Landmark Cases in Public International

Eirik Bjorge and Cameron Miles (eds) (Hart Publishing, 2017, 640 pp)

International law aspires to be the world’s Esperanto.1 ∵

Eirik Bjorge and Cameron Miles’ Landmark Cases in Public (‘Landmark Cases’) has an apt cover image. It depicts Dutch architect Hendrik Petrus Berlage’s plans for the ‘World Peace Centre’ to be built in The Hague as an expansion of the Peace Palace, which houses the International Court of Jus- tice and the Permanent Court of Arbitration. However, as the editors explain, it was never built due to resource constraints.2 This is a fitting first impression of a book that is a monument to the aspirations of public international law, yet all the while keeps a keen eye on its realities. As indicated in Anthea Roberts’ observation, international law aspires to reach a level of universality. This recent monograph by Bjorge and Miles, the first of its kind in 20 years,3 can be seen as either a ‘crash course’ in some of the key cases in public international law for those new to the area, or a schol- arly reflection and reconsideration of some of its key episodes. The choice of the 22 ‘landmark cases’ selected for this monograph is particu- larly interesting. The cases span seven rough sub-groups of public internation- al law: diplomatic protection, the law of territory, international environmental law, criminal law and , the law of the sea, international humani- tarian law and the use of force, and the relationship between the International Court of and the other organs of the United Nations. ‘Landmark cases’, generally known as ‘leading cases’ in Commonwealth jurisdictions, are gen- erally understood to be cases that ‘settle[d] the law upon some important point’.4 This book takes a more creative (and, in my opinion, fitting) approach

1 Anthea Roberts, Is International Law International? (Oxford University Press, 2017) 3. 2 Eirik Bjorge and Cameron Miles, ‘Introduction’ in Eirik Bjorge and Cameron Miles (eds), Landmark Cases in Public International Law (Hart Publishing, 2017) 1, 8. 3 Malgosia Fitzmaurice and Eric Heinze, Landmark Cases in Public International Law (Kluwer Law International, 1998). 4 A H F Lefroy, Leading Cases in Canadian Constitutional Law (Carswell Company, 1914) v. 262 Australian Year Book of International Law Volume 36 to its selection of cases. The editors explain that each case was chosen on the basis of its reputation as a landmark case,5 and their instruction to each chapter’s author(s) to reflect on the appropriateness of that classification has clearly been followed. This text explores many of the ‘household names’ of public international law: the Lotus principle (Chapter 5);6 the Mavrommatis doctrine (Chapter 3);7 and the Trail Smelter rule (Chapter 8).8 It explores cases which are by-words for legal tests: North Sea Continental Shelf9(Chapter 12) and Military and Para- military Activities in and against Nicaragua10 (Chapter 15) for customary inter- national law; Prosecutor v Tadić11 (Chapter 16) for international humanitarian law; and Gabčíkovo-Nagymaros Project12 (Chapter 18) for state responsibility. It includes some of the crowning glories of public international law: the ‘gi- ant step’ represented by the prosecution of Nazi criminals at the International Military Tribunal in Nuremberg,13 soberly explored by Katherine O’Byrne and Philippe Sands QC in Chapter 9. However, it also chronicles cases representing international law’s darkest days, such as the infamous decision of the Interna- tional Court of Justice in the Second Phase of South West Africa,14 discussed in honest and refreshing detail by His Excellency Judge James Crawford and Paul Mertenskötter in Chapter 11. However, some of the finest moments in Landmark Cases might be found in the text’s exploration of lesser-known cases and earlier judicial developments, including the consideration in Chapter 2 of Murray v The Schooner Charming Betsy15 and The Paquete Habana,16 two decisions of the Supreme Court of the

5 Bjorge and Mills, above n 2, 4. 6 SS ‘Lotus’ (France v Turkey) (Judgment) [1927] pcij (ser A) No 10. 7 Mavrommatis Palestine Concessions (Greece v United Kingdom) (Judgment) [1924] pcij (ser A) No 2; Mavrommatis Jerusalem Concessions (Greece v United Kingdom) (Judgment) [1925] pcij (ser A) No 5; Readaptation of the Mavrommatis Jerusalem Concessions (Greece v United Kingdom) (Jurisdiction) [1927] (ser A) No 11 (‘Mavrommatis’). 8 Trail Smelter (United States of America v Canada) (1941) 3 riaa 1905 (‘Trail Smelter’). 9 (Federal Republic of Germany v Denmark) (Merits) [1969] icj Rep 3. 10 (Nicaragua v United States of America) (Jurisdiction) [1984] icj Rep 392; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] icj Rep 14 (‘Nicaragua’). 11 (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Appeals Cham- ber, Case No IT-94-1-A, 15 July 1999). 12 (Hungary v Slovakia) (Judgment) [1997] icj Rep 7. 13 Telford Taylor, Nuremberg and Vietnam: An American Tragedy (Quadrangle Books, 1970) 80. 14 (Ethiopia v South Africa) (Preliminary Objections) [1962] icj Rep 319; South West Africa (Ethiopia v South Africa) (Second Phase) [1966] icj Rep 6 (‘South West Africa Cases’). 15 6 US (2 Cranch) 64 (1804). 16 175 US 677 (1900).