Judge James Richard Crawford: an appreciation of his perspectives of international law

In May 2018 I was privileged to conduct two lengthy interviews with Judge Crawford in his chambers at the Peace Palace in The Hague. The audio and written transcripts of these are available on the Eminent Scholars Archive (ESA) website[1]. His distinctive outlook on international law gives rise to what I have called a Crawfordian Vision of International Law, and I have used his interviews as a basis for identifying some of its characteristics. (Quotations in italics are referred to Question numbers in his interview transcripts).

Judge James Crawford is one of the pre-eminent international lawyers currently active. He reached his position on the bench of the ICJ (Member of the Court since 6 February 2015) after an acclaimed academic career in Australia and the UK, and over three and a half decades of practice in international litigation that included 29 cases before the International Court of Justice.

His legal journey was initially nurtured by world events while he was still a schoolboy in Adelaide: “My interest goes back to 1962, the Cuban Missile Crisis” (quoted from a 2017 meeting of the Australian Bar Association in London re. a question by Hogan-Doran SC [2]). His determination to study international law crystalised during the Australian anti-Vietnam war demonstrations, in which he took part. This political event coincided with his taking a BA and LLB at Adelaide University between 1966 and 1971.

James Crawford grew up and then received his undergraduate training in a milieu that was “very parochial” (Q6) and “remote from other parts of Australia” (Q15). His postgraduate sojourn to Oxford in 1972 expanded his horizons and here he fell under the supervision of the influential Ian Brownlie[2], a lecturer at Wadham College, with whose left-leaning political views and legal interpretations of things international James was substantially “in line” (Q10). This coloured the backdrop of the Crawfordian Vision, and his mission in international law might be summed up by his desire to improve the ordering of the world for the benefit of all – his “law of coordination addressed to human problems” (Q115).

In a tribute for his retirement from the Whewell chair of international law at Cambridge in 2015, Chinkin and Baetens[4]said that James Crawford “is not associated with any “school” of international law, rather, his commitment is to international law as an “open system”, a practical tool for the resolution of often apparently intractable international problems.”          Of the traits I detected from my interviews on those sunny days in The Hague in May 2018 that allowed me to define what I called the Crawfordian Vision of International Law, five stand out.

1. The heart of International Law is historical contingency. 

James Crawford presented his Hague Chance, Order, ChangeLectures[5]as a conception based on an evolutionary pathway: the result of historical happenstance, ordered by a system, and adapted by change to suit its purpose. He sees the system of International Law from a Darwinian perspective – it is an ongoing story of the law’s evolutionary development. As he explained,  “International law [is] a system which is not preordained, which is not determined ultimately by any set of formulas or principles, which is extremely contingent, but nonetheless has an ordering force.”(Q93).

Judge Crawford’s vision of international law, so informed by contingency, is guided by his appreciation of its historical pedigree. This probably has its roots in his own interests in history, which he studied (along with English and International Relations) as part of his BA at Adelaide. He mused that had he not gone into law, the only other academic subject he could have envisaged teaching was history (see Q75). In a subject where James Crawford sees international law for reasons of “happenstance…. develop[ing]in West and Central Europe” (Q93), a knowledge of European history is essential fully to appreciate its evolution, and particularly its links with European colonial development. His written works are peppered with historical references and examples, ranging from the Peloponnesian Wars, through the Middle Ages, to Victorian times and the 20thcentury.

2. International Law as the law of human enhancement.

James Crawford’s vision of international law is deeply entwined with his concern for the human condition, but as a lawyer he knows that this concern has to be moderated by the rules and texts that apply to circumstances at a particular time and place. It manifests itself as concern for both individuals and groups: “International Law is a law of coordination addressed to human problems “ (Q115).

What influences may have enhanced James’ inherently humanistic outlook? Firstly, he was exposed early in life to his family’s progressive views on labour relations, and his own association with the church as a youth where he ran the local boys’ club (Q5). In addition, his reaction to the political and humanitarian excesses of the Vietnam War had a great effect on him; “I was much affected by the Vietnam War” (Q5) , which apart from his parents and school, probably had the “strongest influence” on his youth, and certainly strongly influenced his relationship with Professor Dan O’Connell[6]during his undergraduate days (1966-71). At Oxford James’ close friendship with Ian Brownlie, who was a fierce advocate of human rights law was very influential: “I knew Ian very well and worked a lot with him and my attitude[to international law] was not that far away from his.” (Q119).

As a lawyer, his own first close encounter with the subject of Human Rights in practical terms was as a component of his work for the Australian Law Reform Commission (1982-84). Here, inter alia, he wrestled with the thorny issues of group rights relating to Aboriginal Customary Law. “[It] was still one of the biggest projects I have ever done.  It was a two-volume report and I understand of all the reports, now, and the numbering must be a hundred or so, of the Australian Law Reform Commission, it’s the one which has been most referred to by scholars and the most cited.  It was a very difficult project….”. (Q26).

 The complexity of the topic led James Crawford to conclude that “Aboriginal customary laws have never been recognised by general Australian law…[that] Customary law was and continued to be a series of dynamic and changing systems applying to different groups of Indigenous Australians. The report highlighted that Aboriginal people must have the final say in the negotiation and consultation surrounding the recognition of customary law.”[7]

These experiences greatly influenced his outlook when he later applied himself to “human enhancement” in international law on a global stage.

3. Rigour in international law.

For James Crawford, the law has to be accurately portrayed – “woolliness” is an anathema to him. During his days in practice, clients seeking advice, or recipients of his adjudications, needed to know precisely where they stood, and even in the world of Human Rights,  James Crawford is a pragmatist. This was emphasised in an answer apropos his justification for adding an “historical and doctrinal” introductory chapter into his revision of Brownlie’s 7thedition of Principles[8].

I don’t think it’s possible to say there is such a thing as an immanent and categorical conception of any particular right. If that makes me a positivist then I’m a positivist. I’m not an unalloyed positivist, but there’s no rule or theory or concept that the human right to property [for example]has to be the same in Europe as it is in South America. It depends on the formulations in the texts and sovereignty, as applied to treaty-making, allows states to come up with different formulations.  They may be good formulations, they may be bad formulations, but they are what we have and if your function as an adjudicator is to apply those treaties then you start with a text and you are constrained by the text. I’m very strongly opposed to the view which you get in some versions of critical legal studies, and some versions of realism, that texts are not a constraint.  If texts are not a constraint then we are out of business.” (Q 119)

In the Crawfordian Vision, the application of international law is an exercise in forensic analysis, rather than popular perception.

4. A polymath’s vision of international law.

Phillipe Sands[9], in his eulogy for Professor Crawford’s retiring from the Whewell chair, spoke of James’s “openness to ideas”, while Chinkin and Baetens referred approvingly to him as a “generalist”. Both hint at an aspect of the Crawfordian Vision that helps explain why in court and teaching he gained a reputation for being “the principal international lawyer of our age,” and “the most brilliant performer of his generation”.[10] One reason for his displays of confidence, versatility, and ability was highlighted by his answer to questions during our interviews relating to memorable features of his career in practice.

The “Gabčíkovo-Nagymaros” case [11] for Hungary was my first lead in the court and it was very important in my formation as an international lawyer.  It gave rise to the experience of working with technical experts on environmental and scientific matters which is something I love doing and continue to do…That’s something I greatly enjoyed – working with experts in other fields, geomorphology, water-sediment transport, things like that.  Generally environmental sciences, fishery science, that was a great experience.” (Q66).

Combined with his love and knowledge of history, this polymath approach has allowed  James Crawford to bring to bear a wide spectrum of knowledge and interest when writing of his vision of international law, and not just in the courtroom. Thus, in his concluding sections of Chance, Order, Change, although he bemoaned the failure of the UN’s New International Economic Order (proclaimed in 1974), and the “common heritage of mankind” as legal concepts controlling fair access to global natural resources such as access to oil, water rights, and resources of the sea-bed, the moon and Antarctica, he is still able to have faith in international law “in the race for order…. [as] part of our common heritage, and a vital one.”[1]

5. Crawfordian view on the limitations of an ICJ judge.

The final chapter (XV) of  James Crawford’s 2014, Chance, Order, Changeis entitled “An irremediably unjust world”. It seems a bleak prospect for a principled international lawyer such as Judge Crawford, and he might be forgiven for seeing a role for ICJ judges as pro-active champions, using their positions directly to address instances of  “substantive inequality”.

But not so. James Crawford, while intuitively being such a champion, is foremost a follower of the law. In his vision, “It’s not the function of individual judges in the International Court to solve the problems of the world.  It[’s]…to decide individual cases.  I bring my attitudes to responsibility to the decisions of individual cases and so do the other judges in the Court, but the Court’s process is a collective process. I have whatever influence on the Court I am entitled to have by virtue of the strength of the arguments in the cases in which I am entitled to sit.  That’s the beginning and end of it.” (Q138).

He made it clear that he is averse to tinkering with the law, even to achieve noble ends. As he sees it,  “The role of a judge in international law is to apply the applicable texts and I can tell you as an international lawyer which texts are applicable.  I know what the rules are about, who has entered into treaties and who has not, and how those treaties have been interpreted. They’re not necessarily right on all those questions but the questions are capable of an answer.  The function of the court is not to produce a global synthesis of legal norms, it’s to apply the applicable legal norms in an appropriate way and the secondary rules have the feature that as secondary rules of interpretation and so on, they assist in your doing so in a way that’s appropriate having regard to the coexistence of other norms, but they don’t give you a licence to go and improve things as you think fit.”(Q157).

6. Personal aspirations in international law.

Notwithstanding James Crawford’s broad, visionary aims, his main career achievements, in his estimation, reflect an underlying appreciation of the complexity of international law. He recognises that its advancement is invariably incremental – the “Order and Change” in the title of his trilogy.

As a consequence, his “greatest/most important” achievements in international law, as a jurist, and teacher, have (so far) entailed specific advances in legal concepts and the establishment of long-lasting personal relationships, respectively. Specifically, these translated into his concluding the ILC articles on State Responsibility; and successes in supervising his many PhD students.

The former entailed the completion of the UN International Law Commission’s second draft on State Responsibility when he was its Special Rapporteur:  “my greatest single achievement as an international lawyer [was]to finish the articles on [state] responsibility and the associated work, commentaries, the books and so on.” (Q59). Within that context he singled out one item. “Article 48 was an attempt to bring together strands of International Law in various cases.  The concept of peremptory norms, the concept of obligations erga omnes, the concept of obligations erga omnes partes, in a systematic way, and if I had to identify the single most important contribution, which I have tried to make, to International Law it’s Article 48 of the ILC Articles.” (Q143).

The second, academic, success on which James Crawford places great store, hinged on the personal relationships he developed over the years, in particular, with the sixty-three PhD students he has supervised: “I gave the PhD students as much attention as they needed and more attention when crucial events were coming up … I was always saying to people, “What are you going to write next?  Let me see it and let’s talk about it,” and if you set a programme of study of that sort, PhDs in effect, supervise themselves….that was always the way I supervised and…..I think that’s the most significant thing in my academic career.” (Q82).

Thus, in spite of his other stellar achievements in international law, Judge Crawford looks with greatest pride on having made fundamental, if esoteric, contributions to the law of good global order, and cherishes the conscientious manner in which he has served students who have elected to fall under his supervision.

What other traits could I discern other features from our interviews that characterise James Crawford’s vision of international law?

– An appreciation, amounting to the joy of an afficionado for their subject, of a knowledge and understanding of the quirks and eccentricities of its pedigree in historical contingency that binds its foundations (Q149), and upon which he drew for Chance Order Change. His immersion in history is a major facet of his own legal character, one of the diverse interests of the Crawfordian polymath.

– A sense of restrained optimism. Despite all the weaknesses that he admits in the international order, James Crawford’s overall vision is optimistic. Koskenniemi[13] commented on this in his review of Crawford’s 8thedition of Brownlie, and it shows in the final paragraph of  Chance Order Change.

But realism is always to the fore in Judge Crawford’s appreciation of the law: “My optimism is distinctly qualified, and qualified more sharply by developments since I wrote the book [Brownlie, 2012]. To some extent it’s a question of what one would like to believe. I have to be honest about that. But [apropos global problems]…. we need coordination, and legal devices are a key method of coordination.  Not the only method, of course, thank god, but a method.  Let’s not trash what we’ve got because what we’ve got creates problems and the problems would be worse if we didn’t have it.” (Q156).

He tempers this optimism with positivism, where the law has its Orderinstilled, and he summed up this in his memorable phrase in Question 119 “If texts are not a constraint then we are out of business”.

– Finally, his steadfast belief in the limitations of his own role as an ICJ judge: viz, to decide individual cases in a collective manner (Q138); and to apply the applicable texts and norms in an appropriate way (Q157). Emphatically, it is not his individual function to “solve the problems of the world”, or to have “a licence to improve things as you think fit.”

My interviewing of Judge James Crawford was an uplifting experience, both in his responses and courtesies, and in the tranquil settings of the Peace Palace. I hope I have conveyed some aspects of this notable international lawyer’s outlooks and values developed in a career that spans over 40 years, and is still ongoing.

Lesley Dingle

Founder, Eminent Scholars Archive and Foreign & International Law Librarian, Squire Law Library, Cambridge University.

[1] https://www.squire.law.cam.ac.uk/eminent-scholars-archive/judge-james-crawford

[2] Dominique Hogan-Doran SC, a senior barrister at the Independent Bar in Australia. https://static1.squarespace.com/static/568c9f234bf1182258eb9fbc/t/5a20b1898165f51b7db7bcb2/1512092043849/James%2BCrawford%2BInterview.pdfsummary

[3] Sir Ian Brownlie  CBE, QC, FBA (1932-2010), Chichele Professor of Public International Law Oxford (1980-99).

[4] In Chinkin, C & Baetens F (Eds), 2015, Sovereignty, Statehood and State ResponsibilityCUP, 479pp., p.xxii.

[5] Chance, Order, ChangeThe Course of International Law. 2014, AIL Pocket, Hague Academy of International Law, 537pp

[7] “Aboriginal Customary Laws, Published on 12 June 1986. https://www.alrc.gov.au/inquiries/aboriginal-customary-laws

[6] Daniel Patrick O’Connell (1924-1979), Professor International Law Adelaide (1964-72), Chichele Professor of Public International Law, Oxford (1972-79).

[8] Brownlie’s Principles of International Law, 8th Edit. 2012, OUP. Citing Koskenniemi, 2013/14 Brit Yearbook Int Law137-143.

[9] b. 1960-) Professor of Laws and Director, Centre on International Courts and Tribunals UCL.

[10] 2015, In: Sovereignty, Statehood and State Responsibility, p. xxiv, p. xi, p. xxii, p. xxiv respectively.

[11] ICJ case 92.

[12] Chance, Order, Change, p504-506, Items 654-657

[13] Page 143 of his review.

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