In memoriam: Sir Ian Brownlie

In Memoriam: Sir Ian Brownlie CBE QC (19 September 1932 - 3 January 2010) Sir Ian Brownlie, QC, aptly described as ‘[a] titan in the crowded field of international law’, died tragically in a road accident while on holiday in Cairo in January 2010. Best known to generations of law students across the world as author of Principles of Public International Law, Brownie was also a skillful advocate. Dealing firstly with his legal scholarship, Principles of Public International Law has been accurately described as the ‘most well established and authoritative textbook on international law on the market.’ Brownlie’s other works include: International Law and the Use of Force by States (1963) [his PhD thesis and first book]; Basic Documents in International Law (1967) (6th ed., 2008); Basic Documents on Human Rights (1971) (5th ed., 2006); African Boundaries: A Legal and Diplomatic Encyclopedia (1979); System of the Law of Nations: State Responsibility (1983); and The Reality of International Law: Essays in Honour of Ian Brownlie (1999), co-edited by Guy S Goodwin-Gill, Stefan Talmon and Brownlie himself

Probing the Scope of Self Defense in International Law

The concept of self defense is one field of international law that has generated, and continues to generate, much controversy. The controversy is not as to the legality of self defense, but rather springs from a proper identification of the circumstances under which it applies. Thus, the International Court of Justice and other tribunals have received criticisms from states and academics for a perceived misapplication of the principle of self defense. The interpretation of the concept, like other important concepts in international law, has not been free from political considerations. Does this situation imply that the boundaries of self defense are as yet to be determined or cannot be determined? This work is set to delineate the scope of self defense in international law. It examines the various aspects of self defense and exposes the myriads of controversies surrounding this concept that could make or mar the efforts at international peace and security. This work will argue that the doctrine of anticipatory self defense cannot be inferred from a reading of Article 51 of the United Nations Charter. The article is divided into five parts. The first part traces the origin of the doctrine of self defense from the period pre-dating the twentieth century up to the League of Nations and moves to the era of the United Nations Charter. It also highlights the concept of just and unjust war. Part two gives attention to the general rule which prohibits the use of force by states. This rule is found in the provision of Article 2(4) of the Charter of the United Nations. It explains the problems that arise from the variegated interpretations given to some of the words used in that provision. Part three discusses the two regimes of self defense: customary international law and the UN Charter. It attempts to show the relationship between them and explains the various situations in which claims to the right of self defense may be raised. The principle of anticipatory self defense, which is a current problem arising from the nuances ascribed to the doctrine of self defense, forms the core of part four. This part also delves into the debate between advocates of a restricted interpretation of Article 51 of the UN Charter, on the one hand, and proponents of its liberal interpretation, on the other hand - a debate that has consumed too much space in the literature of international law. Part four terminates with some discussion on the preemptive doctrine, a relatively new, but controversial aspect of the doctrine of self defense. Part five is devoted to collective self defense. It explores some of the findings of the International Court of Justice in the Nicaragua case as they relate to collective self defense. A conclusion follows. The article finds that Article 51 of the Charter of the United Nations is limited to situations of armed attacks and does not admit of an exercise of the right of self defense to ward off an imminent or future attack. It also concludes that the Caroline incident does not offer a clear, incontestable ground upon which to found the right to anticipatory self defense in international law and that even though some states have invoked it under customary international law, there is no sufficient indication that that regime of law recognizes anticipatory self defense

Is There an Italian Conception of International Law

In 1943, Angelo Piero Sereni wrote The Italian Conception of International Law, a book explicitly aimed at restoring Anglo-American respect for Italian international lawyers after the Fascist period. On the seventieth anniversary of the publication of this work, it is worth considering whether there is, in fact, such a thing as an 'Italian' conception of international law. Methodologically speaking, does thinking of international law in terms of national schools make sense? Although a comparative approach to international law is back in vogue, this article questions the validity of any attempt at finding any 'Italian distinctiveness' in the intellectual history of the Italian school(s) of international law. Sereni's enlisting of ancient masters to an 'Italian' conception between the 13th and 18th centuries is for the most part untenable. While a distinctively Italian conception of international law arguably came into existence in the 19th century with Mancini's theory of nationalities, Anzilotti successfully set out to dissolve this into the 20th century European mainstream of positivist international law. The ensuing absence of an 'Italian' conception may give pause for thought to contemporary proponents of 'comparative international law'

Probing the Scope of Self Defense in International Law

The concept of self defense is one field of international law that has generated, and continues to generate, much controversy. The controversy is not as to the legality of self defense, but rather springs from a proper identification of the circumstances under which it applies. Thus, the International Court of Justice and other tribunals have received criticisms from states and academics for a perceived misapplication of the principle of self defense. The interpretation of the concept, like other important concepts in international law, has not been free from political considerations. Does this situation imply that the boundaries of self defense are as yet to be determined or cannot be determined? This work is set to delineate the scope of self defense in international law. It examines the various aspects of self defense and exposes the myriads of controversies surrounding this concept that could make or mar the efforts at international peace and security. This work will argue that the doctrine of anticipatory self defense cannot be inferred from a reading of Article 51 of the United Nations Charter. The article is divided into five parts. The first part traces the origin of the doctrine of self defense from the period pre-dating the twentieth century up to the League of Nations and moves to the era of the United Nations Charter. It also highlights the concept of just and unjust war. Part two gives attention to the general rule which prohibits the use of force by states. This rule is found in the provision of Article 2(4) of the Charter of the United Nations. It explains the problems that arise from the variegated interpretations given to some of the words used in that provision. Part three discusses the two regimes of self defense: customary international law and the UN Charter. It attempts to show the relationship between them and explains the various situations in which claims to the right of self defense may be raised. The principle of anticipatory self defense, which is a current problem arising from the nuances ascribed to the doctrine of self defense, forms the core of part four. This part also delves into the debate between advocates of a restricted interpretation of Article 51 of the UN Charter, on the one hand, and proponents of its liberal interpretation, on the other hand - a debate that has consumed too much space in the literature of international law. Part four terminates with some discussion on the preemptive doctrine, a relatively new, but controversial aspect of the doctrine of self defense. Part five is devoted to collective self defense. It explores some of the findings of the International Court of Justice in the Nicaragua case as they relate to collective self defense. A conclusion follows. The article finds that Article 51 of the Charter of the United Nations is limited to situations of armed attacks and does not admit of an exercise of the right of self defense to ward off an imminent or future attack. It also concludes that the Caroline incident does not offer a clear, incontestable ground upon which to found the right to anticipatory self defense in international law and that even though some states have invoked it under customary international law, there is no sufficient indication that that regime of law recognizes anticipatory self defense

International Crimes: Jus Cogens and Obligatio Erga Omnes

There are both gaps and weaknesses in the various sources of International Criminal Law in norms and enforcement modalities. A comprehensive international codification would solve these problems, but this is not forthcoming

Legal Regime of Persona Non Grata and the Namru-2 Case

Just like the diplomatic immunity principle, the principle of persona non grata aims to ensure justice for both the state seeking to  evict a diplomat (receiving state) and the state whose diplomat is being evicted (sending state). This is because both principles can guarantee the dignity and equality of sovereign states when resolving issues in international relation. Not every statement of persona non grata has to culminate in expulsion because a statement may be issued by the receiving state both after the diplomatic agent has started performing his functions and even before he arrives at the receiving state. If such a statement is followed by the expulsion of the diplomat, it should be based on article 41 of the Vienna Convention, 1961 (infringement on laws of receiving state and/or espionage actions). Also, expulsion may occur due to war and severance of diplomatic relation between two states. Indonesia has had to deal with issues of persona non grata on several occasions both as receiving and sending state. This paper analyses several cases of declaration of persona non grata involving several countries, especially Indonesia in order to give a better understanding of how the declaration of persona non grata plays out between states, and the significance of the Vienna Convention of 1961 on diplomatic relations. It also assesses the response of the Indonesian Government to the alleged abuse of immunity and privileges by personnel of the Navy Medical Research Unit-2 and suggests how the Indonesian Government can ensure that the laws of the country are respected by all including diplomats who have immunity. Key Words: Dignity, Diplomatic Agent (Diplomats), Duties, Espionage, Expulsion, Justice, Namru-2, Persona non grat

States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of Their Oral Pleadings

This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of international customary law and treaty interpretation, and that they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting Sates in politically sensitive cases, where there is no necessary correspondence between the views of the States and that of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function