SHAW SUMMER NOTES

1. The nature and development of international law

p. 4 States may use force in self-defence, if the object of aggression, and may take
action in response to the illegal acts of other states. In such cases the states themselves
decide whether to take action and, if so, the extent of their measures, and there is no
supreme body to rule on their legality or otherwise, in the absence of an examination
by the International Court of Justice, acceptable to both parties, although international
law does lay down relevant rules.

p. 6 But what is to stop a state from simply ignoring international law when
proceeding upon its chosen policy? There is the element of reciprocity at work and a
powerful weapon it can be. States quite often do not pursue one particular course of
action which might bring them short-term gains, because it could disrupt the mesh of
reciprocal tolerance which could very well bring long-term disadvantages.

p.7-8 Having come to the conclusion that states do observe international law and
will usually only violate it on an issue regarded as vital to their interests, the question
arises as to the basis of this sense of obligation. The principle that agreements are
binding (pacta sunt servanda) upon which all treaty law must be based cannot itself be
based upon consent. One current approach to this problem is to refer to the doctrine of
consensus: the change of emphasis that is beginning to take place from exclusive
concentration upon the nation-state to a consideration of the developing forms of
international co-operation.

2. International Law Today

p. 33 International organisations have now been accepted as possessing rights and

duties of their own and a distinctive legal personality. The International Court of

Justice in 1949 delivered an Advisory Opinion in which it stated that the United
Nations was a subject of international law and could enforce its rights by bringing
international claims (Reparation for Injuries Suffered in the Service of the United Nations).

p. 33 Regional organisations have added to the developing sophistication of

international law by the insertion of regionalinternational law sub-systems within
the universal framework and the consequent evolution of rules that bind only member
states

p. 42 The behavioural approach is an active all-embracing approach, seeing

international law as a dynamic system operating within a particular type of world

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order.

p. 42 It has been emphasised that the law is a constantly evolving process of

decision-making and the way that it evolves will depend on the knowledge and insight
of the decision-maker. International law is the whole process of authoritative decision-
making involving crucially the concepts of authority and control; It is a culture in the
broadest sense in that it constitutes a method of communicating claims, counter-
claims, expectations and anticipations as well as providing a framework for assessing
and prioritising such demands (p. 48).

p. 46 - 47 Fragmentation: Emergence of specialised and relatively autonomous

spheres of social action and structure. Fear that the rise of specialised rules and
mechanisms that have no clear authority relationship might lead to conflicts between
local systems and, at the least, inconsistency in the interpretation and development of
international law [e.g. the principle that special law (lex specialis) derogates from
general law (lex generalis), so that the more detailed and specific rule will have priority].
The International Law Commissions Report on Fragmentation (a) the emergence of
special treaty-regimes has not seriously undermined legal security, predictability or the
equality of legal subjects (b) increasing attention will have to be given to the collision of norms
and regimes and the rules, methods and techniques for dealing with such collisions.

3. Sources of International Law

p. 50 Source: one means those provisions operating within the legal system on a
technical level, and such ultimate sources as reason or morality are excluded, as are
more functional sources such as libraries and journals.

p. 50 All member states of the United Nations are ipso facto parties to the Statute by
virtue of article 93 of the United Nations Charter (states that are non-members of the
UN can specifically become parties to the Statute of the Court: Switzerland was the
most obvious example of this until it joined the UN in 2002).

p. 51 Formal and material sources.The former, it is claimed, confer upon the rules an
obligatory character, while the latter comprise the actual content of the rules.

p. 52 It is possible to point to something called instant customary law in certain

circumstances that can prescribe valid rules without having to undergo a long period of
gestation.

p. 53 Opinio iuris sive necessitatis: This is the psychological factor, the belief by a
state that behaved in a certain way that it was under a legal obligation to act that way.

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p. 54 The basic rule as regards continuity and repetition was laid down in the Asylum
case decided by the ICJ in 1950. The Court declared that a customary rule must be in
accordance with a constant and uniform usage practised by the States in question.

p. 55 The ICJ emphasised its view that some degree of uniformity amongst state
practices was essential before a custom could come into existence in the Anglo-
Norwegian Fisheries case.

p. 56 In the North Sea Continental Shelf cases the ICJ remarked that state practice,
including that of states whose interests are specially affected, had to be both
extensive and virtually uniform in the sense of the provision invoked. However, the
Court emphasised in the Nicaragua v. United States case that in order to deduce the existence
of customary rules, the Court deems it sufficient that the conduct of states should, in
general, be consistent with such rules, and that instances of state conduct inconsistent
with a given rule should generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule.

p. 59 The International Court has also noted that evidence of the existence of rules
and principles may be found in resolutions adopted by the General Assembly and the
Security Council of the United Nations (Construction of a Wall advisory opinion, ICJ
Reports, 2004, pp. 136, 171 + Nuclear Weapons Advisory Opinion).

p. 62 An extreme expression of this approach is to infer or deduce the opinio juris

from the material acts. Judge Tanaka pointed that no other way than to ascertain the
existence of opinio juris from the fact of the external existence of a certain custom and
its necessity felt in the international community, rather than to seek evidence as to the
subjective motives for each example of State practice (North Sea Continental Shelf).

p. 63 Customary law is thus established by virtue of a pattern of claim, absence of

protest by states particularly interested in the matter at hand and acquiescence by
other states. Together with related notions such as recognition, admissions and
estoppel, such conduct or abstinence from conduct forms part of a complex framework
within which legal principles are created and deemed applicable to states.

p. 63 Acquiescence as equivalent to tacit recognition manifested by unilateral

conduct which the other party may interpret as consent and as founded upon the
principles of good faith and equity (Gulf of Maine case).

p. 68 Parties that do not sign and ratify the particular treaty in question are not
bound by its terms. This is a general rule and was illustrated in the North Sea Continental
Shelf cases - However, where treaties reflect customary law then non-parties are bound,

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not because it is a treaty provision but because it reaffirms a rule or rules of customary
international law.

p. 68 The possibility that a provision in a treaty may constitute the basis of a rule
which, when coupled with the opinio juris, can lead to the creation of a binding custom
governing all states, not just those party to the original treaty, was considered by the
International Court of Justice in the North Sea Continental Shelf cases and regarded as
one of the recognised methods of formulating new rules of customary international
law.

p. 68 Nicaragua Case: It was emphasised that even if a treaty norm and a customary
norm relevant to the present dispute were to have exactly the same content, this would
not be a reason for the Court to hold that the incorporation of the customary norm into
treaty law must deprive the customary norm of its applicability as distinct from the
treaty norm.The Court concluded that it will therefore be clear that customary
international law continues to exist and to apply separately from international treaty
law, even where the two categories of law have an identical content.

p. 70 General principles of law concept is intended to refer. Some writers regard it as

an affirmation of Natural Law concepts, which are deemed to underlie the system of
international law and constitute the method for testing the validity of the positive (i.e.
man-made) rules.Other writers, particularly positivists, treat it as a sub-heading under
treaty and customary law and incapable of adding anything new to international law
unless it reflects the consent of states.

p. 74 In the Barcelona Traction case the Court relied heavily on municipal law because
it had to do with a limited private company. In our case, the exception of Article VI
OST may not allow such a reliance, as the activities of the private company constitute
breaches of international law, made by Perovsk.

p. 74 However, international law did not refer to the municipal law of a particular
state, but rather to the rules generally accepted by municipal legal systems which, in
this case, recognise the idea of the limited company.

p. 78 By virtue of article 59 of the Statute of the International Court of Justice the

decisions of the Court have no binding force except as between the parties and in
respect of the case under consideration. However, the Court has striven to follow its
previous judgments.

p. 78 ICJ created law: One of the most outstanding instances of this occurred in the
Anglo-Norwegian Fisheries case,with its statement of the criteria for the recognition of

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baselines from which to measure the territorial sea, which was later enshrined in the
1958 Geneva Convention on the Territorial Sea and Contiguous Zone. Other examples
include the Reparation case,which recognised the legal personality of international
institutions in certain cases, the Genocide case,which dealt with reservations to treaties,
the Nottebohm case,which considered the role and characteristics of nationality and the
range of cases concerning maritime delimitation.

p. 82 Declarations such as that on the Legal Principles Governing Activities of States

in the Exploration and Use of Outer Space (1963) can also be regarded as examples of
state practices which are leading to, or have led to, a binding rule of customary law.

4. International and Municipal Law

p. 95 The general rule with regard to the position of municipal law within the
international sphere is that a state which has broken a stipulation of international law
cannot justify itself by referring to its domestic legal situation (Art. 3 ARSIWA & Art.
27 VCLT - Applicability of the Obligation to Arbitrate Case)

p. 96 Indeed, there have been instances, such as the Serbian Loans case of 1929,when
the crucial issues turned upon the interpretation of internal law, and the rules of
international law in a strict sense were not at issue.

5. Subjects of International Law

p. 143 One of the distinguishing characteristics of contemporary international law

has been the wide range of participants. These include states, international
organisations, regional organisations, non-governmental organisations, public
companies, private companies and individuals.

p. 144 Article 1 of the Montevideo Convention on Rights and Duties of States, 1933
lays down the most widely accepted formulation of the criteria of statehood in
international law. It notes that the state as an international person should possess the
following qualifications: (a) a permanent population; (b) a defined territory; (c)
government; and (d) capacity to enter into relations with other states.

p. 151 On 22 May 1990, North and South Yemen united, or merged, to form one
state, the Republic of Yemen.

p. 153 Sovereignty / independence: This was defined in the Draft Declaration on the
Rights and Duties of States prepared in 1949 by the International Law Commission as
the capacity of a state to provide for its own well-being and development free from the

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domination of other states, providing it does not impair or violate their legitimate
rights.

p. 155 As the International Court of Justice pointed out in the Corfu Channel case in
1949, between independent states, respect for territorial sovereignty is an essential
foundation of international relations.

p. 156 This was recognised in the 1970 Declaration on Principles of International

Law. This provides that: All states enjoy sovereign equality. They have equal rights and
duties and are equal members of the international community, notwithstanding
differences of an economic, social, political or other nature. In particular, sovereign
equality includes the following elements: (a) States are juridically equal; (b) Each state
enjoys the rights inherent in full sovereignty; (c) Each state has the duty to respect the
personality of other states; (d) The territorial integrity and political independence of
the state are inviolable; (e) Each state has the right freely to choose and develop its
political,social, economic and cultural systems; (f) Each state has the duty to comply
fully and in good faith with its international obligations and to live in peace with other
states.

p. 156 Peaceful Co-existence: General Assembly resolutions 1236 (XII) and 1301
(XIII).

p. 162 The International Court in the Immunity from Legal Process of a Special Rapporteur
case stated that it was a well-established rule of customary international law that the
conduct of any organ of a State must be regarded as an act of that State and this
applies to component units of a federal state.

p. 182 However, on 6 July 2011, the UN Human Rights Council adopted the
Guiding Principles on Business and Human Rights: Implementing the United Nations
Protect, Respect and Remedy Framework.These Principles do not create
international legal obligations as such. They emphasise the duty of states to respect,
protect and fulfil the human rights of individuals and in particular to protect against
human rights abuse within their territory and/or jurisdiction by third parties, including
business enterprises.

Environmental harms were not considered to be covered by the Act, until the 2006
decision of the Ninth Circuit of the US Court Appeal in Sarei v. Rio Tinto Plc. In that
decision, the court allowed present and former residents of Papua New Guinea to bring
an action against Rio Tinto, a British headquartered multinational mining corporation,
alleging that the latter had dumped mining waste which eventually contaminated
international waters, contrary to the United Nations Convention on the Law of the Sea
(UNCLOS).

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p. 184 Resolution 1514 (XV), the Declaration on the Granting of Independence to
Colonial Countries and Peoples, adopted in 1960 by eighty-nine votes to none, with
nine abstentions, stressed that: all peoples have the right to self-determination; by
virtue of that right they freely determine their political status and freely pursue their
economic, social and cultural development. The International Court (Western Sahara
case) has specifically referred to the Colonial Declaration as an important stage in the
development of international law regarding non-self-governing territories and as the
basis for the process of decolonisation.

p. 185 The 1970 Declaration on Principles of International Law Concerning Friendly

Relations can be regarded as constituting an authoritative interpretation of the seven
Charter provisions it expounds.

p. 186 In the East Timor (Portugal v. Australia) case, the Court declared that Portugals
assertion that the right of peoples to self-determination, as it evolved from the Charter
and from United Nations practice, has an erga omnes character, is irreproachable. The
Court emphasised that the right of peoples to self-determination was one of the
essential principles of contemporary international law. The Supreme Court of Canada
in Reference Re Secession of Quebec held that the principle of self-determination has
acquired a status beyond convention and is considered a general principle of
international law.

p. 188 The link between the state and the individual for international law purposes
has historically been the concept of nationality

p. 189 This proposition was reiterated in the Danzig Railway Officials case by the
Permanent Court of International Justice, which emphasised that under international
law treaties did not as such create direct rights and obligations for private individuals,
although particular treaties could provide for the adoption of individual rights and
obligations enforceable by the national courts where this was the intention of the
contracting parties.

p. 189 Since then a wide range of other treaties have provided for individuals to have
rights directly and have enabled individuals to have direct access to international courts
and tribunals. One may mention as examples the European Convention on Human
Rights, 1950; the European Communities treaties, 1957; the Inter-American
Convention on Human Rights, 1969; the Optional Protocol to the International
Covenant on Civil and Political Rights, 1966; the International Convention for the
Elimination of All Forms of Racial Discrimination, 1965 and the Convention on the
Settlement of Investment Disputes, 1965.

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p. 190 The International Court clearly recognised the multiplicity of models of
personality in stressing that the subjects of law in any legal system are not necessarily
identical in their nature or in the extent of their rights

p. 191 Reparation case that: fifty states, representing the vast majority of the
members of the international community, have the power, in conformity with
international law, to bring into being an entity possessing objective international
personality and not merely personality recognised by them alone, together with
capacity to bring international claims (OBJECTIVE PERSONALITY)

p. 191 Qualified Personality: Any legal person may accept that another entity
possesses personality in relation to itself and that determination will operate only in
personam.

p. 191 Non-sovereign persons, including non-governmental organisations and

individuals, would be derived subjects possessing only such international powers as
conferred exceptionally upon them by the necessary subjects of international law.

p. 191 Recognition, acquiescence and estoppel are important principles in the

context of international personality, not only with regard to states and international
organisations but throughout the range of subjects.

p. 192 Procedural capacity with regard to enforcement is important but not

essential,but in the case of non-individual entities the claimant will have to be in such
a position that it possesses, in regard to its members, rights which it is entitled to ask
them to respect.This, noted the International Court, expressed the essential test
where a group, whether composed of states, of tribes or of individuals, is claimed to be
a legal entity distinct from its members (Western Sahara case).

CHAPTER 9: RECOGNITION

p. 321 recognition constitutes participation in the international legal process

generally while also being important within the context of bilateral relations and, of
course, domestically.

p. 323 For the constitutive theorist, the heart of the matter is that fundamentally an
unrecognised state can have no rights or obligations in international law. The
opposite stance is adopted by the declaratory approach that emphasises the factual
situation and minimises the power of states to confer legal personality.

p. 338 Non-recognition: a factual situation will not be recognised because of strong

reservations as to the morality or legality of the actions that have been adopted in order

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to bring about the factual situation. It is a doctrine that has also been reinforced by the
principle that legal rights cannot derive from an illegal situation (ex injuria jus non oritur)

VCLT commentary Art. 31 Quite a few treaties provide that disputes about their
interpretation or application may be referred to settlement before an international
court or tribunal. Some treaties establish a permanent body other than a tribunal with
the (explicit or implicit) power to interpret the treaty. In its decision in the Diallo case
the ICJ explicitly acknowledged the weight which the jurisprudence of independent
treaty bodies carries with regard to the interpretation of the treaties under which they
are established.

VCLT commentary Art. 31 Even if a separate treaty organ is set up with the power to
interpret the treaty, it is merely the parties to a treaty themselves which can give an
authoritative or authentic interpretation to the treaty. As the PCIJ pointed out in its
Jaworzina opinion.

VCLT commentary Art. 31 The principle of contemporaneity, according to which the

terms of a treaty are to be interpreted according to the meaning which they possessed,
or which would have been attributed to them, and in the light of current linguistic
usage, at the time when the treaty was originally concluded. Opposed to that is the
dynamic approach, very often also labelled evolutionary interpretation, which seeks to
establish the meaning of a treaty at the time of its interpretation.

VCLT commentary Art. 31 One of the traditional formulae of treaty interpretation is the
principle in dubio mitius, also called the principle of restrictive interpretation,
according to which treaties are to be interpreted in favour of State sovereignty: where a
treatys provisions are open to doubt, the interpretation that entails the lesser
obligation for sovereign States should be selected, and if an obligation is not clearly
expressed, its less onerous extent is to be preferred (Wimbledon and Free Zones cases).

VCLT commentary Art. 31 Another unwritten topos of interpretation that figures rather
prominently in international practice is the rule of effectiveness, in view of its Latin
origin also phrased as ut res magis valeat quam pereat. It says that treaty provisions are to
be interpreted so as to give them their fullest weight and effect and in such a way that a
reason and a meaning can be attributed to every part of the text (Fisheries Jurisdiction
(1998), an important role in the law of treaties).

VCLT commentary Art. 31 The relevance of the title of a treaty is demonstrated, for
example, by the ICJs 46 reasoning in the Oil Platforms case

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Judge Weeramantry has also expressed a similar view by holding that it would not be
favourable to the progressive development of international law to assert that a State
could do whatever it pleased as long as it had not bound itself to the contrary (Legality
of the threat of Nuclear Weapons advisory opinion).

According to Judge Lachs, this ban refers in particular to physical occurrences in outer
space which modern science allows to be harnessed such as, but not exclusively, gases
in outer space. (The Law Of Outer Space: An Experience In Contemporary Law-Making, 1972)

CHAPTER 22: THE UN

p. 878 The Council has the power to establish subsidiary bodies under article 29 of
the Charter and has currently three permanent committees, being a Committee of
Experts on Rules of Procedure, a Committee on Admission of New Members and a
Committee on Council meeting away from Headquarters.

p. 879 Amendments to the UN Charter require the ratification of all the permanent
members of the Council (as well as adoption by a two-thirds vote of the Assembly and
ratification by two-thirds of UN members).The judges of the International Court of
Justice are elected by the Assembly and Council.

p. 880 Membership of the UN, as provided by article 4 of the Charter, is open to: all
other peace-loving states which accept the obligations contained in the present Charter
and, in the judgment of the organisation, are able and willing to carry out these
obligations, and is effected by a decision of the General Assembly upon the
recommendation of the Security Council.

p. 880 Membership of the UN may be suspended under article 5 of the Charter by

the General Assembly, upon the recommendation of the Security Council, where the
member state concerned is the object of preventive or enforcement action by the
Security Council.

p. 880 Article 6 allows for expulsion of a member by the General Assembly, upon the
recommendation of the Security Council, where the member state has persistently
violated the Principles contained in the Charter.

p. 882 The Trusteeship Council was established in order to supervise the trust
territories created after the end of the Second World War. With the independence of
Palau,the last remaining trust territory, on 1 October 1994, the Council suspended
operation on 1 November that year.

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p. 882 The Secretariat of the UN consists of the Secretary-General and his staff, and
constitutes virtually an international civil service. The staff are appointed by article 101
upon the basis of efficiency, competence and integrity, due regard being paid to the
importance of recruiting the staff on as wide a geographical basis as possible. All
member states have undertaken, under article 100, to respect the exclusively
international character of the responsibilities the Secretary-General and his staff, who
are neither to seek nor receive instructions from any other authority but the UN
organisation itself. Under article 97, the Secretary-General is appointed by the General
Assembly upon the unanimous recommendation of the Security Council and
constitutes the chief administrative officer of the UN. The essence of the Secretary-
Generals authority is contained in article 99 of the Charter.

p. 886 By article 24, the members of the UN conferred on the Security Council
primary responsibility for the maintenance of international peace and security, and by
article 25 agreed to accept and carry out the decisions of the Security Council. (Namibia
case.

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