“Duelling Agendas: International Law and International Relations (Again)”,
Toronto Journal of International Law and International Relations (2005), pp
61-74.
“International Law and the War in Iraq”, Melbourne University Journal of
International Law
(2005) pp. 167-188
In this paper I argue that the 2003 War on Iraq was
illegal, and that this illegality matters. In the first substantive part of
the paper (Section II), I consider three legal justifications that have been
offered, to varying degrees, formally and informally, for the war. These are
self-defence (and its more contentious variants, anticipatory self-defence
and preventative war), collective security under Chapter VV of the United
Nations Charter, and, finally, the doctrine of humanitarian intervention.
None of these provides a secure basis for going to war. The most plausible
of these justifications, based on an interpretation of existing Security
Council resolutions, is arcane and unconvincing. Section III situates the
debate over the war in the context of some recent dilemmas concerning the
international order; namely the problem of law in international affairs, the
question of novelty, the claims of equality, the assessment of evidence and
the presence of hyperpower. Section IV ends by reminding readers of the many
and varied ways in which international law does matter in ways that
transcend the tedious debates about compliance.
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http://mjil.law.unimelb.edu.au/issues/archive/2005(1)/07Simpson.pdf
“’We are teachers of International Law’” 17 Leiden Journal of International
Law, (2004) t 363-374 (with Susan Marks, Matt Craven and Ralph Wilde)
In the general debate prior to the onset of war in Iraq,
we made public our view, in a letter to the Guardian newspaper, that the war
could be justified neither by reference to earlier UN Security Council
resolutions nor by way of the doctrine of self-defence. In this article we
reflect on some of the anxieties we experienced both before and after that
‘intervention’ in terms of the vision of international law we might
unwillingly promote, and in terms of the role we appeared to assume for
ourselves, and our professional colleagues, in public debate. Despite our
efforts to prevent legal issues from dominating, we came to be viewed as the
defenders of an anti-hegemonic legality – resisting the erosion by an
opportunistic coalition of the principles of sovereignty, non-intervention,
and collective security. We were concerned that this made us appear
champions of international law in a way with which none of us was entirely
comfortable. On the other hand, in contesting that, we seemed in danger of
valorising a politics of expertise that gave international lawyers a
privileged position within the debate. We reflect, then, on the
consequences, intentional or otherwise, of our intervention, and explore the
dilemmas associated with it. The problem with which we finally grapple is
whether the relationship between critical scholarship and the techniques
associated with it (anti-formalism, complexity, and indeterminacy) is such
as to preclude strategic intervention in the effort to stop a war.
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“The Great Powers, Sovereign Equality and the Making of the UN Charter”, 21
Australian Yearbook of International Law, (2002) at 133-158.
“Two Liberalisms”, 12(3) European Journal of International Law,
(2001) 537-571
There is much talk in international law about
'liberalism'. The term means many things but is too often taken to mean only
one. This essay is intended to act as an historical gloss on some
contemporary debates featured eslewhere concerning the meanings of
liberalism and the possible consequences of adopting liberal positions in
international law. The author aims to accomplish three ends here. First he
distinguishes between two different but familiar liberal conceptions of
international community. The author calls these Charter liberalism and
liberal anti-pluralism. Secondly, the author discusses the tension between
these two conceptions during two periods of innovation in the international
system, namely the late-Victorian era and the Conference at San Francisco to
establish the United Nations Organization. Thirdly, he turns to the
contemporary version of liberal anti-pluralism and contrasts two variants of
this new liberal anti-pluralism, mild and strong, before showing how each of
them constructs the problem of the 'outlaw state'.
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http://www.ejil.org/journal/Vol12/No3/120537.pdf
“The Situation on the International Legal Theory Front”, 11(2) European
Journal of International Law,
(2000) at 439-464.
The rejuvenation of international law in the last decade
has its source in two developments. On the other hand, 'critical legal
scholarship' has infiltrated the discipline and provided it was a new
sensibility and self-consciousness. On the other hand, liberal international
lawyers have reached out to International Relations scholarship to recast
the ways in which rules and power are approached. Meanwhile, the traditional
debates about the source and power of norms have been invigorated by these
projects. This review article considers these developments in the light of a
recent contribution to international legal theory. Michael Byers' Custom,
Power and the Power of Rules.
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http://www.ejil.org/journal/Vol11/No2/110439.pdf
“On the Magic Mountain: Teaching Public International Law”, 10(1) European
Journal of International Law, (1999), 70-92.
In this essay the author
identifies a malaise in the teaching of international
law resulting from a fear of being consigned to the
academic peripheries. This fear arises from a sense that
international lawyer are deemed not sufficiently like
'real' lawyers by some of our colleagues in the law
schools and not savvy enough about global realities
according to some international relations scholars. The
response to these fears sometimes involves a series of
compromises with 'legalism' and 'realism'. The
consequences of these compromises include theoretical
incoherence and a depoliticization of their subject
matter. These theoretical failures drive teachers
towards a mode that the author calls 'romantic'. The
romantic mode is alluring but superficial and ultimately
threatens to further empty international law of
political content. The author suggests three possible
solutions to these problems. The first is to adopt a
more integrated, theoretical approach to the teaching of
international law. The second is to embrace a more
explicitly political method in which the teaching of
international law is capable of being an imaginative act
of dissent. Finally, the author suggests a way of
teaching context that avoids what is described as the
romantic malaise.
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http://www.ejil.org/journal/Vol10/No1/100070.pdf
