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International Law and the Use of Force by States. By Ian Brownlie. New York and London: Oxford University Press, 1963. pp. xxviii, 532. Index. $12.00; 75 s.
Published online by Cambridge University Press: 28 March 2017
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- Book Reviews and Notes
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- Copyright © American Society of International Law 1965
References
1 See, e.g., Q. Wright, “Intervention, 1956,” 51 A.J.I.L. 257 (1957), on which see J. Stone, Aggression and World Order 103 n. (1958); 8. Hoffmann, “Sisyphus and the Avalanche: The TJ.N., Egypt and Hungary,” 11 Int. Organization 447-469 (1957); Q. Wright, , “United States Intervention in the Lebanon,” 53 A.J.I.L. 112 (1959)Google Scholar; idem, “The Goa Incident,” 56 ibid. 617 (1962); B. A. Falk, , “American Intervention in Cuba and the Rule of Law,” 2 Ohio State Law Journal 546 (1961)Google Scholar; H. Munro, “Cuba and International Law,” 35 N. Y. State Bar J. 241 (1963); and see the material referred to in J. Stone, op. tit. (1958), passim.
2 See, e.g., M. S. McDougal, , ‘’ International Law, Power and Policy: A Contemporary Conception,” 82 Hague Academy Recueil des Cours 133 (1953)Google Scholar; idem and Associates, Studies in World Public Order (1960); M. S. McDougal and F. P. Feliciano, Law and Minimum World Public Order (1961); F. 8. C. Northrop, “Naturalistic and Cultural Foundations for a More Effective International Law,” 59 Yale Law J. 623-654 (1950); B. A. Falk, “The Adequacy of Contemporary Theories of International Law… , “ 50 Virginia Law Bev. 231, 265 (1964); idem, Law, Morality and War in the Contemporary World, esp. at 32-41 (1963).
3 See, e.g., R. W. Tucker, The Just War: A Study in Contemporary American Doctrine (1960); idem, “The Interpretation of War… , “
4 Int. Law Q. 11-38, 22-33 (1965); M. A. Kaplan, System and Process in International Politics (1957); idem, and N. Katzenbach, The Political Foundations of International Law (1961). * See e.g., J. Stone, Aggression and World Order (1958); idem, Quest for Survival (1961); B. W. Tucker, op. cit. note 3 above; P. E. Corbett, Morals, Law and Power in International Relations (1956); B. A. Falk and S. H. Mendlovitz, “Towards a Warless World… , “ 73 Yale Law J. 399-424 (1964); M. S. McDougal and P. P. Feliciano, “The Initiation of Coercion: A Multi-Temporal Analysis,” 52 A.J.I.L. 241-259 (1958); idem, “International Coercion and World Public Order,” 67 Yale Law J. 771-845 (1958). The reviewer's Legal Controls of International Conflict (1952) also falls here, of course, though its subject matter is wide. (Unless otherwise indicated, the 1959 impression of this work is here referred to.)
5 See, e.g., on the non-recognition doctrine, pp. 410-437.
6 Dr. Brownlie's discomfort and even resentment in face of such matters is quite explicit in his earlier article, “Becent Appraisals of Legal Regulation of the Use of Force,',.’ 8 Int. and Comp. Law Q. 707-721, esp. 708, 709-710, 711 (1959), and underlie the instant work.
7 Pp. 348-349.
8 It is quite clear from his article, cited in note 6 above, at 710-711, that Dr. Brownlie has no answer to the present writer's critique, in Aggression and World Order 1-13 (1958), of Or. Scelle's position, except that this critique is based (sic) “largely on extra-legal grounds,” and is “pessimistic in its import for the role of international law in this area.” These are not adequate reasons, even if we accepted their accuracy (and their assumptions), for writing in 1963 as if Scelle's positions were still intellectually tenable. And it can scarcely dispose of the positions involved for Dr. Brownlie simply to declare in this book that he does not “favour them,” with a further crossreference (p. 281) to the article cited in note 6 above.
9 p.349.
10 Pp. 112-129, esp. 117-120
11 Pp . 122-126.
12 In World Politics 504-512 (1955), reviewing C. De Visscher, Théories et Realitfe en Droit Public International (1954, 2d ed., 1955, transl. P. E. Corbett, 1957), and Stone, Legal Controls of International Conflict (1954).
13 Case, statute, treaty and bibliographical data cover pp. 437-519. It is surprising, for example, to find Pal's dissenting Tokyo judgment not included among the score of items on p. 475 which the author regards as most important in the modern law. And the later alphabetical reference gives no indication of its importance as a sophisticated pioneer of Asian standpoints nor, for that matter, does any use which Dr. Brownlie made of it in his thinking. Nor does B. V. A. Röling figure there. A comment is made on p. 494 on H. Lauterpacht's “Limits of the Operation of the Laws of War,“ 30 Brit. Yr. Bk. Int. Law 206-243 (1953), but with no hint of the important change expressed by that article in the lamented authority's views. While the present writer's other works have generous citation, with little explicit criticism, there is significantly no mention of Quest For Survival (1961), which is entirely focused on the core problem on which (as we shall show) this volume shows its greatest weakness.
14 Pp. 1-51.
15 P. 50.
16 Pp. 55-111.
17 Pp. 55-65.
18 Cf. later in the book, pp. 233-234. On the matter of definition see below, at notes 38 ff.
19 On which see pp. 74-92, 235-245.
20 At points this takes him into eloquent vacuity. Among the bases he offers for discarding or emasculating the legal effect of the U.K. reservations to the Pact, for example, the most striking is that, in the U.K.-Egypt Treaty of Friendship and Alliance of May 8, 1960, the U.K. reserved its “rights and obligations” inter alia under the Kellogg-Briand Pact. How can this help either way on such a point f The clause reserved these rights and obligations such as they were. It scarcely demonstrated what they were (see p. 245). Dr. Brownlie is also willing to take the reference to her “imperial interests” in Britain's Kellogg-Briand Pact reservation as indicating her acceptance of third-party judgment as to the claim of self-defense. But, in an earlier chapter, he notes that the absence of reference to the Kellogg-Briand Pact in state practice even raised the question whether the whole Pact was not in desuetude or determined by tacit mutual consent (pp. 113-114). And it rather crowns his argument against desuetude that the main reference to the liveness of the Pact in state practice which he detects is in Lord Kilmuir's defense of the British action in Suez in 1956 (p. 114).. At this point Dr. Brownlie does not refer to the British view of the British reservations to the Pact.
21 He ends this with the resounding half-truth that “attempts by governments to reserve the right of determining the existence of a necessity of self-defence did not meet with success.” (P. 252, citing “supra 237-9” which, however, helps little.)
22 P. 250. See generally pp. 231-250, esp. pp. 249-250. The central evidence he offers consists of the London Conventions on the Definition of Aggression of 1933 and related pacts, to one or other of which (he eagerly points out) fourteen states were parties. He does not explain in this context what sense can be made, if these treaties somehow settled international law, of the massive post-World War I I debate on the point.
23 As to Ch. 6 (pp. 112-129) on the Charter and Panch Shila, see above.
24 Other trials and other questions (such as reparations) are also considered. See pp. 136-149. He curiously includes (p. 145) a section ostensibly as to reparations from Britain and France arising from the Suez affair. But the gist turns out to be that such claims were neither admitted nor paid out merely waived by Egypt.
25 Pp. 216-220.
26 Pp. 231-250.
27 See, e.g., pp. 230, 252.
28 On the substance of this chapter see above.
29 p . 280.
30 Pp. 257 ff. He finally refers to rockets (but still not to nuclear weapons) more than 100 pages later (p. 367), in the context of delimiting the concept of armed attack. And here he grants the justification of placing interception systems in preparation for meeting a putative aggressor's rockets not only on a state's own territory, but over the high seas and over the territory of third states and of the putative aggressor himself. And this, without even a reference back to qualify his earlier positions, or to explain how this can sensibly stand with them.
31 See Stone, Legal Controls of International Conflict 262-265, 274-275. The treatment of the relations of the Charter provision to the customary law often conflicts with the reviewer's positions; but we have not found any place in this volume in which our arguments supporting these positions are squarely confronted. Nor are they in his earlier work. See notes 6 and 8 above.
32 Pp. 283-288.
33 Pp. 289-297. See Stone, Legal Controls of International Conflict 262-265, 274- 275 and literature there cited.
34 * Pp. 292-298.
35 See Stone, Legal Controls of International Conflict xxxi ff., 234-237; idem, Aggression and World Order passim, esp. 1-24, 92-103 (1958); Quest for Survival passim (1961).
36 The others are on anticipation of neutrality (pp. 309-316); consent to the use of force under treaty or otherwise (pp. 328-337); certain miscellaneous alleged grounds for use of force, such as humanitarian intervention, among which “veto in the Security Council is obviously out of place” (pp. 338-350); authors and victims of aggression (pp. 379-383); certain corollaries of the illegality of the use of force (pp. 402-408); and the principle of non-recognition (pp. 410-423).
37 Cited note 6 above.
38 This is clear from the whole of Ch. 19, and pellucid from his purported summary of them on pp. 355-356.
39 pp . 355-356.
40 And see, as to the diversity of questions involved merely on this level of practicalities, J. Stone, Aggression and World Order 26 (1958).
41 P. 350. Dr. Brownlie is also apparently not aware that, if (as he claims) “definition“ is possible, the desiderata for it must be radically different as between the functions of peace enforcement and those of criminal punishment of individuals. See Stone, Aggression and World Order 134-150, esp. 137 ff. (1958).
42 Pp. 384-398, esp. pp. 393-398.
43 Pp. 28-40.
44 Stone, Legal Controls of International Conflict 311 ff.
45 Pp. 28 ff., with the quoted words at p. 28.
46 Pp. 384-392.
47 P. 393.
48 Pp. 392-401.
49 See p. 425.
50 See, e.g., pp. 397, 401.
51 See Stone, Legal Controls of International Conflict 311-314, 878, and work there cited.
52 Pp. 431-434.
53 See pp. 431-432