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

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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).

Brierly’s critique of sovereignty and his analysis of the basis of obligation in international law are as relevant today as when they were first set down – as, indeed, is the truth he identified in our being constrained, in so far as we are reasonable beings, ‘to believe that order and not chaos is the governing principle of the world’ in which we have to live (53).

Not surprisingly, Andrew Clapham has retained these and other gems, but elsewhere he has taken Brierly firmly into the twenty-first century. Sometimes it is by the omission of a single word: ‘the class of treaties…’, rather than ‘the only class of treaties which it is admissible to treat as a source of general law…’ (55). Sometimes it is by additional paragraphs succinctly noting the latest international jurisprudence or doctrinal developments, for example, on custom or international law in domestic courts. At other times, it is by the use of new and to us now obvious headings: law-making by international organisations, unilateral declarations, ‘soft law…’, and so on.

An especially valuable addition is that on the judicial function in Chapter III, and welcome too is the greater emphasis on the United Nations. Also very usefully updated to twenty-first century relevance is the section on the territory of States, which combines essential history, removes the inessential (no matter how incidentally interesting the phenomenon of trust territories may be…), and recalls current areas of interest, concern and action, such as uti possedetis, the continental shelf, and the deep sea bed, with its potential for meeting Brierly-style goals, including co-operation and community (199).

Jurisdiction receives similar treatment, with the editor flagging the ways and the expanding extent to which other rules of international law (human rights, considerations of humanity…) increasingly circumscribe States’ ‘freedom’ of action, increasingly call in question exaggerated claims of immunity, among others.

It is good, too, that some of the caution displayed by Waldock in the sixth edition, particularly as to the impact of the UN on human rights violations, has been substituted with stronger language and, dare one say it, greater optimism even in the face of recurring tragedy (295f, 240-1).

It is helpful, too, to be reminded of Brierly’s work in 1950 as the International Law Commission’s Special Rapporteur on the Law of Treaties (303, 317), but no less important is Andrew Clapham’s more detailed elaboration, on the basis of later research and writing, of standard historical examples, such as the Alabama arbitration or the Dogger Bank dispute (414).

And like Brierly, his new editor is wise to the existence of difference, highlighting the challenges facing this generation of international lawyers as they wrestle with self-defence yet again, and its applicability to, among others, non-State actors; or as they deal in practice with the question of combatant status (477, 496).

And then there’s the hint of mystery… In footnote 89 on page 239, Andrew Clapham refers to ‘the bodies’ that have been found at the OAS, the Council of Europe, the African Union… Where were they buried? How did they get there? Who dunnit? We should be told…

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