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Perspective of International Law: Some examples from conversations with Judge James Richard Crawford

Legal Oral Histories in Cambridge ESA: Some examples of researching personal, institutional and social developments


When I interviewed Judge Crawford in his office at the Peace Palace in The Hague on two gloriously sunny days in May 2018, he had only recently embarked (2016) on a new phase of a remarkable career in International Law.

On his elevation to the bench of the ICJ in 2015, James Richard Crawford had already chalked up 43 illustrious years in the subject, and had risen to be a "towering figure" in academia, as well as a practitioner in international, regional and national courts and tribunals. His myriad of roles included, inter alia "scholar, teacher, supervisor, dean, college fellow, director... advocate, expert witness and arbitrator...". These fulsome tributes, paid in the Editors' Preface to a Liber Doctorandorum marking his retirement from the Whewell chair at Cambridge in 2015 [1], came from twenty-six of Professor Crawford's former doctoral students from Sydney and Cambridge universities. They presented 25 contributions to their mentor under the editorships of Professors Christine Chinkin and Freya Baetens.

To encapsulate the essence of James Crawford's presence on the world stage of International Law, and at the risk of being selective, I quote from the Liber Doctorandorum the words of Professor Philippe Sands [2]. He, a long-standing friend and colleague of Professor Crawford, stressed his "generosity of spirit and humility....openness of ideas....driving belief in the rule of law...[and] a commitment to the system of international law for all..". I am sure listeners to these interviews will echo my similar impressions gained from two uplifting afternoons in The Hague. They will hear Judge Crawford speak openly and modestly about his early life in South Australia, his academic career, his experiences in international legal practice, his brief reflections on his most recent manifestation as an ICJ judge, as well as his general views on International Law as a system and vocation.

This short biography of James Richard Crawford's life is based on those interviews [3], his own writings, and the published observations of others. It should be read in conjunction with a further short piece that will be presented in the CUP journal LIM, in which I comment on some aspects of his scholarly works.

Early life in South Australia

For a scholar whom Sands implied was as much at home in Hamburg, Washington, Paris, Istanbul, The Hague [and Geneva], as in his office in the Lauterpacht Centre in Cambridge [4], it seems almost ironic that his early, formative years were spent in a setting that Judge Crawford himself described as "very parochial" and professionally "just not big enough.....just too small." (Q6).

James Crawford was born in November 1948 and spent his "entire school career and entire undergraduate career in Adelaide, and was very much a person from that not very large capital city." (Q2). He was the eldest of seven children brought up in post-war South Australia by parents, neither of whom had had the opportunity to attend university, but who provided a stable environment in which he pursued a happy childhood. His father was the director of a motor vehicle sales company, founded by James's entrepreneurial grandfather, and his mother was a nurse. Thus, while James's immediate family had no particular academic aspirations, his maternal grandmother had been only the second woman to graduate in law at Adelaide University (in the early 1920s) and was "very intellectual", there was, as he put it "education on my mother's side.". However, as was almost de rigueur in those days, his grandmother "gave up her practice of law when she married" (Q3).

He attended a "basic" primary school, and his early childhood was happy. One of his memories of this time coloured his thinking and feeds into one of the constitutional issues that is perennial in Australian political life - the monarchy. He would have been a child of about six when the newly crowned Queen Elizabeth II paid a state visit to Australia in February 1954, and Adelaide was on her schedule [5]: "I vividly remember in the early 50s when the Queen visited Australia and the children at our school, I think of all the other schools in our area, were bussed to a local racecourse and spread out for the Queen to come and see us, no doubt with our sandwiches and so on.  I remember the Queen being driven past at speed.  We sat in the sun for five hours and saw the Queen for literally one minute.  I wasn't terribly impressed.  I have never been a strong royalist and I am very much in favour of an Australian republic, and that's, I think, an increasing view of my generation, although it would be true of my parents as well...My father was on the Labour side of politics and supported Labour members of parliament....which was unusual for a businessman, but enlightened in terms of public affairs." (Q5).

A similar, but probably more pervasive political determinant in James Crawford's life, which played out coincidently with his undergraduate time at Adelaide University (1966-71), was the Vietnam War. The Liberal/Country coalitions led by Sir Robert Menzies [6] and Harold Holt [7] took Australia into the war in 1962, which caused considerable political controversy on a national scale. The involvement was abruptly ended in 1973 after the installation of a Labor government led by Gough Whitlam [8] at the end of 1972 [9]. During our conversation, Judge Crawford said that "I was much affected by the Vietnam War.  I'm really one of the Vietnam War generation." (Q5), and as a consequence he "participated in a few anti-Vietnam demonstrations," (Q5). He looked on this national involvement with US affairs as "I suppose the strongest influence, apart from my parents and school, [in] the development of Australia's international relations with some emphasis on Vietnam and the increasing influence of the United States as compared with the United Kingdom," (Q5) as the major factor that affected his outlook on the world from the relative political peace of South Australia. It was a factor that ultimately played an important role in his developing legal career.

After primary school, James attended Brighton High School (1959-65), "quite a good high school" , where he "did well", and had a happy, but "broadly speaking undistinguished" stay (Q4). Characteristically, I suspect this was a self-deprecating understatement, as Professor Shearer[10]  reminded readers in his contribution to the 2015 Liber Doctorandorum that James had, in fact, shone: "James's school record was one of outstanding achievement", and he ended or had been inter alia as "co-head prefect....president of the Public Speaking & Debating Club, co-editors of the school magazine and newspaper." [11] 

James started his studies at Adelaide University in 1966, and he read two degree courses simultaneously, which was the standard way for studying law at the time: a BA in History, English and International Relations, and concurrently a BA Law (Hons). As Shearer reminds us again, James shone in all his subjects, and "collected a number of prizes in both faculties:... the Angus Parsons Prize in Law.....the Sir Archibald Strong Memorial Prize for Literature and the Bundey Prize for English verse.."[12]

Throughout his career, Judge Crawford has retained a great affection for his alma mater. When he arrived at the law school, it was developing from being very small and "dominated by practitioner teachers" - lawyers and judges, who came in "to teach subjects, normally very badly though there were exceptions," into a  "a professional law school with full-time academics doing the teaching." James was fortunate in being  "one of the first cohorts to benefit from that situation." (Q8).

At this time Adelaide law school had a staff of ~30, and there were only 150 students a year on the LLB course. It was a four year course, but James spent only three and a half years on it (the last part of the fourth year was devoted to beginning articles, which James never did).

When asked who were the most influential of his teachers, he mentioned a German scholar, Horst Lücke[13] "our Contract teacher who was probably the best teacher I had," (Q8). Also John Keeler[14] and Arthur Rogerson[15], both of whom had been at Oxford, and a visiting lecturer from Oxford  John Finnis[16]. Finnis was originally from Adelaide, and it was he who supervised James's Honours dissertation in Jurisprudence. Given this strong connection with Oxford, it is was hardly surprising that when the time came to move into the outside world, James choose to further his studies at Oxford. This had been a tradition at Adelaide, but James complicated matters by making himself ineligible for a Rhodes Scholarship, when he married in his final year. In those antediluvian days, married students could not be awarded one of the prestigious scholarships, but fortunately, he was awarded a Shell Scholarship, and so was able to move to Oxford to start his doctorate in 1972.

James's translocation to Oxford coincided with that of Dan O'Connell[17]. The latter, a New Zealander, had undertaken his doctoral studies on State Succession in International Law at Trinity College Cambridge under Sir Hersch Lauterpacht[18] in the early 1950s. O'Connell had recently been appointed to the Chichele Chair (1972) in succession to Sir Humphry Waldock[19], and had been Professor of International Law at Adelaide since 1964, where he had taught James. However, Judge Crawford said that while he had been influenced by Professor O'Connell "to an extent" during his undergraduate days, they were never "close". The main bone of contention seems to have been O'Connell's "rather conservative and pro-Liberal Party" views (Q10), and the fact that he had been "very much in favour of the Vietnam War." (Q8). As I have already mentioned, James Crawford was strongly opposed to Australian participation in the conflict and had protested against it.

A further source of discourse, was that while studying International Law at Adelaide (which O'Connell taught),  James had preferred the first edition of Ian Brownlie's [20] 1966 Principles of Public International Law [21]. As he dryly commented during our conversation, "O'Connell was very unhappy to see me carrying it around. I didn't carry around O'Connell's two-volume work on international law [22], largely because it was too heavy.  I had it, but O'Connell would have preferred that I used his book rather than Brownlie's book [which, as it happened] was much more in line with my general thinking about international relations at the time." (Q10).

Consequently, when he arrived at Oxford, James's career in International Law stood at a crossroads. He had no clear idea which topic to follow for his doctoral study or who he preferred as a supervisor. He joined University College[23], where John Finnis, whom he knew well from Adelaide, was law tutor, but did not favour John's suggestion of a doctorate on 18th century legal history. As he put it,  "international law appealed to me as it was a legal reflection of the rest of the world and I hadn't seen very much of the rest of the world and wanted to do so.." (Q10).

Dan O'Connell, newly installed as the Chichele professor was particularly interested in the law of the sea (he published two major volumes The Influence of Law on Sea Power (Manchester, 1975), and The International Law of the Sea (Oxford, 1982 - posthumously). But James was "not particularly interested in doing that" (Q11), and anyway, their political views were not in tune. [To illustrate this diversity of outlook, it is instructive to quote from a piece for the 2000 edition of the Australian Dictionary of Biography, by Professor Ivan Shearer. O'Connell (who was a devout Catholic) considered International Law to have been adversely influenced in its development since the appearance (in 1758) of Emmerich de Vattel's [24] treatise The Law of Nations (original: Le droit des gens). Shearer cites O'Connell in a 1975 lecture saying that "From the Catholic viewpoint, international law on Vattelian premises is fundamentally flawed, because it offers an insufficient basis for obligation where a superior is not available and because it puts intolerable power in the hands of a majority, merely because it is a majority". Such sentiments were unlikely to be in tune with the progressive, democratic views of the young James Crawford.]

In contrast, as Ian Brownlie, "who had been passed over for O'Connell for the Chichele chair" (Q11), and an ex-Communist Party member with liberal/radical views, had pointed out in his book the literature on statehood was sparse, a view James had also noted in (then) Whewell Professor Robbie Jennings's [25] book Acquisition of Territory in International Law[26]. This vacuum in International Law needed to be filled, and James was determined to tackle it. Having made up his mind, he recalled " I said to Brownlie I wanted to write a book on creation of states, the acquisition of statehood and he rather bridled at that. He said, "That's a very big subject. I certainly wouldn't allow one of my doctoral students to write on such a big subject" but I persuaded him that that's what I wanted to do and he went along after I had written an introductory paper on the subject." (Q11).

The Crawfords' stay in Oxford lasted for about two-and-a-half years, and  circumstances were hard. Their first child (Rebecca) was born before James started on his doctorate in 1972, and "I didn't make many new friends in Oxford.  As a married couple with a child - they always tend to take over and be a priority." (Q11). While there, James worked predominantly in the Bodleian Law Library, where he had a "place on the ground floor", and had little contact with University College, except playing for the college cricket team.

During this time, he did, however, make contact with the international lawyers at Cambridge during a brief visit when "I went .....on the invitation of Robbie Jennings to give a talk to the International Law Club.  I think it was on International Law and English law and I just had been asked by Ian Brownlie to take over from him writing the case notes on British cases of International Law for the British Yearbook, Ian being one of the editors of the yearbook.  I met with Robbie and I remember taking the train to Cambridge and giving a, I think, not very good talk to the students."(Q14). He also briefly met Eli Lauterpacht, who at the time (1972-3) was a Lecturer in International Law. The future Lauterpacht Centre was still but a gleam in Eli's eye, and the Faculty was squeezed into and around the Old Schools in central Cambridge.

"Eventually we decided to go back to Australia to Adelaide where my wife's parents were and who were going to be very helpful looking after the child." (Q11), but despite the difficulties of coping with a young family, the decision to return home was not straightforward. "I thought very hard about returning to Adelaide.  I felt like it was something of... defeat is putting it too strongly, but going back to where I had come from having wanted to get out into the world. In retrospect it was a good ....decision because it enabled me to finish the thesis under good conditions. The library was well stocked as a result of O'Connell's work on it, and the librarians were very sympathetic to my needs and it was a friendly place and it was a good law school....But it was still Adelaide and it was still remote from other parts of Australia and so there were concerns that I might, as it were, get locked up in my home town."(Q15).

James and his family returned to Australia in 1973, and it was at this point in his career, in answer to a question about the isolation of South Australia, that he said the reality had struck him for the first time. The situation forced him to eschew the local legal profession and follow an academic career: "Adelaide didn't have a separate bar at that stage.  It had a small voluntary bar but it wasn't organised as the eastern states were organised as separate solicitors and barristers and it was just too small to generate large amounts of interesting legal practice and I think it still is in a way......There's never been a South Australian judge on the High Court of Australia in more than a hundred years and that's a manifestation of the eastern states bias of the legal profession." (Q6).

Academia Down Under: Adelaide (1974-1986)

The painful decision to return to Australia and revisit the starting point of his legal journey, in retrospect turned out to be a blessing in disguise. It allowed him to consolidate and establish himself, and then to embark on an academic career that can truly be considered meteoric. It also provided a solid base from which he was able to create a stellar parallel career in legal public affairs, and a private and governmental  international practice that led inexorably to the ICJ in The Hague. This twin-track trajectory is a fascinating accomplishment, and, fittingly, a critical factor in it was Cambridge-based. More on this anon.

The first step was taken when James accepted a lectureship in the Law Faculty at his alma mater, Adelaide. He took this up in 1974 and from that time his Australian academic career evolved rapidly: Senior Lectureship (1977), Readership (1982) a first Professorship (1983) at Adelaide and a second chair (1986) at Sydney: nine years in which he built a solid foundation to launch himself out into the world beyond the confines of "remote" South Australia, and a further six to break out into the international arena.

At that time Judge Crawford described Adelaide "a good place to teach, a good place to be." (Q15). His immediate task was to complete his Oxford doctorate, but of course he had committed himself to the usual arduous teaching schedule that is traditionally given to new staff. He described himself as a "general public lawyer", and although International Law was naturally his main interest, he also taught and researched constitutional law, and in particular the Australian court system.

By now, James and his wife had two children, which, together with his teaching, examining, and research duties, accounted for his days, except for the times between five and seven o'clock each morning! Consequently, he wrote his thesis early each day "when everyone else was asleep." (Q11). This arduous work routine became a hallmark of James Crawford's modus operandi, and one which he admitted during our conversation in 2018 "I have only stopped doing recently." (Q11).

The result was a monumental dissertation of about 165,000 words - a good 60% longer than Oxford University's "normal" doctoral thesis length, and the Law Faculty refused to accept it. A compromise was eventually reached, and the authorities agreed to examine the first two parts (~100,000 words), and on which his two examiners (Maurice Mendelson[27] and James Fawcett[28]) "gave me a very nice viva" (Q11). He was awarded his Oxford doctorate in 1976.

In the meantime, a very significant event had occurred. Eli Lauterpacht[29]  had been appointed (1975-77) as a Legal Advisor to the Australian government, which was then led by Gough Whitlam's[30] Labor Party.

As Sir Eli described this development in his ESA interview with me in 2008: "Out of the blue one day, the nuclear case [31] being over, Bob Ellicott [32] telephoned me from Australia and said that Murphy [33] and he, Ellicott, and Gough Whitlam, the Prime Minister, had thought up the idea of having a proper legal international legal advisor in the service of the Australian Government with a rank and statutory status comparable to that of the Solicitor General in Australia, who was a statutory person. They invited me to come out to Australia and assume that role." (Q53 in Sir Eli's interviews). [As a postscript to this I might add that Sir Eli reminisced apropos the three years that he spent as Legal Adviser to the Australian Department of Foreign Affairs: "All in all, I think that was probably one of the best periods of my life", "I was at the very cutting edge of International Law...[as] deputy leader of the Australian delegation at the Law of the Sea Conference and at the United Nations General Assembly" (Q181, Sir Eli interview)].

These developments had significant effects for James Crawford's career.

"[O]ne of the things he [Sir Eli] did was to inaugurate an annual meeting of people from the government ministries in Canberra and academic international lawyers.  I attended those meetings in 1975 and 1977, paid for by the Commonwealth in the first instance because the Whitlam government was more open to that sort of thing than Australian governments were subsequently. That created links with younger members of the Department of Foreign Affairs and the Attorney General's Department which have survived. That generation and I grew up together and had quite a lot to do with them later on."Although "..I didn't have anything to do with [Eli] professionally at that stage..." (Q16).

The contacts that James made as a result of Eli Lauterpacht's initiatives during his time as Advisor, stood him in good stead and later opened doors to Federal government legal work, and the start of his illustrious career as an international lawyer with deep ties to Australian governments of all political persuasions.

It has to be remembered that these events occurred while James was still a lecturer at Adelaide and deep in the process of writing up his thesis. With its completion (1976), and his promotion to Senior Lecturer (in 1977), which was a direct result of his Oxford doctorate, James set to and edited his thesis for publication by OUP. But again, he had to compromise on what to include because "OUP said it was too long, just like Oxford....and they wanted it cut down and I cut it down, to my regret." (Q18). As a consequence "I left out the discussion of Israel which was 20 or so pages of the original manuscript and that was a mistake. You couldn't really talk about the creation of states without talking about the creation of Israel." (Q19).

James Crawford's first book appeared in 1979[34] to widespread approval, and despite the flaw mentioned above, he was awarded the American Society of International Law Certificate of Merit for it in 1981. Not only was it a pleasing accolade, but it "It gave me a degree of faith in my capacity to do International Law even remotely, so to speak, from Adelaide." (Q20). Given his original uncertainty about returning to Adelaide in 1973, this was an important boost to his morale.

In the numerous praising reviews, it had been commented (e.g. Witkin[35]) that this was the first comprehensive English text on the subject of statehood, and I asked him why this was? He replied that "It was partly the constitutive-declaratory distinction and the throttlehold that recognition had on the subject and a feeling that it was too difficult, I don't know." (Q103).

In the event, it was twenty-seven years (2006) before James Crawford, by then Whewell Professor at Cambridge, brought out the second edition of his award-winning monograph. A lot of water had flowed under the international law bridge in the interim. When I asked why he had taken so long to rectify what he knew at the time to have been an omission, he was typically philosophical. "Well, life happens.  Life happens to you when you're making plans.  The reason I did the second edition was my being forced to leave out so much from the first edition. I thought in the end it was most undesirable that the leading book on statehood should not have an account of the Palestine problem, for example. And so much had happened, in which I have had some involvement – Quebec, for example, Kosovo, the breakup of Yugoslavia generally. I wanted to incorporate all that and bring it up to date.  It just took quite a long time because I had other things to do." (Q108).

The final manifestation of his Oxford doctoral studies in the early 70s was given the verdict by Judge Crawford. "If you asked me which two books I'm proudest of, they are "Creation of States" and "State Responsibility"". (Q101).      

The major step in James Crawford's career into the practice of International Law came in 1981 through the governmental contacts he had made during Eli Lauterpacht's time as Federal Advisor. "I was approached to become a member of the Australian Law Reform Commission which is based in Sydney. That was the first breakthrough into what I might describe as public affairs, and Michael Kirby [36], subsequently a High Court judge, was the President of the Australian Law Reform Commission [ALRC], and was very active and dynamic. I was asked to go to work on the recognition of Aboriginal Customary Laws - that was the main subject - that was being handled by the Commission, but not well-handled, and had taken a long time and no-one really knew where it was drifting as a topic." (Q15).

This was a significant research undertaking and James was given three years leave from Adelaide to work on it. In 1982 the Crawford family moved to Sydney, a move that was accompanied by a family disaster, when their possessions were destroyed in a fire: "I lost my legal library.  I had to reconstitute it.  That was in 1982 when I was moving from Adelaide to the Law Reform Commission ... It was devastating...because you build up an archive of objects which you acquire in flea markets and junk stalls and in the course of one's young life: photograph albums and things like that, and they were all in it. I think that had an emotional impact which my then wife and I didn't fully assimilate, so it was a terrible thing....but we survived." (Q78).

The beginning of the Commission work coincided with James's elevation to a Readership (1982), and it also coincided with the appearance of his second monograph "Australian Courts of Law"[37].

His work for the Australian Law Reform Commission (1982-84), took James deeply into what he called "public affairs".  "[The work on] Aboriginal customary laws, was still one of the biggest projects I have ever done.  It was a two-volume report [38] 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 and it was one of those projects, I really needed to do it twice, once to learn how to do it and the second time to do it properly, but that didn't happen.

I also worked on Foreign State Immunity, a reference given by the Attorney General's department, because I was there and had done work on Foreign State Immunity.  That became the Foreign State Immunities Act of 1985.  The Federal Act, of course, is still in force and is, I think, one of the better conceived of the common law state immunity Acts.  I also worked on Admiralty Jurisdiction giving rise to the Admiralty Act of 1988 which is still the foundation for admiralty jurisdiction in the Federal Court in Australia."(Q26).

Two of the references for which he had been appointed Commissioner-in-Charge - Foreign State Immunity and Admiralty Jurisdiction - were strongly linked to aspects of International Law and James was highly qualified to tackle them, but, as Shearer commented in the 2015 Liber Doctorandorum volume, the third reference, Aboriginal Customary Laws, "took James into relatively uncharted and potentially controversial areas, far removed from international law."[39]  As cited from our interview above, although this work resulted in a major report (ALRC Report 31, 1986), its recommendations were never implemented. In 2015 Judge Crawford produced an account of the ALRC work and the circumstances of the Commonwealth's  "failure" to implement his recommendations on the matter of Aboriginal Customary Law, which he attributed to "the difficulty of the subject matter and the problems about state and federal competence in relation to Aboriginal affairs."[40]  The depth of ALRC Report 31 can be gauged by a summary that outlines the three discussion papers that James Crawford produced as background to it [41]. He described this work as the "most important" of the three references he was commissioned to address while on the ALRC, and concluded that their work on the Aboriginal Customary Law question had been "a genuine debate on issues which may now [2015] seem somewhat dated, but nonetheless was genuine debate that contributed, I hope, to an understanding of the questions." [See a popular commentary to mark the 30th anniversary of this work.[42]]

His level of involvement in addressing the thorny issue of Aboriginal Customary Law, shows a side of James Crawford that needs to be highlighted - his thoughtful analysis of the whole issue of Human Rights, and its ramifications within International Law. One can only surmise that these have their roots in his enlightened and progressive upbringing at home and nurture through his association with the liberal/radical Ian Brownlie. This shows clearly in his thinking on the nature of Human Rights, where, in a summary of his revisiting Brownlie's views[43] he said "Human Rights are rights against the state protected by legal instruments, mostly in treaty form....I don't think it's possible to say there is such a thing as an imminent 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 [for example] the human right to property 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." (Q119). One can understand how the application of such concepts to (say) Aboriginal Customary Law, which will involve group rights, can be a complex issue.

After James Crawford finished his term on the ALRC in 1984 and returned to Adelaide and his new chair as Professor in Law, he was instrumental in organising two symposia under the auspices of the Australian National Commission for UNESCO on Human Rights and the Rights of Peoples in 1985. The proceedings were subsequently published in a volume by Clarendon Press of which he was the editor[44]. His own chapter, which deals with issues in the context of International Law, along with three of the others' contributions appeared in a special part of Bulletin of the Australian Society of Legal Philosophy in 1985[45]. Although only two of the articles in the 1988 book mention issues raised by Australian Aboriginal claims (those by Lyndell Prott[46] and Garth Nettheim[47]), James's participation in the project was apposite, given his participation in the ALRC reference of Aboriginal Customary Law, and shows his growing involvement in the international and specifically UN aspects of Human Rights and issues of group and individual rights. In our conversation I asked him if he could summarise his current views on a Peoples' right to development, as set out in his concluding chapter.

"I was very sceptical about the right to development, but what I insisted was that we get it clear if we are talking about there are rights of peoples in International Law, most obviously the right to self-determination. But a lot of the things were put forward as rights to peoples, were really individual rights exercised in conjunction with others.  Minority rights are an example of that.  At the time, and even, I think, now, we don't attribute rights to minorities as such. We attribute rights to members of minorities to do things in conjunction with other members of a minority.  So a lot of the discussion about rights of peoples was very woolly, lacking in rigour, and I was really attempting to introduce some rigour to it." (Q31)

[As a postscript to James Crawford's involvement through ALRC in Aboriginal Customary Law research , I might cite comments by Professor Justice Paul Finn[48] whom I interviewed for ESA in 2010 (inter alia, Q24) "My personal view of our native title laws is that the scales are too heavily weighed against the Aborigines. The Torres Strait Islanders have been lucky, because they're up there on their own, you can't deny their presence.  With the Aborigines it's a much more complex problem."]

Academia Down Under: Sydney and beyond (1986-1992)

It was while in Sydney, working for the Commission in 1983, that the University of Sydney offered James Crawford a chair. By coincidence (perhaps to head him off?), at the same time, "Adelaide promoted me to a professor." James had promised his then wife "that if I had the choice between Adelaide and Sydney we would go back to Adelaide, where her parents were." Consequently, when his time with the Law Reform Commission came to an end "....we went back to Adelaide for a couple of years." Subsequently, however his wife "realised that she had got used to Sydney" (Q27) so when Professor Crawford was offered the Challis chair by Sydney University in 1986, the family was happy to move there permanently. James stayed until 1992.

The Challis Chairs at Sydney had been established to honour the nineteenth century philanthropist John Henry Challis. Originally, the chair of International Law had been combined as the Chair of International Law and Jurisprudence (established in 1920) with  A.H. Charteris[49]   as its first incumbent. It was split after the retirement of the second holder J. Stone[50] in 1972. James Crawford was the second Challis Professor of International Law.  It "...became vacant because D.H.N Johnson[51], David Johnson, who had ..... gone to Australia to the Challis chair when Julius Stone....retired.  Julius Stone was a very significant international law figure of his generation.  David Johnson held the chair for about ten years and then retired and it was offered to me and at that stage I was clear I wanted to be in Sydney so I was happy to accept it." (Q28).

Shearer, in his tribute to James Crawford, noted[52] that a significant development following James's appointment as Dean of the Faculty in 1990 was the introduction of International Law as a compulsory subject in the LLB curriculum. When I asked Judge Crawford to comment on the effects of this on teaching at Sydney he said "I think it's had an effect on teaching International Law in Australia, in that most Australian law schools now have International Law or at least a short course in International Law as a compulsory course and that would have been regarded 20 or 30 years ago as unusual.  In fact, I think Sydney was the first place to have it.  We gave people an introduction both to public and private International Law which is a somewhat unorthodox thing to do in itself, because they are only distantly related to each other, but it gave students some access to what's going on elsewhere, which as part of a modern legal education is absolutely indispensable." (Q79).

Arguably, the most important advancement for Professor Crawford's career during his tenure in the Challis chair was his breaking into the rarified circle of International Law practitioners. Inter alia it involved  advising and representing governments in ICJ cases, and various international arbitrations, tribunals, and disputes, as well as specific UN commissions. James Crawford created a remarkable record in this regard, which is even more impressive when one remembers this was in addition to what became stellar academic achievements. I tallied up his work as an international law practitioner, using information on his ICJ website,  and came to a total of 135  ICJ cases, international tribunals, arbitrations, and expert witness. These do not include various other expert reports and miscellaneous items, and his massive contributions to the UN International Law Commission's work on State Responsibility as Special Rapporteur.

This remarkably roll-call began while at Sydney in the Challis chair, where James's contacts within government circles were key. When I spoke to him about this break through in his practising career, Judge Crawford was frank enough to admit that contingency had played a large part.

"Young international lawyers often say to me, "How do you get to appear before the International Court of Justice?" and my answer is, "It's very simple.  You just have to have done so before."  So there is a logical problem there.  People get chances.  The chance is largely luck or if someone asks you to do something which you perhaps didn't expect, and then you have to take your chances when they come.  I was basically 40 by that stage so my practising career was really the second part of my life." (Q35).

The case that led to "the second part" of James Crawford's life, and eventually the bench of the ICJ, was Certain Phosphate Lands in Nauru which began in 1989 and was settled in 1993.[53] By a strange twist, James's first appearance before the ICJ (in fact any court) was where he was pitted against Australia. It is worth citing his account:

"The Nauru government came to me in the late 80s and asked if I would advise them about their rehabilitation claim in relation to the phosphate lands that had been mined by the British Phosphate Commissioners under the trusteeship for Nauru which was a trusteeship between Australia and New Zealand and the United Kingdom exercised on their joint behalf, largely by Australia.

I was counsel against Australia and I advised Nauru to accede to the optional clause with the sanction of the Court and eventually to bring proceedings having waited for the necessary year, against Australia alone, because there was probably no jurisdiction in relation to New Zealand and United Kingdom. Nauru did that, and that case was fought at the preliminary objection stage in late 1991. My first appearance before any court and the first time I stood up in a court was in this Court, and it decided in 1992 in favour of Nauru, and then, as you say, settled.

At the same time Australia wasn't particularly enthusiastic about my being counsel for Nauru but they were reminded by, amongst others, the Chief Justice of Australia, Sir Anthony Mason [54], that the cab rank rule in the Australian bar meant that I was entitled to take any brief that came to me and really probably obliged to take it.  Subsequently, with the consent of the government of Nauru, I was counsel for Australia in the "East Timor" case which was being fought and has just started at that time.  So of my first two cases, one was for Australia and one against Australia. That was the beginning of my international law practice." (Q32).

At this point, in 1996,  Cambridge came calling, and when he left Sydney, Professor Crawford took two ICJ cases with him - East Timor, and Nauru (which by then had been decided).

Academia - Cambridge (1992-2015)

James Crawford became the 10th Whewell Professor of International Law at Cambridge in 1992 at the relatively early age of 44 years, and ultimately the second longest-serving incumbent (23 years). (Robbie Jennings served 26 years, and John Westlake[55] 20 years). He succeeded another of our ESA interviewees, the late Sir Derek Bowett[56]. When I asked Judge Crawford if there were any circumstances of his appointment on which he would like to comment, he raised what could have been a potentially thorny issue, seeing his subsequent intimate involvement with the (then) Centre for International Law - viz his relationship with Sir Eli Lauterpacht.

  "I think he [LD- Sir Derek] retired slightly early because he had some health problems with his back and so the chair became vacant and I simply applied for it and got it.  It was an elective process, there was no interview.  I don't know much about the circumstances of the election.  I do know there was a controversy because Eli Lauterpacht applied at the same time.  He was one of the other applicants for the chair and the committee was, I understand, divided as between supporters of Eli and supporters of me.  I got it and I say this immediately, Eli was a real strong character and a very nice man and he never held it against me.  He told me at the time that he had hoped to get the chair because it was his father's chair and one of the reasons for the fame of the chair is, of course, the tenure of Sir Hersch Lauterpacht [57], and Eli said, "That's the past and we will relate to each other as individuals," and we always did.  I appreciated that greatly." (Q36).

I can summarise Professor Crawford's tenure of the Whewell chair under two main headings: Faculty, and International Law practice, although the two are invariably intertwined.

Faculty activities

In 1983, Eli Lauterpacht, with the support of Professors Clive Parry[58], Robbie Jennings[59], and Derek Bowett, set up the notional Research Centre for International Law (RCIL) as an administrative umbrella under which to undertake various tasks, such as his (Eli's) editing of the International Law Reports. He had also conceived it as a vehicle for perpetuating the memory of his late father, Sir Hersch Lauterpacht. In 1985, through the generosity of the late Edward St George[60] and Trinity College (as well as using funds of his own), Eli's Centre became a bricks and mortar reality by acquiring the grand residence at 5 Cranmer Road.

During his tenure of the Whewell Chair, James Crawford was intimately involved in the Centre's development, which, by the time he arrived, had expanded physically through further generous external funding (especially by the governments of Bahrain and Malaysia), by purchasing the adjacent property in Cranmer Road (No. 7). Sir Eli (as he was by then) remained the Director of the Centre until 1995, when James Crawford and the 1995-96 Visiting Goodhart Professor, John Dugard[61] , became Co-Directors for two years. In 1997 Professor Crawford took over the role as sole Director.

One of the matters which had concerned the University when it appointed James Crawford to the Whewell chair, was the more substantial incorporation of the Centre into the Law Faculty's orbit. He explained the situation with which he was confronted. "The Lauterpacht Centre [i.e the RCIL] was very much a Lauterpacht initiative, with other Cambridge International Law teachers, not really involved.  There was an exception in that Vaughan Lowe [62], who was at the time a lecturer at Cambridge, did have a brief involvement with the Centre.  Chris Greenwood [63] had an involvement with Eli and International Law Reports, but didn't work from the Centre, even though the people who worked on the International Law Reports did work from the Centre. So I think it was fair to say that the Lauterpacht Centre in those days was semi-detached from the Faculty and one of my mandates was to incorporate it in the Faculty. Not physically, because it has separate premises, one of its great assets and that's entirely due to Eli Lauterpacht, but from a scholastic point of view. From a point of view of the perception of members of the Faculty and students, especially graduate students, I wanted to integrate the Research Centre and the Faculty and I'm pleased to say that my successor, who is Professor Eyal Benvenisti[64], has continued that process, taking it further." (Q45).

One change that was made immediately was to re-name the Centre, fully to acknowledge its Lauterpacht heritage. "... [I]t was obviously the Lauterpacht Centre because it was associated with Eli and with Hersch. Not that Hersch had anything to do with the Lauterpacht Centre because it was created well after his death, long after his death, but the Lauterpacht tradition was identified with Cambridge and was a very distinguished tradition.  Eli wasn't very much in favour of calling the Centre... he called it the Research Centre for International Law, though most of the projects run from the Research Centre were Eli's publishing projects associated with things like the Iran-US Claims Tribunal Reports, International Law Reports, later on the ICSID Reports........ It seemed to me that it was accurate and an appropriate recognition to call it the Lauterpacht Centre and the Faculty agreed with me and that's how it is now identified..." (Q47).

When asked how the Lauterpacht Centre had developed during his stewardship, Judge Crawford spoke of three areas: its publications programme; its visitors programme; and  his own research projects therein.

On the first topic, he concluded that although he had supported the publications work, he "didn't really extend" it. Nevertheless, he did make a significant contribution to International Law publication at Cambridge through his involvement with Cambridge University Press by restarting the series Cambridge Studies in International and Comparative Law. This had been initiated by the sixth Whewell incumbent, Lord McNair[65], but had fallen into disuse. " ...On arrival at Cambridge I rang Cambridge University Press and said, "I want to speak to the person responsible for law," and the receptionist who answered the phone said, "Oh we don't do law," and that was a fairly remarkable proposition for a University Press....with John Tiley's[66] help, I contacted senior people at the University Press and coincidentally Eli was at the time selling Grotius Publishing to Cambridge University Press.  Cambridge University Press took over international law publishing in a serious way and as part of that we revived the series "Cambridge Studies in International and Comparative Law", which has now had more than a hundred volumes and is probably the most significant monograph series in International Law of any publisher.  That wasn't a Lauterpacht Centre venture although I did all the work from the Lauterpacht Centre." (Q63).

Apropos visitors to the Centre, Judge Crawford said it was a point of satisfaction that during his two tenures as Director (1997-2003) and (2006-2009) his encouragement has resulted in over 700 scholars visiting the Lauterpacht Centre - "...a huge number of people have come to the Centre and worked there and had it as their home and it's a very pleasant and collegiate environment from that point of view." (Q63). He summed up by saying that "..the Centre became a bigger outfit with more people around, and a place where people could talk and discuss and have seminars and so on. We ran conferences on various subjects as part of the spectrum of international law places." (Q64). In this regard he pointed out that "In Europe the only place that might have a greater fame would be the Max Planck Institute in Heidelberg, but when you consider [their] resources....probably 30 or 40 times the annual income of the Lauterpacht has achieved a lot with very little, a very Cambridge way of doing things." (Q64). It is a moot point whether this state of affairs should be a source of pride at British resilience in the face of economic adversity, or a matter of concern !

One point of regret in his activities at the Lauterpacht Centre that Judge Crawford was open to discuss was that "I didn' independent research programmes from the centre..." (Q63). It was "perhaps a defect" (Q46), and he was candid in attributing this to his heavy commitments to the International Law Commission which took him to Geneva for three months every year, firstly for work on the International Criminal Court, and then on State Responsibility. As he put is "they tended to get in the way of what might have been described as Lauterpacht Centre research projects." In addition he was "very busy in practice and with graduate students and so on. At one stage I had 17 PhD students and other teaching commitments, so my research was very much focussed on the ILC work during those years" (Q46).

A consequence of this balance in his activities was that although Professor Crawford had a remarkable record of post-graduate student supervision, their studies were mainly focussed on the legal issues with which he was deeply involved through his work with the UN International Law Commission. His nurturing of innovative and proactive doctoral students while at Cambridge was highlighted by Philippe Sands in his account[67], where he mentions the "remarkable" total of fifty-seven. When I put this to Judge Crawford, he corrected this figure to sixty-three (after all, it was three years out of date !). This suggests a huge work load of student supervision, but when asked to comment on his modus operandi Judge Crawford modestly attributed much of the effort to the students themselves. In fact, he believes that his successful interaction with his doctoral students was "the most significant thing in my academic career." (Q82). It is worth citing his answer to these points in full. "PhD students mostly keep tabs on themselves.  You've got to write to them every so often and say, "How is it coming?" but I gave the PhD students as much attention as they needed and more attention when crucial events were coming up, like the first year qualification or putting a thesis together, but I didn't insist on regular chapters.  I didn't when I was doing my own PhD, you don't study and then write, you write in order to study and study in order to write.  The two activities happen together.  So 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 because they don't come along to talk generally about what they've been reading, they come along with a text which you can analyse and discuss and that was always the way I supervised ..." (Q82)

The work that took so much of Professor Crawford's time while in the Whewell chair was his work on the UN International Law Commission, which he joined in 1992, initially for work on the International Criminal Court. Later (1997) he joined another panel where he made what he called his "greatest single achievement as an international lawyer - to finish the Articles on [State] Responsibility and the associated work, commentaries, the books and so on." (Q60). He applied for, and was selected to undertake the job of Special Rapporteur on State Responsibility by the ILC. The vacancy had arisen in 1996 because of the premature termination of the tenure of an Italian professor Gaetano Arangio-Ruiz[68] - a fortunate contingency for Professor Crawford. "That meant that in 1997 there was a vacancy in the special rapporteurship.  Arangio-Ruiz finished the first reading on state responsibility in 1996 and it was a major part of the work of the Commission during my first term.  So the question was who was going to take over in 1997 and I put in a bid for it because State Responsibility was one of the classic topics of international law and one of the great unfulfilled tasks of the Commission and they accepted that idea.  I was appointed in 1997 as Special Rapporteur and the ILC gave me four years to complete the second reading, which we did." (Q59).

From this work, that occupied so much of his time and energy during the years 1997 to 2001, flowed several of Professor Crawford's most important monographs[69]. It also contained, within the Articles of State Responsibility that his panel proposed, one that he singled out as the high-point (to date) of his calling: "...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).

Article 48 [70] of which Judge Crawford is proud as a professional achievement "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" (Q143). He illustrated his answer by reference to a case decided by the ICJ in 2012 [71]. "The key question in "Belgium v Senegal" was, "What was the legal interest of Belgium in respect of allegations of torture against the head of state of a third state in proceedings in Senegal. Hissène Habré [72], since convicted, and you might say that the legal interest of Belgium was because of their taking a specific procedural role under the Torture Convention in seeking trial or extradition.  The Court didn't do that.  The Court said that by virtue of the provisions of the Torture Convention the prohibition on torture is a collective interest, erga omnes partes they used the phrase, and that's what Article 48 says." (Q143).   

Within the space of the last four paragraphs we can crystallise much of Judge Crawford's illustrious achievements - his time in the Whewell chair clearly had been rewarding.

In addition to the his duties as Whewell Professor, Director of the Lauterpacht Centre, and his work on the ILC, Professor Crawford also undertook more "mundane" duties as behoved an active member of the Law Faculty. He was Faculty Chairman (2003-06), and Chair of the University Library Syndicate (1993-96), and he joined the Curatorium of Hague Academy of International Law in 2003.

His attitude to such "other" duties was summed up in his answer to a question about taking the Faculty Chair: "The Cambridge Faculty is a very good one....and I was also a believer in taking a collective responsibility for these things. So when Jack Beatson [73], who was my predecessor, was chair of the Faculty Board, was appointed to the High Court he asked if I would take over and I agreed to do it and it brought me into the affairs of the Faculty to a greater extent than before." (Q51).

Before we leave this survey of Professor Crawford's academic activities at Cambridge, one aspect close to my own heart was brought out by our conversations. It transpired that Professor Crawford had never been in favour of the Lauterpacht Centre maintaining its own library, and "for resource reasons it was much more sensible to have an integrated collection with professional librarians [as in the Squire Law Library]" (Q62).

When he had first arrived in Cambridge, the Faculty was focussed on the Old Schools in the town centre, and the Squire occupied two floors of the Cockerell Building. Beautiful as the building was, "the library was in a fairly bad way. It had a very low budget...[when] I became Chair of the Library Syndicate [I] pushed for an increase in budget, which happened, but still not munificent. It doesn't compare with most North American libraries, but it's better than it was....[also, after the move to the Sidgwick site] it has at least a modicum of space. I was very supportive of the Library, and still am." (Q62) [74].

Bringing this too brief summary to a conclusion, I asked Judge Crawford to comment on any of the many awards he has been granted during his academic career. He singled out two: ".....the Hudson Medal was probably a highlight in the American Society for international law, which is awarded to a non-American for contributions to International Law.  I think Eli Lauterpacht got it.. .... but overall the highlight was the Companion of the Order of Australia in 2013, which is the highest Australian honour and partly awarded as part of the Australian campaign to run me for the Court, but partly awarded for work I had done up to then." (Q67). The latter was awarded to him at Government House in Canberra by the Governor-General[75] in front of his family, and his brothers and sisters.

International Law practice

James Crawford was called to the Bar (Gray's Inn) in 1999. "I was originally a door tenant at 3 Verulam Buildings, but then ....[in] the early 2000s, Matrix Chambers [76] was founded.  My work at the bar was very much associated with Philippe Sands [77]....we worked together.  He worked as my junior in a number of cases and he was deeply involved in the establishment of Matrix Chambers.  Matrix Chambers was unusual in trying to bring together academic and practitioners, academics were not door tenants, they were full members of chambers paying half rates and obviously working less than full-time but still greatly involved in chambers and that was a very good system which has continued.  So I became a founding member of Matrix Chambers and a full member of the English Bar. I didn't do many English cases, nor I think did Derek Bowett. The tradition was that the international cases were largely done by professors in Oxford and Cambridge, and domestic cases were done by professors in London.  Ros Higgins [78] did some international cases but quite a lot more domestic cases.  Derek Bowett didn't do very many domestic cases.  Eli did quite a lot of both."(Q55).

As for practice involving the ICJ, having undertaken two cases while at Sydney, within the first five years of his tenure at Cambridge, Professor Crawford had become involved as counsel in seven new cases. During his remaining tenure, another 18 followed. It was inappropriate to discuss either the substance or the scope of his work before the ICJ during our interviews, but one case stood out for him: 1997 Gabčíkovo-Nagymaros Barrage (Hungary v Slovakia) [79]. In this he was Senior Counsel for Hungary and he recalls it in his professional development as important for several reasons.

"The Gabčíkovo-Nagymaros case 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 continued to do in the Whaling case, for example, for Australia against Japan, in the two Indus waters arbitrations for Pakistan against India and in a number of other cases, and in several of the Costa Rican cases against Nicaragua, and one of the Colombian cases against Ecuador. 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).

This reply provided some reasons why Judge Crawford has been so successful and effective in his profession - his ability to combine legal expertise with other, varied,  intellectual interests. We have already noted his life-long interest in history [80] and poetry [81], but this example also highlights inter alia earth and environmental sciences, and biology. With such genuine extra-legal interests it is not surprising that his court presentations are what Sands cites as "razor-sharp", "direct, subtle and fearsome. In one hand a surgeons knife, and in the other a sledgehammer. [While his] arguments are relevant, efficient and humorous."[82] A legal polymath.

As for the wide spectrum of his other cases, arbitrations and opinions, his versatility is evident from further general remarks that he made regarding his professional career. "The cases don't fall into any particular category, they are across the field of international law; boundary cases, some advisory opinions, cases to do with international organisations.  I was expert in the Canadian Supreme Court in the Quebec reference and that was a significant influence and has given rise to a very important judgment of the Canadian Supreme Court, fundamental in its significance, which then fed back into the Kosovo advisory opinion where I was counsel for the United Kingdom with Daniel Bethlehem, and also the work I did in relation to the Scottish Independence Referendum. There were strands following through in the various cases I did but it's largely happenstance - whatever happens next, whatever comes in the door.  I did a lot of work in investment arbitration, both as counsel and as arbitrator and I'm continuing to work as arbitrator in a number of investment cases. I contributed to the modern formation of the field of investment arbitration which is a contentious area but, nonetheless, I think was important and still is important." (Q66).

When I reminded Judge Crawford of the statistics I had gleaned from the ICJ website: Counsel in ICJ cases - 29; Counsel before other international tribunals - 23; arbitrations - 40; judge or arbitrator within OECDAT[83] - 30; expert witness etc - 12 (=135), and commented on the huge workload they had represented during his time in the Whewell chair, his modest, but practical comment summed up his attitude to his legal calling: "Well, I used to work really hard.  Harder than I work now because I'm nearly 70 and the Court has its own pace of work, ......but I still write quite a lot. It is was what I was born to do, all I wanted to do and having the opportunity to represent governments was incredibly exciting so I just worked very hard at doing it, probably to the detriment of other activities and social life, but that's the way it is.  I was a typical middle class workaholic." (Q65).

To look upon James Crawford as "typical" of the hardworking middle class is probably stretching a point, but his case for attributing his success to determination and dedicated application is well made.

Judge Crawford of the ICJ bench (2015- )

 James Crawford had occupied his post at the Peace Palace only a relatively short time when we spoke, and I was intrigued to learn of the complex manner in which such appointments were made. This was particularly so for an appointment from a country with a thin record of such things. Judge Crawford was quite prepared to talk about it. The "long game" played in such matters shows that the Australian Government had been working towards an appointment for nearly thirty years, and had considered James Crawford an eminently suitable candidate for most of that time.

"Australia's last judge on the court and the only other Australian who was elected to the court was Sir Percy Spender [84]. [He] was elected in 1957, served to 1966, and ...was President in his last three years, and cast the notorious casting vote in the second South-West Africa case [85] which it has been part of my academic endeavour to criticise.  It was a disastrous decision, but he was in some other respects quite a good judge.  His dissenting opinion in the Temple  case [86] is a very fine one, for example.  He was Minister for External Affairs before being elected to the court.  The Australian government in the 1980s decided that it ought in principle to develop a candidate for election to the court in the longer term.  They approached me in the mid-80s to see whether I would be interested, so it was really farsighted. [87] One of the reasons they nominated me to the International Law Commission was as preparatory to a possible Court candidature [1992].  That took quite a long time to happen but it shows the need for planning for what are... Australia is not a small country but it's a small country in the Western European group in terms of its influence.  It's not Germany or France or the United Kingdom and it required preparation to run the campaign for the Court.  I was very strongly supported by the Australian government over those years." (Q86).

As for his early impressions of the modus operandi of the Court, Judge Crawford presented a picture of currently there being a very professional relationship amongst the judges: "It's a collegiate court, it has good personal relations.  There are disagreements sometimes, strong disagreements, but they're not personalised, which has not always been the case, so it's a good place to work." (Q88).

What did I learn of Judge Crawford's vision of his role? He gave a glimpse of this in conversation on his scholarly works. In the course of my readings in preparation for our interviews, I came across two commentators who had expressed points of view on what opportunities presence on the bench might afford a judge who has particular opinions on certain issues. I would like to single out Judge Crawford's responses thereto, as they give a good measure of the attitudes he intends exercising during his tenure.

I cited Katja Creutz[88] in her review of his State Responsibility: The General Part[89]  to the effect that there would be no better place to clarify obscurities and inadequacies in the law of State Responsibility than the ICJ. I asked Judge Crawford for his opinion. Significantly he commented "It's not the function of individual judges in the International Court to solve the problems of the world.  Its function is 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).

In a similar vein, he responded to a suggestion I paraphrased from a recent paper by his successor to the Whewell chair Professor Eyal Benvenisti [90] to the effect that on viewing international law "as a legal system rather than a mix of discrete treaties," this empowers, "courts to develop international law beyond the intention of governments," which amounts to "evolutionary interpretation". It allows judges to promote what "is legal" rather than what is "good and efficient" [91].  I asked Judge Crawford if he saw his role in this light?

"Probably not.  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).

I found these two general statements of how Judge Crawford views his functions on the ICJ to be very enlightening. They conform perfectly with answers that he gave in relation to notions of International Law as a system in relation, for example, to his perception of Human Rights: "Human rights are rights against the state protected by legal instruments, mostly in treaty form, which have been added to each other by a process of accretion... 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...[but] not an unalloyed positivist..... 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.....that texts are not a constraint.  If texts are not a constraint, then we are out of business." (Q119)

From such evidence, we can expect Judge Crawford's decisions as a judge to be both principled and practical, and true to his life-long-held beliefs. The latter he had expounded in his most recent (then, 2018) monograph Chance, Order, Change: The Course of International Law [92], which was based on his 2013 Hague Lectures.

James Crawford's scholarly works and other writings

The mention of Chance, Order, Change brings us to the topic of James Crawford's written scholarly output. His range of publications is impressive, and using the list Judge Crawford kindly provided for his ESA entry, the 205 separate items fall into the following categories: 92 journal articles; 82 book chapters; 14 book titles with 19 editions; and 13 reports and similar pieces. Details of all these can be found in a separate file in this ESA entry.

In 2015, as he retired from the Whewell chair, Philippe Sands neatly summed up the Crawfordian years of writing over two decades: "James has....managed to complete the odd book or ten, along with innumerable articles and publications the citation of which would exhaust my permitted word limit. The standouts surely include the second edition of The Creation of States in International Law....and the eighth edition of Brownlie's Principles of International Law....a minor miracle..."[93] I would add to these his 2013 Hague lecture series, where, for more than usual in his writings, he relished the opportunity to theorise on topics of his choosing. In the Hague Course, Professor Crawford attempted to "to ....solve a number of problems looking at International Law as 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). In this book he was able to range freely and explain in quasi-Darwinian terms how international law appears, orders itself and adapts to cope with circumstances. I shall comment on some of the general aspects that were raised in our second conversation which dealt with Judge Crawford's scholarly works in a future article for the CUP journal Library Information Management.

The momentum of James Crawford's writing career shows patterns. During the interviews I mentioned this in relationship to his production of books, which came in distinct periods, but Judge Crawford said that he did not "attach much importance to periods." (Q95). He pointed out that between his books he did a great deal of writing of articles, and certainly while he was in Australia, some of the reports he wrote for the Australian Law Reform Commission - for example that on State Immunity [94] amounted to writing a monograph. He commented that "the books you write are sometimes epiphenomena of a career," they "...[were] episodes in the course of a general career of writing international law." (Q95)

However, there was one particularly rich period in his book publishing which I referred to as his purple patch, towards the end of his tenure in the Whewell chair: six books in four years [95].  Judge Crawford did acknowledge that this was spurred on by his sense of finality at Cambridge. "Well, I was conscious of the passage of time, so things I wanted to do, the things I agreed to do in response to requests, for example, the eighth edition of "Brownlie", but I did want to summarise my experience on responsibility, hence, the "State Responsibility" book. And I had to give The Hague lectures, hence, "Chance, Order, Change", so it was a combination of those things. I got more used to doing International Court work and was able to do it perhaps with less effort, with the help of the teams of people who I worked with.  I worked a lot with Philippe Sands, with Marcelo Kohen [96], Nico Schrijver [97] and others, and people from Matrix helped a lot, so I had support and I was conscious that the big change was coming up the end of my tenure at Cambridge and hopefully election to the Court, so I wanted to make some statements before I came here." (Q98).

One can detect his sense of destiny perhaps in this answer?

In conclusion. My visit to the inspirational setting of the Peace Palace in the May sunshine, a memorable lunch in the Judges' dining hall, and over three hours of conversation with Judge Crawford in his chambers, were undoubtedly one of the highlights of my thirteen years of  compiling the ESA. The measured and thoughtful manner of his answers, and his unfailing courtesies, lead me to paraphrase the final words of Philippe Sands' [98] 2015 tribute to his mentor:  for the "humour, for the generosity, and for the sheer power of his intellect we have reason to be grateful that this Australian came to Cambridge".

These interviews with James Richard Crawford will be a splendid addition to the ESA, and for this I am very grateful for his sparing so much time from his busy schedule at the Court.


[1] Chinkin, C & Baetens F (Eds), 2015, Sovereignty, Statehood and State Responsibility CUP, 479pp.

[2] Op. Cit. p. xxiv

[3] Citations to the interview are by question number (Qx).

[4] Op. Cit p. xxii

[5] See Adelaide in 1954 preparing for the royal visit

[6] Sir Robert Gordon (Bob) Menzies  KT, AK, CH, QC, FAA, FRS (1894-1978), Prime Minister of Australia (1939- 41) and (1949-66). Liberal Party politician.

[7] Harold Edward Holt, CH (1908-1967), 17th Prime Minister of Australia (1966-67), Liberal Party. Died prematurely by presumed drowning.

[8] Edward Gough Whitlam, QC (1916 - 2014),  21st Prime Minister of Australia (1972-75), Leader of the Labor Party (1967-77).

[9] See Australian government article on the Vietnam War:

[10]  Professor Ivan Shearer, Challis Professor of International Law, University of Sydney, (1993-2003).

[11] Op. Cit xiii

[12] Op. Cit xiv

[13] Horst Klaus Lücke, Professor University of Adelaide Law School (1967–1984); Research Associate, Max-Planck-Institute Hamburg (1990–1998); Lecturer in Comparative Law, Adelaide Law School (1999–2005); Visiting Research Professor, University of Adelaide Law School (2005–2007).

[14] John F Keeler, Reader in Law, Adelaide.

[15] Arthur Rogerson, Professor of Law, Adelaide (1964-78), Dean of Law (1964 -68).

[16] John Mitchell Finnis (b. 1940 - ), Professor of Law & Legal Philosophy, University College, Oxford (1989-2010), Biolchini Family Professor of Law, Notre Dame Law School (2010-).

[17] Daniel Patrick O'Connell,(1924-1979), Professor International Law Adelaide (1964-72), Chichele Professor of Public International Law, All Souls College, Oxford (1972-79).  See Shearer 2000,

[18] Sir Hersch Lauterpacht (1897-1960), Judge ICJ (1954-60), Whewell Professor of International Law (1938-55) .

[19] Sir (Claud) Humphrey Meredith Waldock (1904–1981),  Chichele Professor of Public International Law at All Souls College (1947-72),  International Law Commission (1961-72), judge European Court of Human Rights (1966-74), judge ICJ (1973- 81), President (1979-81).

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

[21] Principles of Public International Law, 1st Edition was 1966.  See 2000 assessment of 1st-5th editions by Colin Warbrick 

[22] International Law. by D. P. O'Connell, 1965, Stevens & Sons Ltd, 2 vols, 1434pp.

[23] Probably oldest Oxford College, founded by William of Durham who died 1249.

[24]  Emmerich de Vattel (1714-1767) Swiss international lawyer.

[25] Professor Sir Robert Yewdall Jennings (1913-2004). Judge ICJ (1982-95), President ICJ (1991-94), Whewell Professor of International Law (1955-81).

[26] Manchester University Press, 1963, 130 pp.

[27] Maurice Mendelson, QC, Professor of International Law, University College London (1987-2001), barrister, Blackstone Chambers.

[28] Sir James Edmund Sandford Fawcett  DSC QC (1913-91), barrister. Member, European Commission for Human Rights (1962-84), President (1972-81).

[29] Sir Elihu Lauterpacht, (1928-2017), Hon. Professor of International Law (1994-2017), Judge ad hoc, International Court of Justice (Bosnia v Yugoslavia) 1993-2002.

[30] Edward Gough Whitlam, QC (1916-2014),  21st Prime Minister of Australia (1972-75), Leader of the Labor Party (1967-77).

[31] Australia v France, see 1974 ICJ Reports 235 and 457. In which Eli was on the Australian team.

[32] Robert James "Bob" Ellicott, (b. 1927-). then Attorney-General (1975-77), and later Minister for Home Affairs (1977-80), and Judge of Federal Court (1981-83).

[33] Lionel Murphy (1922-86),  High Court Judge (1975-86), Acting Chief Justice. See:

[34] 1979, The Creation of States in International Law, Clarendon Press, 498pp.

[35] Merrie Faye Witkin (b. 1953-), American corporate lawyer. See Harvard Int Law Jl. 21, 594-604.

[36] Michael Donald Kirby AC CMG (b. 1939 ), Justice of the High Court of Australia (1996-2009), United Nations Human Rights Council inquiry on human rights abuses in North Korea (2013-14).

[37] Which has gone to 4 editions, the last (2003) jointly with Brian Opeskin, Professor of Legal Governance, Macquarie University.

[38] Recognition of Aboriginal Customary Laws (ALRC Report 31), Published 12 June 1986.

[39] p.xvii

[41] Aboriginal Customary Law — Recognition? (ALRC DP 17, 1980); Aboriginal Customary Law — Marriage, Children and the Distribution of Property (ALRC DP 18, 1982); and Aboriginal Customary Law — Criminal Law, Evidence and Procedure (ALRC DP 20, 1984).

[42] AJ Wood, Senior Lecturer in Law, Australian National University

[43] Apropos his 2012 8th Edition of Brownlie's Principles of Public International Law, OUP, 888pp.

[44] 1988 The Rights of Peoples (Ed) James Crawford, 236pp.

[45] Volume 9, 136-147.

[46] Lyndel V Prott, (then) Reader in International Law and Jurisprudence Sydney, Honorary Professor, TC Beirne School of Law, University Queensland.

[47] Garth Nettheim (1933-2018), Professor of Law, University NSW, chair of Aboriginal Law Centre at NSW.

[48] Paul Desmond Finn (b.1946-), Judge Federal Court of Australia (1995-2012).

[49] Archibald Hamilton Charteris (1874-1940), Scottish international lawyer, Challis Professor of International Law and Jurisprudence, University of Sydney (1920-40).

[50] Julius Stone, (1907-85), Challis Professor of Jurisprudence and International Law,  University of Sydney (1942-72).

[51] D. H. N. Johnson, Professor of International Law, University of Sydney (1976-85).

[52] 2015 Liber Doctorandorum, p.xviii

[53] Nauru v Australia ICJ Reports 1992 p.240, ICJ case 80,

[54] Sir Anthony Frank Mason QC (1925- 95), ninth Chief Justice of the High Court of Australia, on the bench of the High Court (1972-95).

[55] John Westlake (1828 - 1913). Whewell Professor (1888-1908), Member for Great Britain at International Court of Arbitration at The Hague (1900-06).

[56] Sir Derek William Bowett (1927-2009), Whewell Professor (1981-1991).

[57] Sir Hersch Lauterpacht (1897-1960), Judge ICJ (1954-60), Whewell Professor of International Law (1938-55)

[58] Clive Parry(1917-82), Professor of International Law (1969-82).

[59] Professor Sir Robert Yewdall Jennings (1913-2004). Judge ICJ (1982-95), President ICJ (1991-94), Whewell Professor of International Law (1955-81).

[60] Edward Gerald Patrick St George (1928-2004),


[61] Christopher John Robert Dugard (b.1936 - ), Professor of Public International Law, University of Leiden (1998 - ).

[62] Alan Vaughan Lowe, (b. 1952-) Chichele Professor of International Law Oxford (1999-2012).

[63] Christopher Greenwood,  (b. 1955-), Professor of International Law, London School of Economics (1996-2009), Judge of the International Court of Justice (2009-2016).

[64] Eyal Benvenisti  (b. 1959) Whewell Professor of International Law (2016-), Professor of Human Rights, Tel Aviv University (2002-16).

[65] Lord, Sir Arnold Duncan McNair (1885-1976), Whewell Professor (1935-37).

[66]  John Tiley (1941-2013), Professor of the Law of Taxation (1990-2008).

[67]  2015, Liber Doctorandorum p. xx

[68] Gaetano Arangio-Ruiz, Professor of International Law at universities of Camerino, Padova, Bologna, and Rome (emeritus at "La Sapienza"). Member, ILC (1985–1996).

[69] E.g. 2002 The International Law Commission's Articles on State Responsibility, 2010 The Law of International Responsibility , 2013 State Responsibility: the General Part .

[70] Article 48. Invocation of responsibility by a State other than an injured State.  See:

[71] Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)

[72] Hissène Habré,  (b. 1942-) President of Chad (1982-90), first former head of state to be convicted for human rights abuses in the court of another nation (Senegal, 2016). In 2012 the ICJ ordered Senegal to put him on trial or extradite him to face justice overseas.

[73]  Sir Jack Beatson, FBA (1948-), Rouse Ball Professor of English Law (1993 - 2003), Judge High Court (2003-2013), Lord Justice of Appeal (2013-).

[74] More details of this period can be found in Lesley Dingle (2017), LIM, 17, 78-91. "Cambridge Squire Law Library: historical development and current status of International Law collections".

[75] Dame Quentin Alice Louise Bryce (b. 1942, nee Strachan, 25th Governor-General of Australia (2008-14), the first woman to hold the position; previously Governor of Queensland (2003-08).

[76] Matrix is a barristers' chambers located in London, Geneva and Brussels.

[77] Philippe Sands  (b. 1960) Professor of Laws, Director Centre on International Courts and Tribunals UCL.

[78] Dame Rosalyn Higgins, DBE, QC (1937-), President ICJ (2006-09).

[80] Q75 "if I had had a career as a pure academic it would have been as a historian rather than in literature."

[81] Q74

[82] 2015, Liber Doctorandorum, p. xx, xxii

[83] Organization for Economic Cooperation and Development Administrative Tribunal

[84] Sir Percy Claude Spender, QC (1897-1985), Australian diplomat and judge. House of Representatives (1937-51), cabinet minister under Robert Menzies and Arthur Fadden, Ambassador to USA (1951-58), judge at ICJ (1958-67), President ICJ (1964-67).

[85]  Judgment of 18 July 1966 Declaration of President Sir Percy Spenser (as appended immediately after judgment).

[86]  Judgment 26 May 1961 Temple of Preah Vihear (Cambodia v Thailand),

[87] I.e. about the time he was transitioning to the Sydney chair.

[88]  Senior Research Fellow, Global Security Research Programme, Helsinki

[89] 2013, CUP 825pp

[90]  2008 "The Conception of International Law as a Legal System" German Yearbook of Int. Law, 50, 393-405.

[91] Op. Cit. p 396-7.

[92] 2014, AIL Pocket, Hague Academy of International Law, 537pp.

[93] 2015, Liber Doctorandorum, p. xxi.

[94] Foreign State Immunity (ALRC Report 24), 10 October 1984.

[95] 2012 International Law 1989-2010: A Performance Appraisal (ed) with S Nouwen, Hart, 405pp; 2012 Cambridge Companion to International Law, (ed) with M Koskenniemi, CUP, 478pp; 2012 Brownlie's Principles of International Law, 8th edit OUP 803pp (9th in prep, 2018); 2013 State Responsibility: the general part CUP 803pp; 2014 Chance, Order, Change: the course of international law, AIL pocket 516pp; 2104 Foreign Investment Disputes: Cases Materials & Commentaries (with RD Bishop & WM Reisman) Kluwer 2nd Edit 1290pp

[96] Marcelo Kohen, Professor of International Law at the Graduate Institute of International and Development Studies in Geneva (1995-), Argentine lawyer.

[97] Nicolaas Jan (Nico) Schrijver  (b. 1954-) Professor of Public International Law, Leiden Law School (2005- ).

[98]  Liber Doctorandorum, p. xxv.