International Law by Shaw, Malcolm N. -- Read -- Imperial Library of Trantor

Index

Title Page Copyright Page Dedication Contents Preface page Table of cases Table of treaties and selected other international instruments List of abbreviations 1 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

2 International law today

The expanding legal scope of international concern Modern theories and interpretations Positive Law and Natural Law New approaches The fragmentation of international law? Conclusion

3 Sources

Custom Introduction The 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

4 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

5 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 administration of territories Taiwan The ‘Turkish Republic of Northern Cyprus’ (TRNC) The Saharan Arab Democratic Republic Various secessionist claimants 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 organisations The acquisition, nature and consequences of legal personality – some conclusions

6 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 or local remedies rule Priorities of rights Customary international law and human rights Evolving principles 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 (1946–2006) The Human Rights Council 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 The Committee on the Rights of Persons with Disabilities The Committee on Enforced Disappearances Conclusions The specialised agencies The International Labour Organisation The United Nations Educational, Scientific and Cultural Organisation

7 The regional protection of human rights

Europe 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 Inter-American Convention on Human Rights The Banjul Charter on Human and Peoples’ Rights The Arab Charter on Human Rights

8 Individual criminal responsibility ininternational law

International criminal courts and tribunals The International Criminal Tribunal for the Former Yugoslavia (ICTY) The International Criminal Tribunal for Rwanda (ICTR) The International Criminal Court (ICC) Hybrid courts and other internationalised domestic courts and tribunals The Special Court for Sierra Leone The Extraordinary Chambers of Cambodia Kosovo Regulation 64 panels East Timor Special Panels for Serious Crimes The Bosnia War Crimes Chamber The Special Tribunal for Lebanon The Iraqi High Tribunal The Serbian War Crimes Chamber International crimes Genocide War crimes Crimes against humanity Aggression Conclusion – fair trial provisions

9 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

10 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 (effectivités) 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 The law of outer space The definition and delimitation of outer space The regime of outer space Telecommunications

11 The law of the sea

The territorial sea Internal waters Baselines Bays Islands Archipelagic states The width of the territorial sea 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 Conclusion 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 and agreements Pollution Straddling stocks The international seabed Introduction The 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 The International Tribunal for the Law of the Sea

12 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 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

13 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 proof Conclusion Diplomatic 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

14 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

15 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

16 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 Dispute settlement Treaties between states and international organisations

17 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

18 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 The African Union (Organisation of African Unity) The Organisation of American States The Arab League Europe International organisations and facilities of limited competence Binding methods of dispute settlement Arbitration

19 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 The advisory jurisdiction of the Court The role of the Court Proliferation of courts and tribunals

20 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 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

21 International humanitarian law

Development The scope of protection under international humanitarian law The wounded and sick Prisoners of war Protection of civilians and occupation The conduct of hostilities Armed conflicts: international and internal Non-international armed conflict Enforcement of humanitarian law Conclusion

22 The United Nations

The UN System The Security Council The General Assembly Other principal organs 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 missions Conclusion The collective security system The Security Council Determination of the situation Chapter VII measures The use of force in non-enforcement situations 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

23 International institutions

Introduction A brief survey of international institutions Institutions of a universal character Regional institutions Europe The American continent The Arab League Africa 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 immunities Dissolution Succession

Some useful international law websites Index

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