Australia's decision to initiate Whaling in the Antarctic: winning the case versus resolving the dispute

On May 31, 2010, Australia instituted proceedings before the International Court of Justice in the case of Whaling in the Antarctic (Australia v. Japan). Although Australian politicians had for some time threatened such a course of action, the decision to proceed with international litigation took many observers by surprise, most basically because Japan appeared to be in a strong legal position and the risks associated with the case appeared greater than Australia's prospects for success. This article examines the background to the whaling dispute and suggests two ways in which litigation in the World Court may contribute to resolution of the dispute no matter the legal outcome of the case.     

Scientific whaling and how philosophy of science can help break the international deadlock

Despite widespread public interest on the topic of whaling, there is at present relatively little work on how philosophy might contribute to analysis of the status of whaling in international law. When philosophers have looked at the topic of whaling, they have confined their attention to a fairly narrow set of ethical questions, such as whether international law should permit certain forms of traditional indigenous whaling or extend legal rights to whales themselves. However, there is another important issue which has so far been largely neglected by philosophy, even though it is at the forefront of current international legal disputes over the status of whaling: the issue of so-called ‘scientific whaling’. This article considers the international legal dispute between Australia, New Zealand and Japan over the latter’s lethal harvesting of whales in the Southern Ocean, and the recent attempt at resolution by the International Court of Justice. On its face, this required that the Court demarcate ‘scientific’ from ‘unscientific’ activity; however, it effectively baulked at this task. The authors argue that this approach of the Court was unfortunate, and that demarcating science from commerce is not only achievable in philosophy, but might also inform international legal practice. Resolving this issue is important for genuine progress to be made in the current international stand-off over Japanese whaling in the Southern Ocean.     

Valuing Reputation and Prestige: Canadian Foreign Policy and the International Criminal Court

How do we explain the behavior of states when they appear to be engaged in normative international actions that carry some cost in terms of their material interests? This essay examines the relevance of reputation and prestige for Canadian foreign policy and, in particular, the role of these concepts in relation to Canada's leadership over the creation of the International Criminal Court (ICC). It argues that Canadians and Canadian policymakers care about their country's international reputation and are motivated by the desire to gain prestige. Ottawa's decision to support enthusiastically the creation of an international criminal court demonstrates how the interaction of the Canadian self-identity as a good international citizen and the desire to be recognized as such translates into foreign policy.     

The Struggle Between the United States and Israel over Recognition for Jerusalem as Israel's Capital, 1952–67

This study analyses the key role played by Washington in the international community's battle from 1952 to 1967 not to recognise Jerusalem as Israel's capital. It tries to explain both why the United States took on such a role and why its efforts were rewarded with such little success. It is suggested that the United States was guided chiefly by the principle of showing respect for the United Nations' authority. Yet, when this principle clashed with another, namely Israel's resolve for Jerusalem to be its capital, it was generally the United States that backed away.     

The Life and Career of Justice Robert H. Jackson

Robert H. Jackson was one of the most influential Justices of the Supreme Court in the twentieth century. His tenure on the Court ran from 1941 to his death in 1954, and during that time he participated in landmark cases involving the programs implemented by Roosevelt's New Deal to rescue the country from Depression, having previously served the administration in other roles. He authored a memorable dissent in United States v. Korematsu, the notorious Japanese internment case. ¹ He is also remembered for the role he served as the chief American prosecutor before the International Military Tribunal that tried Nazi leaders after World War II. In some ways, Jackson's fierce independence and the lessons he learned growing up in a small town were the ideal training for the demands and competitiveness of the nation's highest Court. That Jackson's words and beliefs still have relevance in the twenty‐first century is evidenced by the fact that both recent Supreme Court appointees quoted him during the confirmation hearings. ² In this essay, I will examine how Jackson's life experiences influenced his legal career and informed his jurisprudence, and to what extent Jackson lived up to his own vision of the role of a Supreme Court Justice.     

Libya and the state of intervention

The international response to the crisis in Libya has been remarkably quick and decisive. Where many other cases of mass atrocity crimes have failed to generate sufficient and timely political will to protect civilians at risk, the early response to Libya in 2011 has shown that the United Nations Security Council is able to give effect to the ‘responsibility to protect’ norm. While not an implementing party in a legal sense, the Australian government has taken a forward-leaning diplomatic stance in helping to mobilise broad support for addressing this crisis. In light of the ongoing political controversy over armed humanitarian intervention, the Libya case shows that state-based advocacy for R2P matters, given the on-going need to bolster the legitimacy of the principle. A discussion of Canberra's diplomatic activity is a prelude to an examination of the proceedings of the UN Security Council and the two key resolutions, the second of which gave effect to the forcible action. The article then considers three dimensions of the Security Council's implementation of the responsibility to protect: the language of the resolutions and the intriguing absence of a textual reference to the international community's responsibility to act; the expansive mandate for civilian protection in Security Council resolution 1973; and the first unanimous referral to the International Criminal Court, with novel support from the United States of America.     

The ICC pre-trial chamber decision on jurisdiction over the situation in Myanmar

The transfer and deportation of ethnically Rohingya people from Myanmar into Bangladesh is a crime against humanity demanding an international response. What role, however, should the International Criminal Court (ICC) play? On 6 September 2018 an ICC Pre-Trial Chamber ruled that the Court has jurisdiction to investigate and prosecute such crimes as they are completed on the territory of a State party, Bangladesh. Myanmar is not a party to ICC Statute and has invoked the principle that treaties do not bind third parties without their consent. The case put in this commentary is that while the Pre-Trial Chamber’s approach to the law was arguable as an interpretation of the ICC Statute, it was unwise as a matter of policy. The argument is threefold. First, the Pre-Trial Chamber’s ruling is as a matter of legal method only the first-move in a process of norm-creation and persuasion. Second, it does not follow that because territorial jurisdiction in international law includes ‘objective’ jurisdiction over transboundary acts completed on a State’s territory that such jurisdiction was delegated by member States to the ICC in all cases. Finally, it is argued that international criminal tribunals do not succeed when the cooperation of necessary territorial governments (here, Myanmar) is withheld. Proceeding in this case risks becoming a quagmire of the ICC’s own creation at a time when it can little afford further risks to its legitimacy.     

Aung San Suu Kyi at the ICJ

This guest editorial reflects on the complexities underlying Aung San Suu Kyi's appearance at the International Court of Justice.     

Undoing the global constitution: UN Security Council action on the International Criminal Court

The adoption of the Rome Statute of the International Criminal Court (ICC) adopted in 1998, marked the culmination of the international constitutional law–making of the twentieth century. The Statute reflects a vision of an advanced universal legal order, administered through a process of multilayered international governance. In this article the author examines the key elements of this design, including the doctrine of universality of international criminal jurisdiction, the process of universal law–making and international institution–building. The author places these concepts, and the ICC itself, into the context of the emerging international constitutional order. He also considers the attempts of the United States government to undermine some of the key assumptions that underpin the concept of the ICC. In addition to analysing the objections put by the US government, the author addresses its campaign in the United Nations Security Council to exempt US service personnel and others from the reach of the court. He argues that this episode represents a very important factor in the possible development of two parallel international legal systems: one of universal application, and a special set of rules and exemptions that, it is argued, should only apply to the one remaining superpower.     

The Future of International Criminal Evidence in New Wars? The Evolution of the Commission for International Justice and Accountability (CIJA)

This article explores the intellectual formation of the Commission for International Justice and Accountability (CIJA). It illuminates how the development of the CIJA was an attempt by state and non-state actors to affect the course of international criminal justice in Syria and Iraq. First, this article argues that the CIJA was the result of four factors: the UK Foreign Office’s desire to support human rights activists in Syria; lessons learned from previous international criminal tribunals; attempts by non-state legal practitioners to invent new ways to overcome the gaps and limitations of the international criminal justice system; and the willingness of Syrian civil society to risk their lives and use the law to hold those responsible for mass atrocities to account. Second, the article argues that as non-state actors with a focus on evidence management, the CIJA may represent an innovative approach to investigating mass atrocities, particularly for activists and civil society actors who wish to play a role in evidence management in new wars. Lastly, it shows how the CIJA may work in parallel with international mechanisms, such as the International Criminal Court (ICC) and other inter-state actors, to collect evidence of war crimes, crimes against humanity, and genocide in new wars, particularly when the ICC is unable to do so. This study combines qualitative research with empirical analysis and draws on a range of primary and secondary sources, including a number of interviews conducted with CIJA personnel, former ICC practitioners, and other practitioners in international criminal law.     

The Arlington Cemetery Case: A Court and a Nation Divided

Seventeen years after the Confederate general Robert E. Lee surrendered at Appomattox, his eldest son won a sweeping victory over the federal government in the United States Supreme Court. On December 4, 1882, the Supreme Court upheld a federal trial court's ruling that the United States government's claim of title to Arlington National Cemetery rested on an invalid tax sale. The Justices thus affirmed the lower court's verdict that George Washington Custis Lee (“Custis Lee”), eldest son of Mary and Robert E. Lee, held legal title to Arlington. The Supreme Court also upheld the lower court's decision to permit Custis Lee to bring suit against the government officers who occupied Arlington. On the latter point, the Justices split 5 to 4, with a majority ruling for Custis Lee. The outcome of United States v. Lee, commonly known as the Arlington case, made it clear that the Lee family, and not the United States government, owned Arlington.     

A Chronicle of Failure Foretold: The UK,Israel and Arms Sales to Argentina in the Era of the Falklands War

In spite of fierce British protests, Israel supplied Argentina with arms both during the Falklands war and with greater intensity after the fighting. While the weapons sales were vital for Israel's economy and its arms industry, recently declassified papers suggest that the Begin government viewed the arms supplies to Argentina as a bargaining chip to exert pressure on Britain to halt its own sale of weapons to Israel's Arab adversaries and to end London's arms embargo against the Jewish State. Britain's restrictions on arms sales had long cast a shadow over Anglo-Israeli ties, and Israeli resentment towards Britain was exacerbated by anger over London's strong condemnation of Israel's invasion of Lebanon and its leading involvement in the EEC Venice Declaration of June 1980 which recognized Palestinian self-determination and a role for the Palestinian Liberation Organization. The Israelis also perceived the arms supplies as a means to influence the junta in its treatment of Argentina's Jews. Yet, there was actually a rise in the level of anti-Semitism in Argentina during the period in question. At the same time, Britain's approach in attempting to dissuade its allies from selling arms to Argentina was riddled with inconsistencies and ultimately misconceived.     

Geographies of generation: age restrictions in international adoption

International adoption relocates minors, and only minors, from one country to another. The centrality of age to adoptive migration may prevent us from seeing the significance of generation: the prospective parent's age is also examined and evaluated for its relationship to the child's age and what this relationship will mean for the creation of a family. Because international adoption results in children crossing borders to enter new kinship formations, the assumptions under which it operates require closer geographical analysis. Generation, or the age range that separates dependents and their caretakers, is a significant but unstated motivator of international adoption policies and practices. This article argues that a normative and biologized sense of intergenerational difference is embedded in international adoption. The presence of generational ideology in national laws and international norms regarding international adoption demonstrate a broader sense in which policies situate more privileged families as acceptable and others as inadequate. I draw material for this analysis from both legal documents and documents which aim to provide interpretation of those laws, with reference to international adoptions from Peru.     

The United Nations: past and present

The UN is approaching its seventieth birthday in 2015. Kofi Annan, its seventh secretary general, and the only incumbent not to have come from a national government, has written the most honest and insightful memoir of any occupant of the thirty‐eighth floor, Interventions. Despite terrible setbacks in Bosnia and Rwanda, the United Nations remains the most representative and successful international organization in history. As Mark Mazower points out in his Governing the world, an acutely penetrating history of international governance, the successes of the UN are more than the founders of the ill‐fated League of Nations could have dreamt of. Mazower's tour de force combines a history of the intellectual ideas of the nineteenth and twentieth centuries and their eventual realization in the League of Nations and the UN. While his conclusions question whether faith in international institutions has been lost, the reality of universal membership of the UN and establishment of an International Criminal Court might suggest otherwise.     

Left justified: The early campaign for an international law response to Khmer Rouge crimes

In April 1979, a mission of the International Association of Democratic Lawyers made a solidarity visit to Cambodia in the immediate aftermath of Khmer Rouge rule of the country. One of the mission members, John H. E. Fried, a former advisor to the United States' military trials at Nuremberg, was moved to subsequently advocate for United Nations recognition of the then ostracised Cambodian state. The crisis of post-Khmer Rouge Cambodia, and the political justifications made by early visitors there, illuminate late Cold War cultures of progressive international law scholarship and activism through their constitutive affects and material practices. While legal investigation of Khmer Rouge crimes is now largely understood through the frame of ‘transitional justice’, this paper rejects such a framing. It argues instead for attention to Cambodia's early experiences, in which left legal activism – calling for Nuremberg's lessons to be applied to the violence perpetrated in Vietnam and Cambodia – played an important role. For scholars interested in post-1979 Cambodia, the Tuol Sleng Genocide Museum historical visitor books, recently digitised, promise insight into the multiple actors, motivations and understandings of international ‘early responders’ to evidence of Khmer Rouge crimes.     

The ‘Evidence’ of sex,the ‘Truth’ of gender: Shaping children's bodies

This paper is about the body, specifically a child's body, as a site where identity becomes contested. It is also about a surface or space where we lay claim—a site of vested interest. In April 2004, the Australian Family Court ruled that a 13-year-old child (Alex) had gender identity dysphoria and decided to allow reversible hormonal treatment. The Court ruling produced considerable legal, medical and public reflection over whether these decisions were in Alex's best interests, whether Alex was able to make such a decision at his age, and to assess Alex's competency. These debates also aimed to fix sex and gender through the deployment of a nature and nurture framework. The purpose of this paper, using the example of Alex, is to illustrate the various ways that these claims over a child's body, undermine the possibility for rethinking sex and gender.     

Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court,c. 1840–60

In 1840 the South Australian judge Charles Cooper wrote an opinion in which he suggested that Aborigines who had not been in contact with British settlers were not within the jurisdiction of the Supreme Court. The resulting controversy led the Colonial Office to clarify its view on the subjecthood of Aborigines within the colony and the colonial courts' jurisdiction over all subjects in the colony. The criminal jurisdiction of the Supreme Court over Aborigines became politically important because it raised wider questions of imperial authority and colonial policy. By placing Cooper's views in a broader Australasian perspective, the formation of Colonial Office policy and the distinctions between legal categories that informed that policy may be better appreciated. Cooper continued to question the general application of Supreme Court jurisdiction to Aborigines into the late 1840s. This caused a clash with Lieutenant-Governor Robe, who felt that any weakness in the formal authority or jurisdiction of the courts threatened the ability of the government to implement effective policies.     

Book reviews

Book reviewed in this issue. International Relations theory Political evil in a global age: Hannah Arendt and international theory. By Patrick Hayden. International law, human rights and ethics Means to an end: U.S. interest in the International Criminal Court. By Lee Feinstein and Tod Lindberg. International organization and foreign policy Regional leadership in the global system: ideas, interests and strategies of regional powers. Edited by Daniel Flemes. New powers: how to become one and how to manage them. By Amrita Narlikar. Conflict, security and defence * * See also Priyanjali Malik, India's nuclear debate: exceptionalism and the bomb, pp. 504–5.
The worst‐kept secret: Israel's bargain with the bomb. By Avner Cohen. A skeptic's case for nuclear disarmament. By Michael O'Hanlon. Governance, civil society and cultural politics The globalization of surveillance. By Armand Mattelart. Diaspora and transnationalism: concepts, theories and methods. Edited by Rainer Bauböck and Thomas Faist. Political economy, economics and development Just give money to the poor: the development revolution from the global South. By Joseph Hanlon, Armando Barrientos and David Hulme. Energy, resources and environment Challenged by carbon: the oil industry and climate change. By Bryan Lovell. The biofuel delusion. By Mario Giampietro and Kozo Mayumi. Food versus fuel: an informed introduction to biofuels. Edited by Frank Rosillo‐Calle and Francis X. Johnson. Global energy governance in a multipolar world. By Dries Lesage, Thijs Van de Graaf and Kristen Westphal. History The Kaiser's holocaust: Germany's forgotten genocide and the colonial roots of Nazism. By David Olusoga and Casper W. Erichsen. A century of revolution: insurgent and counterinsurgent violence during Latin America's long Cold War. Edited by Greg Grandin and Gilbert M. Joseph. Latin America's Cold War. By Hal Brands. America's Cold War: the politics of insecurity. By Campbell Craig and Fredrik Logevall. Europe A community of Europeans? Transnational identities and public spheres. By Thomas Risse. The EU presence in international organizations. Edited by Spyros Blavoukos and Dimitris Bourantonis. Russia and Eurasia Lonely power: why Russia has failed to become the West and the West is weary of Russia. By Lilya Shevtsova. The Black Sea region and EU policy: the challenge of divergent agendas. Edited by Karen Henderson and Carol Weaver. Key players and regional dynamics in Eurasia: the return of the ‘Great Game’. Edited by Maria Raquel Freire and Roger E. Kanet. Middle East and North Africa Egypt on the brink: from Nasser to Mubarak. By Tarek Osman. War and memory in Lebanon. By Sune Haugbolle. Beirut. By Samir Kassir. Palestine betrayed. By Efraim Karsh. Encyclopaedia of the Israeli–Palestinian conflict, vols I–III. Edited by Cheryl A. Rubenberg. Sub‐Saharan Africa My Nigeria: five decades of independence. By Peter Cunliffe‐Jones. Informal institutions and citizenship in rural Africa: risk and reciprocity in Ghana and Côte d'Ivoire. By Lauren M. MacLean. South Asia India's nuclear debate: exceptionalism and the bomb. By Priyanjali Malik. The other war: winning and losing in Afghanistan. By Ronald E. Neumann. Afghanistan: a cultural and political history. By Thomas Barfield. East Asia and Pacific Accepting authoritarianism: state‐society relations in China's reform era. By Teresa Wright. Mao Zedong and China in the twentieth‐century world: a concise history. By Rebecca E. Karl. China today, China tomorrow: domestic politics, economy and society. Edited by Joseph Fewsmith. China and India in the age of globalization. By Shalendra D. Sharma. Friends and enemies: the past, present and future of the Communist Party of China. By Kerry Brown. North America The myth of American exceptionalism. By Godfrey Hodgson. Neoconservatism and the new American century. By Maria Ryan. The irony of manifest destiny: the tragedy of America's foreign policy. By William Pfaff. Latin America and Caribbean The Bachelet government: conflict and consensus in post‐Pinochet Chile. Edited by Silvia Borzutzky and Gregory B. Weeks. What if Latin America ruled the world? How the South will take the North into the 22nd century. By Oscar Guardiola‐Rivera.     

Rebranding the State: Uganda's Strategic Use of the International Criminal Court

When governments invite the International Criminal Court (ICC) to conduct investigations within their own borders, they seem to indicate acceptance of global norms of accountability for wartime atrocities. The first of these self‐referrals came from Uganda, whose government requested investigation into its conflict with the Lord's Resistance Army (LRA), a conflict within which it, too, committed large‐scale human rights violations. This article argues that Uganda used the ICC to help solve a problem faced by many of the world's least powerful states, whose domestic politics are often structured through patron–client networks. Their rulers need to distribute basic state resources, including physical protection, to loyal clients without alienating donors who demand provision of these same resources by right to all citizens. By inviting external scrutiny and manipulating the investigative process, the Ugandan government received an international seal of approval for practices that the ICC would normally punish. This strategy has system‐wide consequences in that repeated mislabelling of rights violations as compliant with international norms causes the meaning of compliance to become incoherent, and norms are less able to constrain the behaviour of all states in the long run.     

Women,Gender and Human Rights: Women's International Organisations and Solidarity with Chile

This article analyses the Women's International League for Peace and Freedom's (WILPF) and Women's International Democratic Federation's (WIDF) fact-finding missions sent to Chile in 1974. It explains how women's international organisations presented reports and information about human rights abuses during Genera Augusto Pinochet's dictatorship (1973–1990). By using their publications, oral interviews, memoirs and press reports, the study sheds light on the extensive efforts deployed by the WILPF and WIDF to disseminate knowledge and promote actions designed to improve the lives of Chilean women. The article shows that women's international organisations promoted inclusive ideas of rights, including women's particular experiences under military rule, and that such efforts built in the organisations' previous experiences of human rights activism.