia.. Cook and
Cusack provide here a well written piece of research which will be of interest
to a wealth of
individuals, not merely to lawyers. It should appeal to
academics, advanced students and practitioners interested in the rights and
obligations associated with gender equality and all forms of equality as well as
those working in the areas of human rights and fundamental
freedoms. It is
highly recommended for library, institutional and individual
University of Canterbury
No Ordinary Deal – Unmasking the Trans-Pacific Partnership Free Trade Agreement
Edited by Jane Kelsey
[Wellington: Bridget Williams Books, 2010. 288pp. ISBN 9781877242502. $39.99]
The Trans-Pacific Partnership Agreement (TPPA) is a regional ‘trade’ initiative that seeks to enlarge the existing P-4 membership (Brunei Darussalam, Chile, New Zealand and Singapore known as the ‘founding fathers’) to further include Australia, Peru, Vietnam and, most notably, the United States (US). President Obama announced in late 2009 that the US would engage in these negotiations “with the goal of shaping a regional agreement that will have broad-based membership and the high standards worthy of a 21st century trade agreement”. Malaysia has also recently joined these negotiations, which are set to build a platform for other countries to join in. In light of the likely collapse of the 10 years of multilateral negotiations at the World Trade Organization (WTO), the TPPA has gained unprecedented significance as it seems to be promoted as a regional WTO of the Asia-Pacific region—a free trade area with an eye to integrate the entirety of ‘factory Asia’ later on. The US seems to wish for larger Asian economies such as Japan, South Korea and, more importantly, China and India to later join such an economic bloc in which the rules of the game (called ‘regulatory coherence’) are already written in line with its own export interest.
The TPPA is another Free Trade Agreement (FTA) in which the term ‘trade’ seems to have become a misnomer. FTAs are no longer about removing such barriers to ‘trade’ in goods and services, which merely serve narrow interests of domestic industries at the expense of tax payers and consumers (eg the farm lobbies in the US and the European Union). Rather, they increasingly seek to redesign regulatory landscapes in favour of multinational export interests and, more often than not, at the expense of what would constitute ‘sound regulation’ in the circumstances of a domestic economy.
In this light, the advent of Jane Kelsey’s ‘No Ordinary Deal’ could not be more timely. A book of 16 chapters and an epilogue, it opens with a must-read introduction, which provides the essence of most of the arguments throughout the chapters. The book successfully seeks to unmask many features of the beast in an attempt to create an “informed debate that can make a difference” in a highly secretive negotiating environment (preface). While the chapters deal with technical aspects of the complex TPPA agreement, they are still very much accessible to a more general readership.
Gould’s critical account on ‘Political implications for New Zealand’ is not specifically directed at the TPPA or FTAs. Rather, it is a sweeping criticism of ‘neoliberal policies’ as implemented through National-Labour support in the past 25 years in New Zealand. He seems to indicate that New Zealand is better advised to reverse the whole process of trade liberalisation that has taken place not only under old FTAs such as the Australia New Zealand Closer Economic Relations (CER) but also under the concept of multilateralism as embodied in the WTO without examining the economic ramifications of (re)introducing high tariffs and production. The following chapters present a more nuanced approach in their analysis of what has gone wrong in recent FTAs or even specific areas of WTO law. Ranald’s account of ‘Politics of TPPA in Australia’ is very useful in that it contrasts the current political situation with the political context in which the Australia US FTA (AUSFTA) was signed in 2004. According to him, the Gillard Labour government will face much difficulty following the neoliberal path of the Howard coalition government. Part of that is due to a sharp decline in public support for trade agreements owing to the revelations of how AUSFTA has proved to limit policy choices of the Australian Government. Ranald cites three examples in pharmaceutical regulation, public procurement of blood products and water and energy services. On the latter for instance, as these essential services had not been excluded from the scope of commitments owing to “insistence of the US”, no restrictions could legally be made on the participation of US companies in any future privatisation schemes of such utilities. Already one initiative regarding the privatisation of an electricity company has been turned down owing to fears of loss of regulatory control over what could become a foreign-owned utility.
Murphy also points to wide opposition of the Australian trade unions vis- à-vis concessions on public procurement in light of the developments after the global financial crisis and wide reliance of the US on financial stimulus packages and buy American provisions. Some of the ‘costs’ of the AUSFTA are also highlighted by Quiggin in a chapter on ‘Lessons from the Australia-US Free Trade Agreement’.. Citing both subjective empirical studies and economic statistical data, Quiggin contends that since the signing of the agreement, US exports have already benefited from the deal in disproportionate amounts while any ‘benefit’ for the Australian economy even in the distant future at best remains doubtful. Wallach and Tucker, in an important account of ‘the US politics and the TPPA’, trace Obama’s promises of ‘change’ in trade policy in some of his comments against the North American Free Trade Agreement (NAFTA) earlier in his campaign. They outline the benchmark for Obama’s change based on the content of the Trade Reform, Accountability, Development and Employment (TR ADE) Act – a Bill that had the support of majority of the Democrats of the US House of Representatives. Given the public sentiments and the lack of support for NAFTA-like agreements in the US Congress, the authors notably suggest that the TPPA may well become one in a series of unsuccessful overambitious trade pacts such as the Free Trade Area of the Americas or the Multilateral Agreement on Investment that never came into existence.
There are a few policy areas in which the TPPA may create mixed results although any potential benefits would be hardly considerable compared with the huge costs of such a sovereignty-encroaching FTA. Security implications of a TPPA, according to Buchanan, seem to be one of those areas in which “issue linkage of trade and security” could in theory prove to be “of universal benefits” for fights against criminal activity, trafficking, weapons proliferation and terrorism. Yet that seems to be achievable under stand-alone agreements. Another area in which the TPPA might arguably prove beneficial for the developing countries involved is in labour rights because of the long-standing history of the US Congress to include core labour rights in all its trade agreements. On the impact on indigenous peoples, Alywin points to the problems caused by US FTAs with Chile and Peru as they were completely excluded from the whole process. He concedes, however, that this might not pose challenges of similar magnitude for the Māori in New Zealand owing to their more active participation in international trade in natural resources as well as their representations in trade delegations.
Problems arise, on the issue of ‘cultural assistance measures’ such as quotas for domestic TV programmes. Jock Given explains, in an insightful chapter on ‘culture and information’, how the US lobbies representing major Hollywood Studios push for the TPPA to avoid “cultural exceptions”. He rightly contends that the reservations that have been successfully maintained by Australia regarding local content requirements along with local content laws existing in New Zealand will surely be attacked by the US in the TPPA negotiations. On climate change and emissions embodied in trade, Bertram warns that the likely attempts of the US to open the door in the TPPA for border adjustment measures will come at sizable cost for emission-intensive New Zealand exports, particularly in the agriculture sector. Yet, one could argue that chances remain slim in any foreseeable future for the US to enact a cap and trade system that would include agriculture products and would not entail a de minimis exemption for low volume of exports coming from a country like New Zealand.. Furthermore, even if this will be materialised, one might wonder whether this is necessarily a bad thing if it forces highly polluting New Zealand industries to bring their emission levels at least down to those of the US in sectors such as metal, products, chemical products and resources. In fact, Murray and Challies in a chapter on ‘agribusiness and rural livelihood’ interestingly go as far as recommending participants to “adopt a robust emissions trading scheme that brings in agriculture.”
Murray and Challies also raise concerns over the impact of large agribusinesses such as New Zealand’s Fonterra on rural livelihood in Chile, Vietnam and Peru and explore ways to ameliorate such concerns. In a separate section, the authors analyse the US-NZ trade relationship as the only significant agriculture economies in the TPPA which have not yet signed an FTA (the others being Australia and Chile). Their account of the story is in line with Kelsey’s introduction and the chapter on US politics in that it is highly unlikely that the US would realistically give in to pressures exerted by its farm lobbies not to accommodate New Zealand’s request to substantially increase access for its dairy exports.
These findings have to be read along with Adamson’s chapter, where the short term trade gains of a TPPA for New Zealand have been found to be significantly outweighed by the costs of giving in to pressures from the US to harmonise quarantine and food safety measures. Adamson makes a strong case for why Australia and New Zealand have to maintain their autonomy with respect to what would be deemed as an “appropriate level of protection” for their economic environment. This is allowed under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement) to the extent that such quarantine measures are based on the “best available scientific evidence”. For instance, the long-standing measures imposed by Australia on New Zealand apples were recently found by the WTO Appellate Body not to pass this requirement. The US, however, strongly demands other negotiating countries lower, or ‘harmonise’ their food safety standards. This, according to Adamson, may cost a fortune for “high standard” agriculture exports of Australia and New Zealand in world markets. Regarding the US characterisation of mandatory Genetically- Modified labelling schemes existing on both sides of Tasman as a “technical barrier to trade”, Adamson is quite right in seeing this as an example of trade eroding both individual choice and democracy. His recommendation on the need to follow the existing P-4 notion of respecting individual country rights in setting their own standards is well-advised.
Faunce and Townsend contribute another alerting chapter on the TPPA impact on ‘Public Health and Medicine Policies’. The chapter outlines the position of the US pharmaceutical industry, as the major policy driver in this area which faces no countervailing forces in the health and medicine sectors of other negotiating countries. The chapter goes through public health and medicine policies of those negotiating countries, including Australia and New Zealand, that are specifically requested to be on a US Trade Representative’s ‘watch list’.. The authors make very relevant recommendations on how these countries, in the “regulatory coherence” game, should rather push for cost- effectiveness provisions, compulsory licensing exceptions, and research exemptions and so on to protect their systems. Frankel’s chapter reaches similar conclusions with respect to drawing a balance between public and private interests in intellectual property (IP) rights and, more generally, with respect to the impact of TPPA on IP laws of New Zealand. Noting the high standard of TRIPS-plus provisions in all US FTAs, Frankel raises grave concerns over New Zealand being forced to concede on its IP laws in return for gains in other sectors of its economy.
The last three chapters by Rosenberg (International Capital and Investment),
Kelsey (Trade in Services) and Seuffert /Kelsey (The
TPPA and Financial Sector
Deregulation) deal with issues that are largely intertwined. In particular,
chapters 14 and 16 both have
a similar but strong message: FTAs should learn
from the lessons of the global financial crisis by examining ways to pull back
the failed models that rather seek to block re-regulation and force even
more deregulation in the financial sector. Kelsey explains
how the ambitious
liberalisation and unfettered non-discrimination principles of FTAs that go well
beyond the WTO Agreement on Trade
in Services (GATS) (which on its own is
over-reaching) is further restricting signatories in their policy choices in
sectors such as telecommunications, finance, health, distribution,
construction and audiovisual services. On the regulation of investment,
Rosenburg points to the fact that New Zealand already has its hands tied with
respect to what would constitute a more selective but
a rather more desirable
investment policy than the non-discriminatory ones that are in place. He aptly
alludes to some of the systemic
risks associated with the investor-state
investment disputes, while drawing fruitful lessons from NAFTA.
Overall, the book, as its title and the satire on its front cover reveals, depicts an extremely gloomy picture of the whole TPPA deal and its secrecy. Yet, at the same time, rather than falling – for the most part – into the traps of anti-free trade ideology, the authors make a compelling case against this form of all-inclusive 21st century ‘Free trade Agreement’.. Some of the chapters (eg Gould) do seem to beat the WTO and FTAs with the same stick. It is of course open to question whether, and to what extent a strong rules-based multilateral trading system would benefit small or developing economies and that to a large extent depends on the very nature of those rules.. The book however, could perhaps benefit from addressing the dynamic relationship between multilateralism and regionalism—the issue whether the weakening of such a multilateral institution as the WTO rather than improving it to further accommodate regulatory space for industrial, investment, environmental or other social policies, may lead to the emergence of such suspicious regional initiatives as the TPPA.
However, for the proponents of a strong multilateral trading system with
necessary safeguards, the book equally demonstrates how the
focus of the TPPA is
not on the protection of domestic industries through instruments such as
high tariffs or large production subsidies. These are mostly
non- existent in
the highly open economies of TPPA countries such as Australia and New Zealand..
There is rather an alarming trend
that seeks to constitutionally lock in
measures that might be considered for each individual democracy as excessive
TRIPS-plus, investor-state disputes resolution), a lax regulation
(eg undermining public health or social programmes) or no regulation
while one is needed indeed (eg plain-packaging regulations for cigarettes or
mandatory labelling for Genetically Modified
Organisms, restriction on foreign
ownership of sensitive economic sectors or minimum local content requirements
in media services).
And yet such regulatory commitments are being made by the
New Zealand government, amongst others, in an extremely non-transparent
negotiating environment in which the real stakeholders (ie all New Zealanders)
are largely left out. This is the single strongest
message of No Ordinary
Deal that makes it an extraordinary read for policy makers and for
Sadeq Z Bigdeli
Te Piringa Faculty of Law, University of Waikato
Customary International Law: A New Theory with Practical
Brian D Lepard
[Cambridge: Cambridge University Press, 2010. 440pp.
ISBN 978-0-521-13872-7. £38]
In this book, Brian Lepard explores the conceptual and practical enigmas of customary international law, and promotes a new theory aimed at resolving them. This is an ambitious undertaking. The precise definition, scope and content of customary international law are perplexing challenges for students, academics and diplomats alike. A fresh perspective on both the challenges of customary international law, and more importantly, a new way to approach these, is therefore of great interest.
Brian Lepard is Alumni Professor of Law at the University of Nebraska College of Law and Co-director of the University’s Human Rights and Human Diversity initiative. This book is part of the ASIL Studies in International Legal Theory series, the broad aim of which is to clarify and improve the theoretical foundations of international law by raising the level of public and scholarly discussion about the structure and purposes of the world legal order and how best to achieve global justice through law.
Part one of Lepard’s book (chapters one-three) explains why we need a new theory and sets out some of the conceptual and practical enigmas plaguing customary international law. Conceptual challenges include whether customary international law really counts as law at all, determining the basis for the obligations it creates, the criteria for determining the existence of opinio juris, and the precise character and function of the state practice requirement. Practical challenges discussed include the role of treaties and UN General Assembly resolutions in ascertaining opinio juris, the role of international organisations in the development of customary international law and the application of the persistent objector rule.
Part two (chapters four-five) lays the foundations of Lepard’s new theory. A conceptual model of the authority of international legal norms is developed, drawing on philosophical literature on the subject, including insights from game theory. Key ethical principles relevant to defining and ascertaining the content of customary international law are identified. Drawing on a diverse range of sources including international declarations and treaties, the work of prominent ethical thinkers, natural law theories and religious texts, Lepard puts forward what he calls “unity in diversity” as the preeminent ethical principle (p 78). He then categorises other ethical principles – in increasing order of moral importance – fundamental ethical principles, compelling ethical principles and essential ethical principles.
Relying on these principles, part three (chapters six-eleven) sets out Lepard’s new theory and uses it to resolve some of the conceptual enigmas identified above. Article 38 of the ICJ Statute defines custom as consistent state practice coupled with an opinio juris. Lepard proposes, in essence, that customary international law should largely be defined by opinio juris, with state practice simply evidence of opinio juris. This theory is guided by three main principles – traditional rules for identifying customary international law should be accorded respect, fundamental ethical principles in international law ought to be used as a guide in interpreting and applying the traditional rules, and ideally, states should help customary law evolve so that it better reflects and implements the ethical principles (p 97).
In part four (chapters 12-20), Lepard applies his theory to resolve some of the practical enigmas of customary international law. Of particular interest is his discussion on the role of international organisations in forming or changing customary international law. Here, Lepard takes rather a state- centric approach, arguing that the primary role of international organisations is to provide evidence of the opinio juris of states rather than to engender any required “state practice” or even organisational practice.
Part five (chapters 21-24) comprises four case studies applying Lepard’s theory: international rules allocating income for tax purposes; international human rights in general; determining the customary law status of specific human rights; and the right to change one’s religion or belief. Chapter 24 on the right of adults to change their religion or belief is of particular interest. Lepard refers to various international treaties (and their travaux preparatoires), verses from the Koran, and the close proximity to the principle of unity in diversity to conclude (p 364) that there is ample evidence that freedom to change religion or belief should be recognised as a customary international legal norm with binding authority.
The final part (chapter 25) summarises the key elements of Lepard’s theory, and usefully puts forward and responds to the likely critiques of the theory and its application. This part is pithy and very useful for the less well-informed reader in order to appreciate wider perspectives on some of customary international law’s mysteries.
The book is explicitly multidisciplinary and draws widely on ideas from ethics, legal theory, philosophy, political science and game theory. The breadth of research is impressive. Cases from as far afield as Israel, Namibia, Tonga and New Zealand are cited. The rather daunting length of the book, and on such an intensely complex subject, is offset by its accessibility. It is easy to read, either as a whole or by dipping into individual chapters. Customary International Law: A New Theory with Practical Applications is likely to be of interest to international lawyers, diplomats, academics and the very keen student. Given the focus of three of the four case studies, it will be of particular interest to those working in the human rights area.
Lepard’s aim was to articulate a comprehensive theory of customary
international law which resolves the various conceptual
and practical enigmas
with which it is associated. He is certainly successful in setting out a
comprehensive theory of customary
international law. However, whether this
theory will successfully resolve the numerous conceptual and practical enigmas
in the context of customary international law, or indeed be relied on
by those actors required to identify customary international
law in any given
situation, remains to be seen. In any case, this book does make a novel and
significant contribution to the field
of international legal
University of Canterbury
1 (Princeton University Press, 1971).
2 See also eg the review by Naomi Hart and Ben Saul (2010) Australian International Law Journal 255-259.
3 Some internet searching suggests that this individual is probably a diplomat serving in the International Legal Affairs Bureau of Japan’s Ministry of Foreign Affairs. The authors also explain that when referring to oriental names in this book, they attempted “to follow the practice of the area, which is to use surname first, with a comma between the surname and first name” where this is done so – accordingly, for example, they refer to “Dr Murai, Noboyuki” (p 3). In our view, inserting a comma is not standard practice and disrupts the sentence flow unnecessarily; and, indeed, it is quite common practice in English language literature to put the surname last.
4 See eg Leonard Schoppa Bargaining with Japan: What American Pressure Can and Cannot Do (Columbia University Press, New York, 1997).
5 Kent Anderson and Trevor Ryan “Japan: the importance and evolution of legal institutions at the turn of the century” in Ann Black and Gary Bell (eds) Law and Legal Institutions in Asia: Traditions, Adaptations and Innovations (Cambridge University Press, Cambridge, 2011) at 120.
6 See eg Glenn Hook and Gavan McCormack Japan’s Contested Constitution: Documents and Analysis (Routledge, London, 2001).
7 The domestic political controversy surrounding the 1960 treaty led to the resignation of Prime Minister Nobusuke Kishi.. Boister and Cryer mention in passing that Kishi had been arrested but was released before trial as a Class A suspect for IMT proceedings, and that he was the grandfather of the “later controversial Prime Minister” Shinzo Abe (p 317 n 117) – who visited Justice Pal’s son in India to pay his respects while on a visit to India in 2007 (p 319).
8 Guntram Rahn Rechtsdenken und Rechtsauffassung in Japan [Legal Thought and Conceptions of Law in Japan] (CH Beck, Munich, 1990). See also Luke Nottage “Contract Law, Theory and Practice in Japan: Plus ca change, plus c’est la meme chose?” in Veronica Taylor (ed) Asian Laws Through Australian Eyes (Law Book Company, Sydney, 1997) at 316.
9 See eg Takao Tanase Community and the Law: A Critical Reassessment of American Liberalism and Japanese Modernity (Luke Nottage and Leon Wolff trans, Edward Elgar, Cheltenham, 2010), reviewed by Trevor Ryan at <http://blogs.usyd.edu.au/japaneselaw/2011/02/guest_ blog_community_and_law.html> .
10 See generally Daniel Foote “Introduction and Overview: Japanese Law at a Turning Point” in Daniel Foote (ed) Law in Japan: A Turning Point (University of Washington Press, Seattle, 2007) at xix.
11 The authors note that various challenges faced by Japanese defence counsel, including English language ability and unfamiliarity with adversarial processes, led the Tribunal to request SCAP to provide one American defence counsel as well for each of the 28 accused. Six came from the US Navy, then 15 from the US Department of Justice, with a total ultimately of 26 – still not enough to go around, at the start of the defence case (p 79). Justice Northcroft later described the American defence counsel as “technical and obstructive to the greatest degree”, with SCAP even dubbing them “American shysters” (p 80). It would be interesting to trace their subsequent careers, especially any who stayed on in Japan.. Several other lawyers who arrived from the US during the Occupation to practice law were ‘grandfathered’ and able to stay on as Japanese bengoshi lawyers – with full rights to practice and establish a law firm, several of which survive in one form or another. We are grateful to Professor Mark Levin (University of Hawai’i) for alerting us to this point.
12 For example, Boister and Cryer point to the role played by Tokyo IMT documentary evidence in public debates engendered in 2007 by then Prime Minister Abe’s denial of Japanese government responsibility for ‘comfort women’ during World War II.
13 See <http://library.canterbury. aclmb/warcrimes/toc.shtml> .
14 Robin Kay (ed) Documents on New Zealand’s External Relations, Vol. II, The Surrender and Occupation of Japan (Historical Publications Branch of the Department of Internal Affairs, 1982).
15 See the brief biographical introduction by Christopher Joyner “Burning International Bridges, Fuelling Global Discontent: The United States and Rejection of the Kyoto Protocol” (2002) 33 VUWLR 27.
16 For a general review of the position of women in the world see: Department of Economic and Social Affairs of the United Nations The World’s Women 2010: Trends and Statistics, (United Nations, New York, 2010).
17 European Commission’s Expert Group on Gender and Employment (EGGE) Gender Segregation in the Labour Market: Root Causes, Implications and Policy Responses in the EU (Luxembourg: Publication of the European Union, 2009) at 48.
18 B Smith “Not the baby and the bathwater: regulatory reform for
equality laws to address work-family conflict”  SydLawRw 30; (2006) 28 Sydney Law Review
689 at 701
19 See for example C McCrudden “The Effectiveness of European Equality Law: National Mechanisms for Enforcing Gender Equality Law in the Light of European Requirements” (1993) 13 Oxford Journal of Legal Studies 320.
20 European Parliament resolution of 3 September 2008 on how marketing and advertising affect equality between women and men [2008/2038]; the Opinion of the European Economic and Social Committee on “The roadmap for equality between women and men (2006 – 2010) and follow-up strategy” [2010/C 354/0] and Advisory Committee on Equal Opportunities for Women and Men Opinion on “Breaking gender stereotypes in the Media”.
21 H M T Holtmaat, and R C Tobler “CEDAW and the European Union’s Policy in the Field of Combating Gender Discrimination” (2005) 12 Maastricht Journal of European and Comparative Law 399.