Home Articles posted by Guy Goodwin-Gill

The Restoration of a Classic Text: Andrew Clapham’s New Edition of Brierly

Published on May 23, 2013        Author: 

Professor Guy Goodwin-Gill is Senior Research Fellow, at All Souls College, Oxford and practises as a barrister from Blackstone Chambers, London.

The seventh edition of Brierly’s Law of Nations: An Introduction to the Role of International Law in International RelationsBrierly, (and here on google books) now edited by Professor Andrew Clapham, was published by Oxford University Press last year. It is now fifty years since Sir Humphrey Waldock’s sixth edition of Brierly was published, but it has been well worth the wait. In my view, no one who reads Andrew Clapham’s new edition can fail to embrace the law of nations, to go on to study it in yet greater detail, and to be excited and enthused by the prospects ever and always being thrown up by the quest for order over chaos. What is more, Brierly will still just about fit in your pocket.

I first came to Brierly, in the sixth edition edited by Humphrey Waldock, in 1967. It was among the first readings set by my Oxford college tutor, Ian Brownlie, whose first edition of Principles of International Law had just appeared the year before. Together, these two works must certainly take a lot of the credit for setting me off on the road to international law.

Like many classic texts, Brierly has lasting appeal; it is highly readable, almost conversational, essentially an essay in nine parts, a curriculum of essentials, of bases. But it is certainly not conservative or hidebound by tradition, or old-fashioned, or the product of blinkered vision or boxed-in thinking. Brierly himself saw his book as an ‘introduction’, something to supplement the text books – rather a subversive thought, if you think about it.

For Brierly, perhaps surprisingly, is often radical, if carefully so. We see this in his approach to international law, already in 1928, as also comprising individuals among its subjects, as encompassing a sense of community, drawing on ‘a sense of solidarity across traditional borders’ (Clapham, Preface, xvi).

A great strength of the present edition, additional to its remarkable modernising, is the way in which Andrew Clapham has managed to put yet more Brierly into Brierly. He carefully and astutely draws on Brierly’s other writings to explain, to elaborate, and sometimes even to rescue ideas which Brierly often set out before their time. And how sharp were his perceptions! Consider his views on Vattel’s acceptance of the state of nature as an analogy appropriate to describe relations between States: ‘Thus the doctrine of the equality of states, a misleading deduction from unsound premises, was introduced into the theory of international law’ (36; also 146f). And later, ‘By cutting the frail moorings which bound international law to any sound principle of obligation, [Vattel] did it an injury which has not yet been repaired’ (39). Read the rest of this entry…

Filed under: EJIL Analysis
 Share on Facebook Share on Twitter
Comments Off

Palestine, Statehood and the Challenges of Representation

Published on December 19, 2011        Author: 

Guy Goodwin-Gill is a Senior Research Fellow at All Souls College, Oxford and Professor of International Refugee Law, University of Oxford. Previously, he was Professor of Asylum Law at the University of Amsterdam and Legal Adviser in the Office of United Nations High Commissioner for Refugees from 1976-1988. He practises as a Barrister from Blackstone Chambers, London.[i]

The bid by Palestine for full UN membership in September last has generated controversy, discussion, reflection, and doubt, all now helped along by UNESCO’s recent decision to admit Palestine as a State of full capacity.

The questions arising here, of course, are not just sterile, academic ones about the incidents and criteria of statehood. Rather, we are at an intensely political moment, and what we are seeing is deep-seated frustration on the part, not only of Palestinians, but also once again, of substantial numbers of the world community who see justice for the people of Palestine endlessly obstructed by the intransigence of the Israeli Government.

In this highly contested context, and from a limited international law perspective, Palestinian ‘statehood’ can only seem indeterminate and uncertain, considered against traditional, Montevideo Convention criteria – a fluctuating and hitherto uncounted population, borders at the mercy of realignment by superior force, daily restrictions on the capacity to govern itself. And yet, as many have said, the conception of the Palestinian State may still have its uses, and offer the potential for Palestinians to put their complaints, their disputes, their rights and their claims on a higher plane, and to access more directly a variety of international mechanisms to assist their cause, bringing about or bringing closer that goal of a State in international law, a national home for the people of Palestine which has been the stated aim of the international community for over sixty years.

 Today, however, I do not want to look so much at the issue of Palestinian statehood, but rather at that the ‘Ur-question’ – the question behind the question, the question that we can and should ask of every State, actual and potential. And that question is about who represents the State in its relations with other States, and by what right or claim, and about whether this is a matter of international legal concern.

Read the rest of this entry…