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Journals Auso 36 1 Article-P261 261-Preview
Journals Auso 36 1 Article-P261 261-Preview
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Eirik Bjorge and Cameron Miles’ Landmark Cases in Public International Law
(‘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 human rights, the law of the sea, international humani-
tarian law and the use of force, and the relationship between the International
Court of Justice 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
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