REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb02670.x |
| Date | 01 September 1991 |
| Published date | 01 September 1991 |
REVIEWS
D.
Atturd,
The Exclusive Economic Zone in International Law,
Oxford: Oxford
University Press, 1987, lxiii
+
350
pp, hb f40.00.
M.
D.
Evans,
Relevant Circumstances and Maritime Delimitation,
Oxford: Oxford
University Press, 1989, 255 pp, hb f35.00.
Brian
D.
Smith,
State Responsibility and the Marine Environment,
Oxford:
Oxford University Press, 1988,
xii
+
281 pp, hb
f30.00.
G.
Westerrnun,
The Juridical Bay,
Oxford: Oxford University Press, 1988,290 pp,
hb f29.50.
Four closely related monographs on the law of the sea provide the opportunity to
make some general reflections on the function of the series of Oxford Monographs
on International Law. They are doctoral dissertations, one from Yale and the others
from Oxford and Cambridge. They represent very conscientiously and rigorously
argued work, but they labour under longstanding theoretical deficiencies in the
methodology of international law which they do nothing at all to overcome. Indeed,
the very earnestness of these works merely serves to dramatise the futility of
so
much international law scholarship.
Brownlie, as editor
of
the series, says of Smith that a competent deployment of
the tools of general international law familiar to the legal advisers of states is as
fruitful as the invention of a new vehicle of international environmental law. There
is a sense
in
which this statement has to be taken as fair comment.
In
their anxiety
to become relevant to pressing issues of international society, international lawyers
are more and more tempted to appear to ‘declare the problem solved’ by announcing
work on
The
Law
of
whatever matter happens to interest them, eg the law of the
environment
in
this case.
In
fact this amounts to no change in the understanding
of
the concept of law being employed and is nothing more than a taxonomical
exercise. Resort to more traditional categories of international law to tackle a pressing
new series of issues may just as well produce the most vacuous treatment of these
issues. In
my
view that is what happens
in
the case of Smith’s work.
Smith’s intellectual apparatus consists of two categories, both taken from classical
liberal theory of law: the question whether delictual responsibility is ‘subjective’
or
‘objective’ and the question whether from the principle of equal freedom for
individual subjects of
law
one can derive satisfactory principles for the coexistence
of
these subjects
in
community. The two concepts have a long history, and Smith
has no difficulty
in
demonstrating, correctly, that these originally municipal law
and domestic legal theoretical concepts permeate the discussion of responsibility
for the marine environment
in
international law. To this extent the reviewer has
no
argument
with
the editor of the series. The difficulty is
with
what these categories
are able to yield.
For instance, the first issue is taken to be whether one needs to prove bad faith
or culpable negligence (p14)
in
damage to to the environment, or whether one can
point to the objective element of an international wrongful act, ie a primary obligation
to do
or
not to do a particular act. There is an intense abstraction
in
Smith’s analysis
which has its roots
in
the fact that he does not acknowledge the genealogy of his
conceptual framework.
So
he says
that
(p27) international law
seeks
(my
emphasis)
objectively to define those who ought to be representative of the state, ie a preliminary
issue of attribution, essential to a determination of responsibility. Yet he accepts
that attribution of responsibility to a state for the actions of persons within its
758
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