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Toomey, Elizabeth; Warnock, Ceri; Gledhill, Kris; Smith, Stephen Eliot; al Attar, Mohsen --- "Book Reviews" [2011] NZYbkIntLaw 19; (2011) 9 New Zealand Yearbook of International Law 393

New Zealand Yearbook of International Law

Book Reviews [2011] NZYbkIntLaw 19 (1 January 2011); (2011) 9 New Zealand Yearbook of International Law 393

Last Updated: 14 July 2015

Property Rights and Sustainability
The Evolution of Property Rights to Meet Ecological Challenges

Edited by David Grinlinton and Prue Taylor
[Leiden: Martinus Nijhoff Publishers, 2011, 415pp.
ISBN13: 9789004182646. US$192.00]

Property Rights and Sustainability. The Evolution of Property Rights to Meet Ecological Challenges comprises the eleventh volume in the Martinus Nijhoff series on Legal Aspects of Sustainable Development published under the general editorship of David Freestone. The series publishes work on all aspects of the international dimensions of the concept of sustainable development and this book fits well within the collection.

The editors have collated fifteen essays that focus on the role of property rights and duties in the sphere of sustainable development. Many of the essays began as papers delivered at an international law conference on property rights and sustainability hosted by the New Zealand Centre for Environmental Law in April 2009. The resulting work is impressive and, as David Freestone comments, is “at the cutting edge of scholarship on this somewhat neglected area of sustainable development law”.1

The first chapter, written by the editors, encapsulates the fundamental theme in the collection – the necessity of property laws, in particular property rights, to change or evolve to meet the ecological challenges of our modern world. It invites us to challenge the primacy of private property rights and to reconcile the exercise of private freedom with a sense of delegated responsibility for an ecologically sustainable world. The authors’ suggestion that, despite more than forty years of environmental law development, fiercely guarded property rights together with the belief that an economy can grow beyond ecological limits create legal incentives for ecological harm, sets a useful platform for the succeeding commentaries.

The other fourteen chapters are loosely divided into three parts: theoretical perspectives on property rights and sustainability; differing cultural approaches to property rights in natural resources; and changing conceptions of property and the challenge of accommodating principles of sustainability in the ownership and use of natural resources. As the chapters cover a diverse range of topics, there can be no perfect fit within these three parts. The editors have made a commendable effort in this regard although I felt that some essays might have been paired differently to enhance the flow of similar ideas, and Chapter 15 (“International Law’s Protection of Foreign-Owned Property against Uncompensated Expropriation: Preserving Host State Regulatory Freedom”), while extremely valuable in its own right, perhaps struggled to find a home in any of the three parts.

The first part comprises seven essays.

Klaus Bosselmann (“Property Rights and Sustainability: Can They Be Reconciled?”) (Ch 2) promotes the importance of balancing private rights for use with public demands for protection and suggests that we must find a way to reconcile property rights and sustainability. This will only be successful if we set aside individualism and greed and develop a sense for the common good. He makes it clear that the inevitable hurdles in this challenge “have little to do with legal constructs, but everything to do with associated values”.2

These associated values are also criticised by Samuel Alexander in “Property Beyond Growth: Towards a Politics of Voluntary Simplicity” (Ch 6). He expounds the ethics of voluntary simplicity, the grounding assumption of which is that “human beings are inherently capable of living meaningful, free, happy and infinitely diverse lives, while consuming no more than an equitable share of nature”. Simply, “those who know they have enough are rich”.3 Voluntary simplicity (which does not mean living in poverty or becoming a monk) provides an attractive alternative to the trimmings of our current capitalist society and will, sooner or later, demand political recognition.

This theme is further developed in Craig Anthony Arnold’s essay, “Sustainable Webs of Interests: Property in an Interconnected Environment” (Ch 8). Arnold attacks the concept that property is a “bundle of rights” that is based on the idea of a “bundle of sticks” with each stick representing a different right or entitlement.4 He argues that this concept treats both the resources that are the object of private property rights and the holders of them as disconnected from the ecological and social environments in which they exist. He suggests an alternative concept, one that treats property as a “web of interests”. Under this umbrella, interests are defined by the particular characteristics of the object of the property and by the interconnected relationships that people, entities and institutions form with respect to the particular object.5 With a particular focus on land and water, he examines how the adoption of this concept would help recognise that property institutions contain not only individual rights but also shared interests and stewardship responsibilities.

In his essay, “Taking Property Seriously” (Ch 3), Eric Freygoyle focuses on the private ownership of nature itself (for example land and water) and draws a distinction between these rights and property rights in other things such as chairs or drug patents. He notes that the former rights do not exist primarily to promote and protect individual liberties but rather to promote the common good. Private property is a community tool that must be well- crafted to serve the community well.

Nicole Graham in “The Mythology of Environmental Markets” (Ch 7) takes a similar stance. She suggests that property law is more than a regulation of abstract legal relations between people and that property rights are not merely economic tools. The latter do not simply serve an economy but rather define the paradigm to which an economy belongs.

J Robert Engel endorses calls for a new “Earth covenant” in his essay “Property: Faustian Pact or New Covenant with Earth” (Ch 4). He notes that while the Earth Charter is the most comprehensive instrument to date, it is still a work in progress and, significantly, does not mention the word “property”. We must strive to define a new covenantal theory of property but cannot do this without mending the divide between the religious and secular sources of our societal commitments.

Peter Horsley (“Property Rights Viewed from Emerging Relational Perspectives”) (Ch 5) examines the development of Western property rights in the 17th and 18th centuries and notes the difficult challenges we face in replacing our outmoded perceptions with new frameworks and ideas consistent with 21st century ecological reality. He offers three suggestions: academic and legal debate must examine practical legal concerns from three perspectives – epistemological, transdisciplinary and relational; public debates must examine our legal, policy and governance frameworks for protecting the environment; and we must make a paradigm shift from ownership to relationship, recognising that we do not own nature but rather have a relationship with it.

There are three essays in Part 2.

In “Elusive Forms: Materiality and Cultural Diversity in the Ownership of Water” (Ch 9) Veronica Strang, drawing on research in Australia, considers the notions of ownership in relation to water. She concludes that it is impossible to separate water either from the land or its inhabitants and while that reality is encompassed in Aboriginal law it is not so visible in the larger non- indigenous Australian environment. She observes that the examples used in Hardin’s “Tragedy of the Commons”6 (often used to promote privatisation as against collective management for efficient sustainability) relate to “open access” rather than “common ownership”7 and that many limited common property regimes (for example, the Aboriginal regime) have demonstrated successful long-term sustainability. She explores alternate ways of owning water that constitute a range of counter-claims to exclusive legal constructions. These counter-claims promote more fluid forms of ownership and can be seen as “a call for reconciliation between the diverse groups who inhabit Australia, and between economic activities and the social and environmental context in which these take place”.8

Lee Godden in “Communal Governance of Land and Resources as a Sustainable Property Institution” (ch 11) also investigates the claims that communally held land and resources are less sustainable and more vulnerable to exploitation than private property forms. He suggests that such blunt categorisation ignores the “highly porous nature”9 of property relationships in indigenous and local communities, and analyses prospects for effectively combining customary and communal land and resource governance with elements of the Western systems of property, title and tenure.

Nin Tomas in “Maori Concepts of Rangatiratanga, Kaitiakitanga, the Environment, and Property Rights” (ch 10) uses a Maori conceptual framework to examine human perceptions of the natural environment and, pursuing the thread of a fundamental theme in the book, challenges some aspects of Western thinking. She considers that the Resource Management Act 1991 has “skewed” thinking away from “ownership” and toward “sustainable management” of resources thus concentrating on the broad value of the environment to humans at the expense of the interests of individuals. In any event, she questions the extent to which this Act can intervene successfully on behalf of environmental protection and sustainable management. Despite its diversity of values, it still has to be implemented “atop a Western individual property rights regime”.10 She uses the Waikato River Agreement that was entered into in 2008 between Waikato Iwi and the Crown as a potential exemplar for future shared-resource management schemes in New Zealand. She urges that we desist from viewing the environment “as an unfettered playground available for exploitation” and see it “as a living organism with independent wairua, mana, tapu, and mauri bound together by whakapapa”.11

There are four essays in Part Three.

David Grinlinton reviews the evolving nature of property rights in “Evolution, Adaptation and Invention: Property Rights in Natural Resources in a Changing World” (ch 12). He investigates the traditional property rights in natural resources (land, water, air, forests, fisheries, Maori customary rights, and general town planning and water and soil conservation methods) and how some of those rights (land, air and water) have been managed under the Resource Management Act 1991. He then explores other statutory measures that modify property rights in minerals, fisheries, forestry and greenhouse gas emissions. With respect to Maori customary rights, he foreshadows the repeal of the Foreshore and Seabed Act 2004. This has since occurred and s 6 of the Marine and Coastal Area (Takutai Moana) Act 2011 restores any customary interests in the common marine and coastal area that were extinguished by the 2004 Act.12 He notes the introduction of new forms of quasi-property rights that include resource consents under the Resource Management Act 1991, mining permits and access arrangements under the Crown Minerals Act 1991 and individual transferable quotas under the Fisheries Act 1996. In his conclusion, he urges that while many of the current natural resource management systems incorporate, to a greater or lesser extent, sustainability, they must also accommodate all values that go well beyond those of financial markets or economic utilities.

The authors of “Property Rights across Sustainable Landscapes: Competing Claims, Collapsing Dichotomies, and the Future of Property” (ch 13), Ann Brower and John Page, use the iconic baches (the New Zealand term for tiny one-room shacks) on the Taylors Mistake beach in Christchurch New Zealand to investigate the use of property rights as a tool for promoting sustainable landscapes. The baches are privately owned but the Christchurch City Council publicly owns the land beneath them. These baches provide a platform from which the authors explore several distinctions that are necessary for understanding the political economy of property: public versus private, the few versus the many, I want versus I am entitled, law versus custom, and standing up versus giving in. They discover that these dichotomies are less distinct than generally perceived. Acknowledging Craig Arnold’s theories, they then scrutinise the “bundle of sticks” metaphor. While they consider that metaphors such as “webs of interests”13 or “conscious jigsaw puzzles”14 might be more appropriate, they accept that, viewed correctly, the theoretical flexibility of the bundle theory enables the necessary dynamic of change. “Divisible, flexible, dynamic bundles of sticks in mosaics of public, private, or communal rights might be one way of ‘seeing’ anew the metaphor of property across diverse landscapes”.15 In their conclusion, they offer several possible outcomes for the future of property.

In her essay, “South African Natural Resources, Property Rights, and Public Trusteeship” (ch 14), Elmarie van der Schyff investigates the impact of the introduction of the legal concept of “public trusteeship” on the current property rights regime in South Africa. The fundamental concept of public trusteeship is that the state has a sovereign’s duty to act as custodian of certain interests to benefit the public as a whole. She observes that while property “clothed” in this concept has been converted from private to public property and has changed its nature, the concept’s influence has had a much more wide-ranging effect: it allows public property rights to determine the extent of private property rights that can be attained in specific resources and burdens the government with the responsibility of balancing public and private law.

Amokura Kawharu, in her essay “International Law’s Protection of Foreign-Owned Property against Uncompensated Expropriation: Preserving Host State Regulatory Freedom” (ch 15), investigates the international law regarding expropriation of foreign-owned property, considers the intersection between investor protections and sustainable development and then focuses on relevant investor-state dispute settlement cases and the recent treaty- making practice of states with respect to the expropriation rule. As tribunals and states have adapted to changed circumstances, the relevant law has changed significantly. The essay promotes greater harmonisation between international law’s existing investor-protection regime and environmental values in order to allow states necessary regulatory freedom to respond to ecological challenges.

There is a wealth of knowledge on property rights and sustainability in this collection of essays. This is enhanced by a very comprehensive bibliography, chapter by chapter, enabling any reader to pursue further the theories and arguments presented. The book is both important and timely and emphasises the challenges we face in protecting our environment.

Elizabeth Toomey
University of Canterbury, New Zealand

1 D Grinlinton and P Taylor (eds) Property Rights and Sustainability. The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff Publishers, Leiden, 2011) vol 11 in David Freestone (ed) Legal Aspects of Sustainable Development (Martinus Nijhoff Publishers, Boston, Leiden).

2 Klaus Bosselmann “Property Rights and Sustainability: Can They Be Reconciled?” in D Grinlinton and P Taylor, ibid, at 42.

3 Samuel Alexander “Property Beyond Growth: Towards a Politics of Voluntary Simplicity” in D Grinlinton and P Taylor, above n 1, at 147, citing Lao Tzu “Tao Te Ching” in Less is More; The Art of Voluntary Poverty Goldian Vanenbroeck (ed) (Inner Traditions, Vermont, 1991) at 116.

4 Craig Anthony Arnold “Sustainable Webs of Interests: Property in an Interconnected Environment” in D Grinlinton and P Taylor, above n 1, at 168 citing Gregory S Alexander Commodity and Property: Competing Visions of Property in American Legal Thought, 1776-1970 (University Press of Chicago, Chicago, 1997) at 319-23 and 381-82; Carol M Rose Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership (Westview Press, Boulder, 1994) at 278-81; J E Penner “The ‘Bundle of Rights’ Picture of Property” (1996) 43 UCLA L Rev 711; Jeanne L Schroeder “Chix Nix Bundle of Sticks: a Feminist Critique of the Disaggregation of Property” (1994) 93 Mich L Rev 239; Kenneth J Vandevelde “The New Property of the Nineteenth Century: The Development of the Modern Concept of Property” (1980) 29 Buff L Rev 357.

5 Ibid, at 168, citing his own work: C A Arnold “The Reconstitution of Property: Property as a Web of Interests” (2001) 26 Harv Envtl L Rev 281.

6 G Hardin “The Tragedy of the Commons” Science 162 (1968) 1234.

7 Veronica Strang “Elusive Forms: Materiality and Cultural Diversity in the Ownership of Water” in D Grinlinton and P Taylor, above n 1, 199 citing E Ostrom Governing the Commons (Cambridge University Press, Cambridge, 1990).

8 Ibid, at 216.

9 Lee Godden “Communal Governance of Land and Resources as a Sustainable Property Institution” in D Grinlinton and P Taylor, above n 1, at 251.

10 Nin Thomas “Maori Concepts of Rangatiratanga, Kaitiakitanga, the Environment, and Property Rights” in D Grinlinton and P Taylor, above n 1, at 232.

11 Ibid, at 246-7.

Compensation for Environmental Damages under International Law:
The Role of the International Judge

Tarcisio Hardman Reis
[The Netherlands: Kluwer Law International, 248pp, 2011.
ISBN 13:9789041134370. US$135.00]

Principle 13 of the Rio Declaration on Environment and Development (1992) calls upon states to:

develop further international law regarding liability and compensation for adverse affects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.

Yet despite this there is still an absence of clear norms in international law concerning compensation for environmental harm. This is the complex and fascinating problem that Tarcisio Hardman Reis grapples with in Compensation for Environmental Damages under International Law: The Role of the International Judge.

Writing in 2001, Michael Bowman suggested that a lack of clear principles in this area stemmed from the fact that there was so little international litigation addressing environmental damage from which to derive legal principles (Michael Bowman and Alan Boyle (eds) Environmental Damage in International and Comparative Law: Problems of Definition and Valuation (Oxford University Press, Oxford New York, 2002) chapter 1). The present book attempts, in part, to counter that deficit. The research is approached from the perspective of practice rather than theory and the author trawls a large number of decisions from international tribunals and bodies, in addition to treaty law and materials from international organisations, in order to extract the main elements of “fair” compensation in international law. He then moulds these principles to fit the particularities of environmental harm where possible and highlights the need for further developments where necessary. At the outset, Hardman Reis clarifies that the focus of his study is restricted to environmental damage caused by trans-boundary conflict, occurring in times of peace, and governed by international public law (at p 10). Further, in the introductory chapter we are informed of his thesis: “the ambiguity of international standards allows the adjudicator to adapt the compensation to better address environmental interests” but to ensure a degree of consistency, and in order to promote full environmental compensation, a taxonomy will be proposed to be used in cases concerning environmental damage (at p 9). Full environmental compensation is described as “privileging the intrinsic value of the environment” (p 9) and Hardman Reis suggests that his proposal will provide for this.

The book begins by exploring the many complexities inherent in trying to derive international norms for environmental compensation. Damages will be a consequence of breach but the manner in which the primary obligations are categorised will influence the approach to compensation. So, for example, if the harm is categorised as a breach of property rights, compensation will only be obtainable by the owner and there will be no compensation to the environment if the owner himself is the transgressor. In contrast, predicating a cause of action on the breach of “environmental rights” may enable full reparation. Of necessity, Hardman Reis turns primarily to national laws to illustrate the great diversity in approach taken to this issue. He touches upon the relevance of property rights, common law tort principles, human rights, the public trust doctrine, constitutional mores and statutory regimes for managing the environment, but he also refers to international cases and treaty law. He surmises that this great diversity discredits the idea that “a single form of compensation for environmental damages may be originated based on the existing rights” (at p 52).

In the second chapter he adds to the difficulties by asserting that “environmental rights are not recognized as a fundamental norm in international law”, certainly any recognised generalist principles are “obligations of conduct and should not be considered as obligations that could be enforceable” (at p 56). The efforts of international bodies to define environmental damage, to de-couple it from property rights and to separate out the assessment of environmental damages as distinct from economic loss are outlined, but the fundamental concern remains: the existing rules of international responsibility are “inadequate to deal with the problem of environmental damages” (at p 75).

Sidestepping for a moment this fundamental problem, the author turns to an exploration of compensation principles apparent in general international law. His specific focus in Chapter 3 is to determine what he terms the “objective elements” of compensation (at p 77). In particular he explores the meaning of and varying approaches to restitution in integrum and contrasts the ideas of full versus adequate compensation. Chapter 4, in contrast, considers the “subjective approach” of the international tribunal to “fair, adequate or full compensation” on the facts of the case (at p 115). Differing theories of compensation, ie distributive as opposed to corrective justice, may influence tribunals and will, depending upon the theory adopted, result in different components of compensation assuming priority. Hardman Reis argues that both theories have a critical role to play in facilitating full environmental compensation. He posits that the necessary “subjective” considerations of the tribunal include: respect to the will of the parties; equity, reasonableness and proportionality (as an application of distributive justice); economic arguments (as an application of corrective justice); and sanctions (at p 154). The penultimate chapter adds to the elements to be included in this taxonomy. The principles of international environmental law (revealing an emphasis on prevention), the incorporation of scientific and technical information, the encouragement of relevant third party involvement, and taking cognisance of the conduct of the parties, should all contribute to informing the decision. Returning to his premise that a “single form of compensation” is unachievable, one can, he argues, nevertheless provide a general framework for compensation that will be applicable to all cases.

The comprehensiveness of Hardman Reis’ list of elements does however, highlight a difficulty. Guidelines that include every possible consideration and leave out nothing of relevance can be problematic as tensions often arise between different considerations. If no indication of priorities is given, the “environment” is liable to be sidestepped once again in a process that affords too great a discretion to the decision-maker. Seemingly in an attempt to avoid these difficulties, Hardman Reis proposes that agreement between the parties should dominate if the “damage is minimal”, equitable and economic considerations be applied “whenever the damage is substantial and/ or affecting third parties” and sanctions be applied whenever the “damage is considered to be of grave consequences” (at pp 154-155).

In this reader’s analysis, the ideas contained within this book are thought provoking, the subject matter stimulating, and Hardman Reis clearly has a wide knowledge of his subject. But perhaps he attempts to cover too much ground. In such a pithy book, a particular degree of abstraction is necessary as dense text and intricate detail only serves to obscure the main arguments. For example, in the introduction Hardman Reis suggests that his proposal will address compensation for the intrinsic value of the environment. However, if any convincing argument is made to this effect it becomes subsumed by the details of the text and successfully hidden, only to re-emerge in the conclusion. The result is that Hardman Reis’ ideas are good but the execution needs polishing, and the reader has to work hard to follow the thread of the argument. This is a book that undoubtedly advances the discipline and is crammed full of research, but in the absence of specialist knowledge readers may wish to turn first to other texts (for example, Bowman and Boyle cited above, or P Wetterstein (ed) Harm to the Environment: The Right to Compensation and the Assessment of Damages (Clarendon Press, Oxford, 1997) before attempting Hardman Reis’ work.

Ceri Warnock
University of Otago, New Zealand

Freedom from Poverty: NGOs and Human Rights Praxis

Daniel PL Choong

[Philadelphia: University of Pennsylvania Press, Philadelphia, 2010, 323pp.
ISBN 978-0-12-2242522. US$55.00]

The human rights framework is usually seen as beginning with the Universal Declaration of Human Rights 1948, which in 30 fairly simple clauses sets out principles designed to avoid what had so badly gone wrong during the Second World War. It includes, in arts 22-27, rights to social security, work and protection from unemployment, a just rate of remuneration, rest and leisure, and an adequate standard of living; and also to education and to share in cultural life and scientific progress.

New Zealand played a significant role in ensuring that the Universal Declaration was drafted in a way that did not draw distinctions between what have since been divided as “civil and political” or “economic, social and cultural” rights. In his speech on behalf of New Zealand on the adoption of the UDHR (as recorded in “New Zealand and the Origins of the Universal Declaration” (1999) 29 VUWLR 1 at 5), Colin Aikman, the Ambassador to the UN, stated – relying on New Zealand’s early adoption of provisions designed to provide social security and the fact that humans are social animals – that “the assertion of the right of personal freedom is incomplete unless it is related to the social and economic rights of the common man. ... social and economic rights can give the individual the normal conditions of life which make for larger freedom.” His point was that these rights had to be secured in order to allow humans to live fully and that governments should make this part of their task. The context, of course, was that the push to develop a human rights legal framework was a response not only to the horrors of the Second World War but also to the economic depression of the pre-War years.

However, the history of the further development of the framework was that civil and political rights were viewed as being of a different nature, in that they should be guaranteed and could have enforcement mechanisms to assist their realisation, whereas economic, social and cultural rights were targets to be secured within the resources available to the state. A further part of this context was the Cold War dispute about the best governmental system that would allow resource-dependent rights to be secured. In the more free market-oriented states of the so-called Western world, these differences turned into legalistic distinctions between what was justiciable and what was not: courts could police civil and political rights but not economic, social and cultural rights.

In the first two chapters of “Freedom from Poverty”, Daniel Choong outlines the process whereby economic, social and cultural rights were separated, and also how they were given a lesser status because they did not have the apparently objective status of positive law: they were viewed instead as matters of politics and morality. Another aspect of this was that leading NGOs also emphasised the importance of securing civil and political rights.

He then argues that this process of legalisation is not the only method whereby human rights can be promoted. The main substance of the book follows. In three chapters, he outlines the methodologies that have been used by various types of NGO that have adopted the promotion of the right to a basic level of subsistence as a fundamental right despite its economic nature. Chapter 3 looks at the approach of the traditional human rights NGOs such as Amnesty International, which gradually moved away from the idea that promoting economic rights would devalue its core message to accepting that freedom from poverty was a core right that it should promote: this reflected the ongoing prevalence of poverty, the call from the southern hemisphere to do something that mattered there and the interest of activists in tackling poverty issues. But also key was that major funders were willing to be involved in the discourse.

Chapters 4 and 5 trace the actions of social justice organisations and of humanitarian organisation in this field. What Choong’s book does, in a readable and informative way, though always with elements of proper analysis intertwined, is describe the rehabilitation of the idea that basic living standards merit being ascribed standing as a fundamental right that stands on a par with the civil and political rights that are now accepted to be universal: but he does so by showing that it was achieved without legal capture. He notes that the social justice organisations used the language of morality rather than of legal rights because it involved more comprehensible terminology, but began to adopt a rights-based approach in order to move from the idea that relief from poverty was a matter of charity to the concept that it is an idea rooted in justice. Similarly, when describing the activities of humanitarian organisations such as Oxfam, he notes that rights-based approaches have involved such NGOs as seeing themselves as involved in a political struggle to promote rights rather than as seeking to pass on technological assistance to poor beneficiaries.

The conclusion to which Choong comes, which he sets out in his final chapter, is that phrasing the right to subsistence as a moral right, rather than as a right of the sort that is contested in courts, has been beneficial because it has allowed the essential morality of the human right to be free from poverty to be re-established. This in turn has allowed its contestability in the political sphere. He notes that a socially-accepted right may be more important than a legal right that does not change behaviour because it is not accepted.

This is a short but interesting text, written in a US context but with potential value in other jurisdictions. It raises the question of the best way of securing rights. It is no doubt true that classifying something as a legal right is not by itself enough to secure its acceptance. But Choong notes that organisations which have started from the proposition that it is immoral to leave people in abject poverty have also found it beneficial to speak in rights terms, including legal rights. Rather, the message he presents, is that a strategy should rely on a multi-faceted approach so that a right has both a political and a legal legitimacy.

Kris Gledhill
University of Auckland, New Zealand

The Principle of Legality in International and Comparative
Criminal Law

Kenneth S Gallant
[Cambridge: Cambridge University Press, 2009. 603pp.
ISBN: 978-0-521-88648-2]

This well-written book by Kenneth S Gallant is about the principle of legality, a criminal law concept that is traditionally summarised by the double- barrelled legal maxims nullum crimen sine lege and nulla poena sine lege. The first means that nothing is criminal unless provided by law; the second means that there is no punishment unless a law so authorises. Both concepts are typically introduced early on in legal education, and to the lawyer and layperson alike, they have a certain intuitive sense of logic and fairness that is difficult to dispute. Blackstone took the principle almost for granted and summed up the meaning of the two maxims by simply stating that they create a “rule against ex post facto laws”. Since then, as Gallant documents exhaustively in the appendices of the book, the concept has been adopted in one form or another into virtually every criminal jurisdiction in the world. The principle of legality can also be found in a significant number of near-universal international agreements, including the Universal Declaration of Human Rights (UDHR), the 1949 Geneva Conventions, and the International Covenant on Civil and Political Rights. Although he does not commit to a position on the issue, Gallant presents convincing evidence that the principle of legality is jus cogens – a peremptory norm of international law from which there can be no legitimate derogation.

However, one of the points of Gallant’s book is that the near-universal agreement on the principle of legality is unusual and is in fact a strikingly recent development. In this sense, the book is as much about history as it is about law. The trial of the Nazi war criminals before the International Military Tribunal (IMT) at Nuremburg is typically cited by other authors as the seminal example of the purity of the principle of legality being set aside in the service of practical expediencies. At the 1945 London Conference, the Allies struggled mightily on the issue of the retroactive nature of the proposed crimes with which the Nazi leadership would be charged. There was a general recognition that the Nazis should be punished not only for crimes committed in conquered territory, but also for those committed within its own pre-war borders. There was also a growing consensus among all Allied countries –although the idea was advanced most forcefully by the Soviet Union – that the waging of the war itself must be punished as a criminal act. As early as 1942, Churchill had recognised the problems of ex post facto criminalisation that would arise from such a course. To avoid the legal problem entirely, Churchill proposed summary execution for Nazi leaders, but for varying reasons, Stalin and Roosevelt both pushed Churchill to agree to a formal trial. Once a trial had been agreed to, it was the French that most strenuously challenged the Conference on the ex post facto dilemma. Ultimately, as Gallant explains, the Nuremburg Charter was drafted to be deliberately vague and ambiguous on the principle of legality: in addition to setting out a non-exhaustive definition of “war crimes”, the Charter set out definitions for two new categories of crime, “crimes against peace” and “crimes against humanity”, and simply stated that the IMT “shall have the power to try and punish persons” who committed such crimes.

In its written judgment, the IMT famously declared that nullum crimen sine lege “is not a limitation of sovereignty, but is in general a principle of justice”. In other words, the principle of legality can be overridden by sovereign will, and the Nuremberg Charter was the vehicle for such an exercise of prerogative power. Thus, the very existence of the Charter was conclusive evidence of the validity of the crimes described by it. Much has been written on the IMT’s holdings on the principle of legality, and the ex post facto nature of the IMT prosecutions is most often regarded as the principal stain on the legacy of Nuremberg. Nevertheless, Gallant demonstrates convincingly that the IMT judgment presents an accurate characterisation of the principle of legality as it stood in 1946. Such arguments have been made before, and Gallant breaks no new ground here. At the same time, what makes Gallant’s work truly valuable and unique is his clear outline of how the treatment and perception of the principle of legality has changed in the decades since Nuremberg. He thereby demonstrates that one of the great ironies of Nuremberg is that it has directly led to the developments that now require us to view the IMT prosecutions as inherently flawed and unfair.

Gallant’s book deftly traces the development of the principle of legality in a three-pronged post-Nuremberg path: first, through the wide acceptance of the UDHR and international treaties that established the principle as a fundamental human right; second, through the adoption of the principle into municipal criminal law jurisdictions, typically through constitutional entrenchment but also through regular statutory enactment; and third, through the adoption of the principle as a foundational principle of the post- Nuremberg international (and internationalised) criminal tribunals and of the permanent International Criminal Court. While the first two developments have occurred more or less simultaneously and in tandem since Nuremberg, the third prong – which in the international context has served to put into practice what the treaties have generally only dealt with on a conceptual or theoretical level – is a more recent development of only the past two decades.

The result, Gallant notes, leaves us in a position where the principle of legality is a concept that today “[n]o national, international, or comparative criminal jurisprudence can ignore”. Accordingly, this book will be of some interest to anyone involved in international criminal law, comparative criminal law, or international human rights law; but to the legal historian, the book has a worth that is seldom found in a single work.

Stephen Eliot Smith
University of Otago, New Zealand

War, Commerce, and International Law

James Thuo Gathii
[Oxford: Oxford University Press, 2010. 304pp.
ISBN: 139780195341027]

In May 2012, the Argentinian government renationalised the oil and gas company YPF (of which Spanish energy giant Repsol owned 57% of shares).1 The decision was made because of YPF’s alleged failure to maintain production levels commensurate with Argentina’s economic growth, leading to a rise in imports and a corresponding decline in foreign currency reserves. To address YPF’s failings, Argentina is reassuming a controlling interest in the oil company.

Nationalisation, of course, runs counter to the dominant economic ideology of the past three decades – neoliberalism – and the decision has generated much ire from free-market fundamentalists. Pierpaol Barbieri, a fellow at Harvard’s Kennedy School of Government, decries the Argentinian move as an act of “economic folly” that is likely to exacerbate “falling competitiveness, rampant corruption, and [the further] collapse of productive investment”.2 Daniel Altman, of the Stern School of Business at New York University, styled both the act and the Argentinian government as “self- destructive”.3 And Maria Leitao, identified as “one of Brazil’s most influential columnists on economic issues” by the New York Times, echoes both Barbieri and Altman, lambasting the government rather exhaustively – “Argentina’s capacity to err seems unlimited”4 – for its apparent decade of failed policies.5

Yet, upon closer examination, the decade appears much less the disaster the pundits contend. Between 2002 and 2011, the Argentine economy grew by 94%, with benefits accruing to a wide cross-section of society.6 Virtually all social indicators, including poverty, unemployment, health and income inequality, have exhibited significant improvement. Mark Weisbrot credits the “miracle” to the increase in social spending implemented by the Argentinian state – from 10.3% to 14.2% of GDP – a policy at odds with the demands of the international financial institutions and antithetical to the austerity packages being unravelled across Europe to deal with the implosion of numerous continental economies.7 To understand the motivation behind the Argentinian volte-face, we turn to Professor James Gathii’s War, Commerce, and International Law.8

Nationalisation programmes, Gathii demonstrates, have long been employed by Third World nations9 to redress what he terms “the legacy of colonial disempowerment”.10 At the forefront of this legacy is a garish imbalance in both liberty and living conditions between “the predominantly raw material producing economies of the capital-importing States and Western industrial economies”.11 Over the years, various efforts have been launched to rectify these disparities including the New International Economic Order, as partially elaborated in the (arguably defunct) Charter of Economic Rights and Duties of States (CERDS). Central to the CERDS was “the right of a State to nationalize foreign-owned property and the right of such a State to use its own law, as opposed to international law, to measure compensation after nationalization.”12

Foreign ownership of key industries in the Third World both historically and contemporarily, and the inevitable repatriation of profits, is a critical factor in “the political economy of extraction and exploitation of the wealth”13 of Third World states and emblematic of the “routine disregard and subordination of non-European peoples to the interests of European powers.”14 Indeed, just as it was during the decolonisation period, the exercise of sovereignty over natural resources today (as per the United Nations General Assembly resolution15) is intended to promote what Argentine President Cristina Fernandez de Kirchner describes as “achieving energy self- sufficiency ... to sustain growth, employment and economic activity”:16 an emancipatory paradigm.

Unsurprisingly, Third World emancipatory projects have met stiff resistance.17 Three examples stand out within Gathii’s text. First, Gathii recounts the decision by the Tribunal of the International Center for the Settlement of Investment Disputes (ICSID), ruling against Libya’s nationalisation of oil concessions in 1973 and 1974 (including its dismissal of the CERDS) “[Arbitrator Rene-Jean Dupuy] rejected Libya’s decision [holding] that Libya’s nationalization of the concessions it had granted alien investors could not be determined exclusively under Libyan law” for the relevant provision in the CERDS lacked the consent of the “most important [W]estern countries.”18 Next was an early 20th century Venezuelan policy known as the Drago doctrine, devised to proscribe the use of force in the collection of sovereign debt, “the public debt cannot occasion armed intervention nor even the actual occupation of the territory of American nations by a European power.”19 This policy aimed at neutralising military power imbalances between Latin American and European states for the latter possessed greater coercive measures than the former. Rather ironically, Britain, Germany and Italy responded by blockading Venezuelan waters to secure a settlement for their national bondholders. Not only did the violence of creditor nations successfully force Venezuelan compliance, but subsequent arbitral proceedings resulted in a favourable judgment for the blockading powers.20

A final example of failed Third World attempts at structural redress of the international legal regime and normative reform of the global political economy was the clean slate theory as embodied in the Nyerere doctrine. In the mid-20th century, many decolonising states objected to their forced subservience to legal obligations acquired during the colonial era, obligations which effectively “legitimized colonial conquests”.21 According to Gathii, “[t]he Nyerere doctrine ... advocated that countries should be able to select only those treaty commitments that best comported with their newly acquired sovereignty.”22 Gathii goes on to show how the clean slate theory withered under First World advocacy for doctrines of state succession and acquired rights, both of which privileged treaties and customary rights established during the colonial period by European powers (pacta sund servanda).

While certainly imbalanced, arguably inequitable, the outcomes to Third World emancipatory projects are hardly surprising. Gathii’s examination of partiality in the application of international legal doctrines leads him to conclude that “[r]ules of law ... are more often than not politics by other means.”23 Indeed, the consistency with which the interests of capital- importing states are subjugated to those of capital-exporting states is belied only by the high-sounding rhetoric emanating from Western political and legal circles such as the “principle of humanity”24 or “modernist emancipatory universalism”25 but rarely in their actual manifestation. Gathii’s thesis, revisited frequently across the text, is that the “jurisprudence [of conquest and subjugation] with respect to non-Christian and non-European peoples” is striking only in its contrast to the “jurisprudence of neutrality that ... helped crystallize in relations between the United States and its European counterparts.”26 Nor are these isolated incidents best relegated to the annals of a racially charged and morally misguided European past. There is, Gathii observes, strong evidence that the “continuities of rules and obligations from the colonial past to the postcolonial present” buttress the “unequal and inegalitarian relationships of international economic governance” that repeatedly play out today.27

Gathii expertly weaves together a wealthy compendium of examples in support of this pattern of continuity. For instance, in the early American colonial period, a rule that preserved property rights upon conquest was upheld by the United States Supreme Court “to facilitate the survival of land grants made by the Spanish Crown to white settlers.”28 This rule, however, did not extend to the original inhabitants with the same bench holding “that conquest abrogated Native American rights to land.”29 Double standards pertaining to trade reciprocity are also evident “between Western industrialized economies and contemporary, developing economies that remain largely agrarian.”30 While near full reciprocity has been achieved around manufactured products originating in the West, a conclusively un-reciprocal exchange persists in relation to agricultural products from the Third World.31

Finally, Gathii has also uncovered contradictory approaches towards the responsibilities of states when assessing liability for destruction of property. In the investment context, states are obliged to “take preventive measures to avoid loss or damage to the property of alien investors” when a situation of unrest or warfare arises.32 So strict is the duty that, according to the ICSID, states possess a quasi-absolute standard of diligence. Contrast this with the standard of conduct expected of states under the General Agreement on Tariff and Trade (GATT). Article 21 of the GATT along with rulings of the GATT panel confirms that “national security” is within the sole discretion of member states allowing these to self-diagnose a threat and thus “to depart from its GATT obligations.”33 As Gathii rightly observes, situations of social unrest or war – that trigger strict liability for protection of the property of alien investors – overwhelmingly afflict the Third World while invocations of national security in the GATT context “are more likely to benefit countries with enormous market power such as the United States.”34

The two-tier nature of international law Gathii details has much to do with the ethno-chauvinism upon which the regime was founded. Whether Francisco de Vitoria,35 Lord Coke,36 Justice Marshall,37 former American president George Bush Jr38 or former British Prime Minister Tony Blair,39 the “genealogical similarity”40 between their pronouncements is striking. No matter the context or the impact, each of them ultimately rationalises “European conquest and acquisition of non-European territory and resources” under the consistent guise (though inconsistent application) of universal values.41 The alleged primitiveness, sometimes darkness of non-Europeans provides the troublesome foundation for their moral rehabilitation, including through the use of force if necessary.42 Highly racialised and racist arguments, Gathii remarks, effectively sanction “the disregard not only of private property rights, but also of the lives and dignity of [Third World] people”43 and always in the name of freedom.

In addition to supplying the rationale for conquest, allusions to ethnic supremacy and imperial benevolence have been used to validate the wholesale transformation of non-European nations: “[p]owerful countries employ the ascendant ideas of liberty and freedom as a means of prevailing over culturally and politically different but militarily weaker societies.”44 Examples are many and the pattern of continuity palpable. Under the direction of Leopold of Belgium, and with the blessings of his American, German and British counterparts, the African region now known as the Congo was adumbrated – at least geographically – into a state to secure “all European countries and the United States freedom of commerce in the Congo.”45 The nature of native communities, their modes of interaction, traditions and normative aspirations were irrelevant to the colonising mind. Through elaborate private-public partnerships, both law and violence were employed to achieve “the goals of [European] commercial expansion and territorial acquisition”46 primarily through the establishment of trading routes and posts that would facilitate the spiriting away of native labour and resources.

The remaking of the African interior along a Europe-friendly liberalised economics model was recently replicated in Iraq by the joint American-British occupying coalition. Sundry pretexts for the invasion of Iraq having melted away, what remains is a society reconditioned according to a free-market fundamentalist’s Christmas list including complete foreign ownership of Iraqi companies, a flat tax, the privatisation of key industries and more.47 Again we observe collaborative efforts between public authorities – the US appointed Iraqi Governing Council and the Coalition Provisional Authority – and private entities – primarily US contractors – toward transferring Iraqi assets to foreign multinational corporations.48 The end goal, Gathii tells us, was “to transform the Iraqi economy into something of an idyllic bastion of the free markets”.49 With the proclaimed superiority of Western values as touchstone, the consent of the Iraqi people to their society’s wide-ranging makeover was practically redundant.

When read in light of Europe’s appropriative aspirations, when considered alongside the inegalitarian state of the world, when funnelled through a tiered regime of international law, the motivation behind Argentina and the wider Third World’s rejection of privatisation – and the science of neoliberalism more generally – and the associated embrace of nationalisation projects and comprehensive programmes of social uplift appear more lucid. Labelling policies that aim to distribute income more equitably, balance global wealth and improve general wellbeing for the bulk of a people economic folly as Barbieri does seems, in a democratic society at least, somewhat queer.

International law, however, is hardly a democratic institution. Capital-exporting states possess what Susan Strange terms “structural power” or the ability “to influence the content and meaning of [international legal] rules.”50 Not without a hint of irony then, in this instance a supposedly universal international legal system operates to buttress First World privilege thereby exacerbating Third World disempowerment. Gathii’s thesis appears here squarely on point and merits special emphasis:

These [international legal] rules in many ways [repackage] the inequalities between capital-exporting and capital-importing States ... perpetuat[ing] the subordinate position of these formerly colonial countries in a manner that uncannily reflects the imbalances that characterized colonial rule.51

Disappointingly, Gathii’s text provides ample evidence of “the legacy of imperialism and colonialism in the context of war and commerce”.52 In short, he achieves the aim he introduced at the outset. And, while I am loath to end this review on what is likely to be perceived as an unenthusiastic note, when turning the final page the reader – or at least this reader – may easily find him or herself slightly perplexed, possibly even disgruntled.

For ambiguous reasons, Gathii omits a conclusion. To be sure, each chapter is structurally complete, providing a thorough analysis of the announced topic and, quite frequently, hopeful concluding words. The integrity of the text is beyond reproach, yet the final sentences read more as cliff hanger than climax. While Gathii declares his intentions in the introduction – “[to expose] the tendency in international law toward inegalitarian consequences”53 – he also makes a pronouncement about the potential of international law to counter the sum total of his exposé by saying “I firmly believe that the liberal guarantees of international law have much to offer to counter these inegalitarian tendencies.”54 And while Gathii confesses to aspiring toward a positive direction for international law, he is to a great extent a victim of his own persuasiveness. Indeed, it is difficult to read this text and not feel somewhat despondent about the alleged emancipatory potential of international law.55 Though perhaps, and this is pure speculation, this was part of Gathii’s aim all along.

To many mainstream international legal scholars – presumably Gathii’s audience – colonisation happened outside the confines of international law and thus did not taint the corpus. Even earlier Eurocentrism has been exorcised leaving behind an apparatus possessing a plethora of “wholesome and desirable principles”.56 The persistence of the contrast in perspectives, specifically between scholars who identify as Third World and those who regard themselves as neutral, was brought to light just a few years ago. A heated debate between Gathii and Brad Roth took place in the Michigan Law Review, highlighting the tenacious aversion of mainstream scholars toward Third World critiques of their craft.57

What Gathii successfully uncovered then and has exposed once more is the ethno-chauvinistic ethos First World states express toward the practice of international law. Double-standards, tiered-treatment, contradictions and hypocrisy are rife within the regime, all of which combine to preserve the economic ascendancy of the usual suspects: “although territorial conquest in the nineteenth century facilitated the extraction of mineral and other resources from poor countries, in the twenty-first century international legal regimes ensure their continued nonviolent access.”58 To rely on such an institution would be foolish at best and duplicitous at worst. “[A] useful step toward moving [international law] in a positive direction”59 must thus lie outside the dogmatic doctrinal confines imposed by self-interested powers.

From this angle, the Argentinian nationalisation strategy is best read as more than an isolated act of self-destruction on the South American continent. While the Financial Post may wish to assuage alien investors’ fears by waxing reassuring albeit flawed verdicts – “the risk of similar nationalization proposals elsewhere in the developing world is likely to be limited”60 – evidence suggests that Argentina is not the source but rather a willing victim of the contagion. In 2003, for instance, Venezuela launched a quasi re-nationalisation programme of its own state oil company, reasserting governmental authority over what had become an autonomously acting Petroleos de Venezuela.61 Shortly thereafter, when Morales was first elected in 2006, Bolivia claimed sovereignty over its natural gas reserves. As per the Bolivian decree, “[I]n historical struggles, the people have conquered and paid with their blood, the right to return our natural resources and our wealth in natural gas to the hands of the nation and to be utilized to the benefit of the country”.62 These domestic acts of resistance, in addition to improving standards of living, have also given rise to a series of regional emancipatory schemes.

Indeed, despite unfavourable legal regimes such as the ICISD and “the coercive realities of the rules of international economic governance”,63 Third World states continue to struggle against the inequalities First World states are content to repackage.64 The Bolivarian Alliance for the Americas agreement for instance, a unique collection of bilateral and multilateral treaties that seek to redirect international legal obligations toward collective social uplift,65 makes light of the traditions of mainstream international law, thereby “serv[ing] to deligitimize the American and European self-images of privilege and rule over non-European peoples.”66 By demanding respect for their sovereignty and their human rights, by crafting viable arrangements that can reform the status quo, “the peoples of the vulnerable States of the world will [no longer] have to live in fear that powerful countries will run over them and appropriate or confiscate their private property while privatizing their public assets.”67

In short, Gathii again appears on point: the liberal guarantees of international law have much to offer. Use of these guarantees, however, begins with collective recognition that the world as it was at the dawn of the 20th century – almost exclusively under European tutelage – is no more. The West has already lost control of Asia and Latin America and its grip over the Middle East is quickly loosening. Not only must the West adapt to its decline but the Rest must come to terms with their liberty, both ideologically and normatively. What these translate to are foundational shifts in the nature of the exchange that characterises international legal formation. In the last century this exchange has been monologic, proceeding from metropolis to periphery and exhibiting the same sanctimonious elitism that coloured the colonial period. Present times, and presumably our desire to move from inequality to parity, demand a dialogic or even pluralistic model that codifies processes of mutual construction.

Gathii’s account of the legacy of colonial disempowerment contained in his text enhances my claim for a pluralistic approach toward international law. In the process of making both a record and a case of this legacy as it pertains to the interplay between war and commerce, he also laid bare the overriding subject-object relationship that persists between the First and Third worlds. This relationship flies in the face of both Third World emancipatory aims but equally First World legal liberalism. While Gathii may have been content to expose the commercial benefits that flow from hypocrisy and double-standards in the practice of international law, he has indirectly made a convincing case for consistency and egalitarianism. In short, in this reader’s view, this book is “a useful step toward moving [international law] in a positive direction.”68

Mohsen al Attar
University of Auckland, New Zealand

1 Hugh Bronstein “Argentina Nationalizes Oil Company YPF” The Guardian (United Kingdom, 2012). Available at <http://www.guardian.co.uk/business/feedarticle/10226472> .

2 Pierpaolo Barbieri “The Tragedy of Argentina” The Wall Street Journal (United States, 20 April 2012).

3 Simon Romero “In Brazil and Elsewhere, Dismay at Argentina’s Nationalization Move” The New York Times (United States, 18 April 2012).

4 Ibid.

5 Others are more charitable in their evaluation of the Argentinian plan. New York University economist Nouriel Roubini has urged Greece to follow Argentina’s strategy to arrest the Mt Vesuvian meltdown currently underway. Nouriel Roubini “Greece’s Best Option is an Orderly Default” The Financial Times (United States, 28 June 2010).

6 Mark Weisbrot et al “The Argentine Success Story and its Implications” (The Centre for Economic Policy Research, Washington DC, 2011).

7 Ibid.

8 James Gathii War, Commerce, and International Law (Oxford University Press, Oxford, 2010).

9 I note with interest that, throughout the text, Gathii avoids use of the Third (and First) World moniker, preferring instead binaries such as “capital-importing and capital exporting”, “industrialized/ developed and developing”, “rich and poor”, and “colonising and colonised” (he also occasionally identifies Europe and the United States as “the West” and others as “non- Christian and non-European”). As a renowned Third World Approaches to International Law scholar, the omission could not have been accidental. Unfortunately, Gathii does not provide any clarification in this regard. I recently discussed the “Third World” label with Professor Jose Etcheverry who suggested that, as a result of the ascendancy of the BRIC countries, notions of Third and First are now anachronisms that confuse more than they elucidate. While I find both Etcheverry’s contention and Gathii’s omission intriguing, for purposes of this essay and perhaps more out of habit than ideological commitment, I persist with the Third and First World distinction. The historical relevance of the terms will be explored in a later article.

10 Gathii, above n 8, at xxi.

11 Gathii, above n 8, at 160.

12 Gathii, above n 8, at 160.

13 Gathii, above n 8, at 186.

14 Gathii, above n 8, at 44.

15 Gathii, above n 8, at 164.

16 “Argentine President Signs YPF Nationalization Into Law” Press TV (Iran, 2012). Available at <http://www.presstv.ir/detail/239673.html>

17 For an overview, see Vijay Prashad The Darker Nations: A People’s History of the Third World (New Press, New York, 2007).

18 Gathii, above n 8, at 163-164.

19 Gathii, above n 8, at 147-148 quoting Luis M Drago, the Venezuelan Secretary of Foreign Affairs.

20 Gathii, above n 8, at 156.
21 Gathii, above n 8, at 158.

22 Gathii, above n 8, at 158.
23 Gathii, above n 8, at 154

24 Gathii, above n 8, at 80.

25 Gathii, above n 8, at 135.

26 Gathii, above n 8, at 142.

27 Gathii, above n 8, at 185.

28 Gathii, above n 8, at 61.

29 Gathii, above n 8, at 62-63.

30 Gathii, above n 8, at 144.

31 Gathii, above n 8, at 144.

32 Gathii, above n 8, at 176-177.

33 Gathii, above n 8, at 181.

34 Gathii, above n 8, at 183.

35 Gathii, above n 8, at 32.

36 Gathii, above n 8, at 30.

37 Gathii, above n 8, at 140.

38 Gathii, above n 8, at 34-35.

39 Gathii, above n 8, at 96.

40 Gathii, above n 8, at 33.

41 Gathii, above n 8, at 31 and 142.

42 Gathii, above n 8, at 36.

43 Gathii, above n 8, at xx.

44 Gathii, above n 8, at 41.

45 Gathii, above n 8, at 205.

46 Gathii, above n 8, at 207.

47 Gathii, above n 8, at 36-37.

48 Gathii, above n 8, at 37-38.

49 Gathii, above n 8, at 39.

50 Gathii, above n 8, at 188.

51 Gathii, above n 8, at 189.

52 Gathii, above n 8, at xxii.

53 Gathii, above n 8, at xxii.

54 Gathii, above n 8, at xxii.

55 But see Gathii, above n 8, at 103: “At the international level ... [it] requires an acknowledgement of the human rights of all non-Western people vulnerable to conquest and further recognizing that projects of imperial conquest that are facilitated by orientalist images of Arabs and Persians as terrorists do not serve the goals of global security but actually work against global security. By upholding these rights, the peoples of the vulnerable States of the world would not have to live in the fear that powerful countries will run over them and appropriate or confiscate their private property while privatizing their public assets.”

56 R P Anand “Asian States and the Development of a Universal International Law: Report of a Seminar” (1969) 11 Intnl Studies at 169.

57 See the debate between James Thuo Gathii & Brad Roth, in particular James Thuo Gathii “Rejoinder: Twailing International Law” (2000) 98 Mich L Rev 2066.

58 Gathii, above n 8, at 145

59 Gathii, above n 8, at xxii.

60 David Pett “Argentina Nationalization Plans Not Contagious” The Financial Post (United States, 18 April 2012) citing a report from Capital Economics.

61 Gergory Wilpert “The Economics, Culture, and Politics of Oil in Venezuela” Venezeuela Analysis (Venezuela, 30 August 2003).

62 Walter Mignolo “Beyond Populism: Decolonizing the Economy” Counterpunch (United States, 9 May 2006).

63 Gathii, above n 8, at 188.

64 Gathii, above n 8, at 189.

65 Mohsen al Attar and Edward Miller “The Future of International Law: From Globalisation to Regionalisation” in Thomas Muhr and Barry Gills (eds) The Bolivarian Alliance of the Americas and Counter-Globalization: Resistance and the Construction of 21st Century Socialism (Routledge, 2013) (forthcoming).

66 Gathii, above n 8, at 102.

67 Gathii, above n 8, at 103.

68 Gathii, above n 8, at xxii.