ASIL Cables: Interview with James Crawford
Tai-Heng Cheng (THC): Congratulations on receiving the Manley O Hudson medal, Professor Crawford. Your many accomplishments are well known to our members, and I was wondering what achievements in your career have you found most meaningful?
James Crawford (JC): Thank you. There have been too many moments to mention them all, but perhaps there are a few that stand out. There was my time on the Australian Law Reform Commission in the 1980s when I worked on indigenous rights, admiralty and state immunity – quite a mixture. I have a special place in my memory for my first case before the International Court of Justice, Certain Phosphate Lands in Nauru, in which I acted alongside Ian Brownlie representing the Republic of Nauru. Another case before the Court which stands out for me was the Gabčikovo-Nagymaros Project decision, which was my first lead in the Court. Serving as Special Rapporteur on State Responsibility in the years leading to the adoption of the International Law Commission’s Articles on State Responsibility, was a particular highlight. Latterly I’ve enjoyed working with terrific teams on cases for Colombia and Costa Rica, among others. And a recent intense effort was the 8th edition of Brownlie’s Principles, which comes out in August.
THC: Looking back at the evolution of international law since 1945, what are some of the most significant developments?
JC: The most obvious developments have probably been in connection with the evolving position of the individual under international law – in the fields of international criminal law and international human rights law particularly. Both of these fields were embryonic in the years following World War II and have since expanded exponentially. Related to this is the development of investor-state arbitrations, with private entities bringing growing numbers of disputes against foreign states directly under bilateral and multilateral investment treaties, without needing to rely on diplomatic protection. Our understanding of self-determination under international law has also changed since 1945, when it was primarily associated with decolonisation and the formation of new states, whereas it has since developed into a wider notion encompassing the ongoing guarantee of fundamental human rights and democratic accountability within existing states. Some see these changes as an erosion of state sovereignty, but I would argue that sovereignty remains very much the foundation of our system of international law, and that the notion of sovereignty is flexible enough to accommodate modifications without collapsing altogether.
THC: What are the gravest global challenges in the next few years?
JC: I think the gravest challenges facing us are primarily environmental in character – managing available resources to meet the growing demands for food, water, energy and so on. The associated problems of poverty and a lack of access to sufficient resources; terrorism and the effects of intra-state armed conflict are also obvious candidates – as also the potential use of nuclear or other weapons of mass destruction.
THC: How do you see international law contributing to solutions to these challenges?
JC: International law has a role to play in cooperation and coordination for the management of shared resources, and this is another area that has seen significant growth since 1945, although it is fair to say that international environmental law is still underdeveloped; much more could be done. In respect of armed conflict and nuclear non-proliferation international law has already made significant contributions, and as these challenges evolve we can see that international law evolves too – for example, the measures taken by the Security Council to assist in the fight against international terrorism after the 9/11 attacks. At the same time we cannot lose sight of the fact that international law is just one tool available to us for confronting our challenges; we should not expect international law to bear the burden of solving all the world’s problems. International law operates within what is necessarily a political sphere and while it can certainly contribute to the solutions, through the development and monitoring of standards and the promotion of cooperation, it is not a panacea. Inactivity in the Security Council in the face of threats to peace and security, for example, is not a problem of inadequacy of the law but a political issue.
THC: There are few members of our profession who have your rich experiences in different roles — as a scholar, practitioner, arbitrator and policy-advisor. Is international law perceived differently in each of those vantage points?
JC: I would not say that it is necessarily perceived differently, as such, but I suppose each different perspective focuses on different aspects – the scholar might take a broader, big picture view of the concepts and ideas behind international law, whereas the practitioner is necessarily concerned with technical details relating to the practical application of international law in the particular case and to the needs – and instructions – of the client. In some ways the position of arbitrator bridges both perspectives in that one needs to have the practical details firmly in mind while not losing sight of the wider legal context in which the decision will be situated. So perhaps you could say international law presents a variety of different tools depending on the role and objectives of the person using it.
THC:. You also have a uniquely global perspective as a result of your academic appointments in Australia and England and your involvement in dispute resolution around the world. Do you think that attitudes towards international law vary from region to region?
JC: Inevitably they do, to some extent, just as attitudes to many things will be influenced by regional perspectives. That said, I think the idea of international law as Eurocentric and not serving the interests of cultures outside the West is frequently overstated. International law undeniably had Eurocentric origins, but these days there are clear signs that different regions adapt and use international law in their own ways – a prime example being the development of the jurisprudence of each of the three main regional human rights systems. The European system is the oldest and most established, and has been a source of guidance for the Inter-American and African systems, but in many respects we can also see these newer systems taking their own paths and addressing problems as appropriate for the specific circumstances prevailing in their own regions. I think this shows that international law has some core principles but that it is flexible enough to accommodate different regional perspectives.
THC: Are the diversity of viewpoints a source of richness or cause for concern?
JC: They are no more a cause for concern than we could argue that the diversity of the human race is a cause for concern! If international law is to be a truly international system it must have room to accommodate different perspectives, within reason; if some viewpoints are shut out or devalued in favour of those of a powerful few, this has the potential to destabilise the system as a whole. Of course we see elements of this happening from time to time anyway but as a general point I think the diversity of viewpoints that go into creating international law is valuable. That is the perspective Martti Koskenniemi and I tried to bring out in theCambridge Companion to International Law which is having its US launch at ASIL.
THC: Your Hudson lecture is entitled ‘International Law as Discipline and Profession’. What are you trying to convey?
JC: International law is both an academic discipline – despite the many attacks on its integrity and coherence it survives as such – and an increasingly populated profession. That dual aspect imposes considerable tensions, which I try to explore. In the end I celebrate the blessed rage for order beyond the state which is both our idea and ideal.
THC: In your own career, what do you plan to focus on in the next few years?
JC: There are several projects in the pipeline. I am involved in various interesting cases at the moment, either as counsel or arbitrator, in different parts of the world, which keeps me moving. I am supervising many PhD and LLM students at Cambridge, and my students and teaching responsibilities remain a priority. I am working on a new book on international responsibility, to reflect on the ten years since the completion of the Articles on State Responsibility. I am giving the general course at the Hague Academy in 2013 – it is entitled “The Course of International Law” and it aims to explore the key problems and paradoxes of the subject – the paradox of opinio juris and change, the Baxter paradox etc. . Beyond that, who knows?
THC: Thank you for your time, and congratulations once again.