Updated: Oct 7
Yash Raj Verma(Junior Associate Editor)
The editor wants to give a glance at International Law’s bestselling book authored by Malcolm Shaw who is a Professor of International Law at the University of Leicester, and a practising barrister.
So, the editor would like to maintain a timeline wherein he will provide his reader with significant developments that took place in International Law with the incorporation of various elements as thoroughly explained in Malcolm Shaw’s book.
2. THE REVIEW:
The author in the initial stage has tried to explain the differentiation between law and international laws. The initial development of international law starts from the ancient civilization where it was a mere understanding of the current international law with binding agreements and treaties. International law is formulated in such a way that its subjects are nations rather than individuals. The author in his initial chapters has categorized international laws into two types: the first one being the conflict of laws which is also known as the private international laws and second covering the relations between states known as public international law. The historical development of international law can be traced back to 2100 B.C where a solemn treaty was signed between the rulers of Lagash and Umma, with a further middle age development and renaissance where the church had great powers. Later on, the theory of positivism and naturalism and the communist ideologies, the third world all together occurring in various periods influenced international law and gave it a modern outlook.
There have been occasions of how present-day advancements request a consistent reappraisal of the structure of worldwide law and its principles. The scope of international law today is immense. From the regulation of space expeditions to the question of the division of the ocean floor, and from the protection of human rights to the management of the international financial system, its involvement has spread out from the primary concern with the preservation of peace, to embrace all the interests of contemporary international life. Ascertainment of the law on any given point in domestic legal orders is not usually too difficult a process. In the English legal system, for example, one looks to see whether the matter is covered by an Act of Parliament and, if it is, the law reports are consulted as to how it has been interpreted by the courts. (Shaw, 2003)
Now the editor would like to introduce the concept of state practice & opinion Juris to his readers as discussed in Chapter 3 of the book. It can be explained by giving answers to the following questions. What are state practice and opinion Juris? Does it cover every kind of behaviour initiated by the state, or is it limited to actual, positive actions? (Shaw, 2003)In customary international law, opinio juris is the second element necessary to establish a legally binding custom. When opinio juris exists and is steady with almost all state practice, standard worldwide law develops. Opinio juris implies that states must act in consistence with the standard not simply out of comfort, propensity, fortuitous event, or political practicality, yet rather out of a feeling of legitimate commitment.
I would also like the readers to know a little about legal personality in International Law as discussed by the author in chapter 5, ‘subjects of international law.’ In any legal system, certain entities, whether they be individuals or companies, will be regarded as possessing rights and duties enforceable by law. Thus, an individual may prosecute or be prosecuted for assault and a company can sue for breach of contract. They can do this because the law recognizes them as 'legal persons' possessing the capacity to have and to maintain certain rights and being subject to perform specific duties. (Shaw, 2003)Personality in international law necessitates the consideration of the interrelationship between rights and duties managed under the global framework and ability to implement claims. The international legal order gives states the fundamental rights. “Perhaps the outstanding characteristic of a state is its independence or sovereignty.”(Shaw, 2003)The notion of independence in international law implies several rights and duties: for example, the right of a state to exercise jurisdiction over its territory and permanent population, or the right to engage upon an act of self-defence in certain situations. (Shaw, 2003)
In the subsequent chapter the author has very well dealt with the nature of Human Rights and how to safeguard it. “The preamble to the Universal Declaration of Human Rights adopted on 10 December 1948 emphasizes that 'recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.”(Shaw, 2003)While there is across the board acknowledgement of the significance of human rights in the universal structure, there is impressive disarray concerning their exact nature and job in international law. The topic of what is implied by a 'right' is itself questionable and the subject of serious jurisprudential discussion. The development of international human rights law took place in the 19th century. A significant change happened with the foundation of the League of Nations in 1919. Article 22 of the Covenant of the League set up the framework of the order for people groups in ex-adversary states 'not yet ready to remain without anyone else in the demanding states of the cutting-edge world. “The 1919 peace agreements with Eastern European and Balkan states included provisions relating to the protection of minorities providing essentially for equality of treatment and opportunities for collective activity.”(Shaw, 2003) Part XIII of the Treaty of Versailles provided for the creation of International Labour Organisation, among the purposes of which was the promotion of better standards of working conditions and support for the right of association. (Shaw, 2003)The principle of self-determination was also made a human right. “Article 1 of both International Covenants on Human Rights provides that 'all peoples have the right to self-determination.”(Shaw, 2003)
Although the rights of the people in international law have developed fundamentally in the post-1945 era. Those perpetrating piracy or slave trading have long been regarded as guilty of crimes against international society bearing direct responsibility, for which they may be punished by international tribunals or by any state at all.
The author has also dealt with the concept of territorial sovereignty in chapter 9. International law is based on the concept of the state. The state in its turn lies upon the foundation of sovereignty, which expresses internally the supremacy of the governmental institutions and externally the supremacy of the state as a legal person. Judge Huber noted in the Island of Palmas case12 that: “sovereignty to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular state.”(Shaw, 2003) The author has also tried to explain the doctrine of utipossidetis, which I would like to brief my readers in a much simpler manner. The Doctrine of utipossidetis (as you possess) is a guideline in international law that territory and other property stays with its owner toward the finish of a contention, except if in any case accommodated by settlement; if such an arrangement does exclude conditions in regards to the ownership of property and region taken during the war, at that point the rule of uti possidetis will prevail. But ‘the principle of utipossidetis is not able to resolve all territorial or boundary problems. Where there is a relevant applicable treaty, then this will dispose of the matter completely.’(Shaw, 2003)
The editor has also tried to enlighten his readers about “The Air & Space Laws and the Law of the Sea” in chapters 10 & 11 of his book. There were a variety of theories before the First World War to the status of the airspace above states and regional waters. One view was that the airspace was completely free, another that there was a similarity with the regional ocean, a band of 'regional air' applying to the state followed by a higher free zone, a third methodology was that all the airspace over a state was entirely within its sovereignty, while a fourth view modified the third approach by placing a right of innocent passage through the air space for foreign civil aircraft. Similarly, the seas have historically performed two important functions: first, as a medium of communication; and, secondly, as a vast reservoir of resources, both living and non-living. (Shaw, 2003)Both of these functions have stimulated the development of legal rules. The fundamental principle governing the law of the sea is that ‘the land dominates the sea’ so that the land territorial situation constitutes the starting point for the determination of the maritime rights of a coastal state. (Shaw, 2003)The freedom of the high seas rapidly became a basic principle of international law, but not all the seas were so characterized. It was permissible for a coastal state to appropriate a maritime belt around its coastline as territorial waters, or territorial sea, and treat it as an indivisible part of its domain. (Shaw, 2003) Beyond the territorial sea, other jurisdictional zones have been in the process of advancement.
The territorial sovereignty in air and space has always been a point of dispute all along. And it is important to understand the history of the Treaties and Conventions to understand contemporary relevance. The guidelines to govern the disputes arising out of such conflicts have been put forward in the Treaties and Agreements which were signed and it holds importance to date in air and space administration.
And as other jurisdictional zones were in the process of advancement as aforementioned, the editor would like to explain a little about jurisdiction as discussed in detail by the author in the book of International Law. Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its territory. It may be exercised through legislative, executive, or judicial actions. Jurisdiction concerns the power of the state under international law to regulate or otherwise impact upon people, property, and circumstances and reflects the basic principles of state sovereignty, equality of states and non-interference in domestic affairs. (Shaw, 2003)The author has very well tried to lay down the categorization of jurisdiction mainly into 3 aspects i.e., Legislative Jurisdiction, Executive Jurisdiction & the Judicial Jurisdiction. Legislative Jurisdiction talks about the Supremacy of the Constitution which cannot be denied but challenged. The capacity of the state to act within the borders of another state is defined by Executive Jurisdiction. While the Judicial Jurisdiction mainly talks about the intensity of the courts of a specific nation to attempt cases in which foreign factor is present. The digest of findings done by the author also tells about the state's responsibility. State responsibility is a fundamental principle of international law, emerging out of the idea of the international legal framework and the regulations of state power and balance of states. It gives that at whatever point one state submits a universally unlawful act against another state, the international obligation is set up between the two.
The author in chapter 15 has discussed the International environment law. I would like to brief the readers about the same by firstly discussing the problems causing environmental pollutions. Problems such as atmospheric pollution, marine pollution, global warming and ozone depletion, the dangers of nuclear and other extra-hazardous substances and threatened wildlife species have an international dimension in two aspects. First, the pollution which is originated from a state has a major impact on other states. Like for example as we all know about acid rain. The harmful gases emitted by the factories and industries rise and react with various other gases present in the atmosphere and thus form acids that travel thousands of miles thus resulting in acid rains. And secondly, as it is now apparent that states cannot act individually to resolve the problem of pollution. So, there should be some sort of cooperation between the polluting and polluted states. The question of ‘how one defines the term 'pollution' has been addressed in several international instruments.’(Shaw, 2003)UNFCCC Framework Convention on Climate Change (1992), Kyoto Protocol (1997), Paris Agreement (2015), Vienna Convention for the Protection of the Ozone Layer (1985) are some of the important Treaties & Conventions on Environment Protection who have laid down the guidelines for the member nations which are a signatory of such agreements and the signatories have to adhere with the guidelines mentioned.
In chapter 16 the author has discussed the Law of Treaties. A treaty is an agreement between parties on the international scene. Although treaties may be concluded, or made, between states and international organizations, they are primarily concerned with relations between states. (Shaw, 2003) The concept of treaties and agreements is discussed very briefly while discussing air and space law. The idea of the treaty and how it works has become the fate of foremost significance to the development of international law. Once a treaty has been drafted and agreed by authorized representatives, several stages are then necessary before it becomes a binding legal obligation upon the parties involved. (Shaw, 2003)
The consent of the state parties to the treaty in question is a vital factor, since states may (in the absence of a rule being also one of customary law) be bound only by their consent. (Shaw, 2003) The author in his book has described various consent needed by the parties to get into such treaties. The first being the consent by signature wherein the states getting into such treaties or agreements have to sign so that the treaty has a legal effect on the states. Then comes the consent by ratification. It was originally devised so that the competent authorities do not misuse their powers. Originally it holds sovereign functions but in today's modern times it has been subject to the Constitutional control. Then comes the consent by accession wherein a state becomes a party to the agreement which it has not signed due to the lapse of the deadline.
In chapter 19 the author has discussed the ICJ (International Court of Justice). The International Court of Justice which has its seat at Hague, Netherland is the Principal Judicial Organ of the United Nation. The ICJ is composed of 15 Judges which are appointed by the office of the United Nations General Assembly and The United Nations Security Council. The procedure for the appointment of judges is interesting in that it combines both legal and political elements while seeking to exclude as far as possible the influence of national states over them. (Shaw, 2003)ICJ was formed after II World War. Before that after the League of Nations was passes Permanent Court of International Justice (PCIJ) was also propose which got suspended during the II World War and thus International Court of Justice (ICJ) laid the foundation.
After the end of the II World War, The United Nations system was adopted which is dealt with in detail in chapter 22 of the book by the author. The United Nations as an international organization was founded in 1945 after the end of the II World War. 51 countries came together to maintain social order and international peace and security. The United Nations comprises of 6 main organs. They are the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the Secretariat, and the International Court of Justice. The first five organs are headquartered in New York, USA while the ICJ is headquartered at Hague, Netherland. The major aims of the United Nations are to maintain international peace and security, to develop friendly relations, to achieve international cooperation, and to be the centre for harmonizing actions of the nations to achieve common goals.
The United Nations has always been at the centre of everything happening around the world. The Charter of the United Nations has laid down the need to cooperate between sovereign nations. Multilateralism is the most important thing to consider today. The branches of the UN have been working tirelessly to maintain peace and prosperity throughout. The functioning of the UN bodies has been noted. The need to have international institutes on universal grounds has always been important to the global village. But we have always struggled to maintain the complex sophisticated functioning of these institutions given the conflicts with sovereign states. But this has helped in creating various organs to cooperate and to create a level playing field in all aspects. These institutions have always played an important role in creating strong economies, academic collaborations, and maintaining diplomatic relations in all areas. As these organizations possess international legal recognition and their actions are surely going to have repercussions all over.
So, at last, I would like to conclude on a positive note that the author has very well tried to cover the elements of International Law. And starting from the state practice and covering major other aspects of the legal personality to territorial sovereignty with providing a glimpse of air, space, and the law of the sea the author has very well dealt with such aspects. The author very intelligently has discussed the divisions of the legislative, executive, and judicial jurisdiction. Giving an idea of laws governing the treaties and agreements with states being one of the parties and its connection with the United Nations was a good take on the part of the author. In my view, one reading this book will be able to develop a mind map of the whole international law governing the nations in today’s context. And I must say that the author has a whimsical sense of humour while dealing with various concepts of International Law.
Shaw, Malcol. 2003.International Law. New York : Press Syndicate Of The University Of Cambridge, 2003. p. 816. ISBN 0521531837.
Shaw, Malcolm. 2003.International Law. New York : Press Syndicate Of The University oOf Cambridge, 2003. p. 65. ISBN 0521531837.
—. 2003.International Law. New York : Press Syndicate Of The University Of Cambridge, 2003. p. 65. ISBN 0521531837.
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Legit Originals, Volume 1, Issue 1 (September 2020)