375720762 Malcolm Shaw IL Notes PDF

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MALCOLM SHAW 1. INTERNATIONAL LAW AND MUNICIPAL LAW States are sovereign and equal, however with the development of communication,

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total sovereignty has now become a blurred notion. With globalisation, penetration of economics and politics has resulted in actions in

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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.

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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It is an outdated concept that says that no municipal law trumps another, but rather different MLs come together to form the IL system.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.

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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.

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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.

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Gramophone Co v Birendra Pandey- States are to lead municipal law in a manner so as to not violate IL

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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.

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White Industries: part 1 of A&C Act not applicable to foreign awards

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Article 27 of the VCLT-States cannot resort to the excuse that the IL violates their municipal law and hence avoid the obligation.

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UK however has moved from transformation to incorporation

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Britain:

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1. Buvot v. Barbuit - States that CIL forms part of British law - referred to in Triquet v. Bath. (Incorporation approach)

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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)

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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.

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4. Chung Chi Chueng v. R - IL has no validity insofar as as its principles are not accepted and adopted by domestic law.

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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.

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USA:

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1. Panquete Habana - IL is part of our law and must be ascertained and administered by courts which have jurisdiction.

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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.

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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.

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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.

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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.

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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.

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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.)

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Corporations:

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Barcelona Traction:

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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.

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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.

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No doubt this creates certain consequences in the international law system.

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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 R ECOGNITION OF STATES 3.1.1 DECLARATORY THEORY 

The declaratory theory states that recognition is merely an acknowledgement of already existing facts.

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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.

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Based on the traditional positivist thought of state supremacy. 3.1.2 CONSTITUTIVE THEORY

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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.

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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.

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Furthermore, an unrecognised state cannot usually claim the rights of recognised states in the other countries’ municipal courts. 3.1.3 LAUTERPACHT’S THEORY

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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

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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.

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Internally, since matters regarding recognition are executive decisions, they are constitutive to that extent.

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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.

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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

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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.

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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.

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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.

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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.

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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

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ACQUISITION OF ADDITIONAL TERRITORY

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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.

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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.

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Accretion: This describes the geographical process by which new land is formed and becomes attached to existing.

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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.

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Rights of the Acquiring State

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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

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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.

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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. I...