N EW Z EALAN D JOURN AL OF P UBLIC AN D IN TERN ATION AL LAW

© N ew Zealand Centre for Public Law and contribu tors Facu lty of Law Victoria University of Wellington PO Box 600 Wellington N ew Zealand N ovem ber 2003

The m od e of citation of this jou rnal is: (2003) 1 N ZJPIL (p age)

ISSN 1176-3930

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Cover p hoto: Robert Cross, VUW ITS Im age Services

CON TEN TS Forew ord M atthew S R Palm er ............................................................................................................................. 1 Introductory Essay Pu blic Law in N ew Zealand K J Keith ................................................................................................................................................... 3 A rticles After Baghd ad : Conflict or Coherence in International Law? Cam p bell M cLachlan .......................................................................................................................... 25 Ind igeneity? First Peoples and Last Occu pancy Jerem y W aldron ................................................................................................................................... 55 The Assignm ent of Cases to Ju d ges Petra Bu tler ........................................................................................................................................... 83 A Comp arison of the Imp act of the N ew Zealand Bill of Rights Act and the Canad ian Charter of Rights and Freedom s on Ju d icial Review of Adm inistrative Action Dav id J M u llan ................................................................................................................................... 115 Gend er Id entity as a N ew Proh ibited Grou nd of Discrim ination H eik e Polster ...................................................................................................................................... 157 Kashm ir: A Regional Conflict with Global Im p act H olger W enning ................................................................................................................................ 197 Comm ent Pitcairn: A Contem porary Comm ent A H A ngelo and A nd rew Tow nend .............................................................................................. 229

The N ew Zealand Journal of Public and International Law is a fu lly refereed jou rnal p u blished by the N ew Zealand Centre for Public Law at the Facu lty of Law , Victoria University of Wellington. The Jou rnal was established in 2003 as a forum for p ublic and international legal scholarship . The N ZJPIL w elcom es the su bm ission of articles, short essays and comm ents on cu rrent issu es, and book review s. Manu scrip ts and books for review shou ld be sent to the ad d ress below . Manu scrip ts m u st be typ ed and accomp anied by an electronic version in Microsoft Word or rich text format, and shou ld inclu d e an abstract and a short statem ent of the au thor’s cu rrent affiliations and any other relevant p ersonal d etails. Au thors shou ld see earlier issu es of the N ZJPIL for ind ications as to style; for sp ecific gu idance see the Victoria University of Wellington Law Review Style Gu id e, cop ies of w hich are available on requ est. Su bm issions w hose content has been or w ill be pu blished elsew here w ill not be consid ered for p u blication. The Jou rnal cannot retu rn m anu scrip ts. The N ZJPIL plans to ru n an an nu al stu d ent w riting com p etition for law stu dents at N ew Zealand u niversities. For further inform ation contact the Stu d ent Ed itor. Contribu tions to the N ZJPIL exp ress the view s of their au thors and not the view s of the Ed itorial Comm ittee or of the N ew Zealand Centre for Pu blic Law . Annu al su bscrip tion rates are N Z$95 (N ew Zealand ) and N Z$120 (overseas). All enqu iries concerning rep rod uction of the Jou rnal or its contents shou ld be sent to the Stu d ent Ed itor. Ad d ress for all comm u nications: The Stu d ent Ed itor N ew Zealand Jou rnal of Pu blic and International Law Facu lty of Law Victoria University of Wellington PO Box 600 Wellington N ew Zealand e-mail nzjp il-editor@vuw .ac.nz fax +64 4 463 6365

N EW ZEALAN D JOURN AL OF PUBLIC AN D IN TERN ATION AL LAW A d v isory Board Professor Anthony Brad ley Institu te of Eu ropean and Com p arativ e Law , Univ ersity of Oxford

Rt H on Sir Geoffrey Palm er Chen Palm er and Partners W ellington

Professor H ilary Charlesworth A u stralian N ational Univ ersity

Alison Qu entin-Baxter Barrister, W ellington

Professor Scott David son Univ ersity of W aik ato

Associate Professor Pau l Rishw orth Univ ersity of A u ck land

Professor Christop her Greenw ood Lond on School of Econom ics

Professor Peter Skegg Univ ersity of Otago

Professor Peter W Hogg Blak e, Cassels and Gray d on LLP Toronto

Professor Jerem y Wald ron Colum bia Univ ersity

Professor Philip Josep h Univ ersity of Canterbu ry

Pau l Walker QC Brick Cou rt Cham bers Lond on

Rt H on Justice Sir Kenneth Keith Court of A p p eal

Ju d ge Caren Wickliffe M aori Land Cou rt

Professor Jerry Mashaw Y ale Law School

Professor George William s Univ ersity of N ew Sou th W ales

H on Ju stice John McGrath Court of A p p eal

Chief Ju d ge Joe Williams M aori Land Cou rt Ed itorial Comm ittee

Tony Angelo Alberto Costi Clau d ia Geiringer Catherine Iorns Magallanes

Geoff McLay Caroline Morris Matthew Palm er And rew Tow nend

A ssistant Stud ent Ed itors Malcolm Bird ling Michael Cavanau gh

Bevan Marten Peter N iven Production A ssistant Denise Blackett

Recent Titles from Victoria University Press The Foundations of Unjust Enrichment Six Centennial Lectures by Peter Birks Professor Birks, Centennial Visiting Fellow at the Victoria University of Wellington Law School, gave six public lectures on unjust enrichment that cut across traditional boundaries of ‘subjects’ in the law. The lectures remind us that the spontaneous evolution of the law defies categorisation into neat analytical boxes such as ‘torts’ or ‘contract’.

Roles and Perspectives in the Law Essays in Honour of Sir Ivor Richardson edited by David Carter and Matthew Palmer The conference that gave rise to this volume was held in honour of Rt Hon Sir Ivor Richardson, on the eve of his retirement as President of the New Zealand Court of Appeal. Contributors address eight distinct areas of law: Human Rights; Indigenous Rights—Treaty of Waitangi; Collecting Taxes; Making Constitutions; Facilitating and Regulating Commerce; Facilitating and Regulating Employment; Interpretation of Legislation; and Appellate Judicial Issues.

Grey and Iwikau: A Journey into Custom Kerei Raua Ko Iwikau: Te Haerenga Me Nga Tikanga by Alex Frame This book traces the journey overland from Auckland to Taupo of the Governor of New Zealand, Sir George Grey, and the Upoko Ariki (paramount chief) of Tuwharetoa, Iwikau Te Heu Heu, with their respective parties, in the summer of 1849–1850. Alex Frame sheds light on the interaction between the respective cultures of Grey and Iwikau—in particular as to custom and law—in a period before the descent into hostilities between Government and the tribes. Available from booksellers or direct from VUP • PO Box 600, Wellington • fax (04) 4636581 email [email protected]

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A FTER BAGH DAD : C ON FLICT OR C OH EREN CE IN IN TERN ATION AL LAW ? Cam pbell McLachlan 

This p ap er is the ed ited text of Professor McLachlan's Inaugu ral Lectu re, d eliv ered at the Victoria Univ ersity of W ellington Law School on 2 Ju ly 2003. The lectu re trav ersed som e of the international legal d im ensions of the recent conflict in Iraq against the d ev elopm ent of international law generally . W hat are the im p lications of the Iraq crisis for international law ? H ow can the increasing fragm entation of international law be avoid ed , and a new coherence be achiev ed in its p lace? W hat is the role for N ew Z ealand , and its u niv ersities, in the d ev elopm ent of international law ?

I

IRA Q AN D THE CRISIS IN INTERNA TION AL LA W

On 20 March 2003, after they had failed to secu re the sup por t of the United Nations Secu rity Cou ncil for a resolu tion exp licitly au thorising the u se of force against Iraq, the United States and the United Kingd om launched a m assive m ilitary offensive in Iraq. 1 In the sp ace of a few short w eeks, that camp aign top p led Sad dam H u ssein's regim e, and left the United States and United Kingdom in p osition as occup ying p ow ers. The camp aign rep resented a massive d isp lay of m ilitary might from the world 's last su p erp ow er. It d isp layed an app arent d isregard of resp ect for both the territorial sovereignty of another nation (how ever m align its governm ent m ay have been) and for the au thority of the Secu rity Council as the central organ of m u ltilateral secu rity. In the face of this, m any ord inary p eople have qu estioned the continu in g relevance of international law in international relations. Is this, as one d elegate to the American Society of International



Professor of Law , Victoria University of Wellington. The au th or w ishes to record his than ks to Rt Hon Ju stice Sir Ken neth Keith , Professor Vau ghan Low e, Du ncan Cu rrie, and Alberto Costi for help fu l d iscu ssion in the p rep aration of this lectu re, and to And rew Tow nen d for ed itorial assistance. Any errors are the resp onsibility of the au thor alone.

1

The cam p aign w as also su p p orted by a nu m ber of other states in a "Coalition of the Willing", of w hich Au stralia w as a p rom inent m em ber.

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Law 's 2003 Annu al Meeting m em orably pu t it, really the United States taking the Johnny Cochrane app roach to international law : "If the ru les d on't fit then w e m ust qu it"? Yet it is d ifficu lt to think of a crisis in mod ern tim es in w hich international law has been of such app arent concern to the states involved , and to the general p ublic. In the United Kingd om , the Governm ent w as forced to take the highly u nu sual step of releasing the op inion of the Attorney-General on the legality of the invasion of Iraq and a su p porting p ap er from the Foreign Office, ju st two d ays before the comm encem ent of hostilities.2 The statement sou ght to ju stify the legality of the intervention in term s of existing United N ations Secu rity Council resolu tions. It w as released against a backgrou nd of pu blic ou tcry against the w ar in Britain, and a p ublic statem ent by many of the lead ing international law p rofessors in the United Kingd om to the effect that the w ar wou ld be illegal.3 A senior Foreign Office legal ad viser resigned shortly thereafter over the issu e. 4 The United States Governm ent also p laced reliance in its official comm unications w ith the United N ations on existing Security Cou ncil resolu tions. 5 H ow ever, the d ebate on legality has taken on a m ore rad ical d im ension in the United States. Follow ing the events of 11 Sep tem ber 2001, the Adm inistration has m ad e an exp licit attem p t to shift the norm s of international law , by claim ing a new doctrine of "preventive w ar", w hich it seeks to d erive from the p re-United Nations Charter notion of p re-emp tive self-d efence. Its N ational Secu rity Strategy states:6

2

Foreign an d Com m onw ealth Office "Attorney General Clarifies Legal Basis for Use of Force against Iraq" (18 March 2003) (last accessed 25 Sep tem ber 2003).

3

"War Wou ld Be Illegal" (7 March 2003) Gu ard ian Unlimited (last accessed 25 Sep tember 2003).

4

Ew en MacAskill "Ad viser Qu its Foreign Office over Legality of War" (22 March 2003) Gu ard ian Unlim ited (last accessed 25 Sep tem ber 2003).

5

UNSC "Letter from the Perm anent Rep resentative of the United States of America to the United Nations ad d ressed to the Presid ent of the Secu rity Cou ncil" (20 March 2003) UN Doc S/ 2003/ 351. A sim ilar ap p roach was taken by Au stralia: UNSC "Letter from the Permanent Rep resentative of Au stralia to the United Nations ad d ressed to the Presid ent of the Secu rity Cou ncil" (20 March 2003) UN Doc S/ 2003/ 352.

6

White Hou se The N ational Secu rity Strategy of the United States of A m erica (Sep tember 2002) 15. This d ocu m ent m ay be fou nd at The White H ou se (last accessed 25 Sep tem ber 2003).

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

For centu ries, international law recognized that nations need not su ffer an attack before they can law fu lly take action to d efend them selves against forces that p resent an imminent d an ger of attack. … We m u st ad ap t the concep t of im m inent threat to the cap abilities and objectives of tod ay's ad versaries. Rogu e states and terrorists d o not seek to attack u s u sing conventional means. They know su ch attacks w ou ld fail. Instead , they rely on acts of terror and , p otentially, the u se of w eap ons of m ass d estru ction —w eap ons that can be easy to conceal, d elivered covertly , and u sed w ithou t w arnin g.

The claim of both states to a legal basis for intervention in Iraq rested in tu rn on the accuracy of the factu al allegation that Iraq continu ed to possess w eapons of m ass d estru ction. Against this backgrou nd , international law h as entered into the comm on cu rrency of p u blic d ebate to an u npreced ented extent. It is u nd erstand able in this context that the p u blic has qu estioned the continu ing role—even the very existence—of international law . The d ebate has exposed w id ely d ivergent view s abou t how the fu tu re d evelopm ent of international law wou ld p roceed . Iraq has been p erceived as a crisis, not m erely in the sense of "a tim e of intense d ifficulty or d anger", bu t also m ore fu nd am entally as a "tu rning p oint … w hen an im portant change takes p lace, ind icating either recovery or d eath". 7 This lectu re w ill attemp t to set these cu rrent bu rning issu es against a broad er canvas of the evolu tion in international law . It w ill exam ine first the p ervasive im p act of international law . Second , it w ill be necessary to look at the extent to w hich the very m aturing of the system has also led to a d egree of fragm entation and potential conflict betw een its constitu ent p arts. Third , it w ill ask how international law m ay move tow ard s a new coherence, and in p articu lar w hat the im p lications may be of the current crisis in Iraq. The lectu re w ill conclu d e w ith som e observations abou t the role and p otential fu tu re role for N ew Zealand , and esp ecially for its u niversities, in the d evelopm ent of international law . It is ind eed in N ew Zealand , at this very u niversity, that this p resent jou rney of exp loration into international law m u st start—on an evening mu ch like this one on 1 Au gu st 1906.

II

THE BURGEON IN G OF IN TERNA TIONA L LA W

It is w ell know n that N ew Zealand 's m ost famou s ju rist, Sir John Salm ond , sp ent a year as Fou ndation Professor of Law at Victoria University College. It w as p erhap s less w id ely

7

See the d efinition of "crisis" in Ju d y Pearsall (ed ) The N ew Oxford Dictionary of English (Clarend on Press, Oxford , 1998) 435. I am ind ebted to Dr Carolin e Foster of the University of Au ckland on this p oint.

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know n, at least u ntil Alex Fram e's invalu able biograp hy,8 that, d esp ite being p rincipally know n for his w ork in ju risp ru d ence, tort, and constitu tional law , Salm ond w as also an active and comm itted international lawyer. H e ap p eared as cou nsel for N ew Zealand in a m ajor international arbitration,9 and as N ew Zealand rep resentative on the British Em p ire d elegation to the Washington Conference on the Lim itation of Arm am ents. Salm ond chose to d evote his Inau gural Lecture at Victoria on 1 Au gu st 1906 to international law . In it he stated :10 The history of m od ern tim es show ed that international law w as not a d ead letter. It wa s a living force that d id in fact govern and control the actions of States and secu red to a very large extent, the claim s of ju stice, p eace, hu m anity and honou rable d ealin gs; and n o -one p ossessing faith in the fu tu re of hu m anity need d ou bt that the Law of Nations w as d estined to grow in strength a nd increase in statu re u ntil it d om inated the w hole society of nations ju st as the Law of the Land d om inated the in d ivid u als of the commu nity.

Salm ond w as sp eaking, of cou rse, at a tim e of great op timism for intern ational law following the H agu e Peace Conference of 1899, an op tim ism w hich was to be d ashed by the ou tbreak of World War I a m ere eight years later. Bu t, over the longer term , Salm ond 's w ord s p roved to be p rop hetic. At least after World War II, and in the cou rse of the latter half of the 20th centu ry, international law has grow n exp onentially to reach into alm ost every area of hum an affairs. It can no longer be said to be m erely a set of ru les of m inim um condu ct of states. Fou r broad trends in the d evelopm ent of international law in the latter half of the 20th centu ry m ay be id entified : mu ltilateralism , institu tionalisation, ju d icialisation, and p articip ation.11 A Multilateralism There is nothing new in states' u se of the treaty as a m eans of secu ring a bind ing contract betw een them , w hether bilaterally or m ultilaterally. What is d istinctive abou t the cu rrent scene is the u np reced ented scale and range of treaties and the d ep th and

8

Alex Fram e Salm ond : Sou thern Ju rist (Victoria University Press, Wellington, 1995).

9

The W ebster claim . See Fram e, a bove, 133–153.

10 Professor Joh n Salm ond "If Germ any Cam e to New Zealand ", first p u blished (1 Au gu st 1906) N ew Z ealand M ail Wellington; rep rinted (1999) 30 VUWLR 489. 11 Com p are the typ ology ad op ted by Philip p e Sand s in his inau gu ral lectu re "Tu rtles and Tortu rers: The Transform ation of International Law " (2001) 33 Intl L & Pol 527, 537–543, id entifying the fou r broad trend s of globalisation, technological innovation, d emocratisation, an d p rivatisation.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

com p lexity of their coverage. N ew Zealand alone is or has been p arty to som e 1,100 m u ltilateral treaties and 1,450 bilateral treaties. 12 Mu ltilateral treaties reach into every area of hum an affairs. This now inclu d es the p rivate law arena, w ith such im portant instrum ents as the Vienna Convention on the International Sale of Good s 198013 and the m any conventions conclu d ed by the H agu e Conference on Private International Law . Even the area of crim inal law , trad itionally resistant to internationalisation, has been the su bject of su bstantial treaty -m aking efforts as states have sou ght to resp ond to the challenges of global d ru g trafficking, money lau nd ering, and the international m obility of crim inals. Treaties such as those conclu d ed in the human rights area have not only extend ed the im pact of international law into ord inary p eop le's lives. They have also p rovid ed a m echanism for ind ivid uals to p articip ate d irectly in the international system throu gh their ability to take com p laints to bod ies su ch as the United N ations H um an Rights Com mittee. Finally, mod ern m u ltilateral treaties enshrine a regim e in w hich the found ing treaty op erates as an umbrella agreem ent for a stand ing international institu tion or for a series of bod ies, each of w hich has its ow n d elegated legislation m aking pow er. Prominent cu rrent exam p les are the agreem ents establish ing the World Trad e Organisation (WTO) in 199414 and the United Nations Law of the Sea Convention 1982 (UNCLOS). 15 B Institutionalisation A second tru ism abou t the m od ern d evelopm ent of international law , closely allied to the first, has been its institu tionalisation. This w as of course p art of the vision of the architects of the p ost-World War II settlem ent. There w ere to be three m ajor stand ing institu tions of international governance: the United Nations, the international financial institu tions (esp ecially the World Bank and the International Monetary Fu nd), and an International Trad e Organisation. The latter of cou rse took som e 50 years longer to realise than its original p rop onents m ay have hop ed . N evertheless, the original vision of a triu m virate of m ajor institu tions has now been realised .

12 Inform ation p rovid ed by the Legal Division of the Ministry of Foreign Affairs an d Trad e (1 Ju ly 2003). 13 United Nations Convention on Contracts for the International Sale of Good s (11 Ap ril 1980) (1980) ILM 671. See also the Sale of Good s (United Nations Convention) Act 1994, s 4 of w hich gives the p rovisions of the Convention the force of law in New Zealand . 14 Agreem ent Establishin g the Mu ltilateral Trad e Organization (15 December 1993) (1994) 3 3 ILM 13. 15 United Nations Convention on the Law of the Sea (10 Decem ber 1982) UN Doc A/ Con f.62/ 122; (1982) 21 ILM 1261.

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Over and above these m ajor system s of international governance, there are now a m yriad of other international organisations d ealing w ith particu lar areas of international concern or interaction. These inclu d e som e very im portant regional organisations: the Eu rop ean Union, the Organisation of Am erican States, and the African Union. They also inclu d e stand ing conferences of the states p arties and secretariats on sp ecific issu es such as those d evoted to the ozone layer 16 and clim ate change.17 C Jud icialisation The third trend id entified is one of more recent hu e. That is the blossom ing of an international ad ju d icatory cap acity. The objection trad itionally raised by every u nd ergrad u ate law stu d ent of international law was tha t its claim to be a legal system found ered on the absence of any comp rehensive system of comp u lsory ad ju d ication of d isp u tes betw een states. It is increasingly possible today to p rovid e a cred ible answ er to this claim . Of cou rse the system of international ad ju dication rem ains partial in its coverage, both as to states' accep ting su ch ad ju d ication and as to the types of d isp u tes w hich can be su bm itted . How ever, since the end of the Cold War, the International Cou rt of Ju stice has seen an exponential rise in its general caseload . Other d isp u te settlem ent system s have exp erienced a like grow th in w ork. For exam p le, the International Centre for the Settlem ent of Investm ent Disp u tes (ICSID), established by the Washington Convention of 1965, had m ore cases p endin g or conclu d ed in the 2002 fiscal year than in all 37 previou s years of its existence.18 At least as significant as the rise in workload for existing tribu nals has been the p roliferation in recent years of sp ecialist cou rts and tribu nals. Som etim es these ha ve been d evelop ed as an ad hoc resp onse to a p articu lar p roblem , su ch as for exam ple the Iran/ United States Claim s Tribu nal or the United N ations Com p ensation Comm ission (d ealing w ith comp ensation claim s arising from Iraq's invasion of Ku w ait). Others have been d evelop ed as stand ing tribu nals integral to a new comp onent of the mu ltilateral system . Most significant am ongst these has been the Disp u te Settlem ent Und erstand ing of

16 See the 1985 Vienna Convention for the Protection of the Ozone Layer, arts 6, 7, establishing the Conference of the Parties and the Ozone Secretariat (1987) 26 ILM 1516; (last accessed 25 Sep tem ber 2003). 17 See the 1992 United Nations Fram ew ork Convention on Climate Change, arts 7–11, establishing the Conference of the Parties an d the Secretariat (1992) 31 ILM 849; (last accessed 25 Sep tem ber 2003). 18 International Centre for the Settlem ent of Investment Disp u tes 2002 A nnu al Rep ort (2002) 4.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

the WTO 19 and the International Tribu nal for the Law of the Sea (ITLOS). Disp u te settlem ent in the field of international trade law has significantly evolved from the informal med iation mod el of the old GATT p anels to the sop histicated tw o -tier system of ad ju d ication inau gurated after the Uru guay Rou nd w ithin the WTO. This exam ple lend s som e w eight to the p rop osition that a new "ju d icialisation" of international law is em erging.20 Consid er the significance of this d evelopm ent in the field of international criminal law . Desp ite m any d eterm ined efforts, the d evelopm ent of a genu inely interna tional ad ju d icatory cap acity to try international crim es had been essentially stym ied by the Cold War since N u rem berg. In d efault of agreem ent on international adju d ication, states had focu ssed their efforts in this area instead up on efforts to enhance the efficacy of national ad ju d ication through treaties of coop eration.21 Su d d enly, in the 1990s, the d ynam ics of this area changed rad ically. First, the International Crim inal Tribunal for the form er Yugoslavia w as established in 1993 as an exp licit d evelopm en t of the p ow er of the United N ations Secu rity Council to issue enforcem ent m easures u nd er Chapter VII of the United N ations Charter.22 What more visible d em onstration of the grow th and the p ow er and cap acity of international ad ju d ication cou ld there be bu t the sight of form er Presid ent Milosevic in the d ock before an international tribu nal in the Hagu e? The establishm ent of the Yu goslav Tribu nal w as follow ed by a sim ilar tribunal for Rw and a, in this case d ealing w ith an internal arm ed conflict. Finally, it w as p ossible for states to agree on the creation of an international crim inal cou rt of a stand ing and plenary character. The Rom e Statu te for the International Crim inal Court w as ad op ted in 1998.23 Even m ore su rp risingly, it entered into force ju st fou r years later on 1 Ju ly 2002 on the ratification of the Statu te by 60 states (includ ing N ew Zealand

19 See the Und erstand ing on Ru les and Proced u res Governin g the Settlement of Disp u tes (15 Decem ber 1993) (1994) 33 ILM 112. 20 For a recent stu d y, see And reas F Low enfeld International Econom ic Law (Oxford University Press, Oxford , 2002) 135–196. 21 See Roger S Clark "Offenses of Interna tional Concern: Mu ltilateral State Treaty Practice in the Forty Years since Nu rem berg" [1988] Nord ic J Intl L 49. 22 See the Statu te of the International Tribu nal for the Prosecu tion of Persons Resp onsible for Seriou s Violations of International Hu m anitar ian Law Committed in the Territory of the Former Yu goslavia since 1991, rep rod u ced in Ian Brow nlie Basic Docu m ents in International Law (4 ed , Oxford University Press, Oxford , 1995) 456. 23 Rom e Statu te of the International Crim inal Cou rt (17 Ju ly 1998) (1998) 37 ILM 999. The text is rep rod u ced , w ith an extensive com m entary, in Antonio Cassese, Paola Gaeta, and John R W D Jones The Rom e Statu te of the International Crim inal Cou rt: A Com m entary (Oxford University Press, Oxford , 2002).

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and the United Kingdom ). Ju dges for the new cou rt w ere ap p ointed in February 2003, inclu d ing a gradu ate of this law school, H on N eroni Slad e of Samoa. The United States w as an active p articip ant in this p rocess, and eventu ally signed the Rom e Statu te (althou gh its su p port has now been notably w ithd rawn and reversed by the cu rrent Adm inistration). D Plurality in Participation The fourth trend has been the increasing plu rality in the p articip ants in the international system . It w as the human rights movem ent w hich really broke the m ou ld in this resp ect by introd ucing the notion of ind ividu als as the su bject of rights in international law . International hum an rights law then d evelop ed that notion in a p ractical context by p rovid ing for rights of ind ivid ual p etition to international hum an rights bod ies, su ch as the Eu rop ean Court of Hu man Rights, the Inter-Am erican Court of H um an Rights, and the United Nations H um an Righ ts Comm ittee. A fu rther elem ent in the increasing p lu ralism of international law has been the p articip ation of non-governm ental organisations in the d evelopm ent of international law , both throu gh their formal recognition as observers in m any international institu tions, and also throu gh the international ad ju d icatory process. The Ap pellate Bod y of the WTO 24 and arbitral tribu nals u nd er the N orth Am erican Free Trad e Association 25 have both accep ted the p ossibility of receiving amicu s cu riae briefs from non -parties in d isp u tes p roceeding before them . A third illu stration of the p lu rality of actors in the international system may be fou nd in the international law of foreign investm ent, w here a hybrid form of ad ju d ication has em erged in w hich states confer on corp orations the right to p u rsu e them d irectly for breach of international investm ent law .26 N ew Zealand has, am ongst other states, had

24 WTO United States: Im p osition of Cou nterv ailing Du ties on Certain Hot -Rolled Lead and Bism u th Carbon Steel Prod u cts Originating in the United Kingd om — Rep ort of the A p p ellate Bod y (10 Ju ne 2000) WT/ DS138/ AB/ R WTO Online Database (last accessed 25 Sep tem ber 2003). 25 M ethanex Corp oration v USA — Decision of the Tribu nal on Petitions from Third Parties to Interv ene as "A m ici Cu riae" (15 Janu ary 2001); United Parcel Serv ice of A m erica Inc v Canad a— Decision of the Tribu nal on Petitions for Interv ention and Particip ation as A m ici Cu riae (17 October 2001). The texts of these d ecisions may be fou n d at (last accessed 25 Sep tem ber 2003). See also Dinah Shelton "The Particip ation of Nongovernmental Organizations in International Ju d icial Proceed ings" (1994) 88 Am J Int'l L 611. 26 See Jon Pau lsson "Arbitration w ithou t Privity" (1995) 10 ICSID Rev —FILJ 232; John Collier and Vau ghan Low e The Settlem ent of Disp u tes in International Law (Cambrid ge University Press, Cam brid ge, 1999) ch 4.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

d irect exp erience of this system in the M obil Oil Corp oration v N ew Z ealand arbitration, w hich concerned a concession agreem en t for the p rod u ction of synthetic gasoline from natu ral gas in N ew Zealand .27

III

THE FRA GMENTATION OF IN TERN ATIONA L LA W

These trend s represent a huge grow th in the com plexity of international law . They are symp tom atic of a m atu ring and p rofessionalisation of the legal system from one characterised by p artial coverage, intermittent ap p lication, and a w eak institu tional and ju d icial base tow ard s a system that is w ider and d eep er in its coverage. Bu t the very com p lexity and range of m od ern international law ha s also sp awned its ow n p roblem s. It is p erhap s inevitable, given the grow th in the volum e and d ep th of international law , that it has been divid ed for convenience into a num ber of sp ecialised su b -d iscip lines. Thu s, for exam p le, international environm ental law and international hum an rights law have becom e subjects in their ow n right. Bu t the elem entary virtu es of this d evelopm ent in scholarship , w hich reflects the increasing com p lexities of international law in reality, carry the seed s of p otential vice. At the scholarly level, it m ay lead to a loss of coherence between international law's constitu ent p arts. Perhap s m ore seriou sly, there is a risk at the op erational level of inconsistency and conflict betw een legal ru les enshrined in conventions or betw een d ecisions of international tribu nals. Brow nlie pointed ou t these d angers in 1988:28 A related p roblem is the tend ency to fragmentation of the law w hich characterizes the enthu siastic legal literatu re. The assu m p tion is mad e that there are d iscrete su bjects, su ch as "international hu m an rights law " or "international law and d evelop ment". As a consequ ence the qu ality an d coherence of international law as a w hole are threatened . … A fu rther set of p roblem s arises from the tend ency to sep arate the law into comp ar tments. Variou s p rogram m es or p rincip les are p u rsu ed w ithou t any attemp t at co -ord ination. After all, enthu siasts tend to be single-m ind ed . Yet there may be seriou s conflicts and tensions betw een the variou s p rogram m es or p rincip les concerned .

27 ICSID M obil Oil Corp oration v N ew Z ealand (1997) 4 ICSID Rep 140. See also the earlier ju d gm ent of the New Zealand High Cou rt: A ttorney -General v M obil Oil N Z Ltd [1989] 2 NZLR 649; (2001) 118 ILR 622. 28 Ian Brow nlie "The Rights of Peop les in Mod er n International Law " in James Craw ford (ed ) The Rights of Peop les (Clarend on Press, Oxford , 1988) 1, 15.

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This issue of fragm entation has becom e the su bject of learned sym posia.29 It has also been taken u p as a sp ecific top ic of research by the International Law Comm ission. 30 This lectu re w ill d evelop this point by reference to five cu rrent exam p les, w here d ifferent elem ents of international law have—or have threatened to—com e into conflict w ith each other. These areas are: (1)

Exp ropriation of foreign investm ents and state regu lation;

(2)

Protection of the environm ent and p rom otion of w orld trad e;

(3)

Conflicts between tribu nals;

(4)

Immu nity for international crim es; and

(5)

Terrorism and hu man rights.

A Exp ropriation and State Regulation Foreign investm ent protection has been one of the areas into w hich the d evelopm ent of an international ad jud icatory cap acity has reached d eep in recent yea rs. The ju dgm ent of the International Cou rt of Justice in Barcelona Traction 31 had highlighted the enormous d ifficu lties involved in inter-state litigation for exp ropriation claim s. In light of the failu re thu s far to achieve any solu tion to these d ifficu lties by w ay of a m u ltilateral investm ent p rotection regim e, states have turned instead to bilateral investm ent treaties to p rotect investm ent from exp rop riation. Typ ically, these treaties confer on the foreign investor a d irect right of arbitration against the host state. The grow ing u se of this arbitral p rocess has led to a renew ed focu s on the content of the treaty rights p rotected , and esp ecially on the central concep t of "exp rop riation". This concep t may have been w ell-enou gh u nd erstood in the context of the ou tright nationalisations of the Libyan oil ind u stry of the 1970s.32 It cou ld also be ap plied robu stly

29 See for exam p le the collection of p ap ers of "The Proliferation of International Tribu nals: Piecing Together the Pu zzle", a sym p osiu m held at New York University in October 1998, p u blished in (1999) 31 NYU J Int'l L & Pol 679–933. 30 See International Law Com m ission "Rep ort of the International Law Com mission on the Work of its 54th Session" (29 Ap ril–7 Ju ne and 22 Ju ly–16 Au gu st 2002) UN Doc A/ 57/ 10 ch IX. 31 Barcelona Traction, Light an d Pow er Co Case (Belgiu m v Sp ain) [1970] ICJ Rep 3. 32 BP Exp loration Com p an y (Liby a) Lim ited v Gov ernm ent of the Liby an A rab Rep u blic 53 ILR 297; Texas Ov erseas Petroleu m Com p any an d California A siatic Oil Com p any v The Gov ern m ent of the Liby an A rab Rep u blic 53 ILR 389; A w ard of the A rbitral Tribu nal in the Disp u te betw een Ly bian A m erican Oil Co (Liam co) an d the Gov ernm ent of the Liby an A rab Rep u blic relating to Petroleu m Concession s 16, 17 and 20 20 ILM 1.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

(althou gh a more sop histicated analysis w as required ) to d eal w ith the d isgu ised d e facto nationalisations of foreign investm ents in Iran after the Iranian Revolu tion of 1979, w hich w ere the su bject of many d ecisions by the Iran/ United States Claim s Tribu nal. 33 Bu t the concep t of exp ropriation is m uch m ore d ifficu lt to ap p ly in the mod ern context of exercises of state regu lation, esp ecially w here that r egu lation is exercised to p rotect other pu blic good s su ch as the environm ent. The tensions inherent in this relationship betw een foreign investm ent law and other p u blic good s (which m ay them selves have som e international cu rrency) m ay be vivid ly seen in the d iffering view s taken by three arbitral tribu nals in the cou rse of the year 2000. In SD M y ers Inc v Canad a, the Tribu nal said :34 Exp rop riations tend to involve the d ep rivation of ow nership rights; regu lations a lesser interference. The d istinction betw een exp rop riation and regu lation screens ou t most p otential cases of com p laints concerning econom ic intervention by a State and red u ces the risk that govern m ents w ill be su bject to claim s as they go abou t their bu siness of managin g p u blic affairs.

The app arently emollient tone of that p assage m ay be contrasted w ith the aw ard of the Arbitral Tribu nal in M etalclad Corporation v United M exican States, in w hich the Tribunal observed :35 Thu s, exp rop riation u nd er NAFTA inclu d es not only op en , d eliberate and acknow led ged takings of p rop erty, su ch as ou tright seizu re or formal or obligatory transfer of title in favor of the host State, bu t also covert or incid ental interference w ith the u se of p rop erty w hich has the effect of d ep riving the ow ner, in w hole or in significant p art, of th e u se or reasonably-to-beexp ected econom ic benefit of p rop erty even if not necessarily to the obviou s benefit of the h ost State.

A Tribu nal chaired by the sam e d istinguished arbitrator, Sir Elihu Lau terp acht, had d ecid ed earlier that year in Santa Elena v Costa Rica36 that the fact that land had been exp ropriated from a foreign investor in ord er to p reserve it as a national park in no w ay served to red u ce the level of comp ensation to w hich the foreign investor w as entitled .

33 Rep orted in the Iran–United States Claim s Tribu nal Rep orts. 34 SD M y ers Inc v Canad a 121 ILR 73, 122. 35 M etalclad Corp oration v United M exican States 119 ILR 615, 638. 36 ICSID Com p añia d el Desarrollo d e Santa Elena SA v Rep u blic of Costa Rica (2000) 15 ICSID Rev— FILJ 169; (2000) 39 ILM 317.

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These d ifferences are fu nd am ental. They are not to be exp lained m erely by d ifferences in view betw een arbitrators, still less by the fact that one of the arbitrator's d ecisions is to be d ism issed as sim ply wrong. They reflect a d eep current d ivision in the views of international ad ju dicators as to the line to be d rawn betw een conflicting p rincip les. 37 In a cu rrently p ending ICSID claim , A gu as d el Tunari v Boliv ia,38 the foreign investor's claim has becom e a focu s for argum ents abou t the fu ndam ental right of the citizens of Bol ivia to access to clean w ater. B Env ironm ent and Trad e The second exam ple of cu rrent conflict betw een elem ents of international law is to be found in the case law being d evelop ed by the App ellate Bod y u nder the Dispu tes Settlem ent Und erstand ing (DSU) of th e WTO on the interaction betw een international trad e law and the protection of the environm ent. It is not possible w ithin the com p ass of this lectu re to d o more than give a snap shot of this com p lex debate. 39 In Tu na–Dolp hin I,40 a GATT p anel had held that a United States ban on imp orts of Mexican tu na, w hich had been im posed on the grou nd that the fishing m ethod adop ted d id not su fficiently p rotect d olphins, w as contrary to the General Agreem ent on Tariffs and Trad e (GATT). It fou nd that the United States cou ld have ad op ted other m easures for achieving its objectives short of an ou tright ban on Mexican tu na and thu s the m easu re w as not "necessary to p rotect hum an, animal or p lant life or health". 41 That d ecision (althou gh never form ally adop ted by the GATT Cou n cil) was su bsequ ently su bstantially confirm ed by a second GATT Panel.42 That case m ay be contrasted w ith a ju d gm ent of the WTO App ellate Bod y in 1999 in Shrim p –Tu rtle.43 That w as a case concerning a very sim ilar issu e—a United States ban on the im portation of comm ercial seafood in ord er to p rotect against the incid ental killing of

37 See now also Feld m an v M exico (2003) 42 ILM 625. 38 ICSID A gu as d el Tu nari SA v Boliv ia p end ing case ARB/ 02/ 3 ICSID Cases (last accessed 25 Sep tem ber 2003). 39 A good recent su m m ary is to be fou n d in And reas F Low enfeld International Econom ic Law (Oxford University Press, Oxford , 2002) 314–339. 40 GATT United States Restrictions on Im p orts of Tu na (3 Sep tember 1991) GATT Doc DS21/ R; (1991) 30 ILM 1594. 41 General Agreem ent on Tariffs and Trad e (GATT 1947) (30 October 1947) 55 UNTS 194, art XX(b). 42 GATT United States Restrictions on Im p orts of Tu na— Rep ort of the Disp u te Settlem ent Panel (16 Janu ary 1994) GATT Doc DS29/ R; (1994) 33 ILM 839. 43 WTO United States: Im p ort Prohibition of Certain Shrim p and Shrim p Prod u cts— Rep ort of the A p p ellate Bod y (12 October 1998) WT/ DS58/ AB/ R; (1999) 38 ILM 118.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

another species. On this occasion, the imp orted p rod u ct w as shrimp , and the end angered sp ecies cau ght in the shrimp nets w as sea tu rtles. In its d ecision the Ap p ellate Bod y still found that the United States had infringed the GATT by failing to negotiate w ith com p lainant states on its ban, and thus p roceed ing w ith a unilateral m easu re w hich w as in effect d iscrim inatory. Bu t the Ap p ellate Bod y m ad e extensive reference to international environm ental law texts in its d ecision. It fou nd that the word s of article XX of the GATT had to be read in the light of contem porary concerns of the commu nity of nations abou t p rotection and conservation of the environm ent. That d ebate has d evelop ed a greater level of sp ecificity through the issu es su rrou nd ing the ap p lication of the Sanitary and Phyto-Sanitary Agreem ent (the SPS Agreem ent).44 In a d ecision of 16 Janu ary 1998 on Beef Horm ones,45 the Ap pellate Body consid ered the im pact of a Eu rop ean Union Directive banning the imp ort of horm one-fed beef. The Eu rop ean Union had relied for the valid ity of the Directive u p on the precau tionary p rincip le, w hich it contend ed had becom e a general ru le of cu stom ary international law . H ow ever, articles 5.1 and 5.2 of the SPS Agreem ent sp ecifically requ ired a risk assessm ent condu cted on the basis of scientific evid ence. The Ap pellate Bod y fou nd that the Eu rop ean Union had not cond u cted such an assessm ent and that its ban w as therefore contrary to the SPS Agreem ent. It d id , how ever, hold that:46 [A] p anel charged w ith d eterm inin g, for instance, w hether "su fficient scientific evid ence" exists to w arrant the m aintenance by a Mem ber of a p articular SPS measu re may, of cou rse, and shou ld , bear in m ind that resp onsible, rep resentative governments commonly act from p ersp ectives of p ru d ence and p recau tion w here risks of irreversible, e.g. life -terminating , d am age to hu m an health are concerned .

These issu es w ill be raised again by a United States challenge to a Eu rop ean Union m oratorium on genetically mod ified bio-tech p rodu cts notified u nd er the DSU on 20 May 2003,47 w hich N ew Zealand has requ ested to join.

44 Agreem ent on the Ap p lication of Sanitary and Ph yto -Sanitary Measu res. For the text of the Agreem ent see WTO Legal Texts (last accessed 25 Sep tem ber 2003). 45 WTO EC M easu res Concerning M eat and M eat Prod u cts (Horm on es)— Rep ort of the A p p ellate Bod y (16 Janu ary 1998) WT/ DS26/ AB/ R. 46 WTO EC M easu res Concerning M eat and M eat Prod u cts (Horm on es)— Rep ort of the A p p ellate Bod y (16 Janu ary 1998) WT/ DS26/ AB/ R p ara 124. 47 WTO Eu rop ean Com m u nities: M easu res A ffecting the A p p rov al and M arketin g of Biotech Prod u cts— Requ est for Consu ltations by the United States (20 May 2003) WT/ DS291/ 1.

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C Conflicts betw een Courts A third examp le of the p rocess of fragm entation has been a by-p rod uct of the p roliferation of cou rts and tribu nals. This has led to the mod ern reality that m any international d isp u tes d evelop a polycentric character—being litigated in more than one forum at the sam e tim e. A cu rrent examp le of this p ar excellence is the M ox Plant case, w hich is concerned w ith the p otential environm ental effect on Ireland of the op eration of the nu clear rep rocessing p lant at Sellafield in the United Kingd om . Ireland first brou ght a requ est for p rovisional m easu res to the ITLOS. 48 It also su bm itted a d isp u te regard ing access to information to an arbitral tribu nal to be constitu ted u nd er the 1992 Convention for the Protection of the Marine Environm ent of the North East Atlantic (the OSPAR Convention).49 Ireland sou ght to have its su bstantive claims d ealt w ith by an arbitral tribu nal constitu ted u nd er UN CLOS.50 It also raised the p rosp ect of claim s u nd er the Eu rop ean Union Treaty and the EURATOM Treaty. In its d ecision on p rovisional m easu res of 3 Decem ber 2001, ITLOS held that all of these p roceed ings cou ld potentially go ahead in p arallel. It fou nd that:51 [T]he d isp u te settlem ent p roced u res u nd er the OSPAR Convention, the EC Treaty and th e Eu ratom Treaty d eal w ith d isp u tes concernin g the interp retation or ap p lication of those agreem ents, and not w ith d isp u tes arising u nd er the [UN CLOS] Con vention … . [E]ven if the OSPAR Convention, the EC Treaty and the Eu ratom Treaty contain rights or obligations sim ilar to or id entical with the rights or obligations set ou t in the [UNCLOS] Convention, the rights and obligations u nd er those ag reements have a sep arate existence from those u n d er the Convention …

On one level, this d ictu m d oes no more than to state the obviou s. Each mu ltilateral treaty regime creates its own ad jud icatory system . The ju risd iction of any such tribunal and the su bstantive rights p rotected flow from the treaty. By contrast w ith national legal

48 ITLOS The M ox Plant Case (Ireland v United Kin gd om )— Requ est for Prov isional M easu res an d Statem ent of Case of Ireland (3 Decem ber 2001) International Tribu nal for the Law of the Sea (last accessed 25 Sep tember 2003). 49 PCA Disp u te Concerning A ccess to Inform ation u nd er A rticle 9 of the OSPA R Conv ention: Ireland v United Kingd om — Final A w ard (2 Ju ly 2003) Permanent Cou rt of Arbitration (last accessed 25 Sep tember 2003). The Convention is p u blished at (1992) 32 ILM 1069. 50 PCA The M ox Plant Case: Irelan d v United Kingd om — Ord er n o 3 (24 Ju ne 2003) Permanent Cou rt of Arbitration (last accessed 25 Sep tem ber 2003). 51 ITLOS The M ox Plant Case (Ireland v United Kin gd om )— Requ est for Prov isional M easu res— Ord er (3 Decem ber 2001) p aras 49–50.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

system s, international law has no overarching ju d icial hierarchy w hich might p rovid e a coherent ord er into which all of these tribu nals might fit. Bu t it also lacks any d evelop ed system of ru les, of the kind comm only fou nd in national legal system s and in p rivate international law , to regu late conflicting p roceed ings and ju d gm ents. 52 Private international law has a developed system of ru les of lis alibi p end ens, w hich p rovid e an ord er of p reced ence betw een cou rts hearing the sam e cau se, and of res ju d icata, w hich govern the effect to be given to earlier ju d gm ents of the sam e cau se or m atter.53 The p erils of this typ e of red u ctionist app roach are vivid ly illu strated by the arbitral p roceed ings brou ght by the Am erican entrep reneu r Ron Lau d er against the Czech Rep u blic alleging exp ropriation of his investm ent in the Czech television channel, TV N ova. Mr Lau d er brought two arbitration claim s. The first w as brou ght u nd er the United States–Czech Bilateral Investm ent Treaty in his ow n nam e.54 The second claim was brought u nd er the Du tch –Czech Bilateral Investment Treaty in the nam e of a Du tch corp orate vehicle for the investm ent, CME, in w hich he w as the controlling (albeit m inority) sharehold er.55 This led to the establishm ent of tw o arbitral panels pu rsu ing id entical claim s on id entical treaty langu age w ith id entical evid ence. N evertheless, d esp ite this overlap , on 3 Sep tember 2001 the first arbitral tribu nal hand ed d ow n its aw ard in London fin d ing no exp rop riation, and no d am age. It was all a p rivate d isp u te betw een Mr Lau d er and his local investm ent p artner. A mere ten d ays later on 13 Sep tem ber 2001, the second arbitral tribu nal d elivered its aw ard in Stockholm and found m u ltip le exp rop riations, aw ard ing d amages based on a comp lete loss of the investm ent at its fair m arket valu e. The second tribunal saw nothing su rp rising in the d ifference of view between the tw o tribunals. It held :56

52 For a recent stu d y see Yu val Shan y The Com p eting Ju risd ictions of International Cou rts and Tribu nals (Oxford University Press, Oxford , 2003). 53 See Cam p bell McLachlan "Declining and Referring Ju risd iction in International Litigation: Third Interim Rep ort of the Com m ittee on International Civil and Com mercial Litigation" in International Law Association Rep ort of the Sixty -N inth Conferen ce (Lon d on , 2000) 137; Peter Barnett Res Ju d icata, Estop p el and Foreign Ju d gm ents (Oxford University Press, Oxford , 2001). 54 Lau d er v Cz ech Rep u blic— Final A w ard (3 Sep tember 2001). For the text of the aw ard see the Ministry of Finance of th e Czech Rep u blic (last accessed 25 Sep tem ber 2003). 55 CM E Cz ech Rep u blic BV (The N etherland s) v Cz ech Rep u blic— Partial A w ard (13 Sep tember 2001). For the text of the aw ard see the Ministry of Finan ce of the Czech Rep u blic (last accessed 25 Sep tember 2003). 56 CM E Cz ech Rep u blic BV (The N etherland s) v Cz ech Rep u blic— Partial A w ard (13 Sep tember 2001) p ara 412.

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There is also no a bu se of the Treaty regim e by Mr. Lau d er in brin gin g virtu ally id entical claims u nd er tw o sep arate Treaties … . Shou ld tw o d ifferent Treaties grant remed ies to the resp ective claim ants d eriving from the sam e facts and circu mstances, this d oes not d ep rive one of th e claim ants of ju risd iction, if ju risd iction is granted u n d er the resp ective Treaty.

Yet it is su bm itted that the net resu lt is contrary to a commonsense app lication of the p rincip le of res ju dicata. Whether or not the two p roceedings ou ght to have gone ahead in p arallel, the aw ard rend ered first ought to have attracted som e bind ing effect in the second arbitration given su fficient id entity of cau se of action and p arties. Each of these sagas of fragm entation in m icrocosm has now reached an ou tcom e of sorts. In the Lau d er/ Cz ech Repu blic d ebacle, a challenge to the valid ity of the second aw ard in the Sw ed ish Court of App eal failed on the narrow grou nd of a lack of sufficient id entity of p arties betw een Mr Lau d er and CME so as to preclu d e the app lication of res ju d icata.57 In the Mox Plant case, the arbitral tribu nal constitu ted u nder UNCLOS su sp end ed its p roceed ings on 24 June 2003 u ntil 1 Decem ber 2003.58 It d id so in ord er to enable the Eu rop ean Comm ission to institu te proceed ings before the Eu rop ean Court of Ju stice. Those p roceedings wou ld be d esigned to establish w hether or not the Eu rop ean Court had exclu sive comp etence in the matter of a d ispu te betw een tw o m em ber states; and w hether or not the comp etence of Ireland in the m atter had been transferred to the Eu rop ean Comm ission. There w as no p resent conflict of jurisd ictions, bu t the risk of an exclu sive ju risd iction over at least p art of the claim ju stified a stay of p roceed ings u ntil the m atter had been clarified . These ou tcom es seem to be p recisely the reverse of where they shou ld have been. In the field of foreign investment arbitration (as exem p lified by the Lau d er/ Cz ech Rep ublic d isp u te) most bilateral investm ent treaties, and the ICSID Convention itself, establish a broad d efinition of "investment", w hich allows the p iercing of the corp orate veil so as to enable claim s to be brou ght by the ultimate investor (in this case Mr Laud er) as w ell as by interm ed iate investm ent vehicles.59 It is submitted that it is inconsistent and unfair to p erm it a broad ap p roach at the ju risd ictional stage, an d then to im pose a narrow ru le of id entity of p arties for res jud icata pu rposes at the recognition of aw ard stage.

57 CM E Cz ech Rep u blic BV (The N eth erland s) v Cz ech Rep u blic (15 May 2003) ju d gment of the Svea Cou rt of Ap p eal. For the text of the ju d gm ent (translated from the Sw ed ish) see the Ministry of Finance of the Czech Rep u blic (last accessed 25 Sep tem ber 2003). 58 PCA The M ox Plant Case: Ireland v United Kin gd om — Ord er no 3 (24 Ju ne 2003) p aras 20–28. 59 See for exam p le ICSID A M CO A sia Corp oration v Rep u blic of In d onesia— Decision on Ju risd iction (25 Sep tem ber 1983) (1993) 1 ICSID Rep 389; (1984) 23 ILM 351.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

In the M ox Plant litigation, one m ight have had concerns abou t the very red uctionist ap p roach to controlling p lu ral legal processes ad op ted b y ITLOS. Bu t the resu lt ad op ted by the UNCLOS Tribu nal seem s to go too far in the opp osite d irection. The Tribu nal stayed its p roceed ings simp ly follow ing a statem ent m ad e by the Eu rop ean Comm ission to the Eu rop ean Parliam ent, after close of p lead ings in the arbitral p roceed ings, to the effect that it w as exam ining the qu estion w hether to institu te proceed ings to seek to establish the exclu sive comp etence of the Europ ean Cou rt of Ju stice u nder article 226 of the Eu rop ean Comm u nity Treaty.60 Thu s, from the p oint of view of the Arbitral Tribu nal, there w as no clearly established conflict, or even any concurrent proceedings which might have given rise to an argum ent of lis p end ens. Althou gh articles 281 and 282 of UN CLOS cou ld p otentially have op erated so as to confer exclu sive comp etence over the d isp u te on the Eu rop ean Cou rt of Ju stice, it is u nclear why this issu e shou ld not have been finally d eterm ined by the Arbitral Tribu nal itself. The Tribu nal seem s to have been p rep ared to have acted p re-emp tively on a m ere app rehension of fu tu re p ossible conflict and to have d eferred on this p oint to the Eu rop ean Cou rt of Ju stice. In the m eantim e, the su bstantive com p laint of Ireland , w hich is fou nd ed u pon the p rovisions of UN CLOS, is no closer to resolu tion. D Immunity for International Crim es Perhaps the greatest clash betw een conflicting valu es in international law in recent tim es, how ever, has been on the issu e of immu nity for international crim es. The conflict has been betw een that bod y of law w hich p rotects states and head s of state from being su ed in the cou rts of other states, and the equ ally im portant bod y of law (at least since N u rembu rg) w hich im poses ind ividu al liability u nd er international law for international crim es inclu ding war crim es and crim es against hu m anity. As those w ho w ere involved in the Pinochet litigation 61 d iscovered , these two bod ies of law had d evelop ed largely ind ep end ently. Their p otential incomp atibility had not been resolved , d esp ite the fact that m any international conventions had been con clu d ed d uring the latter half of the 20th centu ry, w hich p rovid ed for national cou rt ju risdiction over international crim es.62

60 PCA The M ox Plant Case: Ireland v United Kin gd om — Ord er no 3 (24 Ju ne 2003). 61 R v Bow Street M etrop olitan Stip end iary M agistrate, ex p arte Pinochet Ugarte (N o 1) [2000] 1 AC 61 (HL); (N o 3) [2000] 1 AC 147 (HL). The au thor rep resented the Rep u blic of Chile in Pinochet (N o 3). 62 See Roger S Clark "Offenses of International Concern: Mu ltilateral State Treaty Practice in the Forty Years since Nu rem berg" [1988] Nord ic J Intl L 49.

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The Hou se of Lord s in Pinochet (N o 3) thou ght that it had fou nd its p hilosop her's stone in im p lied state w aiver by treaty. If, rea soned the m ajority, Chile w as not to be taken to have waived imm u nity on ratification of the Tortu re Convention, "the w hole elaborate stru ctu re of u niversal ju risd iction over tortu re com m itted by officials is rend ered abortive".63 The great virtu e of this ap p roach w as that it w as seen to rest on state consent. The p roblem w ith it is that su ch consent is essentially a fiction. As Lord Goff pointed ou t in his d issent, "how extraord inary it w ou ld be, and ind eed w hat a trap w ou ld be created for the u nwary, if state imm u nity cou ld be w aived in a treaty su b silentio". 64 If ever there w ere a p rincip le of the international law of state imm u nity which w as w ell established p rior to Pinochet, it w as that w aiver of imm u nity by treaty had to be exp ress.65 This rou te ou t of the im passe has now been d ecisively rejected by the International Court of Ju stice in its d ecision on the immu nity of Congo's foreign m inister in Dem ocratic Rep u blic of the Congo v Belgium .66 The Cou rt held :67 [A]lthou gh variou s international conventions on the p revention and p u nishment of certain seriou s crim es im p osed on States obligations of p rosecu tion or extrad ition, thereby requ irin g them to exten d their crim inal ju risd iction, su ch extension of ju risd iction in no w ay affects im m u nities u nd er cu stom ary international law , inclu d ing those of Ministers for Foreig n Affairs. These rem ain op p osable before the cou rts of a foreign State, even w here those cou rts exercise su ch a ju risd iction u nd er these conventions.

If imp lied w aiver by treaty w ill not d o, the cou r ts may have to look again at the notion of "official" acts. Ju d ges H iggins, Kooijmans, and Bu ergenthal, in an im portant p assage in their Joint Separate Op inion in Congo v Belgiu m , su ggested that it m ay be that

63 R v Bow Street M etrop olitan Stip end iary M agistrate, ex p arte Pinochet Ugarte (N o 3) [2000] 1 AC 147, 205 (HL) Lord Brow ne-Wilkinson . This p art of the text d raw s u p on the au thor's note "Pinochet Revisited " (2002) 51 ICLQ 959. 64 R v Bow Street M etrop olitan Stip end iary M agistrate, ex p arte Pinochet Ug arte (N o 3) [2000] 1 AC 147, 223 (HL) Lord Goff. 65 See Sir Robert Jennin gs and Sir Arthu r Watts (ed s) Op p en heim 's International Law (9 ed , Longm an, Harlow , 1992) vol I 351; A rgentine Rep u blic v A m erad a Hess Ship p in g Corp oration (1989) 109 S Ct 683. 66 Case Concerning the A rrest W arrant of 11 A p ril 2000 (Dem ocratic Rep u blic of the Congo v Belgiu m ) (2002) 41 ILM 536. 67 Dem ocratic Rep u blic of the Con go v Belgiu m , above, 551.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

"international crim es cannot be regard ed as official acts becau se they are neither norm al State fu nctions nor fu nctions that a State alone … can p erform ".68 Yet, how ever convenient such a solu tion m ay be as an app arent d evelopm ent from established legal categories, it su rely falls into the very trap w h ich the courts have sou ght to avoid in d efining acts ju re im p erii. What is requ ired is an exam ination of w hether the act is by its natu re (and not p u rp ose) a governm ental act. It w ill m ost often be the case that the carrying ou t of an international crim e by a high state official—p articu larly where it has the character of a "w id esp read or system atic attack d irected against any civilian p opu lation"69—w ill, of its natu re, involve the exercise of the ap paratu s of the State. As Lord Millett observed in Pinochet (N o 3), an excep tion to state im mu nity for international crim es, so far from falling within the existing restrictive theory of state imm u nity, w ou ld be an "opp osite d evelopm ent".70 One is driven, then, to conclu d e that it wou ld be p referable, if internationa l law w ere to ad m it an excep tion to state imm u nity for the p rosecu tion of ind ivid u als for international crim es, that su ch an excep tion shou ld d evelop as an ind epend ent head . The d evelopm ent of the excep tion for torts com mitted on the territory of another s tate p rovid es a p arallel p reced ent. As a m atter of the internal logic of the law of state im mu nity, u nbu nd ling ind ivid u al crim inal liability from other form s of imp lead ing the state m ay have little to comm end it. Bu t the issu e here d oes not d ep end u pon the internal logic of state im mu nity alone. Rather, it is how to reconcile that set of ru les governing imm u nity w ith another equ ally im portant set of ru les in m od ern international law . E Terrorism and Hum an Rights The final exam p le of conflict betw een norm s in international law com es back m ore closely to w here this lectu re started , w ith the issu es w hich the international commu nity has been confronting since 11 Sep tem ber 2001. It is concerned w ith the clash betw een the d esire to com bat the p eril of internationa l terrorism , w hich threatens to und erm ine the basic elem ents of civil society, and the need to p reserve resp ect for fund am ental hum an rights, inclu d ing the rights of those su sp ected of p erpetrating su ch crim es. Unfortunately, the new s from the sharp end of that d ebate, and sp ecifically from Gu antanam o Bay, is not good . For it is there, at the United States Naval Base, im mortalised

68 Dem ocratic Rep u blic of the Con go v Belgiu m , above, 591. 69 Rom e Statu te of the International Crim inal Cou rt (17 Ju ly 1998), art 7. The text of the Statu te may be fou nd at (Last accessed 25 Sep tem ber 2003). 70 R v Bow Street M etrop olitan Stip end iary M agistrate, ex p arte Pinochet Ugart e (N o 3) [2000] 1 AC 147, 268 (HL) Lord Millett.

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in the song Gu antanam era, that 650 p eop le from 43 countries have been imp risoned w ithou t trial since late 2001.71 Many of these are said to have been Taliban fighters and are not accu sed of being al Qaeda terrorists. The p osition taken by the United States Governm ent is that they will not be accord ed p risoner of w ar statu s. H ow ever, the Geneva Conventions sp ecifically entitle p erson s claim ing to be p risoners of war to a d eterm ination of their statu s by a comp etent tribu nal.72 In A l Od ah v United States of A m erica,73 Au stralian and Kuw aiti citizens im p risoned at Gu antanamo Bay ap plied throu gh next friend s for habeas corp u s. The United States Court of Ap p eals for the District of Colum bia held that the w rit of habeas corp u s w as not available becau se the protections of the United States Constitu tion wou ld not be extend ed to aliens abroad .74 It fou nd that Gu antanamo Bay w as not part of the so vereign territory of the United States.75 So great w as the concern at this app roach in the United Kingdom , that the English Court of Ap p eal held in R v Secretary of State for Foreign and Com m onw ealth A ffairs, ex p arte A bbasi76 that British d etainees at Gu antanam o Bay had a legitim ate exp ectation that the Foreign and Commonw ealth Office wou ld consid er their requ est to espou se d ip lom atic p rotection on their behalf, in ord er to ensu re that the d etainees were not left in a "legal black hole".77

IV

TOWA RDS A N EW COHEREN CE

What are we to make of the effect of all of these pressu re p oints in the international system on the shap e of international law? 71 It is p lanned to bring som e of those p eop le before military commissions —see United States Dep artm ent of Defense "Presid ent Determ ines Enem y Com batants Su bject to His Military Ord er" (3 Ju ly 2003) New s Release No 485–03 (last accessed 25 Sep tem ber 2003). 72 See the Convention Relative to the Treatm ent of Prisoners of War (Third Geneva Convention) (12 Au gu st 1949) 75 UNTS 135, art 5 and the Pr otocol Ad d itional to th e Geneva Conventions of 12 Au gu st 1949, and relating to the Protection of Victims of Internation al Armed Conflicts (Protocol I) (8 Ju ne 1977) 1125 UNTS 3, art 45(1), d iscu ssed in George H Ald rich The Taliban, A l Qaed a, and the Determ ination of Illegal Com batants (2002) 96 Am J Int'l L 891. 73 A l Od ah v United States of A m erica (2003) 321 F 3d 1134 (9th Cir); (2003) 42 ILM 408; p etition for certiorari filed , no 03-343 (25 Sep tem ber 2003). 74 Follow ing Johnson v Eisentrager (1950) 339 US 763. 75 Ap p lying V erm ily a-Brow n Co v Con nell (1948) 335 US 377. 76 R v Secretary of State for Foreign and Com m onw ealth A ffairs, ex p arte A bbasi [2002] EWCA Civ 1598; (2003) 42 ILM 358. 77 A bbasi, above, (2003) 42 ILM 358, 365 Lord Philip s MR for the Cou rt.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

Mary Robinson recently observed , in giving the Grotiu s Lectu re at the Am erican Society of International Law Annu al Meeting in Ap ril 2003, that "it has only been at tim es of profou nd transformation that w e have seen self-consciou s reflection on international law 's und erlying goals".78 Part of the answ er to this m ay be fou nd in exp loring the imp lications of three central concep ts w hich m ay help to exp lain international law as both a system and a d ynam ic p rocess. Those concep ts are: p rogressive d evelopm ent, accomm od ation, and coherence. A Progressiv e Dev elopm ent In 1934, the Privy Cou ncil, d elivering an op inion on the d efinitio n of p iracy at international law said this:79 International law w as not crystallized in the 17th centu ry, bu t is a living an d exp an d ing cod e.

It continu ed , quoting H all:80 Progressively it has taken firm er h old , it has exten d ed its sp here of op eration, it ha s ceased to trou ble itself abou t trivial form alities, it has more and m ore d ared to grap p le in d etail w ith the fu nd am ental facts in the relations of states. The area w ithin w hich it reigns beyond d isp u te has in that tim e been infinitely enlarged …

It is su bm itted that w hether or not that p roposition w ere alread y tru e in 1934, it is certainly tru e now . We have entered a new area of the p ervasive ap plication of international law . There are tw o other id eas encap su lated in the p assage ju st cited w hich also bea r fu rther reflection. The first is that notion of H all's that international law has "d ared to grap ple in d etail w ith the fu nd am ental facts in the relations of states". This encap su lates the id ea that international law m ight be seen not as a su bstitu te for a mu ltitu d e of ways in w hich states and other actors interact w ith each other on the international p lane, bu t rather as engaged in a continuou s d ialogu e in w hich legal p rincip le is both inform ed and shap ed by state p ractice and in turn seeks to influ ence it. The second element of the app roach adop ted by the Privy Cou ncil is the notion that international law is a "living and exp and ing cod e". This

78 Mary Robinson "Shap ing Globalization: The Role of Hu man Rights" (2003 Grotiu s Lectu re, Washington, 2 Ap ril 2003) American Society of International Law (last accessed 25 Sep tember 2003). 79 In re Piracy Ju re Gentiu m [1934] AC 586, 592 (PC). 80 In re Piracy Ju re Gentiu m [1934] AC 586, 593 (PC). The qu ote is from the p reface to the third ed ition of William Ed w ard Hall's A Treatise on International Law , rep rinted in A Pearce Higgins (ed ) A Treatise on International Law (8 ed , Clarend on Press, Oxford , 1924) xxv.

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m eans that any general theory of international law m u st both comp rehend the process by w hich it is d evelop ed and changed , and em brace that p otential for change w ithin it. B A ccomm odation The second concep t com es from the sep arate op inion of Jud ges H iggins, Kooijm ans, and Bu ergenthal in Dem ocratic Rep u blic of Congo v Belgium . The ju d ges, in comm enting on the relationship betw een state immu nity and the p rosecu tion of ind ividu als for international crim es, observed :81 International law seeks the accom m od ation of this valu e [the p reservation of u nw arranted ou tsid e interference in the d om estic affairs of States] w ith the fig ht against imp u nity, and not the triu m p h of one n orm over the other.

This concep t of accomm od ation is not a p rocess of selecting general p rincip les from a jum ble of d ifferent international law m aterials. Som e p u blic law yers (both ju d ges and acad em ic comm en tators) exam ining the new -fou nd role of international law in d om estic ad m inistrative law have tend ed to see international law m erely as a sou rce of valu es, w hich p erm it "the jud icial u pd ating of the catalogu e of values to w hich the comm on law su bjects the adm inistrative state".82 This p ublic law yers' approach to accomm odation — even w hen ap p lied at the dom estic level—ru ns the risk of ignoring im portant d ifferences betw een the qu ality of variou s sou rces of international law . It also risks glossing over the hard process of accomm odation betw een com p eting valu es and interests of states hamm ered ou t in the course of international negotiations, and the su btle balance of the resu lts achieved . The sam e kind of p rocess also inform s the d evelopm ent of customary internat ional law . As Brow nlie observed :83 The elem ents of the form ation of ru les of general international law —international cu stom —are not som e esoteric invention; rather they p rovid e criteria by w hich the actu al exp ectations and com m itm ents of States can be teste d .

Anyone w ho has stu d ied the process by w hich the International Law Comm ission's articles on state resp onsibility em erged over a 40-year p eriod u ntil finally ad op ted in 2001

81 Case Concerning the A rrest W arrant of 11 A p ril 2000 (Dem ocratic Rep u blic of the Congo v Belgiu m ) (2002) 41 ILM 536, 589. 82 David Dyzenhau s, Mu rray Hu nt, and Michael Taggart "The Princip le of Legality in Ad m inistrative Law : Internationalisation as Constitu tionalisation" (2001) 1 OUCLJ 5, 34. 83 Ian Brow nlie "The Rights of Peop les in Mod ern International Law " in James Craw ford (ed ) The Rights of Peop les (Clarend on Press, Oxford , 1988) 1, 15.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

w ou ld u nd erstand how d ifficu lt it can be for a new consensu s to d evelop on these gru nd norm s of the international system .84 H ow ever, it d oes not m ean that the p rocess is one of p u re realp olitik . H ere I find m yself in resp ectfu l d isagreem ent w ith Professor Brow nlie w ho goes on to say that "[i]nternational law is abou t the real policies an d comm itments of governm ents, it is not abou t the incantations of secular or religious morality".85 Of cou rse one cannot, by m ere enthu siasm , tu rn p ropositions w hich are m ere d esid erata into hard international law . Bu t, if it w ere not the case that, ru nning alongsid e the imp act of international politics w ere also a strong strain of international morality, few of the great m ilestones of the last 50 years in international law wou ld have been achieved : in hu man rights, in hu m anitarian law , in international crim inal law , and in international environm ental protection. As the late Professor Colin Aikman p u t it in his inaugu ral lectu re at this u niversity on 11 Sep tem ber 1956, cou ntering the Am erican realist school of his d ay, "to d eny the ap p lication of m oral p rincip les in international affairs is to reject one of the fou ndations of hu man society".86 C Coherence This is where the concep t of coherence com es into p lay. As Low e recently remind ed us, w e mu st test any claim s for new d evelopm ents in international law for th eir coherence w ith the fu nd am ental p rincip les und erlying the international system as a w hole. 87 Low e d raw s a d istinction in this p rocess betw een moral and p olitical argum ents:88 The d ifference is cru cial. Moral argu m ents can be u niversalised . Political argu m ents cannot. Rooting the d evelop m ent of international law in the soil of com mon morality is necessary in ord er to su stain its claim to legitim acy; the rooting of international law in the exigencies of

84 See Jam es Craw ford The International Law Com m ission's A rticles on State Resp onsibility (Cam brid ge University Press, Cam brid ge, 2002). 85 Ian Brow nlie "The Rights of Peop les in Mod ern International Law " in James Craw ford (ed ) The Rights of Peop les (Clarend on Press, Oxford , 1988) 1, 15. 86 C C Aikm an "Law in the World Com m u nity" (1999) 30 VUWLR 501, 517. 87 Vau ghan Low e "The Iraq Crisis: What Now ?" (2003) 52(4) ICLQ (forthcoming; p ap er p resented to the Sp ring Con ference of the British Bra nch of th e International Law Association, Read ing University, 12 Ap ril 2003). 88 Low e "The Iraq Crisis: What Now ?", above.

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national p olitical objectives, on the other hand , is on e of the d efining characteristics of im p erialism .

Many of the conflicts currently being exp erienced w ithin the op eration of the international law system , w hich have been d iscu ssed above, m ay in fact be m erely symp tom s of the m atu ring of international law —the growing p ains of an increasingly effective m u ltilateral system . The solu tion to them may lie in a carefu l analysis of a p articu lar issu e and of the coherence of a prop osed rule w ithin the existing body of general p rincip les of international law . One's su sp icion is that issu es such as the content of exp ropriation in relation to state regu lation, the relationship betw een environm ent and trad e, and the resolu tion of lis p end ens issu es betw een international tribu nals m ay be w orked ou t in this w ay. This is not a p rocess of seeking to achieve a triump h of one norm over the other. We valu e equ ally the enhancem ent of free trad e and the p rotection of the environm ent. Bu t w e need to w ork ou t in d etail how these tw o imp ortant valu es of international society are to be articu lated and harm onised . This m ay requ ire tou gh choices. In the process, new p rincip les of international law m ay em erge. Som e of the conflicts m ay tu rn ou t on closer exam ination to be m ore ap p arent than real. A recent stu dy by the late Professor Char ney found rem arkably little su bstantive conflict in the ap p lication of international law by international tribu nals.89 This is in p art becau se of an exp licit effort by ju d ges to locate their d ecisions w ithin a broad er fram ework of international law . Bu t bigger issu es, w hich may be less easily resolved , continue to confront u s in the core areas of the best m eans of m aintaining international p eace and secu rity and the balance to be stru ck w ith the p rotection of hum an rights. In these areas, to borrow the late Professor Qu entin-Baxter's m em orable p hrase, "[b]etw een the concep tion of a w orld ord er and its actu ality falls the shad ow of state sovereignty".90 With these points on coherence in m ind , it is now possible to m ake som e observations on the p resent situ ation in Iraq. D Reflections on the Iraq Crisis The United Kingdom's p osition on the legality of arm ed intervention in Iraq w as characterised by a consciou s effort to locate its intervention w ithin the existing stru ctu res of the United N ations Secu rity Cou ncil. It invoked an entitlem ent to intervene in Iraq on

89 Jonathan I Charney "Is International Law Threatened by Mu ltip le International Tribu nals" (1998) 271 Recu eil d es Cou rs d e l'Acad ém ie d e Droit International 101. 90 R Q Qu entin-Baxter "The United Nations Hu man Rights Commission and the Search for Measu res of Im p lem entation" (1999) 30 VUWLR 567, 568.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

the basis of Iraq's rep eated non-com p liance w ith Secu rity Cou ncil resolu tions and the stand ing au thorisations to intervene to comp el com p liance w hich it contend ed had been granted by the Secu rity Cou ncil. The United Kingdom thu s m ad e an app eal to coherence w ith the existing system .91 The d ifficu lty that this app roach cau ses is that Resolu tion 1441 does not on its face au thorise the u se of force. It cou ld not have d one so given the num ber of states w hich w er e op posed to the u se of force against Iraq prior to the recent intervention. The best evid ence against the p rop osition that Resolu tion 1441 itself gave a clear m andate is the fact that the United Kingdom itself mad e a su stained effort to obtain a further r esolu tion w hich w ou ld have exp licitly au thorised the u se of force and failed to d o so. Insofar as the United Kingdom sou ght to bolster its p osition by relying on earlier Secu rity Cou ncil resolu tions, there is no know n doctrine of the revival of p ast Secu ri ty Council resolu tions.92 Resolu tion 678, on w hich so mu ch reliance was p laced , has to be read in the context of all the Secu rity Cou ncil resolu tions at the tim e of Iraq's invasion of Kuw ait in 1991. In p articu lar, it is su bm itted that Resolu tion 686, w hen read together w ith Resolu tion 687, show s that the au thorisation on states to use force was only given for a lim ited pu rpose, nam ely to rep el the invasion of Kuw ait. By Resolu tion 687, the Security Council term inated its au thorisation of the u se of force by m em ber states once that invasion had been rep elled and a form al ceasefire achieved .93 The position adop ted in the United States took a rather different line. There w as a form al reference to the legality of the actions w ithin the context of existing United N ations resolu tions. H ow ever, that need s to be seen in light of the d evelop m ent by the p resent Adm inistration of a doctrine of "preventive war". This d octrine seeks to revert to a p osition p rior to the ad op tion of the United N ations Charter, which ou tlaw ed the u se of force by states by article 2(4), save for the very lim ited p reservation of a right of actual self-d efence

91 Foreign an d Com m onw ealth Office "Attorney General Clarifies Legal Basis for Use of Force against Iraq" (18 March 2003) (last accessed 25 Sep tem ber 2003). 92 A p oint m ad e by Vau ghan Low e in "The Iraq Crisis: What N ow ?" (2003) 52(4) ICLQ (forthcom in g). 93 See the carefu l analysis of the p osition, w ritten before the cu rrent crisis, in Danesh Sarooshi The United N ations an d the Dev elop m ent of Collectiv e Secu rity (Oxford University Press, Oxford , 1999) 170–186. Sarooshi conclu d es (at 182): "The better legal view is that … the d elegation of Chap ter VII p ow ers to Mem ber States w as terminated by conclu sion of the formal ceasefire betw een Iraq and the UN, the term s of w hich w ere sp ecified in resolu tion 687."

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in article 51.94 The Au stralian Governm ent, one of the United States' m ost p rom inent coalition partners, has exp ressly adm itted that an am end ment of the Charter w ould be requ ired for this new doctrine to gain valid ity in international law . 95 The essential p roblem w ith the d octrine of p reventive war is that it p rovid es no m easu rable w ay of evaluating any state's right to lau nch acts of aggression w henever it feels threatened . This is exactly w hat the United Nations system w as d esigned to ou tlaw . As Presid ent Trum an once famou sly p u t it, "You don't 'p revent' anything by w ar excep t p eace".96 It has becom e fashionable in som e qu arters in Washington, and even am ong p rofessors of international law , to su ggest that the actions of the Coalition of the Willing m ay have been "illegal [bu t] nonetheless legitim ate".97 Worse still, it has been su ggested that the grand exp erim ent of the 20th centu ry—the attemp t to imp ose bind ing international law on the u se of force—has failed and that therefore "the old moralist vocabu lary shou ld be cleared aw ay so that the d ecision-m akers can focu s p ragm atically on w hat is really at stake".98 In m y op inion, these are d angerou s and m isgu id ed heresies w hich, in seeking to reroot international law in the exigencies of national political objectives, w ill fou nd er in the seas of international d iscord . Disobed ience to the ru les of international law —even by the w orld 's most p ow erfu l states—is not an ind ication in itself that the legal system has failed . It is perhap s w orth reiterating that the valu e of a mu ltilateral system is that it is there to p rotect strong nations as w ell as the w eak. The stance taken by the cu rrent United States Adm inistration over the legal statu s of d etainees at Gu antanam o Bay, nam ely that they have no right to have their p risoner of w ar statu s d eterm ined by a ju d icial tribu nal, is d iam etrically opp osed to the argum ents originally espoused by the United States in

94 See Michael Byers "Preem p tive Self-Defense: Hegem on y, Equ ality an d Strategies of Legal Change" (2003) 11 Jou rnal of Political Philosop hy 171. 95 See Bryan Bend er "International Resp on se: Debate Over Pre -Em p tive War Sharp ens as Iraq Show d ow n Nears" Global Secu rity New sw ire (5 December 2002) (last accessed 25 Sep tem ber 2003). 96 Harry S Tru m an Y ears of Trial and Hop e 1946–1953 (Hod d er and Stau ghton , Lond on, 1956) 406. 97 Anne-Marie Slau ghter "Good Reasons for Goin g Arou nd the U.N." (18 March 2003) N ew Y ork Tim es New York A33. 98 Michael J Glenn on "Wh y the Secu rity Cou ncil Failed " (2003) 82(3) Foreign Affairs 16, 32.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

w orking to have su ch a requ irem ent inclu d ed in the Protocols to the Geneva Conventions. At that stage, as George Aldrich observes:99 [T]he United States govern m ent w as p ainfu lly aw are of the exp eriences in Korea and Vietnam, w here m any Am erican m ilitary p erson nel w ere mistreated by their cap tors and d enied PO W statu s by m ere allegations that they w ere all criminals. Time evid ently d u lls memory.

There is a vivid , bu t nevertheless ironic, counterpoint from the hostilities in Iraq, in w hich the cu rrent United States Secretary for Defence, Donald Rum sfeld , w as seen on television hold ing u p a cop y of the Geneva Conventions w ith a view to hold ing the Iraqis to their obligations. It is, how ever, significant that in seeking to establish som e legitim acy for their occu p ation of Iraq after the invasion, both the United States and United Kingd om Governm ents have fou nd it necessary to confirm in term s to the Secu rity Cou ncil that they w ill "strictly abid e by their obligations u nd er international law ". 100 Now that the imm ed iate im p act of the m ilitary cam paign has been follow ed by the u ncertainties and d ifficu lties of occu pation, the au gu ries are that a retu rn to m u ltilateralism has becom e increasingly attractive to the occu p ying p ow ers. In the end , p u blic op inion m ay be a mor e p ow erfu l ju d ge of the actions of the states concerned than any cou rt cou ld be. The late Professor Colin Aikm an gave his inau gu ral lectu re at this u niversity at the tim e of the Su ez crisis. H e sp oke after Egyp t's nationalisation of the Canal, bu t before Britain's ill-fated military exp ed ition. H e quoted Elihu Root, w ho observed :101 [T]he nation w hich has w ith it the m oral force of the w orld 's ap p roval is strong, and the nation w hich rests u n d er the w orld 's cond em nation is w eak, h ow ever great its material p ow er.

Professor Aikm an then w ent on to observe:102 In m y view , this statem ent has som e relevance to the Su ez crisis. I believe that the United Kingd om and France, w ere they to forsake the cou rse of negotiation and comp romise, inclu d ing resort to United Nations p roced u res, an d to seek to establish the international statu s

99 George H Ald rich The Taliban, A l Qaed a, and the Determ ination of Illegal Com batants (2002) 96 Am J Int'l L 891, 898. 100 UNSC "Letter from the Perm anent Rep resentatives of the United Kingd om of Great Britain and Northern Ireland an d the United States of America to the United Nations ad d ressed to the Presid ent of the Secu rity Cou ncil" (8 May 2003) U N Doc S/ 2003/ 538. 101 Elihu Root "The Sanction of International Law " (1908) 2 Am J Int'l L 451, 456, qu oted in C C Aikm an "Law in the World Com m u nity" (1999) 30 VUWLR 501, 518. 102 Aikm an "Law in the World Com m u nity", above, 518.

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of the canal by force of arm s, w ou ld lose more in terms of p restige and moral statu re than cou ld conceivably be gained by force.

Those w ords w ere p rop hetic w hen u ttered in 1956, and have a cont inu ing resonance tod ay.

V

A N EW ZEALA ND ROLE Where d o N ew Zealand , and its u niversities, stand in all this?

It w as of course the N ew Zealand Prim e Minister, Peter Fraser (w hose magnificent, energetic statu e stand s ou tsid e the entrance to this law school w ith the ep itap h "Te kotu ku rerenga tahi—Rare as the w hite heron on its solo flight") who had originally p roposed to the San Francisco Conference in 1945 that states shou ld und ertake in tu rn to p reserve, p rotect, and p romote human rights in the United Nation s Charter.103 In the event, the fu rthest that states w ere p rep ared to go at that stage w as the Universal Declaration of H um an Rights of 1948. Fraser's far-sighted hop es w ere only fu lly realised tw o d ecad es later throu gh the United N ations Covenants of 1966. This single exam ple illu strates the fact that the role w hich N ew Zealand has p layed , d esp ite its small size and d istance from the centres of w orld pow er, has been not inconsid erable in the field of international law . The inheritance of this u niversity in the field is au gu st. I have mentioned Salmond , Aikm an, and Qu entin-Baxter. Mention shou ld also be m ad e of Dr George Barton QC and Rt H on Sir Kenneth Keith. All of these m en have served as p rofessors in this law school, and have had a significant imp act on the d evelopm ent of international law . The u niqu e p ow er of N ew Zealand is that it m ay sp eak as an ind ep end ent voice in the global village. It often works qu ietly and p ractically behind the scenes. Yet it also carries the p ower of moral su asion across a whole range of international law issu es: the law of the sea, Antarctica, world trad e, hum an rights, the creation of the International Crim inal Court, and p eace and secu rity. In all of this, the u niversity may potentially p lay a cru cial role. First, as a colleg iate forum for research and d ebate. Second , as a seed -bed for fu tu re generations. Third , and m ost imp ortantly, in carrying ou t work—not ju st on the p ressing issu es of the d ay—bu t also in seeking to m ake its ow n contribu tion to the overall architectu re of international law . In d oing so, it shou ld help to bu ild a fram ework w hich is robust; w hich achieves an ap p ropriate and fair accommod ation betw een conflicting valu es and interests; and , above

103 See Colin Aikm an "New Zealand an d the Origins of the Universal Declaration" (1999) 29 VUWLR 1.

A FTER BAGHDAD : C ONFLICT OR COH ERENCE IN INTERNATIONAL LAW ?

all, w hich is coherent w ith ou r common sense of a ju st vision for international society in the 21st centu ry.

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