Introduction

While the concepts of international law can be traced back thousands of years,[1] the modern structure of international law developed in the seventeenth century through the work of scholars such as Hugo Grotius,[2] culminating in the Peace of Westphalia in 1648. At its foundation was the notion of international law regulating sovereign, equal states free to govern without external interference.[3] This classical notion of international law has increasingly been challenged by liberalism,[4] critical of the dichotomist view of the law separating the international and domestic spheres and in the process perpetuating the state-centric approach to the law.[5] The tension between the two dominant theories of realism and liberalism in describing and directing the evolution of the law is explored; and we posit, consistent with the liberal view, that the state-centric realist paradigm of international law is inconsistent with the increasing emphasis placed on the rights of individuals.

The Classic Model – Diplomatic Immunity

As mentioned above, the focus of international law has been inter-state relations.[6] Despite the rights of individuals being considered by classical scholars,[7] the lack of standing of individuals in relation to violations of treaties,[8] unless the treaty provided for individual rights and obligations,[9] perpetuated the state-centric nature of international law. This position was illustrated by twentieth century assertions of scholars that states exclusively are the subjects of international law.[10]

Diplomatic protection allows a state to bring an action on behalf of its citizen based on the Vattelian Fiction,[11] that a wrong committed against a national is a wrong committed against the national’s state.[12] This was reiterated in the Draft Articles on diplomatic Protection which was adopted by the International Law Commission in 2006,[13] and which the General Assembly took note of.[14]

This somewhat ameliorates the difficulty that standing non-state entities face. However, it is clear from the Barcelona Traction case that the decision to exercise diplomatic protection is at the discretion of the state,[15] and the state may choose not to exercise this protection due to political or indeed any other reasons unrelated to the case.[16]

Commentators have suggested that the absence of a legal duty compelling a state to exercise diplomatic protection on behalf of an injured national is illuminatory of the distinction between what the law is (‘lex lata’) as opposed to what it should be (‘lex ferenda’).[17] An early version of the Draft Articles on Diplomatic Protection[18] proposed just such an obligation for a state wherein there is a grave breach of a jus cogens norm in the absence of extenuating circumstances.[19] While not ultimately included in the final version, it is indicative of the trajectory of international law in the attempt to accommodate the rights of sub-state entities.

Contemporary Challenges

It is clear that the state-centric paradigm is evolving to one that is more inclusive of the role of non-state entities such as NGOs, interest groups and global corporations possessed of rights and responsibilities.[20] This is reflective of the greater power of non-state entities in influencing the world order. However, in most instances the claim of an individual must still be subsumed within that of the national state,[21] which continues to constrain the ability of non-state entities from participating fully in the international legal arena.

Intersection of International Relations and Law

The nature of international law, created as it is by states through treaties or a preponderance of state practice, is influenced by politics.[22] International law and politics together comprise the international system which is studied and manipulated by political scientists, lawyers and policy makers.[23] Given this characteristic of international law, theories used to describe it become instrumental in dictating the direction in which the law evolves.[24]

The two dominant international relations theories that explain state behaviour are Realism and Liberalism.[25] The realist approach is characterised by self-interested states, interacting in an anarchical system like billiard balls, opaque and unitary entities colliding with each other.[26]

Liberalism, by contrast, has three main assumptions:[27]

1. Actors in politics are individual members and groups of domestic society promoting their self-interest;[28]
2. Governments represent a sub-section of society, whose interests are reflected in foreign policy;[29]
3. Behaviour of States, especially pertaining to conflict and co-operation, reflect the nature and configuration of state preferences.[30]

The genesis of the liberalist movement in international law can be traced back to the seminal work of Kant’s perpetual peace.[31] His thesis that liberal states would coalesce into a confederation of peace conserving states (‘foedus pacificum’),[32] has been tremendously influential. For example, when speaking before the British Parliament, the President of the United States of America, Ronald Regan, claimed that governments founded on liberal principles of individual liberty exercise restraint in foreign policy before proceeding to declare a crusade for freedom and democratic development.[33] This was coupled with the use of force – despite its illegality[34] – against the illiberal state of Nicaragua.[35] The potency of Liberal theory in both describing but also influencing international relations, and to a lesser degree the international legal system, is apparent.

Relationship Between International and Municipal Law

The relationship between international and domestic law is not settled,[36] with the two dominant theories being monism and dualism.[37] Monism asserts that there is a single body of law that regulates human interaction, with international law residing at the apex of this system.[38] In diametric contrast, dualism claims international and domestic law are separate,[39] with international law requiring incorporation by a state before it operates in the national sphere.[40] A third explanation – the harmonisation theory – has emerged to address deficiencies in the dominant paradigms. This assumes that international law forms part of domestic law, but that in the case of conflict domestic law prevails.[41]

States are required to conform to international law in good faith,[42] and are responsible for any breaches that will not be excused through an invocation of its constitution or any other domestic law.[43] The increased ambit of international law in the domestic sphere can be discerned by treaties and jus cogens norms that require domestic implementation by states – such as the Geneva Conventions of 1949 in relation to war victims,[44] Statutes of the International Criminal Tribunal for Rwanda,[45] and of the former Yugoslavia,[46] in addition to the ICC.[47] In relation to jus cogens norms against torture for example, states are compelled to implement legislation to criminalise torture.[48] However, this argument is tempered by the reality that international law does not generally prescribe or regulate implementation of international obligations.[49]

With latitude in terms of implementation of international law, two distinct trends can be observed from a comparative analysis of state practice.[50] In the first case, automatic standing incorporation, international law is automatically incorporated into domestic legislation without requirement of domestic legislation.[51] The second method is legislative ad hoc incorporation,[52] also known as transformation,[53] which allows international law domestic application only where it has been implemented by an act of parliament.[54]

In Australian jurisprudence, a definite adoption of either theory has not occurred,[55] but there has been a preference for the transformation theory,[56] with a rejection of automatic incorporation doctrine.[57] This has been elucidated by statements asserting that international law, while not a part of the body of domestic common law, is nonetheless one of the sources of English law.[58] More recent judicial pronouncement has confirmed this, with the proviso that in the case of a clash between domestic common law and customary international law, the court may choose to adopt international law.[59] Such a view can constrain international law from applying domestically even in cases where a fundamental breach of the laws of nations, such as genocide for example, [60] is alleged to have occurred, because the crime might not part be part of the domestic law.

State Immunity

This doctrine, also known simply as sovereign immunity, allows foreign states to enjoy jurisdictional immunity as it proscribes litigation which might result in a state appearing as a defendant.[61] The historical basis for the immunity derives from the fact that a head of state was not subject to the authority of the courts, and by extension through the principle of sovereign equality, from the courts of other states.[62] State immunity, as part of customary international law, is underpinned by the principle of sovereign equality,[63] respect and dignity of other states,[64]  and encompasses criminal and civil proceedings.[65] This aspect of customary international law has been incorporated in Australia through federal legislation,[66] and the immunity extends to the conduct of foreign nationals acting in the official capacity of a state.[67]

The scope of the immunity has narrowed over the years, from an absolute immunity to one requiring a state to be acting in a sovereign capacity (‘jure imperii’) as distinguished from private activities (‘jure gestionis’) usually entailing commercial activities.[68] State immunity is not generally afforded for commercial, employment contracts, personal injury or infringement of intellectual property.[69]

The application of this rule can be a cause of consternation. For example, the House of Lord in Jones v Saudi Arabia,[70] decided when applying The Arrest Warrant case[71] that immunity was not to be denied to Saudi Arabia or its agents for torture.[72] This was followed in Fang v Jiang Zemin.[73] By shielding a state and her agents through state immunity, gross violations of international law breaching jus cogens norms such as torture can be carried out without effective judicial censure. This perpetuates the state-centric paradigm at the cost of the rights of individuals.

Act of State Doctrine

Articulated as the act of state doctrine,[74] state practice particularly in common law nations requires respect for the independence of other sovereign states without an examination of the acts of such states in domestic courts.[75] While it has been argued by some academics that this doctrine is of common law import rather than a product of customary international law,[76] in A-G (UK) v Heinemann Publishers Australia Pty Ltd[77] (‘Spycatcher’) the Australian High Court, relying on Oetjen v Central Leather[78] (‘Oetjen’), held that the doctrine is founded on international law principles of comity and expediency.[79]

In Oetjen the court utilised such a reasoning to refuse enforcement of intellectual property rights in the form of a patent issued by a foreign state.[80] This was a somewhat puzzling decision given that the philosophical basis of the doctrine is respect and courtesy of other states, which one might expect to lead to enforcement of a patent granted by a foreign state. This reluctance was demonstrated again in Spycatcher where the High Court refused to enforce penal laws of a foreign state.

It has been suggested that this doctrine is unjust due its denial of private rights,[81] as occurred in Dagi v Broken Hill Proprietary Company Limited (No 2).[82] In this case, the action of the plaintiffs in Papua New Guinea against a mining company was barred, as it would involve examination of whether a foreign state had committed a breach of trust by not pursuing compensation claims of residents as permitted under the contract.[83] This prevented what was ostensibly the private right of a non-state entity from succeeding, and which arguably would fall within the jure gestionis exception to state immunity if the state had been sued directly .

Liberalism – Limitations?

Liberalism, in seeking the expansion of the role of non-state entities and which by consequence would dilute state sovereignty, may lead to unexpected consequences. As explained by Kingsbury:[84]

State sovereignty as a normative concept is increasingly challenged…but discarding sovereignty…will intensify inequality, weakening restraints on coercive intervention…and redivide the world into zones.

Conclusion

The view espoused by certain international law scholars[85] is that the classic conception of international law fails to adequately deal with contemporary circumstances. This appears to be a justified claim, especially given the heightened emphasis on the protection of individual rights. The multifaceted reasons for this view have been touched upon briefly, which encompass issues of standing, state sovereignty and immunity, in addition to the complex interplay between municipal and international law. A brief reference has also been made to the critique of liberalism – that the dilution of state sovereignty might impose costs of its own.

Bibliography

Books

Bederman, David, International Law in Antiquity (Cambridge University Press, Cambridge, 2001)

Boas, Gideon, Public International Law Contemporary Principles and Perspectives (Edward Elgar Publishing Limited, United Kingdom, 2012)

Brownlie, Ian, Principles of Public International Law (Oxford University Press, Oxford, 7^th ed, 2008)

Cassese, Antonio, International Law (Oxford University Press, Oxford, 2^nd ed, 2005)

Fox, Hazel QC, The Law of State Immunity (Oxford University Press, Oxford, 2002)

Higgins, Rosalyn, Problems and Process: International Law and How We Use It (Clarendon Press, Oxford, 1994)

Grotius, Hugo, De Jure Belli ac Pacis Libris Tres (1625), cited in Neff, Stephen C, ‘A Short History of International Law’, in Malcolm D Evans (eds), International Law (Oxford: Oxford University Press, 2006, 2^nd ed)

Kant, Immanuel, ‘Perpetual Peace: A Philosophical Sketch’ in Reiss, Hans (eds), H.B. Nisbet (trans) Kant’s Political Writings (Cambridge University Press, Cambridge, 1970)

Kelsen, Hans, General Theory of Law and State (Russell Russell, New York, 1961)

Kelsen, Hans, Pure Theory of Law (University of California Press, Berkley, 1967)

Lord McNair, International Law Opinions: Selected and Annotated (Cambridge University Press, Cambridge, 1956)

Mann, Fritz Foreign Affairs in English Courts (Clarendon Press, United Kingdom, 1986)

Mason, Anthony, ‘International Law as a Source of Domestic Law’ in Opeskin, Brian and Donald Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, Melbourne, 1997)

Nussbaum, Arthur, A Concise History of the Law of Nations (Macmillan, New York, 3^rd ed, 1961)

Oppenheim, Lassa, International Law (Longmans and Co., London, 1905) [13]; Hersch

Lauterpacht, International Law: Collected Papers, Volume II (Cambridge University Press, Cambridge, 1975)

Shaw, Malcolm, International Law (Cambridge University Press, Cambridge, 2008, 6^th ed)

Stellios, James, ‘International law and Municipal Law’ in Fonteyne, Jean-Pierre, Anne McNaughton and James Stellios (eds), Harris – Cases and Materials on International Law: An Australian supplement (Lawbook Sydney, 2003)

Wolfers, Arnold, Discord and Collaboration: Essays on International Politics (John Hopkins Press, Baltimore, 1962)

Journals

Alderton, Matthew, ‘The Act of State Doctrine: From Underhill to Habib’ (2011) 12 Melbourne Journal of International Law 1

Blank, Yishai, ‘Localism in the New Global Legal Order’ (2006) 47(1) Harvard International Law Journal 26

Cederman, Lars-Erik, ‘Back to Kant: Reinterpreting the Democratic Peace as a Macrohistorical Learning Process’ (2001) 95 The American Political Science Review 15

Doyle, Michael W., ‘Liberalism and World Politics’ (1986) 80(4) The American Political Science Review 1151

Garnett, Richard, ‘Foreign States in Australian Courts’ (2005) 29(3) Melbourne University Law Review 704

Kingsbury, Benedict, ‘Sovereignty and Inequality’ (1998) 9 European Journal of International Law 599

Slaughter, Anne-Marie, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503

Slaughter, Anne-Marie and William Burke-White, ‘The future of international law is domestic (or, the European way of law)’ (2006) 47(2) Harvard International Law Journal 327

Trimble, Phillip R, ‘Globalization, International Institutions, and the Erosion of National Sovereignty and Democracy’ (1997) 95(6) Michigan Law Review 1944

Cases

A-G (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30

Ahmed Ali Al-Kateb v Godwin 219 CLR 562

Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment) [2002] ICJ Rep 3

Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3

Chow Hung Ching v The King (1948) 77 CLR 449

Dagi v Broken Hill Proprietary Company Limited (No 2) [1997] 1 VR 428

Danzig Railway Officials (Advisory Opinion) [1928] PCIJ (ser B) No 15

Exchange of Greek and Turkish Populations (Advisory Opinion) (1925) PCIJ, (ser B) No 10

Fang v Jiang Zemin  (2006) 141 ILR 702

Finnish Ships Arbitration (Finland v United Kingdom) (1934) 3 RIAA 1479

Holland v Lampen-Wolfe [2000] 1 WLR 1573

Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another; Mitchell and others v Al-Dali and others [2007] 1 AC 270

Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening) (Judgment) (2012) ICJ No 143

Mabo v Queensland (No. 2) 175 CLR 1, 42.

Mavrommatis Palestine Concessions (Greece v United Kingdom) (Jurisdiction) [1924] PCIJ (ser A) No 2

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14

Nottebohm (second phase) (Liechtenstein v Guatemala) [1955] ICJ Rep 4

Nulyarimma v Thompson (1999) 96 FCR 153

Oetjen v Central Leather 246 US 297 (1918)

Panevezys – Saldutiskis Railway (Estonia v Lithuania) (Judgment) [1939] PCIJ, (ser A/B), No 76

Potter v The Broken Hill Proprietary Company Ltd (1906) 3 CLR 479

Prosecutor v Blaskic (Trial Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I, Case No IT-95-14-PT, 18 July 1997)

R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61 

R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147

Sadiqi v Commonwealth [No 2] (2009) 181 FCR 1

Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529

The Parlement Belge (1880) 5 PD 197

Underhill v Fernandez 168 US 250 (1897)

United States v Noriega, 746 F Supp 1506 (1990) 

Legislation

Foreign States Immunities Act 1985 (Cth).

Treaties, Declarations Conventions

Draft Declaration on Rights and Duties of States, GA, 375 (IV), UN GAOR, 4^th sess, , 270^th plen mtg, UN Doc A/RES/375 (6 December 1949) http://www.refworld.org/docid/3b00f1ec54.html

Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), opened for signature on 12 August 1949, 75 UNTS 287 (entered into force on 21 October 1950)

International Law Commission, Draft Articles on Diplomatic Protection with Commentaries, 58^thsess, UN Doc. A/61/10 (2006)

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) Article 88.

SC Res 955, UN SCOR, 49^th sess, 3453^rd mtg, UN Doc S/RES/955 (8 November 1994) annex (‘Statute of the International Criminal Tribunal for Rwanda’)

SC Res 827, UN SCOR, 48^th sess, 3217^th mtg, UN Doc S/25704 (25 May 1993) annex (‘Statute of the International Tribunal for the Former Yugoslavia’)

Vienna Convention on the Law of Treaties, opened for signature on 23 Mary 1969, 1155 UNTS 331 (entered into force 27 January 1980)

Secondary Sources

‘Address to Parliament’, New York Times, 9 June 1982

Dugard, John, First report on diplomatic protection by Special Rapporteur, UN Doc. A/CN.4/506 (18 August 2000)

Hooge, Nicholas, Responsibility to Protect (R2P) As Duty to Protect? – Reassessing the Traditional Doctrine of Diplomatic Protection in Light of Modern Developments in International Law (Masters Thesis, The University of Toronto, 2010) https://www.google.com.au/url?sa=trct=jq=esrc=ssource=webcd=1sqi=2ved=0CC0QFjAAurl=https%3A%2F%2Ftspace.library.utoronto.ca%2Fbitstream%2F1807%2F25618%2F1%2FHooge_Nicholas_T_201011_LLM_thesis.pdfei=ydEUuu9OIuRigfK1YCQAgusg=AFQjCNEESVtBvOreOFJ1Bu_96DQZlEU8_gbvm=bv.53217764,d.aGccad=rja

Moravcsik, Andrew, ‘Liberalism and International Relations Theory’ (Working Paper No. 92-6, Centre for International Affairs, Harvard University, 1992)

Grotius, Hugo, De Jure Praedae Commentarius (1604), cited in Daes, Erica-Irene, Report by Special Rapporteur The Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights: A Contribution to the Freedom of the Individual under International Law, UN Doc E/CN.4/Sub.2/432/Rev.2 (May 1983)

[1] David Bederman, International Law in Antiquity (Cambridge University Press, Cambridge, 2001); Arthur Nussbaum, A Concise History of the Law of Nations (Macmillan, New York, 3^rd ed, 1961) 1, 2.

[2] Hugo Grotius, De Jure Belli ac Pacis Libris Tres (1625), cited in Stephen C Neff, ‘A Short History of International Law’, in Malcolm D Evans (eds), International Law (Oxford: Oxford University Press, 2006, 2^nd ed) 35.

[3] Ibid.

[5] Anne-Marie Slaughter and William Burke-White, ‘The future of international law is domestic (or, the European way of law)’ (2006) 47(2) Harvard International Law Journal 327.

[6] Hugo Grotius, De Jure Belli ac Pacis Libris Tres (1625), cited in Stephen C Neff, ‘A Short History of International Law’, in Malcolm D Evans (eds), International Law (Oxford: Oxford University Press, 2006, 2^nd ed) 35.

[7] Hugo Grotius, De Jure Praedae Commentarius (1604), cited in Erica-Irene Daes, Report by Special Rapporteur The Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights: A Contribution to the Freedom of the Individual under International Law, UN Doc E/CN.4/Sub.2/432/Rev.2 (May 1983), 44.

[8] United States v Noriega, 746 F Supp 1506, 1533 (1990).

[9] Danzig Railway Officials (Advisory Opinion) [1928] PCIJ (ser B) No 15, 17, 287.

[10] Lassa Oppenheim, International Law (Longmans and Co., London, 1905) [13]; Hersch Lauterpacht, International Law: Collected Papers, Volume II (Cambridge University Press, Cambridge, 1975) 489.

[11]Le Droit des gens; ou, Principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des

souverains (1758) at Bk. II, Ch.VI, § 71 cited in Nicholas Hooge, Responsibility to Protect (R2P) As Duty to Protect? – Reassessing the Traditional Doctrine of Diplomatic Protection in Light of Modern Developments in International Law (Masters Thesis, The University of Toronto, 2010) 2 https://www.google.com.au/url?sa=trct=jq=esrc=ssource=webcd=1sqi=2ved=0CC0QFjAAurl=https%3A%2F%2Ftspace.library.utoronto.ca%2Fbitstream%2F1807%2F25618%2F1%2FHooge_Nicholas_T_201011_LLM_thesis.pdfei=ydEUuu9OIuRigfK1YCQAgusg=AFQjCNEESVtBvOreOFJ1Bu_96DQZlEU8_gbvm=bv.53217764,d.aGccad=rja.

[12] Mavrommatis Palestine Concessions (Greece v United Kingdom) (Jurisdiction) [1924] PCIJ (ser A) No 2, 12; Nottebohm (second phase) (Liechtenstein v Guatemala) [1955] ICJ Rep 4, 24.

[13] International Law Commission, Draft Articles on Diplomatic Protection , 58^thsess, UN Doc. A/61/10, (2006), article 1.

[14] GA Res. A/Res/6135 (4 December 2006).

[15] Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3,  45.

[16] Ibid.

[17] John R Dugard, First report on diplomatic protection by Special Rapporteur, UN Doc. A/CN.4/506 (18 August 2000), [88] cited in Nicholas Hooge, Responsibility to Protect (R2P) As Duty to Protect? – Reassessing the Traditional Doctrine of Diplomatic Protection in Light of Modern Developments in International Law (Masters Thesis, The University of Toronto, 2010) 22.

[18]International Law Commission, Draft Articles on Diplomatic Protection with Commentaries, 58^thsess, UN Doc. A/61/10 (2006), article 4.

[19] Nicholas Hooge, Responsibility to Protect (R2P) As Duty to Protect? – Reassessing the Traditional Doctrine of Diplomatic Protection in Light of Modern Developments in International Law (Masters Thesis, The University of Toronto, 2010) 21.

[20] Yishai Blank, ‘Localism in the New Global Legal Order’ (2006) 47(1) Harvard International Law Journal 263, 265; Phillip R Trimble, ‘Globalization, International Institutions, and the Erosion of National Sovereignty and Democracy’ (1997) 95(6) Michigan Law Review 1944, 1946.

[21] Panevezys – Saldutiskis Railway (Estonia v Lithuania) (Judgment) [1939] PCIJ, (ser A/B), No 76, 308; Mavrommatis Palestine Concessions (Greece v United Kingdom) (Jurisdiction) [1924] PCIJ (ser A) No 2, 27.

[22] Gideon Boas, Public International Law Contemporary Principles and Perspectives (Edward Elgar Publishing Limited, United Kingdom, 2012) 17.

[23] Anne-Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503, 503.

[24] Hans Kelsen, General Theory of Law and State (Russell Russell, New York, 1961) 363-88.

[24] Gideon Boas, Public International Law Contemporary Principles and Perspectives (Edward Elgar Publishing Limited, United Kingdom, 2012) 17.

[25] Ibid 18.

[26] Arnold Wolfers, Discord and Collaboration: Essays on International Politics (John Hopkins Press, Baltimore, 1962) 19-24.

[27] Moravcsik, above n 4.

[28] Moravcsik above n 4, 6.

[29] Moravcsik above n 4, 9.

[30] Moravcsik above n 4, 10.

[31] Immanuel Kant, ‘Perpetual Peace: A Philosophical Sketch’ in Hans Reiss (eds), H.B. Nisbet (trans) Kant’s Political Writings (Cambridge University Press, Cambridge, 1970) 132-75.

[32] Lars-Erik Cederman, ‘Back to Kant: Reinterpreting the Democratic Peace as a Macrohistorical Learning Process’ (2001) 95 The American Political Science Review 15, 16.

[33] Michael W. Doyle, ‘Liberalism and World Politics’ (1986) 80(4) The American Political Science Review 1151, 1151, citing ‘Address to Parliament’, New York Times, 9 June 1982.

[34]Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14.

[35] Michael W. Doyle, ‘Liberalism and World Politics’ (1986) 80(4) The American Political Science Review 1151, 1152.

[36] Hans Kelsen, General Theory of Law and State (Russell Russell, New York, 1961) 363-88.

[37] Gideon Boas, Public International Law Contemporary Principles and Perspectives (Edward Elgar Publishing Limited, United Kingdom, 2012) 120.

[38] Antonio Cassese, International Law (Oxford University Press, Oxford, 2^nd ed, 2005) 215; Hans Kelsen, Pure Theory of Law (University of California Press, Berkley, 1967) 332-4.

[39] Antonio Cassese, International Law (Oxford University Press, Oxford, 2^nd ed, 2005) 214.

[40] Ian Brownlie, Principles of Public International Law (Oxford University Press, Oxford, 7^th ed, 2008) 32.

[41] James Stellios, ‘International law and Municipal Law’ in Jean-Pierre Fonteyne, Anne McNaughton and James Stellios (eds), Harris – Cases and Materials on International Law: An Australian supplement (Lawbook Sydney, 2003) 19, 20.

[42] Draft Declaration on Rights and Duties of States, GA, 375 (IV), UN GAOR, 4^th sess, , 270^th plen mtg, UN Doc A/RES/375 (6 December 1949) Article 13 http://www.refworld.org/docid/3b00f1ec54.html; for treaties see Vienna Convention on the Law of Treaties, opened for signature on 23 Mary 1969, 1155 UNTS 331 (entered into force 27 January 1980) Article 2 which reiterates that a state may not excuse itself of compliance with treaty obligations by reference to domestic law.

[43] Exchange of Greek and Turkish Populations (Advisory Opinion) (1925) PCIJ, (ser B) No 10, 20; Finnish Ships Arbitration (Finland v United Kingdom) (1934) 3 RIAA 1479, 1484.

[44] See Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), opened for signature on 12 August 1949, 75 UNTS 287 (entered into force on 21 October 1950) Articles 49.1, 50.1, 129.1, and 146.1.

[45] SC Res 955, UN SCOR, 49^th sess, 3453^rd mtg, UN Doc S/RES/955 (8 November 1994) annex (‘Statute of the International Criminal Tribunal for Rwanda’) Article 28.

[46] SC Res 827, UN SCOR, 48^th sess, 3217^th mtg, UN Doc S/25704 (25 May 1993) annex (‘Statute of the International Tribunal for the Former Yugoslavia’) Article 29.

[47] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) Article 88.

[48] Antonio Cassese, International Law (Oxford University Press, Oxford, 2^nd ed, 2005) 219.

[49] Ibid 219.

[50] Ibid 220.

[51] Ian Brownlie, Principles of Public International Law (Oxford University Press, Oxford, 7^th ed, 2008) 41; Malcolm Shaw, International Law (Cambridge University Press, Cambridge, 2008, 6^th ed) 140.

[52] Antonio Cassese, International Law (Oxford University Press, Oxford, 2^nd ed, 2005) 220-1.

[53] Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529, 553-4.

[54] Antonio Cassese, International Law (Oxford University Press, Oxford, 2^nd ed, 2005) 221.

[55] Anthony Mason, ‘International Law as a Source of Domestic Law’ in Brian Opeskin and Donald Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, Melbourne, 1997) 215; See also the contrasting views of J McHugh and J Kirby in Ahmed Ali Al-Kateb v Godwin 219 CLR 562, [63], [190].

[56] Ibid.

[57] Nulyarimma v Thompson (1999) 96 FCR 153, [26], [32], [54].

[58] Chow Hung Ching v The King (1948) 77 CLR 449.

[59] Mabo v Queensland (No. 2) 175 CLR 1, 42.

[60] Nulyarimma v Thompson (1999) 96 FCR 153, [26], [32], [54].

[61] Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening) (Judgment) (2012) ICJ No 143; Richard Garnett, ‘Foreign States in Australian Courts’ (2005) 29(3) Melbourne University Law Review 704, 704.  

[62] Gideon Boas, Public International Law Contemporary Principles and Perspectives (Edward Elgar Publishing Limited, United Kingdom, 2012) 268.

[63] Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1588.

[64] The Parlement Belge (1880) 5 PD 197, 214-5.

[65] R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147, 201.

[66] Foreign States Immunities Act 1985 (Cth).

[67] Lord McNair, International Law Opinions: Selected and Annotated (Cambridge University Press, Cambridge, 1956) 230; Prosecutor v Blaskic (Trial Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I, Case No IT-95-14-PT, 18 July 1997), [41]-[42];  Gideon Boas, Public International Law Contemporary Principles and Perspectives (Edward Elgar Publishing Limited, United Kingdom, 2012) 272-3.

[68] Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529.

[69] Hazel Fox QC, The Law of State Immunity (Oxford University Press, Oxford, 2002) 22.

[70] Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another; Mitchell and others v Al-Dali and others [2007] 1 AC 270 (‘Jones’).

[71] Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment) [2002] ICJ Rep 3 (‘Arrest Warrant’).

[72] Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another; Mitchell and others v Al-Dali and others [2007] 1 AC 270, 290.

[73] (2006) 141 ILR 702, 706-7.

[74] R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61, 106;A-G (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30, 40-1; Sadiqi v Commonwealth [No 2] (2009) 181 FCR 1, 53; Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, Oxford, 1994), 217. Antonio Cassese, International Law (Oxford University Press, Oxford, 2^nd ed, 2005 219.

[75] Underhill v Fernandez 168 US 250 (1897), [252]; Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, Oxford, 1994), 217.

[76] Ian Brownlie, Principles of Public International Law (Oxford University Press, Oxford, 7^th ed, 2008) 504; Fritz A Mann, Foreign Affairs in English Courts (Clarendon Press, United Kingdom, 1986) 164, 705; Matthew Alderton, ‘The Act of State Doctrine: From Underhill to Habib’ (2011) 12 Melbourne Journal of International Law 1, 3, 17.

[77] (1988) 165 CLR 30, 40.

[78] 246 US 297 (1918).

[79] Ibid 41.

[80] Potter v The Broken Hill Proprietary Company Ltd (1906) 3 CLR 479.

[81] Richard Garnett, ‘Foreign States in Australian Courts’ (2005) 29 Melbourne University Law Review 704, 716; Fritz Mann Foreign Affairs in English Courts (Clarendon Press, United Kingdom, 1986) 181-2.

[82] [1997] 1 VR 428, 453.

[83] Ibid; Richard Garnett, ‘Foreign States in Australian Courts’ (2005) 29 Melbourne University Law Review 704, 720.

[84] Benedict Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 European Journal of International Law 599, 599.

[85] Anne-Marie Slaughter and William Burke-White, ‘The future of international law is domestic (or, the European way of law)’ (2006) 47(2) Harvard International Law Journal 327; Moravcsik, above n 4.

—

Written by: Arshad Salmaan Ali
Written at: Queensland University of Technology – Law School
Written for: Bridget Lewis
Date written: September 2013

Several contributors to CSI-Newcastle have previously argued that popular culture and world politics form a continuum. Each is implicated in the practices of the other. Recent events have once again shown how popular culture and world politics are inextricably intertwined as Harry Potter and the geopolitical imaginations of diplomats have been mobilised in tandem.

Media outlets around the world have been covering what is being referred to as the ‘Voldemort’ controversy in Sino-Japanese relations.  As reported in the New York Times:

Top diplomats from the two countries began invoking the fictional evil wizard after a visit on Dec. 26 by Prime Minister Shinzo Abe of Japan to the Yasukuni Shrine, which honours Japan’s war dead, including Class A war criminals from World War II.

According to the Reuters News Agency,   Chinese ambassador to Britain, Liu Xiaoming, referred to the Yasukuni shrine in Tokyo as ‘a kind of horcrux’—a reference to an object in the Harry Potter-verse in which dark wizards hide a fragment of their soul in order to obtain immortality. In response, Keiichi Hayashi—Xiaoming’s Japanese counterpart—warned that, ‘China risks becoming Asia’s Voldemort’. As analysts of world politics, what can we make of this exchange?  

My response is radically different to that put forward by Steve Saideman at the Duck of Minerva. It is not enough to merely analyse the empirical validity of the Voldemort metaphor as an analogy for Sino-Japanese relations. As noted linguist George Lakoff has argued, the power of metaphors comes from their capacity to enable the understanding and experiencing of one thing—which may be unfamiliar—in terms of another that may be more familiar. The primary function of a metaphor is therefore not the mimetic transposition of an entire set of qualities but rather to promote a particular understanding through what are identified as the most important shared qualities. Metaphors may clarify—for example, by reducing a complex set of political behaviours to qualities associated with a well-known villain– but they also hide and conceal.

Thus, metaphors, in the terminology of Roland Bleiker, provide aesthetic readings of the world. This means that metaphors—like language, theories, concepts, narratives, and discourses— always involve a gap between how they represent reality and the specific properties of reality that we claim to have captured by using the metaphor itself. Moreover, they are performative: like language, metaphors do not merely reflect a pre-existing reality, they construct—and shape—what we take to be real.

I therefore respectfully disagree that our understanding of world politics can be enriched by determining how ‘accurately’ Voldemort—or the storyline of the Harry Potter series— matches onto the actions of China and Japan. Trying to map how popular culture reflects the dynamics of world politics through allegory provides no meaningful insight because it takes what world politics is and the dynamics of world politics as already determined. At best, it provides the opportunity for an interesting thought experiment. Rather, what the Voldemort controversy demonstrates is the world-making properties of popular culture. In other words, it enables us to see how select foreign-policy elites in China and Japan are using popular culture in attempts to shape the way that global audiences perceive and understand their ongoing dispute.

The question for me then becomes: what kind of politics does the turn to Voldemort enable in this case? In asking such a question, one may find that the politics here can found as much in the choice to turn to Harry Potter as a source of lingua franca as it does in the mutual invoking of ‘He Who Must Not Be Named’.

—

Dr Kyle Grayson is a Senior Lecturer in International Politics at Newcastle University, UK. Read more from Kyle, and others, on CSI-Newcastle.

India-Sri Lanka Relations

Over the past two decades, India has experienced a phenomenal rise in international politics related to its economic growth, its improved relations with the United States paired with its engagement in forums like BRICS, and its growing international recognition as a responsible actor and an emerging power. In its own regional backyard, however, India has been far less successful. Apart from its ongoing tensions with Pakistan, its problems in dealing with smaller neighbouring states like Nepal, Bangladesh and Sri Lanka are almost a textbook example of the difficulties of converting material power capabilities into actual influence.[1]

The case that best illuminates this dilemma is that of India-Sri Lanka relations. The geographical proximity to the island state, and especially the cultural proximity between Indian and Sri Lankan Tamils, has traditionally made India the most influential external power in Sri Lankan politics. However, the numerous inconsistencies in India’s approach have seriously undermined its influence on Sri Lanka. Those inconsistencies began in the 1980s, when India supported Tamil rebel groups from Sri Lanka to put pressure on the Sri Lankan government, later imposed a settlement in the civil war between the government and the Liberation Tigers of Tamil Eelam (LTTE), and ultimately got entangled itself in the armed conflict with its peacekeeping troops. The dismal failure of its peacekeeping mission and the assassination of former Prime Minister Rajiv Gandhi in an LTTE suicide attack induced India to adopt a hands-off policy towards the war-torn island state in the 1990s and 2000s. After a period of relative calm that followed a mediated ceasefire in 2003, the armed conflict in Sri Lanka escalated again in 2006.[2] The government of President Mahinda Rajapaksa started a massive military offensive that ultimately led to the defeat and total elimination of the LTTE in May 2009. The final phase of the war was marked by massive human rights violations and war crimes, with government forces firing on so-called ‘no-fire zones’ in which thousands of Tamil civilians had sought shelter.[3] During this final phase of the war, particularly from 2007 onwards, the Indian government tacitly supported Rajapaksa’s military effort (albeit without supplying offensive weapons or intervening directly),[4] and reportedly even ‘played a key role in warding off international pressure on Sri Lanka’.[5] This support for the government was an attempt on the part of New Delhi to not lose its leverage in Sri Lanka against the backdrop of China’s growing influence. At the same time, India put ‘modest pressure on the Sri Lankan government to minimise the humanitarian cost of their offensive’.[6] After the end of the war, New Delhi went so far as to support the Sri Lankan government in a special session at the United Nations Human Rights Council (UNHRC) on 28 May 2009, voting against a motion that called for an investigation of war crimes. Since 2009, the Indian government has tried to further improve relations with Colombo through the provision of financial assistance for infrastructure projects and humanitarian assistance for the displaced population.

Shifts in India’s Approach

At the same time, domestic pressure from the state of Tamil Nadu has forced the Indian government to join international calls for an investigation of human rights violations and war crimes. In a significant departure from its previous approach, in March 2012 and March 2013, New Delhi voted in favour of U.S.-sponsored UNHRC resolutions that asked the Sri Lankan government to fulfil its commitments and take actions to ensure justice, accountability and reconciliation (2012) and to carry out an independent investigation into alleged human rights law and humanitarian law violations (2013), respectively. This was a substantial shift in New Delhi’s approach, which had always been opposed to country-specific resolutions and to interference with the internal affairs of third countries.

New Delhi also put substantial pressure on the Sri Lankan government to induce it to hold provincial council elections in the north of the island in a first and long-delayed step towards the devolution of power and the implementation of the 13^th Amendment to the Sri Lankan Constitution, which provides for the establishment of a system of provincial councils.[7] The elections were ultimately held on 21 September 2013, leading to an overwhelming victory for the Tamil National Alliance. It still remains to be seen, however, to what extent the increasingly authoritarian[8] and staunchly centralistic Sri Lankan government will be willing to allow the provincial government to exercise its powers.

The CHOGM

The most recent development in India-Sri Lanka relations concerned the 23rd Commonwealth Heads of Government Meeting (CHOGM), which was held in Colombo in November 2013. The Sri Lankan government had hoped to use this event to regain international visibility and legitimacy after the UNHRC votes and the repeated debates on its human rights record. However, in the lead up of the summit, the Canadian and the Mauritian prime ministers announced they would boycott the CHOGM due to the Sri Lankan government’s human rights violations. After huge domestic debates, Indian Prime Minister Manmohan Singh ultimately decided not to participate in the CHOGM, downgrading representation to External Affairs Minister Salman Khurshid. However, the fact that Singh refused to call his absence a boycott indicates the uneasiness of the central government with this outcome.

The heated political debate that preceded Manmohan Singh’s decision illustrates very well some of the dynamics of foreign-policy making in India and their implications for regional affairs. The two main political parties from the state of Tamil Nadu, the Dravida Munnetra Kazhagam (DMK) and the All India Anna Dravida Munnetra Kazhagam (AIADMK), which have been alternating in power at the state government and have served as important coalition partners at the centre over the past decades, have played a major role in shaping India’s recent Sri Lanka policy. Their limited impact on the central government in 2009, during the military offensive that cost the lives of so many Sri Lankan Tamils, reveals the extent of their opportunism and the coalition compulsions they are subjected to themselves at the state level. In recent years, however, Tamil parties’ pressures on the central government – and their actual room to manoeuvre – have grown. India’s UNHRC votes in 2012 and 2013 can be traced back to the massive protests that took place in Tamil Nadu and to the DMK’s (ultimately substantiated) threat of withdrawal from the UPA coalition.

Ahead of the CHOGM, both main Tamil parties called for Manmohan Singh to boycott the summit[9] and large protests were staged in the south Indian state.[10] Several ministers in Singh’s cabinet who hail from Tamil Nadu – among them Finance Minister P. Chidambaram – were opposed to the prime minister’s participation in the CHOGM.[11] A broad coalition of actors from Tamil Nadu therefore forced the weakened Manmohan Singh to boycott the meeting. On the contrary, the central government itself, and especially the foreign policy establishment, would have preferred the prime minister to participate. The need to keep some leverage on the Rajapaksa regime and to not alienate Sri Lanka and ‘lose’ it to the Chinese were among the main arguments in this debate. Moreover, some argued that only by cultivating the relationship with the Sri Lankan government would India be able to induce it to proceed with the devolution of powers to the Tamil minority.

Conclusion

On normative grounds, India’s attitude since the 2012 UNHRC vote is certainly to be welcomed. The problem is that this shift towards a support for international initiatives that seek to enforce human rights law and humanitarian law has mainly been driven by political calculations at the state-centre nexus. The principles of non-intervention and sovereignty continue to play a major role in India’s foreign policy approach – also due to concerns about external interference with India’s own human rights violations in Kashmir and the Northeast. The main driving force in India’s shift has therefore not been a change in normative attitudes but the growing role of regional parties in decision-making. This is part of a broader trend in India’s foreign policy making that has had its main repercussions on New Delhi’s policies vis-à-vis neighbouring South Asian countries. In 2011, for example, the chief minister of West Bengal undermined a potentially ground-breaking agreement with Bangladesh and, thereby, the opportunity of achieving better relations with one of India’s most difficult neighbours. This has further limited India’s ability to reach its goals in its troublesome neighbourhood – its huge power capabilities notwithstanding.

As for the Sri Lankan case, Manmohan Singh’s absence at the CHOGM has certainly had a negative impact on bilateral relations and on India’s ability to influence the devolution of powers for Sri Lankan Tamils. And, of course, it would have been wiser for Manmohan Singh to travel to Sri Lanka and send a strong signal by visiting Jaffna, as the British prime minister did. However, the negative implications of the CHOGM episode should not be exaggerated and New Delhi should pay attention not to give in to the balancing threats voiced by the Rajapaksa regime.[12] Shortly after the CHOGM episode, bilateral naval talks were held between the two countries, revealing that India remains an essential partner for Colombo.[13] As for the Chinese influence on Sri Lanka, India’s (limited) support for Rajapaksa’s war efforts was certainly not sufficient to keep the Chinese out of the island – and support for Sri Lanka in the UNHRC or Manmohan Singh’s participation in the CHOGM would certainly not have induced the Sri Lankan government to expel the Chinese from their huge port project at Hambantota. New Delhi should also pay attention not to associate itself too closely to the Rajapaksa regime – not just because of its increasingly authoritarian character, but also, quite pragmatically, because of the reported ‘growing restiveness among Sinhalese at government abuses, corruption and economic mismanagement’ by the Rajapaksa government.[14]

What India needs in order to keep its leverage on Sri Lanka and to increase its influence in its South Asian backyard is a coherent and credible policy of regional leadership. This would imply developing a ‘vision’ for the region, making disproportionate concessions to smaller states for the achievement of common goals, and taking a clear and consistent normative stand on issues like human rights violations and war crimes. It would also imply a better coordination between the centre and the states to develop a consistent foreign policy line. All this will hardly be possible ahead of the 2014 general elections. In the case of a BJP victory, one can only hope that Narendra Modi’s plans about a future broader role of states in foreign policy making were just one of his one-off remarks – or that some serious work on the coordination between centre and states in foreign policy would be done. And if a coalition of regional parties emerges as the winner of the 2014 elections, one has to hope for checks and balances dictated by coalition dynamics.

Securitization and the Iraq War: The rules of engagement in world politics
By: Faye Donnelly
London: Routledge, 2013

In Securitization and the Iraq War by Faye Donnelly, readers will find a European theoretical and methodological treatment of the Iraq war and one that is deeply embedded in debates over the role of language in the study of security. While the book is filled with intriguing analytical nuggets, many of which merit at least article length treatment, I will discuss two very important ideas on the processes that shape security outcomes that I believe are central to the analytical contributions of the book.

The first—and by far the most significant idea in my opinion— is the identification and exploration of the idea that securitizing actors are always operating within systems of rules. Drawing on Wittgenstein, Donnelly conceives of securitization not as rule breaking, but rather as an attempt to replace one system of rules with another. Donnelly rightly identifies this as a significant contribution to securitization theory, taking the approach away from the dichotomous conception of rule following (normal politics) and rule breaking (security politics) that was present in the Barry Buzan, Ole Wæver, and Jaap de Wilde’s field defining 1998 text Security: A New Framework for Analysis. The rules governing political behaviour in a securitized state emerge from a number of places including, the domestic, international, social and legal context within which securitizing actors operate. This is an issue I have addressed in my own work, although admittedly without the focus on rules that Donnelly brings to the table. Sporadically, Donnelly mentions the role of identity in shaping the rules securitizing actors operate by, a notion I found particularly intriguing. Systems of rules can also emerge from the very way that the security claim is constructed. If, as in the case of the Iraq War, a securitizing actor builds a security claim on the premise that democracies do not pose threats to others and that only democracies can be trusted to uphold international peace and order, that creates both an opportunity to exercise agency (i.e. invade Iraq), as well as a system of rules that the securitizing actor must abide by in order to maintain the legitimacy of the securitizing process.

Rules, however, can be tricky things analytically speaking. Like other social structures (e.g. identity), they can be difficult to observe. As a consequence, scholars either marginalize them or reify them, imparting a level of permanence and institutionalization that could lead to a highly structural and deterministic interpretation of securitization. Donnelly avoids this trap, however, through her basis in Wittgensteinian theory—emphasizing the inter-subjective agreement of various audiences as to: what system of rules is applicable; what system the securitizing actor is seeking to invoke and the meaning of the rules. In this way, Donnelly stays true to the constructed nature of security set out in Securitization theory, by emphasizing the importance of interpretation and argumentation in establishing security, as well as contributing to the conceptual development of the role of the audience in the securitizing process.

The second key idea Donnelly raises, is that security is not the product of a single-point-in-time act, but is rather an ongoing process of reiterated, reinforced and sometimes reconstructed security narratives that are linked and interwoven in time and constrained both by past security claims, but also by the structures within which they are formulated (what she calls multiplicity). Multiple narratives interact with each other to shape the securitizing process and that process can only be understood through how these multiple narratives interweave and change in prominence over time. Donnelly does this well through her engagement with the discourses used by the Bush Administration to construct Iraq as a threat as well as her analysis of two ‘defining moments’—the failure to find weapons of mass destruction in Iraq and the mistreatment/torture of prisoners at Abu Ghraib—that challenged the original security construction. The point that securitization is a process rather than a moment has been raised by other—as Donnelly calls them—second generation securitization scholars (myself included), but Donnelly stands out in her attention to the interweaving and multiplicity of discourses.

These two points do not however comprise the totality of Donnelly’s intellectual contributions. I heartily agree with Donnelly’s contention that scholars should ‘look and see’ what security discourses are doing. Sprinkled throughout the book are eye catching analytical points that could, and probably will, serve as the basis for article length or longer stand-alone research projects. For example, Donnelly notes that the Bush Administration claimed to be upholding the international law, rather than arguing that the nature of the threat justified a break with international law. This is an intriguing and important point of exploration regarding the interaction between social order, rules, and the enactment of security. The intellectual richness of the book speaks highly of Donnelly and the work she is undertaking. Like any good work of scholarship, Donnelly’s book raises a number of interesting questions, and introduces new avenues of inquiry and analysis.

There are however, I would argue, a few shortcomings to the work. Perhaps the largest is the structure of the narrative. As is relatively common in European IR, Donnelly’s argument and analytical frame emerge in stages through engagement with the cases. There is nothing wrong with this approach. However, it does clash with intellectual traditions in American IR, where the argument and analytical frame are usually presented up front. This in the end could mean that her book gets far less traction amongst US scholars than it should. Of secondary significance, are some points of possible contention in the analytical framework. For example, while Wittgenstein’s language games approach leads Donnelly to explore the importance of rules in securitization, the book remains somewhat ambiguous as to the value added both to the analysis within the book and to the broader field of securitization studies of using the language games concept as a central mode of analysis (as opposed to providing some analytical direction). As a consequence, Donnelly’s own contributions to understanding and analyzing securitization can at times be obscured. I also felt that Donnelly could have paid more attention to linking the language games to security outcomes, which in turn would have reinforced her argument that language matters for the conduct of security in international relations. But these are minor points and should not distract from the importance of Donnelly’s insights, particularly on the significance of rules throughout the securitizing process.

 —

Jarrod Hayes is an assistant professor of international relations in the Sam Nunn School of International Affairs at the Georgia Institute of Technology. His book, Constructing National Security: US Relations with India and China, was published by Cambridge University Press in 2013.

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