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MALCOLM SHAW

1. INTERNATIONAL LAW AND MUNICIPAL LAW


 States are sovereign and equal, however with the development of communication,
total sovereignty has now become a blurred notion.
 With globalisation, penetration of economics and politics has resulted in actions in
one area having repercussions in another.

1.1.THEORIES OF THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL


LAW

1.1.1 DUALISM
 Dualism derives from the positivist theory of law and has been
recognised by thinkers like Triepel and Strupp who argue that in the
international system, state is sovereign and supreme and there IL and
ML exist separately and cannot overrule or impact each other.
 For dualist thinkers, municipal laws that allow the application of
international law is only a an action that shows the supremacy of the
state in the IL regime

1.1.2 MONIST THEORIES


 The monist theory of law is in direct opposition to the dualist theory of
law. They themselves have two different strands; one that is identified
by Lauterpacht (Naturalistic Tradition) -ethical disposition with a
concern for HR and the other is Kelsonian-that all laws at the end
derive from one formal law.

1.1.3 PLURALISM
 It is an outdated concept that says that no municipal law trumps
another, but rather different MLs come together to form the IL system.
They exist within their own specific legal orders
1.2 HOW DO MUNICIPAL LAWS AND IL INTERACT?

1.2.1 THE DOCTRINE OF TRANSFORMATION AND INCORPORATION


 A specific act must be done by the nation so as to ensure that IL
obligations that it signs up for are fulfilled.
 Incorporation does not require any specific act to do so, but becomes
part of the municipal law on ratifying, acceding or in any manner by
which the state accepts an international obligation under a legal
instrument of an international organisation or body.
 Eg; India usually follows the doctrine of transformation which can be
seen in the Constitution. However courts have also applied
international law principles like Vishakha.
 Gramophone Co v Birendra Pandey- States are to lead municipal law
in a manner so as to not violate IL
 Novartis Case: Unless domestic law is in place, IL will not be given
effect to and if IL violates domestic law, then domestic law prevails.
 White Industries: part 1 of A&C Act not applicable to foreign awards
 Article 27 of the VCLT-States cannot resort to the excuse that the IL
violates their municipal law and hence avoid the obligation.
 UK however has moved from transformation to incorporation
 Britain:
 1. Buvot v. Barbuit - States that CIL forms part of British law -
referred to in Triquet v. Bath. (Incorporation approach)
 2. R v. Keyn - While an IL rule providing jurisdiction over a 3 nautical
mile radius exists in IL, the same cannot be applied in Britain without a
legislation on the issue. (Shift to Transformative)
 3. West Rand Gold Mining Co. - law which has received the common
consent of civilized nations must also have received the consent of the
UK. BUT, we need evidence of such acceptance having been given.
 4. Chung Chi Chueng v. R - IL has no validity insofar as as its
principles are not accepted and adopted by domestic law.
 These relate only to CIL. For treaties, it is a wholly different matter.
The Ponsonby rule may be applicable. I'm not looking into these cases.
 USA:
 1. Panquete Habana - IL is part of our law and must be ascertained and
administered by courts which have jurisdiction.
 2. Boos Barry - it is correct that the US has a general interest in
complying with IL rules. However, these must be subject to the
Constitution.
 The approach now largely seems to be that statutes and precedent will
be taken over IL. However, with respect to humanitarian cases (Pena
Irala) the possibility of application of CIL still exists.
 The US position on treaty is based on the nature of the treaty - whether
it's self executing or not as well whether it is an executive agreement.
This is explained on pages 161-163.
 Self executing treaties usually occur when the state signs and ratifies a
treaty which corresponds to principles that are already enshrined
within the ML of the state. (Eg: a number of UNCITRAL Model Laws
regarding commercial matters)

2. SUBJECTS OF INTERNATIONAL LAW


 States are the most important subjects of international law. Like most
jurisdcitions, subjects of the law have certain rights and duties and obligations
that they owe to other subjects of the same system. In fact, the positivist
doctrine focusses solely on states as the primary and singular subjects of
international law. A number of issues need to be considered while dealing
with the issue of states as subjects.
 Considering that states themselves are legal fictions created to protect the
group, how is a state created and recognised? These considerations will be
taken up in the following sections.
 One outstanding, inalienable right of a state is the fact that they are sovereign
in themselves and are independent and free from control of other states.
(Lotus principle can be read In here, saying that restrictions cannot be
presumed and in furtherance of this independence that all states enjoy, that
which has not been expressly prohibited can be pursued.)
 Corporations:
 Barcelona Traction:
 Individuals-Human rights regime, ICCPR, ICESCR, Law applied during
armed conflict to civilians, also deals with belligerent groups and PoWs.

3. RECOGNITION AND RELATED CONCEPTS


 Political life is dynamic and over years, new countries are formed, old ones
are lost and new governments are formed and overthrown world over. The
method of replacement of governments to may or may not be legal or
legitimiate.
 Recognition is a state specific activity, with each state deciding whether or not
it wishes to recognise a newly created, or whether it wishes to recognise the
new government in a state that already exists.
 No doubt this creates certain consequences in the international law system.
 Recognition can be of either the state, the state may be newly formed, or there
may be recognition of the state after a number of years, or may be recognition
of a new government. The latter occurs when the state is already in existence,
or can happen along with the recognition of a newly created states.

3.1 THEORIES OF RECOGNITION OF STATES

3.1.1 DECLARATORY THEORY


 The declaratory theory states that recognition is merely an acknowledgement
of already existing facts.
 The new state does not acquire a legal personality, or come into existence
because of the consent of others, but by virtue of a certain fact situation and is
constituted by its own efforts and does not have to wait for the procedure of
recognition by others.
 Based on the traditional positivist thought of state supremacy.

3.1.2 CONSTITUTIVE THEORY


 A state is recognised as one by the act of other states. It is this act that endows
it with a legal personality and not the process through which it acquired
independence.
 New states are thus full sujets of IL as a result of the will of others.
3.1.2.1 STATE PRACTICE
 New government is usually insecure and seeks approval or vliadation from
states.
 Furthermore, an unrecognised state cannot usually claim the rights of
recognised states in the other countries’ municipal courts.

3.1.3 LAUTERPACHT’S THEORY


 Once the conditions for statehood have been complied with, a duty of
recognition exists. Why? Since there is no central authority, states have to
perform this duty of deciding
 No state practice

Recognition tends to be a highly political process.

3.2 EXAMPLES OF STATE RECOGNITION IN CURRENT AFFAIRS AND STATE


PRACTICE OF THE US AND UK

3.2.1 USA
 It is not for a state to recognise another as a state, it is a matter
of judgement that each state must make. While maiing this
judgement, the USA refers to certain facts which include:
a. Effective control over a clearly defined territory and
population
b. Organised governmental administration of the territory over
which effective control stands.
c. Ability to enter into foreign relations and fulfil international
obligations
d. May also consider whether other states too have recognised
the state and what is the standing in the international
community.
e. THE UK looks at other factors too which have basically
come to mean human rights and their protection.

3.3 RECOGNITION OF GOVERNMENTS


o Differenct cirteria apply when dealing with recognition
of governments.
o Recognition may be de jure or de facto
o What does recognition constitute?
i. Acceptance of a particular situation by the
recognising state both in terms of the relevant
factual criteria and in terms of the consequential
legal repurcussions.
o The Tobar doctrine rejects the effective control
doctrine, saying that thise government in power by extra
constitutional means should not be recognised. Called
the doctrine of legitimacy. This doctrine has found state
practice in USA dealing with Central American
countries and was incorporated into the Wilson
doctrine.
o De Facto Recognition: Implies a doubt of long term
validity of the government. Recongition here is hesitatn
to an extent, and involves an attitude of wait and see
and usually is a pre curson to de jure recognition
o De Jure is more or less when there is effective control
displayed by the gov is firmly rooted and no legal
reasons exist for detracting from it.

3.3.1 WHAT ARE THE LEGAL EFFECTS OF RECOGNITION? (QUITE A FEW CASES
IN THIS PART)

 Internationally, the political existence of a state is independent


of recognition. The unrecognised state may still sign the same
agreements and be bound by obligations.
 Internally, since matters regarding recognition are executive
decisions, they are constitutive to that extent.
 Case 1: Luther v Sagor
i. Facts: A timber factory existed in Russia which was
owned by the plaintiffs. This had been nationalised by
the Soviets in 1919. The defendants purchased wood
from the factory and the plaintiffs claimed money for
the same in UK. Lower courts held that since UK had
not recognised the USSR, such nationalisation should
be ignored. However through the period of appeals, the
USSR was afforded de facto recognition by the British
Parliament. As a result the Court of Appeals was bound
by the decrees and legislations of a recognised state and
thus the plaintiffs could not recover money from the
sale of wood. The court was also of the opinion that de
facto and de jure recognition do not have different
impacts.
Question also exists as to why is retroactivity
acceptable? Avoid possible influence in the affairs of
the recognised entity, otherwise legislation made prior
to recognition would be rejected.
 Case 2: Haile Selassie v Cable and Wireless Ltd (No. 2)
(Contracts made with unrecognised gov cannot be enforced)
i. Facts: Haile Selassie was Emperor of Ethiopia and e
jure recognised government, whereas Italy was the de
facto recognised gov. Money was owed to HS by Cable
and Wireless. Court was of the view that money should
be paid, however before appeal was heard, de jure
recognition was also afforded to Italy and as a result of
retroactivity, there was no claim that could be brought.
ii. In Haile Selassie’s case, it was held that there is no
distinction between the consequences of de jure and dde
facto recognition but its restricted to acts in relations to
the in relation to person in the territory which the de
facto government has been effectively comtrolling
 Case 3: Case of the Arantzazu Mendi: Case concerning a
private steamship registered in Basque. Case come up at the
time the Basque area was captured by the nationalists under
Franco. Multiple decrees passed by the republicans and
nationalists requisitioning and taking control respectively.
Mendi was in London, so republicans asked for possession.
International Law states that a recognised state cannot be sued
in another state. Nationalists argued that they were recognised
de facto so their arguments should be listened to. House of
lords held that since Natonalists had de facto control of Basque
, they had the benfits of a recognised state. It did not matter if
the territory controlled diminished over time or not.
 Case 4: Gdynia Amerika v Boguslawski
How far can the court relate back? During WWII the Polish
gov in exile in London was recognised as the de jure gov. Post
the end of WWII, the UK recognised the communist gov as de
jure. One of the happenings at the time was that the gov in
exile had made an offer to Polish seamen of compensation if
they left service. Such monies were to be paid by particular
employers. However the employers refused to do so. Argued
that since the provisional government was recognised
retroactivity was only till the day the new gov was formed.
House of Lords reframed the international law principle that
recognition was retroactive. Said that retroactivity was
applicable to acts done before recognition in so far as those acts
related to matters under its control at the time when the acts
were done.
 Case 5: Carl Zeiss Stiftung v Rayner and Keeler
To accord recogmition, the UK usally looked at evidence of
effective control. It was used to acknowledge factual situations
and not as a measure to accord approval. One excetion to this
was GDR.
CZS was run by a special board, reconstituted as the Council of
Gera. This council was located in GDR. Question was, can
claims of Council be upheld since it was in GDR which was
unrecognised. Court if Appeal said that since recognition was
previously accorded to USSR, nothing could be done. House
of Lords Created a fiction, saying that since foreign office
certificate was binding, it had to be upheld and the de jure
authority of Soviet Union resulted in GDR being an
administrative body, which therefore must be accepted.
 Case 6, 7, 8 and 9: Adam v Adam (Rhodesian divorce decree not
upheld) , Hesperides Hotelsv Aegean Turkish Holidays (Can look into
day to day laws and recognise them), Caglar v Bellingham (could be
acknowoledged in commercial matters), Emin v Yeldag (private acts
could be recognised as long as there is no statutory bar)

TERRITORY
 The international community has traditionally approached the
problem of new states in terms of recognition, rather than in
terms of acquisition of title to territory. This means that states
have examined the relevant situation and upon ascertainment of
the factual conditions have accorded recognition to the new
entity as a subject of international law.
 Theories on territory: One theory is to concentrate upon the
factual emergence of the new state and to accept that since a
new state is in existence upon a certain parcel of land,
international law should look no further but accept the reality of
possession at the moment of independence as denoting
ownership, that is, legal title lead to problems where ownership
is claimed of an area not in possession constitutive theory of
recognition, and declare that by recognition not only is a new
state in the international community created, but its title to the
territory upon which it is based is conclusively determined.
 Another theory is constitutive theory of recognition, and
declare that by recognition not only is a new state in the
international community created, but its title to the territory
upon which it is based is conclusively determined
 ACQUISITION OF ADDITIONAL TERRITORY
 Boundary treaties and boundary awards: Boundary treaties,
whereby either additional territory is acquired or lost or
uncertain boundaries are clarified by agreement between the
states concerned, constitute a root of title in themselves. Special
kind of treaty in that they establish an objective territorial
regime valid erga omnes.
 A decision by the International Court or arbitral tribunal
allocating title to a particular territory or determining the
boundary line as between two states will constitute
establishment or confirmation of title that will be binding upon
the parties themselves and for all practical purposes upon all
states in the absence of maintained protest.
 Accretion: This describes the geographical process by which
new land is formed and becomes attached to existing.
 Cession: This involves the peaceful transfer of territory from
one sovereign to another (with the intention that sovereignty
should pass) and has often taken place within the framework of
a peace treaty following a war. sovereignty by agreement from
a colonial or administering power to representatives of the
indigenous population could be seen as a form of cession.
 Rights of the Acquiring State
 The acquiring state cannot possess more rights over the land
than its predecessor had. This is an important point, so that
where a third state has certain rights, for example, of passage
over the territory, the new sovereign must respect them. It is
expressed in the land law phrase that the burden of obligations
runs with the land, not the owner. In other words, the rights of
the territorial sovereign are derived from a previous sovereign,
who could not, therefore, dispose of more than he had. The
Island of Palmas case emphasised this point.
 Conquest and the use of force: Ethical considerations are
relevant and the principle that an illegal act cannot give birth to
a right in law is well established in municipal law and is an
essential component of an orderly society Conquest, the act of
defeating an opponent and occupying all or part of its territory,
does not of itself constitute a basis of title to the land does give
the victor certain rights under international law as regards the
territory, the rights of belligerent occupation, but the territory
remains subject to the legal title of the ousted sovereign
 Only after a war is concluded could the juridical status of the
disputed territory be finally determined. This follows from the
rule developed to the effect that the control over the relevant
territory by the state purporting to annex must be effective and
that there must be no reasonable chance of the former sovereign
regaining the land.
 These points were emphasised by the Nuremberg War
Crimes Tribunal after the Second World War, in discussing
the various purported German annexations of 1939 and 1940.
The Tribunal firmly declared that annexations taking place
before the conclusion of a war were ineffective and invalid in
international law of the equation so that, for example, the
conquest of Germany by the Allies in 1945 did not give rise to
an implied annexation by virtue of the legislative control
actually exercised (as it could have done) because the Allies
had specifically ruled out such a course in a joint declaration. It
is, however, clear today that the acquisition of territory by force
alone is illegal under international law.
 Occupation is a method of acquiring territory which belongs to
no one (terra nullius). occupation must be by a state and not by
private individuals, it must be effective and it must be intended
as a claim of sovereignty over the area. But mere realisation or
sighting was never considered (except for periods in the
fifteenth and sixteenth centuries and this is not undisputed) as
sufficient to constitute title to territory. Something more was
required and this took the form of a symbolic act of taking
possession, whether it be by the raising of flags or by solemn
proclamations or by more sophisticated ritual expressions.
 Prescription is a mode of establishing title to territory which is
not terra nullius and which has been obtained either unlawfully
or in circumstances wherein the legality of the acquisition
cannot be demonstrated. It is the legitimisation of a doubtful
title by the passage of time and the presumed acquiescence of
the former sovereign.
 Intertemporal Law The general rule in such circumstances is
that in a dispute the claim or situation in question (or relevant
treaty, for example) has to be examined according to the
conditions and rules in existence at the time it was made and
not at a later date. In the Island of Palmas case, the Spanish
claim to title by discovery, which the United States declared it
had inherited, had to be tested in the light of international legal
principles in the sixteenth century when the discovery was
made. This aspect of the principle is predicated upon a
presumption of, and need for, stability.
 Case of Island of Palmas: In the Island of Palmas arbitration
the dispute concerned sovereignty over a particular island in the
Pacific. The United States declared that, since by a treaty of
1898 Spain had ceded to it all Spanish rights possessed in that
region and since that included the island discovered by Spain,
the United States of America therefore had a good title. The
Netherlands, on the other hand, claimed the territory on the
basis of the exercise of various rights of sovereignty over it
since the seventeenth century. The arbitrator, Max Huber, in a
judgment which discussed the whole nature of territorial
sovereignty, dismissed the American claims derived from the
Spanish discovery as not effective to found title. Huber
declared that the Netherlands possessed sovereignty on the
basis of ‘the actual continuous and peaceful display of state
functions’ evidenced by various administrative acts performed
over the centuries. It was also emphasised that manifestations
of territorial sovereignty may assume different forms,
according to conditions of time and place. Indeed, ‘the
intermittence and discontinuity compatible with the
maintenance of the right necessarily differ according as
inhabited or uninhabited regions are involved’. Additionally,
geographical factors were relevant.
 Critical Date: In certain situations there may exist a
determining moment at which it might be inferred that the
rights of the parties have crystallised so that acts after that date
cannot alter the legal position. Usually it is the date of
independence.
 Sovereign activities (effectivit´es) The exercise of effective
authority, therefore, is the crucial element for proving state’s
control and jurisdiction over the concerned territory. As Huber
argued in Palmas case, ‘the actual continuous and peaceful
display of state functions is in case of dispute the sound and
natural criterion of territorial sovereignty’.
 The role of subsequent conduct: recognition, acquiescence and
estoppel Subsequent conduct may be relevant in a number of
ways: first, as a method of determining the true interpretation
of the relevant boundary instrument in the sense of the intention
of the parties; secondly, as a method of resolving an uncertain
disposition or situation. Recognition is a positive act by a state
accepting a particular situation and, even though it may be
implied from all the relevant circumstances, it is nevertheless
an affirmation of the existence of a specific factual state of
affairs, even if that accepted situation is inconsistent with the
term in a treaty.
 Acquiescence, on the other hand, occurs in circumstances
where a protest is called for and does not happen or does not
happen in time in the circumstances.
 The idea of estoppel in general is that a party which has made
or consented to a particular statement upon which another party
relies in subsequent activity to its detriment or the other’s
benefit cannot thereupon change its position
 The doctrine of uti possidetis: The essence of the principle lies
in its primary aim of securing respect for the territorial
boundaries at the moment when independence is achieved.
Such territorial boundaries might be no more than delimitations
between different administrative divisions or colonies all
subject to the same sovereign. In that case, the application of
the principle of uti possidetis resulted in administrative
boundaries being transformed into international frontiers in the
full sense of the term.
 The application of the principle has the effect of freezing the
territorial title existing at the moment of independence to
produce a ‘photograph of the territory’ at the critical date.
Indeed, once defined in a treaty, an international frontier
achieves permanence so that even if the treaty itself were to
cease to be in force, the continuance of the boundary would be
unaffected and may only be changed with the consent of the
states directly concerned.
 Case of Falkland Islands:
 The islands were apparently discovered by a British sea captain
in 1592, but it is only in 1764 that competing acts of
sovereignty commenced. In that year the French established a
settlement on East Falklands and in 1765 the British established
one on West Falklands. In 1767 the French sold their settlement
to Spain. Spaniards left in 1811. In 1816, the United Provinces
of the River Plate (Argentina) declared their independence from
Spain and four years later took formal possession of the islands.
In 1833 the British captured the islands and have remained
there ever since. It was not an acquisition either by occupation
or prescription. The islands were not tera nullis and the
Argentinian protests made intermittently throughout the period
since 1833. It would appear that conquest formed the original
basis of title, irrespective of the British employment of other
principles. This, coupled with the widespread recognition by
the international community, including the United Nations, of
the status of the territory as a British Colony would appear to
resolve the legal issues, although the matter is not
uncontroversial.

STATE SUCCESSION
 States are not immutable and subject to change, ld states fall
and new states arise. Secessions, mergers and federations are
all part of the IL, and must be incorporated with minimal
disruption to the system.
 Guinea Bissau v Senegal, Vienna Convention on State
Succession, 1978-State Succession may be defined as the
replacement of one state by another in the responsibility for the
international relations territory. This is a very crude
formulation of what state succession entails.
 What is the relevant date of succession? When the successor
state replaces the predecessor in the territory for which
responsibility exists.
 The creation of a new entity creates the issue of continuity and
succession. Giving the case of British India, Pakistan and
Israel we can see that the manner of succession, or creation of a
new entity results either in inheritance or creation of new rights
and duties.
 Example also of Russian succession to Soviet seat. Spoke
about application to Lithuania and LEstonia and Latvia. Since
they had been annexed and this recognition was not recognised
it was held that it would not result in them being successors.

He’s just blabbered about India and hypothetical scenarios. The main points that he’s
covered don’t even resemble shaw at all. Spoke about German Unification and Yugoslavian
disntgration and holdings of the Badinter Committee. In brief, debts are usually distributed
on the grounds of for which part of the erstwhile country were they taken. Can’t really
understand what to put in from Shaw either, give it a general read if you can. If someone has
been able to understand it, please do share.
STATE RESPONSIBILITY
 What is state responsibility? SR is established when one state commits an
internationally wrongful act against another (Article 2, Articles of State
Responsibility, the act must be attributable to the state + the act must be a breach of
an international obligation owed by the state)

RAINBOW WARRIOR ARBITRATION


a. Facts: Dealt with the question of the relationship between the rules of state
responsibility and those relating to treaties. French agents destroyed the vessel RW
which was in harbour in New Zealand. UN Sec Gen called to mediate, who said that
the French Agents should stay and not leave without permission. Howeer they were
repatriated. Invoked Arb clause and said that a breach of a treaty obligation had
occurred. Arbitrator said that the law relating to treaties is relevant but CIL dealth
with various issues like circumstances which preclude wrongfulness, appropriate
remedies, etc.

GENERAL CONCEPTS FOR ATTRIBUTION OF STATE RESPONSIBILITY


 Clear and convincing evidence (Eritrea-Ethiopia Claims Tribunal )
 Fully conclusive evidence for grievous claims (Genocide Convention-Bosnia v
Serbia, Corfu Channel)
 Nature- There must exist an obligation and there must be violation of this obligation
by a state for such responsibility to exist.
 State responsibility exists when it is carried out by an organ of the state (Article 4),
acting on the instructions (Article 8) when there is subsequent acceptance of the act
(Article 11, Tehran Hostages Case), when a state aids another in committing an
internationally wrongful act, if it had knowledge ( Artcile 16, Genocide Case)
 Can states be considered to be strictly liable? Some cases exsit, Eg: Caire claim.
However there has been a shift towards the fault theory of Law especially after Corfu
Channel, where the Court was of the Opinion that a state cannot be held to have
knowledge of everything that goes on wthin its terrtiroy.
 For a state to have responsibility over priate actors, the establishment of effective
control is necessary and mere financing is not enough.
 Tadic introduced overall control test
 Genocide case said Tadic only applies to IHL
 Circumstances precluding wrongfulness, countermeasures-Article 22, requires steps,
Article 25-Neccessity, certain elements to be satisfied

GABCIKOVO NAGYMAROS PROJECT CASE


There is to be no idfferentation between the types of responsibilities that are owed. Hungary
Czechoslovakia case dealing with the construction of a dam. Read notes.

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