Sir James Richard Crawford may not be popular to an undergrad student but will be familiar with the cases he appeared and the cause titles for which he delivered exceptionally marvelous judgements. In a way Sir Crawford live through his contributions rather than the contributions live through him. This was the magic of Crawford’s pen. Many idle soulful corpse sweeps century where Sir Crawford could not and we are unlucky to be bagged by his more contributions to the fraternity.
The reason why Sir Crawford could deliver his contribution being a jurist, an attorney and a judge is just because he found himself limitless. Let us commemorate his contribution right from graduation in Bachelor of Laws Degree in 1971 to the year Sir took his last breath i.e. 2021 which is fifty years.
BEING A JURIST
In the initial years, Sir Crawford handled international law and was appointed at Australian Law Reform Commissions in 1984 where he penned a series of reports on recognition of aboriginal acceptance of customary law, sovereign immunity, patriation and federalization of Admiralty Law and jurisdiction. In the report on Foreign State Immunity Sir Crawford was appointed as the Commissioner in-charge and identified “In the absence of satisfactory arrangements for securing compliance with judgments, the assertion of judicial jurisdiction over a foreign state entails an assertion of the right to enforce any resulting judgment, if it is not complied with, by appropriate means.”
In 1992, Sir Crawford was elected to be a member at International Law Commission where he served as Special Rapporteur to State Responsibility for almost four years and was also in-charge of Draft Statute for International Criminal Court. During this venture some of the notable contributions include “Articles on Responsibility of States for Internationally Wrongful Acts” where foundations of state responsibilities are analyzed and counter measures towards breach of peremptory norms were identified. In 1996, Sir Crawford assumed the directorship of the Lauterpacht Centre for International Law at Cambridge twice i.e. 1997-2003 and 2006-2010. The major juristic contribution in the form of text books and commentaries from Sir Crawford includes “The Rights of Peoples, The Creation of States in International Law, International Law as an Open System, Brownlie’s Principles of Public International Law and State Responsibility”. This is just touching the feather tip of Sir Crawford’s contribution as jurist.
BEING AN ATTORNEY
Sir James Crawford started his practice at the High Court of Australia in 1977 and was later moved to South Wales Bar in 1987 and later engaged as counsel before the International Court of Justice in several cases. He was also the counsel for Australia before the ITLOS and for China before the Settlement Body of WTO in the US- Definitive Anti-Dumping case.
In handling cases, Sir Crawford showed a very unique approach of imputing the cause title to the international history. This can be done only if the intellect, hard work, dedication and passion always go in right proportion. I have tried to discuss few cases where Sir Crawford appeared and paved way to magical decisions from the judiciary.
East Timor (Australia v. Protugal) for Australia Sir Crawford relied on Monetary Gold Removed from Rome 1943 decided by ICJ to establish his argument “the Court would not be able to act if, in order to do so, it were required to rule on the lawfulness of Indonesia’s entry into and continuing presence in East Timor, on the validity of the 1989 Treaty between Australia and Indonesia, or on the rights and obligations of Indonesia under that Treaty, even if the Court did not have to determine its validity.”
Case concerning the Oil Platforms (Islamic Republic of Iran v. United States of America) Sir Crawford appeared as Senior Counsel for Iran and argued “the destruction caused by several warships of the United States Navy, in October 1987 and April 1988, to three offshore oil production complexes, owned and operated for commercial purposes by the National Iranian Oil Company, constituted a fundamental breach of various provisions of the Treaty of Amity and of international law.”
In Pulau Batu Puteh (Malaysia v. Singapore) Crawford appeared as the Senior Counsel for Malaysia and submitted supporting the Malaysia’s sovereignty over Pulau Batu Puteh.
In Maritime Delimitation in Black Sea (Romania v. Ukraine) Crawford appeared as Senior Counsel for Ukraine argued on artificial character of Romania’s two sector approach where he pointed that “Romania then compounds its error by using, as the relevant basepoint on the Romanian side for constructing its equidistance line, the seaward most point on a man-made feature – the Sulina Dyke – which Romania itself concedes, although without giving details, “underwent major extension works from the 1950s until the 1980”.
With regard to Case Concerning Whaling in Antarctic (Australia v. Japan)- Counsel for Australia “The commercial whaling activity prohibited within the Southern Ocean Sanctuary is the same as that prohibited under the commercial whaling moratorium. While the language used in paragraph 7(b) of the Schedule (“commercial whaling”) is not identical to that of paragraph 10(e) (“killing [whales] for commercial purposes”), these are simply two ways of describing the same activity. Both prohibitions regulate the same category of whaling under the ICRW – commercial whaling.”
Ariel Herbicide Spraying (Ecuador v. Columbia)- Senior Counsel for Columbia “It is a key feature of the aerial spraying campaign that it was conducted across the entirety of Colombia, wherever illicit crops were detected. It was not focused on border areas but on Colombian territory.”
Questions relating to the Seizure and Detention of documents and data (Timor-Leste v. Australia)- Counsel for Australia- “Timor-Leste has asserted rights over the Materials, not only in terms of confidentiality and ‘legal professional privilege’ (which, to the extent such rights exist, are qualified by the applicable law and subject to important limitations), but also in terms of ownership, inviolability and immunity (rights which Timor-Leste presents as unqualified and unlimited). The exercise of these rights, both generally and in the specific circumstances of this case, is discussed later in this Counter-Memorial. However, in any case, a necessary predicate to any of the claims listed above is a sufficient factual basis connecting the claimant to the claimed object (a point Timor-Leste now effectively concedes by abandoning claims as to individual items which it now accepts do not belong to it).”
Application of International Convention on Elimination of All forms of Racial Discrimination (Georgia v. Russian Federation)- Senior Counsel for Georgia- “the Russian Federation, through its State organs, State agents, and other persons and entities exercising governmental authority, and through the South Ossetian and Abkhaz separatist forces and other agents acting on the instructions of, and under the direction and control of the Russian Federation, is responsible for serious violations of its fundamental obligations under CERD, including Articles 2, 3, 4, 5 and 6.”
Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Senior Counsel for Croatia “There are regrettably large number of other persons who are understood to be within the jurisdiction of the FRY (Serbia and Montenegro) and who have not been Landed over to the ICTY, or submitted to trial in the FRY (Serbia and Montenegro) or handed over to Croatia, in respect of acts or illicitly giving rise to genocidal acts occurring in the territory of Croatia and which are the subject of these proceedings.”
Maritime Dispute (Peru v. Chile)- Senior Counsel for Chile- “Peru’s two submissions are logically inconsistent with each other. If the boundary were an equidistance line (which it is not), there could not be any “outer triangle”. The respective maritime zones of the Parties would be coterminous at the end of the equidistance line, and that line would give to Peru the alta mar area”.
BEING A JUDGE
When Sir Crawford left his aura behind, his tenure as member at International Court of Justice was due to expire only in 2024. He was initially served as President of various international tribunals. Let us now go through some historic revolutionary judgements paved modernity to face the dynamic developments at global parlance.
In 2016, Obligations concerning Negotiation relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India) Sir Crawford was one among the judges upheld in favour of India – “The Court therefore concludes that the first objection made by India must be upheld. It follows that the Court does not have jurisdiction under Article 36, paragraph 2, of its Statute. Consequently, it is not necessary for the Court to deal with the other objections raised by India. The questions of the existence of and extent of customary international law obligations in the field of nuclear disarmament, and India’s compliance with such obligations, pertain to the merits. But the Court has found that no dispute existed between the Parties prior to the filing of the Application, and consequently it lacks jurisdiction to consider these questions.”
Further in 2017, Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Sir Crawford was in favour of “The Court observes that the fact that an applicant may have breached a treaty at issue in the case does not per se affect the admissibility of its application. Moreover, the Court notes that Somalia is neither relying on the MOU as an instrument conferring jurisdiction on the Court nor as a source of substantive law governing the merits of this case. Thus, Somalia’s objection to CLCS consideration of Kenya’s submission does not render the Application inadmissible. In the circumstances of this case, there is no need for the Court to address the more general question whether there are situations in which the conduct of an applicant would be of such a character as to render its application inadmissible. In light of the foregoing, the Court finds that the preliminary objection to the admissibility of Somalia’s Application must be rejected.”
In 2018, Sir Crawford favored judgement pronounced against abuse of process or rights in Immunities and Criminal Proceedings (Equitorial Guinea v. France) “The Court concludes that it lacks jurisdiction pursuant to the Palermo Convention to entertain Equatorial Guinea’s Application. The Court further concludes that it has jurisdiction pursuant to the Optional Protocol to the Vienna Convention to entertain the submissions of Equatorial Guinea relating to the status of the building at 42 Avenue Foch in Paris as diplomatic premises, including any claims relating to the seizure of certain furnishings and other property present on the above-mentioned premises. Finally, the Court finds that Equatorial Guinea’s Application is not inadmissible on grounds of abuse of process or abuse of rights.”
In 2019, Certain Iranian Assets (Islamic Republic of Iran v. United States of America) Sir Crawford favored “The Court begins by noting that the United States has not argued that Iran, through its alleged conduct, has violated the Treaty of Amity, upon which its Application is based. Without having to take a position on the “clean hands” doctrine, the Court considers that, even if it were shown that the Applicant’s conduct was not beyond reproach, this would not be sufficient per se to uphold the objection to admissibility raised by the Respondent on the basis of the “clean hands” doctrine. Such a conclusion is however without prejudice to the question whether the allegations made by the United States, concerning notably Iran’s alleged sponsoring and support of international terrorism and its presumed actions in respect of nuclear non-proliferation and arms trafficking, could, eventually, provide a defence on the merits. In light of the foregoing, the two objections to admissibility of the Application raised by the United States must be rejected”
Further in the same year the Jadhav case Judgement was pronounced by the ICJ where Sir Crawford favored “Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017. Rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible. Finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations. Finds that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations. Finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations. Finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention, taking account of paragraphs 139, 145 and 146 of this Judgment. Declares that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.”
In 2020, Appeal relating to the jurisdiction of the ICAO Council under article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia, and United Arab Emirates v. Qatar) Sir Crawford favored “Rejects the appeal brought by the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates on 4 July 2018 from the Decision of the Council of the International Civil Aviation Organization, dated 29 June 2018. Holds that the Council of the International Civil Aviation Organization has jurisdiction to entertain the application submitted to it by the Government of the State of Qatar on 30 October 2017 and that the said application is admissible.”
Again in 2020, the Arbitral award of 3rd October 1899 (Guyana v. Venezuela) Sir Crawford supported “Finds that it has jurisdiction to entertain the Application filed by the Co-operative Republic of Guyana on 29 March 2018 in so far as it concerns the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute between the Co-operative Republic of Guyana and the Bolivarian Republic of Venezuela. Finds that it does not have jurisdiction to entertain the claims of the Co-operative Republic of Guyana arising from events that occurred after the signature of the Geneva Agreement”.
In 3rd February 2021, ICJ passed its judgement on Alleged Violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights (Islamic Republic of Iran v. United States of America) where Sir Crawford favored “Rejects the preliminary objection to its jurisdiction raised by the United States of America according to which the subject-matter of the dispute does not relate to the interpretation or application of the Treaty of Amity, Economic Relations, and Consular Rights of 1955. Rejects the preliminary objection to its jurisdiction raised by the United States of America relating to the measures concerning trade or transactions between the Islamic Republic of Iran (or Iranian nationals and companies) and third countries (or their nationals and companies). Rejects the preliminary objection to the admissibility of the Application raised by the United States of America. Rejects the preliminary objection raised by the United States of America on the basis of Article XX, paragraph 1 (b), of the Treaty of Amity, Economic Relations, and Consular Rights of 1955. Rejects the preliminary objection raised by the United States of America on the basis of Article XX, paragraph 1 (d), of the Treaty of Amity, Economic Relations, and Consular Rights of 1955. Finds, consequently, that it has jurisdiction, on the basis of Article XXI, paragraph 2, of the Treaty of Amity, Economic Relations, and Consular Rights of 1955, to entertain the Application filed by the Islamic Republic of Iran on 16 July 2018, and that the said Application is admissible.”
On 4th February 2021, Crawford favored the judgement of ICJ in Application of International Convention on Elimination of all forms of Racial Discrimination (Qatar v. United Arab Emirates) “In light of the above, the Court concludes that the first preliminary objection raised by the UAE must be upheld. Having found that it does not have jurisdiction ratione materiae in the present case under Article 22 of the Convention, the Court does not consider it necessary to examine the second preliminary objection raised by the UAE. In accordance with its jurisprudence, when its jurisdiction is challenged on diverse grounds, the Court is “free to base its decision on the ground which in its judgment is more direct and conclusive”.
Going just through the arguments and pies of findings will not provide you the full knowledge as to how Sir Crawford’s judgements in ICJ contribute to mitigate the dynamic developments at the global parlance. For the same you need to go through full judgement.
My writeup is just a platform to commemorate this great jurist, noble attorney and a most just and prudent judge. The life of Sir Crawford is the best example for law students, lawyers, judges, jurists and professors to learn how to balance and excel in multiple areas of the same fraternity in the limited span of time.