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Pozza, Maria --- "Book review - International law: cases and materials with Australian perspectives by Donald R Rothwell, Stuart Kaye, Afshin Akhtarkhavari and Ruth Davis" [2012] OtaLawRw 11; (2012) 12 Otago LR 851

Last Updated: 27 May 2014

International Law: Cases and Materials with Australian

^Perspectives

(by Donald R Rothwell, Stuart Kaye, Afshin Akhtarkhavari and

^{Ruth Davis, Cambridge University Press, 2011)}

This book presents an informative and critical presentation of areas of international law. The authors aim to present a comprehensive overview of cases and materials on international law with commentary. The Australian perspective is incorporated, emphasising the role of regional influences over Australia within international law.

The book is concise and a good source of information. Illustrative cases demonstrate important changes and fundamental principles of international law. The major topics are covered, including the nature of international law, sources of international law, international law and municipal law, international legal personality, sovereignty over territory, jurisdiction, state responsibility, human rights, the law of the sea, international environmental law, enforcement of international law, and the peaceful settlement of international disputes.

Each chapter is divided into subcategories. For example, the first chapter, “The Nature of International Law”, is subdivided into smaller sections. The first deals with the nature and significance of international law. Under this section the outline is again divided into further sections on international law, humanity and the rule of law, respect for international law, rules and norms and the institutional framework of international law. The next major subdivided category is public and private international law and whilst this section is not further subdivided, the book is styled in this manner generally. Some chapters have a subdivided section on Australian perspectives, all of which are quite insightful and informative, especially for those who are interested in state practice of international law using Australia as a case study.

A range of material is incorporated into each chapter from case law, and where applicable, treaties and extracts of learned legal literature. The authors introduce each topic, provide illustrative material and then explain the significance of this material. The authors provide explanatory “Notes” at the end of each section. The notes attempt to provide critical commentary concerning a specific area of international law. For example, regarding customary international law, “Akehurst mentions that the formation of customary international law does not depend on the consent of States. This seems to contradict the idea that the persistent objector can exist as a concept because a State’s consent is important for a rule to bind it” [p 74].

The sources cited and used to illustrate various topics within international law are generally good. For example, regarding the role and nature of participation in international law, works by Oscar Schachter and Kofi Annan’s address to the UN General Assembly are pertinent. The book skirts around the edges of international relations, including the

intrinsic tendency towards anarchy of a system of international states in the absence of a formal recognised system of “world government”, ie a single authority with powers of enforcement. The book does deal to a limited extent with the difficulties of enforcement of international law.

The layout of the book is clear and easily digested. Chapter One deals with the nature of international law. This chapter provides an overview of the nature and significance of international law and the respect which states attribute to it. The chapter then discusses the nature of rules and norms, public and private international law and, importantly, the limits of international law. This chapter mentions international relations but does not provide a complete analysis of functions of international law and relations within the anarchic system. However, the chapter does give an explanation of the Australian perspective of international law, its functioning and observance of it as well as its due regard for international law’s importance.

Chapter Two undertakes the task of explaining the sources of international law. It contains a discussion of the role of treaties and customary international law as well as the interaction between the two sources. There is some commentary here on the Nicaragua Case and recognition of customary law. There is also mention of soft law and UN treaties. However, the explanation of UN Resolutions and their operation in conjunction with treaties and custom within the international law is limited.

Chapter Three examines the law of treaties, providing both a practical and academic overview of the topic. This chapter looks at the negotiations leading up to a treaty, entry into force, treaty interpretation, legal obligations, and invalidity and suspension of treaties. This section also provides a useful commentary concerning the Australian perspective of treaties.

In Chapter Four, the authors address international and municipal law; there is discussion of some of the legal theoretical frameworks. Discussions range from monism–dualism to the role of treaties within municipal law. This section provides a good overview of the interaction between international law and municipal law offering the Australian perspective as a case study.

Chapter Five provides an analysis of international legal personality, including explanations as to the importance of statehood, how states are recognised within the international system, the role of international organisations and other international legal persons. This area of international law is generally complex and the authors have clearly and logically ordered this chapter to read well.

Chapter Six considers sovereignty over territory and discusses issues of discovery, accretion, cession and annexation and postcolonial critiques. Indeed, legal history discussions can prove a complex task but the authors have defined principles clearly. The notes provided within this section are especially helpful. However, the principle of the “Common Heritage of Man Kind” (CHMK) might need some redress should a revised

edition be published. The authors erroneously link the provisions of the CHMK to the Outer Space Treaty 1967 and the Antarctic Treaty 1959. The principle of the CHMK was first enunciated much later and was incorporated into the Moon Treaty 1979. The common heritage principle did not make an appearance within the 1959 or 1967 treaties and was not considered in the form the authors attribute to it. The authors conflate the principles of common interest and common heritage (both of which are open to variable interpretation in any case). Surprisingly, the authors cite Harminderpal Singh Rana 1995 within the section on this principle. Rana correctly links the CHMK principle to the Moon Treaty 1979. This is a significant oversight.

Chapter Seven considers jurisdiction. The chapter provides an overview of the types of jurisdiction in operation as well as territorial and universal jurisdiction. Practical considerations are also presented here; commentary is provides on the role of diplomatic immunity and foreign state immunity. This leads to the topic of state responsibility in Chapter Eight. A concise but precise discussion is held on wrongful acts, attributability, reparation and defences. The appropriation of assets section is particularly thought- provoking and recommended as is the discussion on the treatment of foreign nationals.

Chapters Nine through Eleven deal with popular topics in international law: human rights are discussed first. An outline is provided as to the nature of this principle with discussion of the various international legal instruments important in this area. The role discourse between the UN System and human rights is discussed as well as the importance of institutions, treaties and cases within this area of law. This section is dense with analysis and evaluation and is highly recommended for those interested in human rights law. The Australian perspective is also included here, providing an excellent case study as to state practice and human rights law. Chapter Ten provides an important outline as to the history and operation of the law of the sea. Maritime zones, territorial seas, contiguous zones, exclusive economic zones, high seas, continental shelves, and deep seabed are explained here. There is some good discussion on the delimitation of maritime boundaries and overviews are presented on the protection of the marine environment, dispute resolution and piracy. Chapter Eleven explains the role of international environmental law. There is interesting commentary here on the history of its development. The chapter also provides an outline of the general principles of international environmental law. It examines regional regimes and also presents Australian perspectives. The commentary on world heritage is recommended. It should be noted that the book provides only an outline of the above areas. Whilst one should consult specialist literature on specific areas, the authors provide a solid foundational basis upon which to gain a broader understanding of these areas.

Chapters Twelve and Thirteen deal with enforcement of international law and peaceful settlement of international disputes. Whilst the chapters provide an overview, more discussion concerning the role of

international relations would have benefited the chapters significantly. There is limited discussion of art 51 of the UN Charter and its operation within the international context. Indeed, Chapter Twelve does point to the role and framework of the UN Security Council, but critical to an evaluation of this area is the role of international relations. Similarly, a discussion of art 2(4) of the UN Charter in relation to the use of force and state practice in using pre-emptive force (as seen by the US and its allies in Iraq 2003) would have increased the book’s utility, especially to those new to international law. However, Chapter Twelve does provide a good framework discussion of the elements of enforcement of international law through collective self defence and legislative mechanisms. Chapter Thirteen similarly lacks any in-depth discussion as to the role of international relations, but it does provide a sounds basis upon which one might begin to build a foundation of understanding. This chapter evaluates the implicit primary objective of resolving disputes peacefully thought negotiation, mediation and arbitration. Judicial roles in the settlement of disputes is presented in depth and the notes in this section are particularly useful.

One slightly puzzling omission is the lack of a bibliography, which will limit the book’s utility for academic readers. Nor is there any table or list identifying the various scholarly works referred to or otherwise relevant to each section, which would have increased the utility of the book.

The book provides a comprehensive overview of international law with reference cases and materials. Where possible, the authors have included the Australian perspective, which demonstrates the application of various areas of law by an individual state and proves to be a useful case study. The notes are helpful and the book does use up-to-date material. Overall, the book is well presented and easily followed and is recommended.

Maria Pozza, PhD candidate, Faculty of Law, University of Otago.