BOOK REVIEW ON MALCOLM N. SHAW INTERNATIONAL LAW (6th EDITION)

Authored By:

Amit Sikhwal (Research Intern)


INTRODUCTION


'Malcolm Shaw’s International Law has been an indispensable resource for students of international law since its first publication in 1977. It gives an accurate and well-balanced account of the development and current state of the law. In light of recent developments, the new chapters on international criminal law and the International Court of Justice are welcome. I warmly recommend Shaw to anyone studying international law at the undergraduate or graduate level.' James Crawford, The Lauter pacht Centre for International Law, University of Cambridge 'When I was teaching Shaw’s International Law was my textbook of choice for the students. I continue today to find this book very useful and well organized. It is good news that a Sixth Edition guarantees that it remains thoroughly contemporary, with new chapters added and everything updated.' Dame Rosalyn Higgins, President of the International Court of Justice'Shaw's treatise has been praised as being particularly well suited for 'novice' students of the field … it is surprisingly user-friendly.' American Journal of International Law 'An outstanding treatise which I use regularly in the course of my work at the Court. It excels in precision, comprehensiveness and topicality. On many issues, like questions of territory, it has no equal in any language. And last but not least, it reads well.' Bruno Simma, Judge, International Court of Justice.

International Law is the definitive and authoritative text on the subject, offering Shaw's unbeatable combination of clarity of expression and academic rigour and ensuring both understanding and critical analysis in an engaging and authoritative style. Encompassing the leading principles, practice and cases, and retaining and developing the detailed references which encourage and assist the reader in further study, this new edition motivates and challenges students and professionals while remaining accessible and engaging. Fully updated to reflect recent case law and treaty developments, this edition contains an expanded treatment of the relationship between international and domestic law, the principles of international humanitarian law, and international criminal law alongside additional material on international economic law.


Malcolm Shaw's engaging and authoritative International Law has become the definitive textbook for instructors and students alike, in this increasingly popular field of academic study. The hallmark writing style provides a stimulating account, motivating students to explore the subject more fully, while maintaining detail and academic rigour. The analysis integrated into the textbook challenges students to develop critical thinking skills. The sixth edition is comprehensively updated throughout and is carefully constructed to reflect current teaching trends and course coverage. The International Court of Justice is now examined in a separate dedicated chapter and there is a new chapter on international criminal law. The detailed references and reliable, consistent commentary which distinguished previous editions remain, making this essential reading for all students of international law whether they be at undergraduate level, postgraduate level or professional lawyers.


SUMMARY OF BOOK


The complexity of international law does not arise solely from the content of its statues but also from the legitimacy of its enforcement. The laws of cities, states, and nations are typically accompanied by a monopoly on how to enforce these laws. Their citizens have agreed to conform to these laws and their legitimacy as cities, states, and nations arises from this agreement. If citizens choose to violate these laws they are punished accordingly. But what entity oversees the punishment when laws between nations are violated? Such laws come under the umbrella of international law, the subject of this book, and their enforcement is only possible if the nations agree to this enforcement. The question of enforcement usually arises in the context of the legitimacy of the use of force or acts of war between nations, and is dealt with in some detail in this book. But there are many other aspects of international law that are discussed, and some readers may want to deal with the sheer size of the book by selecting those areas they are most interested in. A study of international law has become essential in today's world, due in part to the many wars that have broken out, some of them definitely bearing the mark of aggression and "war crimes", but also because of trade and patent disputes, along with the availability of complex financial products that need to operate across borders. The book is heavily referenced, satisfying those sceptical readers who need to delve into even more of the details. The author presents international law as a `separate system' of law, as one that is not merely an adjunct to the laws of two or more countries. There is no legislature, no system of courts, and no institution to establish legal rules. Thus, enforcement becomes an issue, at least if one insists on comparing international law with domestic law, and thus the author raises the question early on as to the status of international law as actually being a legitimate subfield of legal thought. It seems that the concept of coercion and its use is essential to qualify a system of statements as being a legal system. The author addresses these issues early on in the book, and as expected he concludes that one cannot ascertain the character or nature of international law solely with respect to a definition of law based on sanctions. His goal then is to find out why states feel compelled to follow the statutes of international law. If they do not, then he believes no system of international law can exist. It follows immediately that compliance among nations is a necessary condition for international law. As a system of legal thought, international law governs `patterns of conduct' that nations are to comply with. A search for "stability" and "predictability" compels different nations to respect the system of international law. `Reciprocity' and risk aversion may dissuade states from violating these agreements, since there is no international police force to punish violations. The author also traces the history of international law, which as a legal body of thought primarily has its roots in the last four centuries, but whose underpinnings can be traced backed for thousands of years. Very interesting in his treatment of this history is the origin of `natural law' which he traces back to the ancient Greeks and taken up (oddly enough) by the Romans. The doctrine of natural law has a few noted adherents of late, including a few who sit on the United States Supreme Court. But as can easily be ascertained by perusing the author's history, international law is well represented geographically and culturally, a fact that is sometimes forgotten in Western culture. This "Eurocentric" view, however, has been weakened for the last several decades according to the author. Philosophical speculations, theology, and political science, of course, have played a role in the content of international law, and in this regard, the author discusses the impact of positivism. Marxist-Leninist doctrine of course played a huge role especially in the late nineteenth century and all through the twentieth century. Modern developments in the legal theory of international law have been very influenced, as has every other realm of human activity, by mathematics, particularly in the use of game theory and decision theory. The author discusses this briefly, along with "feminist" approaches to legal reasoning. But if international law has not the formal body of courts or presiding legislature, how is one to judge objectively cases or grievances that interested parties classify as being under the umbrella of international law? One needs test cases, precedents, documentation, or "sources" as the author calls them to give some sort of degree of certainty to the legal process. He devotes an entire chapter to this topic and states early on that he believes international law does exist and has sources from which one can extract rules and perform useful analysis. What might be called "grassroots" behaviours and rules or "customs" which at first glance may be dismissed as irrelevant play a very important and dynamic role in international law the author argues, and he gives an extensive discussion on why he thinks this is the case. And interestingly, he characterizes treaties as being a modernized version of creating law through custom. Of course, the United Nations and other institutions have acted as sources, provoking sometimes much scepticism as to their efficacy in this regard. If countries or states had laws on their books that directly conflict with international law or are at odds with it to some noticeable degree then a resolution or compromise must be found. Thus the `municipal laws' of a state must be related to the legal frameworks of international law, and the author devotes an entire chapter of the book to this topic. He outlines briefly the different schools of thought on this relationship before he decides on a "realist" approach to this issue, and he clearly supports the notion that international law cannot be evaded by a state by applying its internal legal rules. He then discusses historical evidence that shed light on the complexity of this assertion, including real court cases from Great Britain and the United States.

If you read it carefully and take notes, will give you a whole new understanding of the world. I've read some other texts that I think are just as good - Brownlie in particular - but this one is thorough and gives you a very broad understanding of international law. There have been a few times where I've thought, "This is why people hate lawyers!" as I tried to get through a sentence or paragraph that was almost circular, but not quite. Hence, the need to read it very carefully. As a student of international policy, this book and the course I'm using it to have given my focus on migration a whole new perspective that will serve me well in the professional world.


Malcolm Shaw's engaging and authoritative International Law has become the definitive textbook for instructors and students alike, in this increasingly popular field of academic study. The hallmark writing style provides a stimulating account, motivating students to explore the subject more fully, while maintaining detail and academic rigour. The analysis integrated into the textbook challenges students to develop critical thinking skills. The sixth edition is comprehensively updated throughout and is carefully constructed to reflect current teaching trends and course coverage. The International Court of Justice is now examined in a separate dedicated chapter and there is a new chapter on international criminal law. The detailed references and reliable, consistent commentary which distinguished previous editions remain, making this essential reading for all students of international law whether they be at the undergraduate level, postgraduate level or professional lawyers.

• The definitive account of international law which provides an authoritative and comprehensive survey of the subject

• Detailed references throughout encourage further reading on the part of the student at either an undergraduate or postgraduate level

• High level of analysis combined with stimulating and engaging writing style: challenges students to approach the text critically and develop analytical skills without overwhelming them.


CONTENTS OF THE BOOK. 1. The nature and development of international law;

2. International law today;

3. Sources;

4. International law and municipal law;

5. The subjects of international law;

6. The international protection of human rights;

7. The regional protection of human rights;

8. Individual criminal responsibility in international law;

9. Recognition;

10. Territory;

11. The law of the sea;

12. Jurisdiction;

13. Immunities from jurisdiction;

14. State responsibility;

15. International environmental law;

16. The law of treaties;

17. State succession;

18. The settlement of disputes by peaceful means;

19. The International Court of Justice;

20. International law and the use of force by states;

21. International humanitarian law;

22. The United Nations;

23. International institutions.Reviews


THE IMPORTANT TOPICS BOOK COVERED

The nature and development of international law


In the long march of mankind from the cave to the computer, a central role has always been played by the idea of law – the idea that order is necessary and chaos inimical to a just and stable existence. Every society, whether it be large or small, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what can not be done, permissible acts, forbidden acts, have all been spelt out within the consciousness of that community. Progress, with its inexplicable leaps and bounds, has always been based upon the group as men and women combine to pursue commonly accepted goals, whether these be hunting animals, growing food or simply making money.

Law is that element which binds the members of the community together in their adherence to recognised values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its regulations. Law consists of a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions. And so it is with what is termed international law, with the important difference that the principal subjects of international law are nation-states, not individual citizens. There are many contrasts between the law within a country (municipal law) and the law that operates outside and between states, international organisations and, in certain cases, individuals.


International law itself is divided into a conflict of laws (or private international law as it is sometimes called) and public international law(usually just termed international law).1 The former deals with those cases, within particular legal systems, in which foreign elements obtrude, raising questions as to the application of foreign law or the role of foreign courts, For example, if two Englishmen make a contract in France to sell goods situated in Paris, an English court would apply French law as regards the validity of that contract. By contrast, public international law is not simply an adjunct of a legal order, but a separate system altogether,3 and it is this field that will be considered in this book.


Public international law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of the many international institutions. It may be universal or general, in which case the stipulated rules bind all the states (or practically all depending upon the nature of the rule), or regional, whereby a group of states linked geographically or ideologically may recognise special rules applying only to them, for example, the practice of diplomatic asylum that has developed to its greatest extent in Latin America.4 The rules of international law must be distinguished from what is called international comity, or practices such assaulting the flags of foreign warships at sea, which are implemented solely through courtesy and are not regarded as legally binding.5 Similarly, the mistake of confusing international law with international morality must be avoided. While they may meet at certain points, the former disciplines a legal one both as regards its content and its form, while the concept of international morality is a branch of ethics. This does not mean, however, that international law can be divorced from its values.

In this chapter and the next, the characteristics of the international legal system and the historical and theoretical background necessary to a proper appreciation of the part to be played by the law in international law will be examined.


Law and politics in the world community


It is the legal quality of international law that is the first question to be posed. Each side to an international dispute will doubtless claim legal justification for its actions and within the international system, there is no independent institution able to determine the issue and give a final decision.

Virtually everybody who starts reading about international law does so having learned or absorbed something about the principal characteristics of ordinary or domestic law. Such identifying marks would include the existence of a recognised body to legislate or create laws, a hierarchy of courts with compulsory jurisdiction to settle disputes over such laws

and an accepted system of enforcing those laws. Without a legislature, judiciary and executive, it would seem that one cannot talk about a legal order. And international law does not fit this model. International law has no legislature. The General Assembly of the United Nations comprising delegates from all the member states exists, but its resolutions are not legally binding save for certain of the organs of the United Nations for certain purposes. There is no system of courts. The international court of justice does exist at TheHague but it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with. Above all, there is no executive or governing entity. The Security Council of theUnited Nations, which was intended to have such a role in a sense, has at times been effectively constrained by the veto power of the five permanent members (USA; USSR, now the Russian Federation; China; France; and the United Kingdom).9 Thus, if there is no identifiable institution either to establish rules or to clarify them or see that those who break them are punished, how can what is called international law be law?

It will, of course, be realised that the basis for this line of argument is the comparison of domestic law with international law, and the assumption of an analogy between the national system and the international order. This is at the heart of all discussions about the nature of international law.


At the turn of the nineteenth century, the English philosopher JohnAustin elaborated a theory of law based upon the notion of a sovereign issuing a command backed by a sanction or punishment. Since international law did not fit within that definition it was relegated to the category of ‘positive morality’. This concept has been criticised for oversimplifying and even confusing the true nature of law within a society and for overemphasising the role of the sanction within the system by linking it to every rule. This is not the place for a comprehensive summary of Austin's theory but the idea of coercion as an integral part of any legal order is a vital one that needs looking at in the context of international law.


The International system

The key to the search lies within the unique attributes of the international system in the sense of the network of relationships existing primarily, if not exclusively, between states recognising certain common principles and ways of doing things.22 While the legal structure within all but the most primitive societies is hierarchical and authority is vertical, the international system is horizontal, consisting of over 190 independent states, all equal in legal theory (in that they all possess the characteristics of sovereignty) and recognising no one in authority over them. The law is above individuals in domestic systems, but international law only exists as between the states. Individuals only have the choice as to whether to obey the law or not. They do not create the law. That is done by specific institutions. In international law, on the other hand, it is the states themselves that create the law and obey or disobey it.23 This, of course, has profound repercussions as regards the sources of law as well as the means for enforcing accepted legal rules. International law, as will be shown in succeeding chapters, is primarily formulated by international agreements, which create rules binding upon the signatories, and customary rules, which are basically state practices recognised by the community at large as laying down patterns of conduct that have to be complied with.


However, it may be argued that since states themselves sign treaties and engage in activities that they may or may not regard as legally obligatory, international law would appear to consist of a series of rules from which states may pick and choose. Contrary to popular belief, states do observe international law, and violations are comparatively rare. However, such violations (like armed attacks and racial oppression) are well publicised and strike at the heart of the system, the creation and preservation of international peace and justice. But just as incidents of murder, robbery and rape do occur within national legal orders without destroying the system as such, so analogously assaults upon international legal rules point up the weaknesses of the system without denigrating their validity or their necessity. Thus, despite the occasional gross violation, the vast majority of the provisions of international law are followed.

CONCLUSION


The book gives a brief knowledge about International laws and its aspects the book covers all the important parts of international laws which are important for a reader the book also provides the developments in international laws its history and its scopes the book also have a chapter of jurisdiction which from my point of view is the most important chapter for a reader. The book also deals with water-related issues which are again an important aspect. All over the book holds a brief chapter on International laws which gives a brief knowledge to the reader the book also has well-explained examples which also clears the doubts of a reader the book has case laws related to the topics which are again helpful for a reader.

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