James Crawford
International lawyer who angered Scot Nats with his analysis of the implications of independence
JAMES CRAWFORD, who has died aged 72, was Whewell Professor of International Law at the University of Cambridge from 1992 to 2014, when he was elected Judge of the International Court of Justice (ICJ); he was widely regarded as the pre-eminent authority on international law.
In the 30 years before his arrival at The Hague, as an advocate or behind-the-scenes consultant, the Australian-born Crawford had been both the workhorse and the driving intellect in a staggering range of public international law matters – from fisheries negotiations to boundary disputes, from investment claims to trade law, from the construction of dams and environmental remediation to central bank lending policy.
Most notably, in the 1990s he led the UN International Law Commission’s drafting work on the Law of State Responsibility. Akin to the rules of liability in a domestic setting, the rules of State Responsibility had resisted neat summary for more than 40 years as the commission failed to reach consensus on an adopted text.
Crawford’s talent as a synthesizer of diverse ideas and points of view, and a soother of difficult egos, made it possible for him to break the log-jam and bring the work to a successful conclusion in 2001 – 52 years after the commission had first embarked on the project.
Although he had taken part in Vietnam War protests as a student in Adelaide and was an avowed Australian republican (a stance formed in childhood after he and his school friends were made to sit in the sun for five hours to see the Queen pass by “for literally one minute”), Crawford never let politics impinge on his legal opinions, even though in many cases the context could be highly politically charged.
Thus in March 2003 he put his name to an open letter to the prime minister, Tony Blair, on the illegality of war in Iraq without an explicit UN security council resolution, pointing out that “the doctrine of preemptive self-defence against an attack that might arise at some hypothetical future time has no basis in international law.”
Later he incurred the wrath of Scottish Nationalists when he advised the Coalition Government that the Scottish Government’s claim that an independent Scotland would remain a member of existing international organisations such as the UN, the IMF and the EU could be “dismissed as, at best, inconclusive”. Indeed the “overwhelming weight” of precedence pointed to Scotland being treated as a new state. That would mean having to renegotiate some 14,000 separate treaties and applying afresh to join international bodies.
These were, of course, legal opinions, not political statements, though politicians and some sections of the media did not make the distinction at the time.
James Richard Crawford was born on November 14 1948 in Adelaide, South Australia, the oldest of seven children of James Crawford, a businessman, and the former Josephine Bond, a nurse.
After taking a BA in Law, with History, English and International Relations, followed by an LLB, at Adelaide University, he proceeded to Oxford to do a Dphil with Ian Brownlie.
His thesis received encomia, and in 1979 it was published by Oxford University Press as The Creation of States in International Law, a work that has proved influential in, for example, helping to frame the debate about Quebec’s putative secession from Canada and Scotland’s from the UK.
Returning to Australia, from 1977 Crawford taught at Adelaide, then, from 1986, at Sydney University as Challis Professor of International Law, serving as dean of the law faculty from 1990. His publications during these years included Australian Courts of Law (co-authored, 1982) and The Rights of Peoples (1985) a collection which he edited.
In 1992 he returned to Britain to take up the Whewell Professorship at Cambridge, also serving as director of the Lauterpacht Centre for International Law and, for three years, as chairman of the university law faculty. His academic output at Cambridge included a major second edition of his Creation of States in International Law, as well as numerous articles, chapters, and edited volumes.
At the same time he maintained a thriving and ever growing legal practice. He became a member of the English bar and a cofounder of Matrix Chambers, his clients including dozens of governments and private companies. A renowned arbitrator, he had a diplomatic gift for getting a team to agree a strategy when legal arguments alone would not have sufficed.
Crawford always sought to alleviate the dryness of legal principle with a humour which often served to clarify the issues involved. When appearing before the ICJ on the question of the legality of Kosovo’s Declaration of Independence, for example, he said: “I am a devoted but disgruntled South Australian. ‘I hereby declare the independence of South Australia.’ What has happened? Precisely nothing. Have I committed an internationally wrongful act in your presence? Of course not. Have I committed an ineffective act? Very likely … It simply does not make any sense to say that unilateral declarations of independence are per se unlawful.
“[But] A declaration issued by persons within a State is a collection of words writ in water; it is the sound of one hand clapping.
What matters is what is done subsequently, especially the reaction of the international community. That reaction may take time to reveal itself. But here the basic position is clear. There has been no condemnation by [the UN]; there have been a substantial number of recognitions. This is all in sharp contrast to [eg] the Bantustans, Southern Rhodesia, Manchukuo or the TRNC. In such cases the number of recognitions can be counted on the fingers of one hand, whether or not it is clapping.”
Thomas Grant, who worked as Crawford’s principal associate for many years, recalls that while his fees reflected his stature as the pre-eminent practitioner in his field, he was always diligent in fulfilling whatever obligations he had undertaken, however humdrum, including serving as a member of legal committees, and unfailing in his attention to detail.
Nor did he avoid more tiresome tasks. Grant recalls a case that had suddenly generated huge amounts of documentary material, piled up in stacks of boxes which Crawford, Grant, and several young law firm associates led by a senior partner, had very little time to make sense of. The senior partner was clearly chafing at the bit and after Crawford told the assembled company what they were looking for, prepared to make a speedy exit:
“However, Crawford then looked to the young associates and asked, ‘Okay. Which box do you want me to start with?’ The partner was dumbfounded. Crawford had made the position clear: each and every one of us would be staying the night, for there wasn’t enough time to finish by the deadline unless it was all hands on deck. The partner was not delighted; the morale in the room otherwise was sky high.”
In later years Crawford suffered from Parkinson’s disease and his health was shaky, though the affliction did not dim his intellect, and he maintained a schedule that even a person in perfect health would have found bruising.
He taught a remarkable number of PHD students, many of whom have gone on to stellar careers as lawyers and academics.
Crawford was married four times. His first three marriages, to Marisa Luigina, Patricia Hyndman and Joanna Gomula, were dissolved. He is survived by his fourth wife, Freya, née Baetens, by their son and daughter, by two daughters from each of his first two marriages and by a son from his third.
James Crawford, born November 14 1948, died May 31 2021