Shaw Malkolm N. International Law

Cambridge: Cambridge University Press, 2003. - 1431 p.ISBN 0 521 82473 7 hardback
ISBN 0 521 53183 7 paperbackA new chapter on Inter-state Courts and Tribunals pays special attention to the role of
the International Court of Justice and the International Tribunal on the Law of the Sea, and there is a new chapter on International Humanitarian Law. Also examined are arbitration tribunals set up for dispute settlement and the role of international institutions such as the WTO in resolving conflicts. The prosecution of individuals for violations of international law is examined. Additional coverage of events in Kosovo and Iraq analyses the questions of humanitarian intervention and the role of the UN. Written in a clear and accessible style and setting the subject firmly in the context of world politics and the economic and cultural influences affecting it, this book remains a highly readable and invaluable resource for students
and practitioners alike. The scope of the text makes this essential reading for students of international law, international relations and the political sciences.Table of cases
Table of treaties and selected other international instruments
List of abbreviations
The nature and development of international law
Law and politics in the world community
The role of force
The international system
The function of politics
Historical development
Early origins
The Middle Ages and the Renaissance
The founders of modern international law
Positivism and naturalism
The nineteenth century
The twentieth century
Communist approaches to international law
The Third World
International law today
The expanding legal scope of international concern
Modern theories and interpretations
Positive Law and Natural Law
New approaches
Sources
CustomThe material fact
What is state practice?
Opinio juris
Protest, acquiescence and change in customary law
Regional and local custom
Treaties
General principles of law
Equity and international law
Judicial decisions
Writers
Other possible sources of international law
The International Law Commission
Other bodies
Unilateral acts
Hierarchy of sources and jus cogens
International law and municipal law
The theories
The role of municipal rules in international law
International law before municipal courts
The United Kingdom
Customary international law
Treaties
The United States
Other countries
Justiciability, act of state and related doctrines
Executive certificates
The subjects of international law
Legal personality – introduction
States
Creation of statehood
Self-determination and the criteria of statehood
Recognition
Extinction of statehood
The fundamental rights of states
Independence
Equality
Peaceful co-existence
Protectorates and protected states
Federal states
Sui generis territorial entities
Mandated and trust territories
Germany 1945
Condominium
International territories
Taiwan
The ‘Turkish Republic of Northern Cyprus’ (TRNC)
The Saharan Arab Democratic Republic
Associations of states
Conclusions
Special cases
The Sovereign Order of Malta
The Holy See and the Vatican City
Insurgents and belligerents
National liberation movements (NLMs)
International public companies
Transnational corporations
The right of all peoples to self-determination
The establishment of the legal right
The definition of self-determination
Individuals
International criminal responsibility
International organisations
The acquisition, nature and consequences of legal personality – some conclusions
The international protection of human rights
The nature of human rights
Ideological approaches to human rights in international law
The development of international human rights law
Some basic principles
Domestic jurisdiction
The exhaustion of domestic remedies rule
Priorities of rights
Customary international law and human rights
The United Nations system – general
The protection of the collective rights of groups and individuals
Prohibition of genocide
Prohibition of discrimination
The principle of self-determination as a human right
The protection of minorities
Other suggested collective rights
The United Nations system – implementation
Political bodies – general
The Commission on Human Rights
Expert bodies established by UN organs
The Sub-Commission on the Promotion and Protection of Human Rights
The International Covenant on Economic, Social and Cultural Rights
Expert bodies established under particular treaties
The Committee on the Elimination of Racial Discrimination
The Human Rights Committee
The Committee on the Elimination of Discrimination - Against Women
The Committee Against Torture
The Committee on the Rights of the Child
The Committee on the Protection of Migrant Workers
Conclusions
The specialised agencies
The International Labour Organisation
The United Nations Educational, Scientific and Cultural Organisation
The regional protection of human rights
The Council of Europe
The European Convention on Human Rights
The convention system
The European Social Charter
The European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment
The Council of Europe Framework Convention for the Protection of National Minorities
The European Union
The OSCE (Organisation for Security and Co-operation in Europe)
The CIS Convention on Human Rights and Fundamental Freedoms
The Human Rights Chamber of Bosnia and Herzegovina
The American Convention on Human Rights
The Banjul Charter on Human and Peoples’ Rights
The Arab Charter on Human Rights
Recognition
Recognition of states
Recognition of governments
De facto and de jure recognition
Premature recognition
Implied recognition
Conditional recognition
Collective recognition
Withdrawal of recognition
Non-recognition
The legal effects of recognition
Internationally
Internally
The UK
The USA
Territory
The concept of territory in international law
Territorial sovereignty
New states and title to territory
The acquisition of additional territory
Boundary treaties and boundary awards
Accretion
Cession
Conquest and the use of force
The exercise of effective control
Intertemporal law
Critical date
Sovereign activities (effectivit´es)
The role of subsequent conduct: recognition, acquiescence and estoppel
Conclusions
Territorial integrity, self-determination and sundry claims
The doctrine of uti possidetis
Beyond uti possidetis
International boundary rivers
The Falkland Islands
‘The common heritage of mankind’
The polar regions
Leases and servitudes
Air law and space law
Air law
Theories
The structure
The Warsaw Convention system
Unauthorised aerial intrusion and the downing of civilian airliners
The law of outer space
The definition and delimitation of outer space
The regime of outer space
Telecommunications
The law of the sea
The territorial sea
Internal waters
Baselines
Bays
Islands
Archipelagic states
The width of the territorial sea
Delimitation of the territorial sea between states with opposite or adjacent coasts
The juridical nature of the territorial sea
The right of innocent passage
Jurisdiction over foreign ships
International straits
The contiguous zone
The exclusive economic zone
The continental shelf
Definition
The rights and duties of the coastal state
Maritime delimitation
Landlocked states
The high seas
Jurisdiction on the high seas
Exceptions to the exclusivity of flag-state jurisdiction
Right of visit
Piracy
The slave trade
Unauthorised broadcasting
Hot pursuit
Collisions
Treaty rights
Pollution
Straddling stocks
The international seabedThe 1982 Law of the Sea Convention (Part XI)
The Reciprocating States Regime
The 1994 Agreement on Implementation of the Seabed
Provisions of the Convention on the Law of the Sea
The International Seabed Authority
Settlement of disputes
Jurisdiction
The principle of domestic jurisdiction
Legislative, executive and judicial jurisdiction
Civil jurisdiction
Criminal jurisdiction
The territorial principle
The nationality principle
The passive personality principle
The protective principle
The universality principle
Piracy
War crimes, crimes against peace and crimes against humanity
Treaties providing for jurisdiction
Illegal apprehension of suspects and the exercise of jurisdiction
The US Alien Tort Claims Act
Extradition
Extraterritorial jurisdiction
Immunities from jurisdiction
Sovereign immunity
The absolute immunity approach
The restrictive approach
Sovereign and non-sovereign acts
State immunity and violations of human rights
Commercial acts
Contracts of employment
Other non-immunity areas
The personality issue – instrumentalities and parts of the state
The personality issue – immunity for government figures
Waiver of immunity
Pre-judgment attachment
Immunity from execution
The burden and standard of proofDiplomatic law
The Vienna Convention on Diplomatic Relations, 1961
The inviolability of the premises of the mission
The diplomatic bag
Diplomatic immunities – property
Diplomatic immunities – personal
Waiver of immunity
Consular privileges and immunities: the Vienna Convention on Consular Relations, 1963
The Convention on Special Missions, 1969
The Vienna Convention on the Representation of States in their Relations with International Organisations of a Universal Character, 1975
The immunities of international organisations
Internationally protected persons
State responsibility
The nature of state responsibility
The question of fault
Imputability
Ultra vires acts
State control and responsibility
Mob violence, insurrections and civil wars
Circumstances precluding wrongfulness
Invocation of state responsibility
The consequences of internationally wrongful acts
Cessation
Reparation
Serious breaches of peremptory norms (jus cogens)
Diplomatic protection and nationality of claims
The exhaustion of local remedies
The treatment of aliens
The relevant standard of treatment
The expropriation of foreign property
The property question
The nature of expropriation
Public purposes
Compensation
Bilateral investment treaties
Lump-sum agreements
Non-discrimination
The Multilateral Investment Guarantee Agency
International environmental law
State responsibility and the environment
The basic duty of states
The appropriate standard
Damage caused
Liability for damage caused by private persons
Prevention of transboundary harm from hazardous activities
The problems of the state responsibility approach
International co-operation
Atmospheric pollution
Ozone depletion and global warming
Outer space
International watercourses
Ultra-hazardous activities
Nuclear activities
The provision of information
The provision of assistance
Nuclear safety
Civil liability
Hazardous wastes
Marine pollution
Pollution from ships
The law of treaties
The making of treaties
Formalities
Consent
Consent by signature
Consent by exchange of instruments
Consent by ratification
Consent by accession
Reservations to treaties
Entry into force of treaties
The application of treaties
Third states
The amendment and modification of treaties
Treaty interpretation
Invalidity, termination and suspension of the operation of treaties
General provisions
Invalidity of treaties
Municipal law
Error
Fraud and corruption
Coercion
Jus cogens
Consequences of invalidity
The termination of treaties
Termination by treaty provision or consent
Material breach
Supervening impossibility of performance
Fundamental change of circumstances
Consequences of the termination or suspension of a treaty
Dispute settlement
Treaties between states and international organisations
State succession
Continuity and succession
Succession to treaties
Categories of treaties: territorial, political and other treaties
Succession to treaties generally
Absorption and merger
Cession of territory from one state to another
Secession from an existing state to form a new state or states
‘Newly independent states’
Dissolution of states
International human rights treaties
Succession with respect to matters other than treaties
Membership of international organisations
Succession to assets and debts
State property
State archives
Public debt
Private rights
State succession and nationality
Hong Kong
The settlement of disputes by peaceful means
Diplomatic methods of dispute settlement
Negotiation
Good offices and mediation
Inquiry
Conciliation
International institutions and dispute settlement
Regional organisations and the United Nations
The African Union (Organisation of African Unity)
The Organisation of American Statese
The Arab League
Europe
International organisations and facilities of limited competence
Inter-state courts and tribunals
Arbitration
Judicial settlement
The International Court of Justice
The organisation of the Court
The jurisdiction of the Court
General
The nature of a legal dispute
Contentious jurisdiction
Article 36(1)
Article 36(2)
Sources of law, propriety and legal interest
Evidence
Provisional measures
Counter-claims
Third-party intervention
Remedies
Enforcement
Application for interpretation of a judgment
Application for revision of a judgment
Examination of a situation after the judgment
Non-appearance
The advisory jurisdiction of the Court
The role of the Court
The International Tribunal for the Law of the Sea
Proliferation of courts and tribunals
International law and the use of force by states
Law and force from the ‘just war’ to the United Nations
The UN Charter
‘Force’
‘Against the territorial integrity or political independence of any state’
Categories of force
Retorsion
Reprisals
The right of self-defence
The protection of nationals abroad
Conclusions
Collective self-defence
Force and self-determination
Intervention
Civil Wars
Aid to the authorities of a state
Aid to rebels
The situation in the Democratic Republic of the Congo
Humanitarian intervention
Terrorism and international law
International humanitarian law
Development
The scope of protection under the Geneva Conventions system
The conduct of hostilities
Armed conflicts: international and internal
Non-international armed conflict
Enforcement of humanitarian lawThe United Nations
The UN system
The Security Council
The General Assembly
The Economic and Social Council
The Trusteeship Council
The Secretariat
The specialised agencies
Economic and financial specialised agencies
The peaceful settlement of disputes
The League of Nations
The United Nations system
The Security Council
The General Assembly
The Secretary-General
Peacekeeping and observer missionsThe collective security system
The Security Council
Determination of the situation
Chapter VII measures
Measures not involving the use of force
Measures involving the use of force
The Use of force in non-enforcement situations
Former Yugoslavia
Somalia
Rwanda
Sierra Leone
The Democratic Republic of the Congo
The range of UN actions from humanitarian assistance to enforcement – conclusions
The Security Council, international law and the International Court of Justice
The role of the General Assembly
The UN and regional arrangements and agencies
International institutions
Historical development
Approaches to international institutions
Institutions of a universal character
The League of Nations
The United Nations
International economic organisations
Regional institutions
Europe
The North Atlantic Treaty Organisation
The Western European Union
The Council of Europe
The Organisation for Economic Co-operation and Development
The European Union
The Organisation for Security and Co-operation in Europe (OSCE)
The Commonwealth of Independent States
The American Continent
The Arab League
Africa
Eastern Europe
Asia
Some legal aspects of international organisations
Personality
The constituent instruments
The Powers of international institutions
The applicable law
The responsibility of international institutions
Liability of member states
The accountability of international institutions
Privileges and immunitie
Dissolution
Succession
Some useful international law websites
Index