Foreign Relations Law study wins international acclaim


Campbell McLachlan

Professor Campbell McLachlan, 2010 NZ Law Foundation International Research Fellow

The rapid pace of globalisation is producing an exploding range of practical legal problems. Now, a New Zealand-authored study is being acclaimed as filling a major gap in international legal literature on the subject.

Foreign Relations Law, a Law Foundation-backed work by Victoria University Professor Campbell McLachlan, is receiving accolades in influential legal circles. Among several positive reviews, one from leading expert Sir Franklin Berman (formerly Legal Adviser to the UK Foreign Office) described the work as definitive and authoritative.

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“It is that combination of comprehensive scope and analytical precision … that makes the work as a whole stand out in quality from anything that has gone before…. It deserves to be the leading authority in the field, as it undoubtedly will be,” Sir Frank said in the UK Law Quarterly Review.

Published in 2014, Foreign Relations Law is the first comprehensive study of foreign relations law in Anglo-Commonwealth systems in three decades – it was eagerly anticipated in legal circles and, as Attorney-General Chris Finlayson predicted when he launched it, the work is now being used locally and internationally.

The book targets a relatively small but highly influential group of people including foreign ministry legal advisors, judges of final courts of appeal, attorneys-general and ministers of justice involved in preparing legislation.

It is already being referenced in argument in major cases before the English courts, including in Belhaj vs Straw, where a former Libyan Opposition MP accuses the British intelligence service of involvement with his interrogation and torture.

Campbell says he wrote the book as a modern successor to the last major study on the subject: F.A. Mann’s 1986 work Foreign Affairs in English Courts.

“It became increasingly apparent that this was a real gap. The book sits at the intersection of three different areas of law: constitutional, public international and private international law. There have been big issues around the activities of armed forces in Iraq and Afghanistan, as well the flow-on impacts of Guantanamo Bay detainees – that has provoked a lot of litigation.

“There are also bigger trends to which New Zealand is a party. Globalisation has compelled states to act beyond their borders to deal with problems. Examples include competition law – the reach of the Commerce Act, and companies trading into New Zealand – as well as the extension of criminal law statutes to deal with international crimes, and the Ahmed Zaoui case.

“The first issue that sparked my interest in this area as a young lawyer in London in the nineteen-eighties arose out of an unsuccessful attempt to recover Maori meeting house panels smuggled out of New Zealand that turned up at an auction in the UK. They were owned by a Swiss collector. New Zealand sued in the English courts and failed. Since that time, I have wanted to resolve, in a more effective way, the legal problems arising from the exercise and effect of the public power of states.”

Campbell wrote the book as the Foundation’s 2010 International Research Fellow, which allowed him to research and write the book in New Zealand and as a Visiting Fellow at All Souls College Oxford. . He is presenting ideas from it to seminars around the world and from 2017 will offer a Masters course on the topic at Victoria Law School.

“Big projects like this are not possible without financial and institutional support that accepts that such projects are worthwhile,” he says. “I want to thank the Foundation for its far-sighted vision in supporting this project.”

Although it is still early days for assessing the impact, the signs are promising. Besides the Law Quarterly Review, other favourable notices have appeared in the British Yearbook of International Law (which called it “a Magisterial Analysis,”) Netherlands International Law Review, France’s Review Generale de Droit International Public, and the Commonwealth Law Bulletin.

A review by Paul Mora in the Asian Journal of International Law typifies the response:

“[T]he book’s particular strength is in coherently bringing together the different concerns of constitutional law, public international law, and—to a lesser extent—the conflicts of law, in presenting a modern treatise on the law governing foreign relations. This is where McLachlan makes an important and excellent contribution to the academic literature, which has for many years lacked a study of this kind.”

Campbell says he wrote the book as a practically useful tool for anyone interested in the exercise of power by the state. “These issues don’t come up every day, but they do come up and when they do there aren’t too many places to look,” he says.

The Law Foundation provided funding through its International Research Fellowship to enable Professor McLachlan to research and write this book.  The Fellowship is worth up to $125,000 and is awarded annually.  Applications close on 1 September each year.

 

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