The British Yearbook of International Law ß The Author 2013.

Published by Oxford University

Press. Available online at www.bybil.oxfordjournals.org
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R EVIEWS OF B OOKS

Brownlie’s Principles of Public International Law. By JAMES CRAWFORD

AC, SC, FBA. 8th Edn. Oxford University Press, Oxford, 2012. 888 pp.
£44.99.

Most international lawyers, I assume, have some kind of a personal relation to Brownlie’s
Principles of Public International Law. In my own case it is to the third edition from 1979
in which I have been examined twice – once for an intermediary degree in law at my

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home university (Turku) in 1980 and another time by Brownlie himself for a Diploma in
Law in Oxford in 1982. Ever since then, that thickly marked copy has accompanied me in
my travels; now it sits on the shelf of my Helsinki study, with the sixth and (now) eighth
editions. I take it up every now and then, less to imbibe the details of a technical point
than to check Brownlie’s attitude to it. No other English-language textbook comes in my
mind even close to Brownlie. It is the only one with which I have had an emotional
relationship. I do not mean a loving relationship. I found the work in many ways puz-
zlingly unclear and the author’s points of emphasis eccentric. For a non-native English
speaker, especially a student reading for an exam, its language was frustratingly cryptic;
its conclusions often thrown in the winds for the reader to pick up from a wholly inde-
terminate discussion of contradictory positions. But as I found myself a professor at the
University in 1995, I had no doubt that Brownlie had to go into the appropriate exam. I
had a sense that being examined in it was to pass a suitability test. If you are able to deal
with this, then there will be nothing in a career in international law that you cannot
handle.
I
It is with this background that I received the new edition by James Crawford
after Brownlie himself had passed away. For the more recent editions, Brownlie had
refrained from carrying out large revisions, mainly updating the work in response to
recent events. By contrast, Crawford has now engaged a good part of his collaborators
at the Lauterpacht Centre in Cambridge and many colleagues not only to bring the work
up to date but to transport it spiritually to the 21st century. Altogether 64 individuals are
thanked in the preface for having helped out. So the first question I had to ask was –
‘what remains of the book’s oddly appealing (British?) idiosyncrasy once another
(Australian?) hand has been laid upon it?’ Professionally speaking, the professors
of Oxford and Cambridge appeared not that different. Brownlie was and Crawford re-
mains a workaholic whom one always met either on the way to a meeting with clients
or just back from pleading in The Hague. For both, the heart of international law
are its technical institutions; theory appears suspect as a contribution to the ‘real
world’ in which both have preferred to move most of the time. This is not to say there
were no significant differences. Brownlie once called political theory ‘that most
vacuous of fields’ while Crawford is happily tolerant and perhaps even mildly amused
by the philosophical wrangling of his students to whom he has always given exemplary
support.

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The British Yearbook of International Law (2013)
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The two men both are the same and differ. That applies to the books, too. Their layout
has remained unchanged. That is a plus. In relation to Malcolm Shaw’s widely used but
overly thick textbook, and the essay format used by Vaughan Lowe in his International
Law, Brownlie, though long, stays nicely in the hand and its paragraph structure and
system of titles and subtitles carves the book in sections suitable for learning purposes
and for being picked up from the shelf to check a point. The overall feel is loyalty to the
old version. But not much reading is needed to notice that this is a different book. In fact,
one notices it immediately because where the old Brownlie started in medias res by a
chapter on ‘Sources’, the new one begins with a 16 page historical and doctrinal intro-
duction. Instead of shock and awe, the reader is gently guided into the international law
world by a pleasant expository voice that gives a few hints as to the where ‘international

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law’ historically came from and who were its most well-known early experts. Hugo
Grotius, Emer de Vattel, Immanuel Kant and John Austin put in rapid appearances.
The introductory exposé is careful not to either suggest that the field is one of philo-
sophical thinking (which of course it is not) nor one of foreign office practice (which was
the direction in which the old Brownlie tended to lean). It stresses the centrality of States
and sovereignty in the field but points to ‘new’ challenges posed by human rights, inter-
national institutions and ‘constitutionalization’. To prove international law’s reality, it
makes the old point about how ‘millions of people are transported daily by air and
otherwise across state boundaries’ (15). But it warns against excessive idealism and scep-
ticism. The result is a conventional ‘European’ view of the field. Learning it will make
the student conversant, at the most general level, with practitioner’s (such as Crawford
himself) outlook for the field today.

II
Adding an Introduction illustrates what I see as the biggest and most obvious change
from the old to the new Brownlie. Crawford has rewritten the chapters as systemic
wholes, linking doctrines and practices under larger headings, and providing explan-
ations and justifications to parts and statements and cases that previously stood by them-
selves as representatives of this or that rule. With this, the work has become much more
readable and ‘coherent’. But it has also lost precisely the eccentricity that used to char-
acterize the ‘old’ Brownlie – the quality that used to drive students (including myself)
mad because of its demand either to learn things by heart or figuring out the conclusions
oneself. The old Brownlie carried the reader forward almost randomly without tying
individual topics under explanatory titles or principles. The chapter on ‘Territorial
Sovereignty’ in the 6th edition, for example, had 21 and ‘The Creation and Transfer of
Territorial Sovereignty’ 24 sub-chapters which appeared as if they had fallen from the
sky – which in a sense they had because each represented some past case that had
emerged from the vicissitudes of history and was in some way ‘special’ so that it could
not be subsumed under the old titles. It had to have a new one. This was part of what I
felt was the ‘eccentricity’ of the old Brownlie. It explained international law as a wholly
empirical phenomenon; topics and rules emerged out of practical needs. They grew up a
bit here and there without any general plan or historical logic – at least any logic that it
would be the point of a textbook to reveal. The student was to learn international law as
bricolage – a wholly practical craft of using whatever precedents happened to be available
to construct an argument about the legality vel non of some international behaviour.
To me (and I suppose to many other continental students) this was always the hardest
bit about the old Brownlie. Even when we passed the exam, many must have left the field
tired of its arbitrariness. For others, such as myself, there was always some satisfaction at
having done this also in this way. Most continental law books explain their topic in terms
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of principles and purposes, organising the discipline in more or less logically interrelated
parts and making it ‘stand for’ something (the ‘welfare state’, ‘modern criminal policy’,
‘deepening and widening integration’, ‘the protection of fundamental rights’). We learn
that academic law is about interpretation and systematization. And yet, more often than
not this leads into wholes that are only apparently coherent. The reader would soon
notice the underlying indeterminacy, the way the author has forced the materials in a
preconceived system that seems no less arbitrary than its alternatives.
This is why I found the old Brownlie’s unabashed empiricism appealing. Here now was
an author who did not even try to explain away the field’s randomness but embraced it.
There was an arrogance about that approach, I admit. I do not think political science is
‘the most vacuous of fields’. There is room for system and coherence. But I always

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thought it worse to attempt to create an underlying coherence that was obviously con-
trived than not even attempting. For Brownlie, the field was craft, and teaching it simply
to show ‘this is what we do’. If you did not like it, then you could always become an
administrative lawyer, an expert in contracts or intellectual property. But if one did enter
it – as I of course did – then knowing Brownlie was much more useful than learning the
opinions of some continental writer or other about the way the sovereignty was slowly
eroding with international progress and the increasing adoption of tasks by the ‘interna-
tional community’.
Crawford’s Brownlie no longer has that insular strangeness; it is much closer to a
continental textbook. But Crawford is sufficiently a craftsman himself to appreciate
the open-endedness and sense of inspiration of much that lawyers do to avoid pushing
the practices under dubious teleological generalizations. If the feel of bricolage is gone,
that is perhaps compensated by the relatively greater coherence attained by linking sub-
chapters under larger headings, bringing similar items (such as ‘International
Organizations’ and ‘Subjects’) together and by occasionally also looking at what the
rules and institutions are supposed to do. Ideological statements about the international
community remain minimal and the generalizations operate at a technical level, or mark-
ing out intellectual wholes within which the reader is still sufficiently often left to find
her own way. And yet the book does remain underpinned by a pragmatic ideology of
problem-solving and moderate functionalism.

III
Underneath a general loyalty to the original, Crawford has reorganised much of the work.
The general flow of chapters continues as before but things have been moved around and
united to larger wholes. Topics are introduced by a few new paragraphs and the language
has become less complicated, more carefully explanatory. Names of cases no longer fall
from the sky like dead birds but are now surrounded by a few sentences to explain the
facts. Sharp expressions (such as ‘absurd’) have given space to a more patient literary
voice.
With the new introduction, ‘sources’ (now chapter 2) have lost their position as an
overture. The law does not just emerge from what tradition has brought up; we are no
longer in the mode of craftsmen teaching apprentices. Instead, we are at a university
where things are explained by reference to history, philosophy and current problem-
solving needs. From ‘here it is, take it or leave it’ we have been invited to ‘understand’
and perhaps even approve of the law that follows. Needless to say, as a ‘crit’, I find this
disconcerting. The substance of ‘sources’ remains, however, largely unchanged. That
‘judicial decisions’ have gone up and ‘writings of publicists’ have come down caters to
contemporary Anglo-American understandings. Perhaps to counterbalance, a big change
has been introduced into chapter 3 on ‘Relations of International and National [no longer
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‘Municipal’] Law’ that has grown from 22 to altogether 63 pages. The chapter now
includes wholly new and extremely valuable sections on the position of international
law in the United States and in the civil law tradition (77-111). This is one of the
most significant improvements in the work.
Aside from having integrated the previously independent chapter on ‘International
Organizations’, Part II (‘Personality and Recognition’) has undergone no great change.
In line with his moderate functionalism, Crawford has chosen to endorse a flexible theory
of legal subjecthood adding new but surprisingly brief sections on international admin-
istration of territory and corporations. We are still ruled by sovereignty and will so
remain for the foreseeable future – quite a difference to continental vocabulary of com-
munity interests being realized just the day after tomorrow. Here we are on Crawford’s

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home turf, conclusions on anomalous cases such as Palestine or Taiwan being much
clearer than Brownlie’s though still not overly determinate. When I recently had to
look into the question of membership in an organization as indicia of an entity’s
(Palestine’s) Statehood, I found the relevant section (150-151) both informative
enough to provide a starting-point but nevertheless respectful to the political open-
endedness of the question.
Crawford has also expanded ‘International Transactions’ to include alongside the law
of treaties, unilateral acts and estoppel as well as diplomatic relations and State succes-
sion. The classification of the latter two as ‘transactions’ reflects an Anglo-American
contractualist paradigm. From a continental perspective topics with a significant
public law component find themselves in awkward company. The treaty law chapter
follows Brownlie in focusing on reservations, with some unnecessarily optimistic words
about the 2011 ILC Guide. The diplomatic relations chapter has remained substantially
unchanged although Crawford has paraphrased (instead of quoted) the provisions of the
Vienna Conventions and his new case-descriptions do make the text more elegantly
readable. State Succession and State Jurisdiction chapters have undergone more whole-
sale changes. Even as the structure of the succession part has remained largely un-
changed, the dissolution of the former Yugoslavia and the Soviet Union are now
covered with reference to the doctrinal debates as well, but without loss of the uncer-
tainty in the law that continues to pertain. The division of the ‘jurisdiction’ chapter into
prescriptive and enforcement jurisdiction has enabled a coherent presentation of the law
with a new section of ‘recognition and enforcement abroad’ now providing a technical
overview of the special arrangements between EU members. The writing here (especially
480-485) is so dense that the material will lend itself to really nasty exam questions.
The merits of re-organization are obvious in chapter 9 on acquisition and transfer of
territorial sovereignty. From what was a haphazard collection of apparently unconnected
themes, the chapter has become a small treatise on its subject-matter. Controversial
themes such as acquisitive prescription, estoppel or consolidation are explained by ref-
erence to larger principles of consent or acquiescence while the pragmatic realism behind
otherwise dubious principles such as uti possidetis is brought nicely into the open. Owing
no doubt to Crawford’s frequent presence in The Hague, the chapter is throughout
peppered by references to the recent territorial cases so that this once anachronistic-
seeming topic now appears with new urgency, nicely topped by a discussion of what to
do with colonial agreements with indigenous rulers (227-228). This is one of my favourite
parts of the book (as it is of the very law). Which makes me suspect that the relatively
unchanged structure of the section on ‘Territorial Sea and Maritime Zones’ follows from
neither author having had much passion for it. Brownlie used space for long extracts
from the conventions, Crawford has paraphrased them. The main change is a more
coherent – though still surprisingly brief – section on maritime delimitation (285-293)
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that is by no stretch of imagination ‘a small treatise on its subject-matter’. Students still

need to look elsewhere to get a sense of the complex variability of the case-law on equity,
equidistance and various physical formations and to link them to other rules on resource-
allocation from which juristic tradition incomprehensibly separates them. More substan-
tive is the subsequent High Seas chapter that, alongside a good overview of the basic
jurisdictional quandaries incorporates references to Somali piracy and the Marmara
Incident (2011) as well as a brief overview of recent activity in the deep seabed regime.
It is no surprise to anybody that though some of the original language of the State
responsibility chapters has remained, they have nevertheless been completely reorganised
on the basis of the ILC’s Draft Articles. The exposition of the law and the case-refer-
ences have been completely updated so that the 62-page section appears as yet another

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small treatise within a treatise. The differences of opinion in the ILC debates are fully
reported as are the often authoritative views of a ‘Fourth Special Rapporteur’ who of
course happens to be none other than Crawford himself. Expressing sentiments I sup-
pose most of the profession shares, Crawford accompanies his acknowledgment of the
many ways in which the draft – including the provision on jus cogens – falls short of a
‘multilateral public order’ with some words about ‘modest measures in the direction of
objective illegality’ (603). A full consideration of the dilemmas of trying to push the law
to expressing ‘community interests’ cannot probably be explained in this type of text-
book. Nevertheless, at least this reader would have been ready to sacrifice some of the
normative detail for an exposé of the reasons why there is no legal shortcut to a more
humanitarian and peaceful world – why, in other words, formal rules and institutions
alone cannot bring about the ‘move from bilateralism to community interest’ for which
the author still, citing Bruno Simma, has a soft spot.
Like Brownlie, Crawford has written the chapter on international human rights (chap-
ter 29) ‘from the perspective of public international law’ – that reference probably sig-
nifying the authors’ refusal to perform as what Alain Pellet used to call ‘droit de
l’hommistes’. Again, the chapter is much better organised, this time by reference to the
sources of human rights norms. A small ideological change seems indicated by a move
from Brownlie’s decolonization-oriented section on collective rights to the more critical
view Crawford has taken to rights to development and culture with which, he claims, ‘we
are approaching the useful limits of law if not language’ (651). But then Crawford ends
his chapter on a series of critiques of human rights that involves a brave move to invite
readers to think for themselves. The chapter on international criminal law is an efficient,
brief overview of the many new institutions and the dispute settlement part now has a
new and welcome section on the jurisprudence of ICSID, WTO and UNCLOS tribu-
nals. The focus is institutional rather than substantive which is probably well for a
textbook. But there could have been more of an assessment of all these new institutions
that grew up in the 1990s in response to post cold-war push to legalization of various
policy-areas. If the turn to critique was possible in human rights, why not here?
The last chapter on the use of force has grown from the 18 pages of the 6th edition I
have to now 30 pages. It is still relatively brief, in view of general interest in the topic.
Crawford appears no more enthusiastic about lowering the threshold of violence than
Brownlie used to be, and equally sensitive to the imperialist hypocrisies that dominate the
law. The dilemma of humanitarian intervention is clearly stated by a juxtaposition of
Christian Tomuschat’s plea for action ‘whilst millions of human beings are massacred’
with the law’s strong bias against ‘precisely this kind of adventure’ (757). Readers must
again think for themselves – which is how it should be.
Brownlie’s first edition came out in 1966 – and although some parts had been rewritten
by the original author himself, corrections in more recent editions tended not to touch the
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substance. This meant that some parts were badly outdated. One of them was ‘Common
Amenities and Co-operation in the Use of Resources’ with sections on ‘economic aid’ and
peaceful uses of atomic energy that had little to do with contemporary approaches; the
former has now been removed and the latter completely rewritten to reflect novel con-
cerns about nuclear energy, including the Iran problem and Fukushima. Brownlie ap-
proached ‘The Protection of the Environment’ as a public international law generalist,
conscious of problems in State responsibility but confident that they could be overcome.
Crawford has given the chapter a new flavour of technicality, even mentioning ‘collective
action problems’ in the management of the network of new multilateral treaties. Still, the
section feels bloodless, perhaps owing to the brevity with which individual treaty-re-
gimes are mostly just mentioned. Crawford’s decision to maintain Brownlie’s organiza-

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tion of the matter under new or developing ‘principles’ does not really reflect the
complex interdisciplinary dynamic of the field.

IV
Crawford’s Brownlie has remained in spirit loyal to the original. The sometimes very
extensive updating and restructuring has made the work more readable and coherent,
providing the reader a good sense of international law as a complex, but reasonably well-
working ‘system’. Its case-references and notes apparatus are excellent and the overall
view it opens to early 21st century international law has an unparalleled combination of
depth and width. Crawford’s Brownlie is the most impressive English-language textbook
available. Even without the eccentricities, I am happy to have my students read this as
part of their entry into the world of international law.
That also brings forth some of the limits of the book, or of the genre in which it
has been written. Brownlie opens a reliable view on what skilled European professionals
think about public international law today. Any one of them would have been proud of
having produced this work. But the work does not leave room for reflection of the op-
eration of international law, or its ideological commitments. The world the rules and
institutions help to structure remains distant; the ‘politics’ of international law largely
invisible.
As thorough, detailed and well-structured as the work now is, it still leaves a gaping
hole in the place where the reader would wish to enquire ‘how well do these rules and
institutions work?’ Or indeed, ‘for whom do they work?’ Textbooks in the United States
often pose those types of question but their empiricism remains methodologically na€ıve
and thin on giving students the practical preparedness the field expects. Not to say
anything about their Great Power myopia. But the questions they pose about the political
context are neither meaningless nor irrelevant. In Crawford’s Brownlie, like in most
textbooks of this type, the context has, however, vanished. The way rules and institutions
operate to distribute material or spiritual resources in the world remains invisible. Nor is
the works’ implicit ideology – functionalism and problem-solving – ever raised as a topic
of reflection. And yet there are many things that can be said about how legal rules and
principles operate in international contexts, as instruments and symbols whose meaning
cannot be detached from their uses. And then there are questions about how modern
legal expertise operates in the international world. I certainly do not mean that Brownlie
ought to have become a work of jurisprudence. To the contrary, its chief merit is that it
has not tried to be more than a good, even excellent, introduction to the materials. The
relative open-endedness of its conclusions, the careful exposition of contrary positions –
all this invites the student to form her own views. But to form them intelligently, some
sense would be needed of the world outside – the stakes that push international actors to
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act in specific ways, and the way law itself operates in the formation of their perception of
their choices.
This is an optimistic book. No doubt this reflects the spirit of its author. As a textbook,
it ought to be nothing else. And yet that optimism is out of sync with widespread con-
cerns over the state of the world it deals with. An invitation to share optimism on faith or
by enchantment with the aesthetic complexity of the ‘system’ may actually prepare
ground for complacency or cynicism when the reader steps into the world and finds it
one of conflict and struggle. I still think that one cannot be a good professional without
reading this book. Hence it will go into the exam. But reading only this is certainly not
sufficient for carrying out the tasks that the world throws in front of lawyers and others
interested in interrogating whether it is optimism, or something else, that should be the

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driving force of one’s legal activity.

MARTTI KOSKENNIEMI
UNIVERSITY OF HELSINKI
doi:10.1093/bybil/brt009