The Gazette 1972

BOOK REVIEWS

International Law by Daniel P. O'Connell (second edition); two volumes. Vol. 1 : 8vo; pp. xxxii, 1-595; Index, pp. 35. Vol. 2 : pp. xxiii, 599-1309; Index, pp. 35. London, Stevens, 1970; £17.00. Professor O'Connell's well known work on Public Inter- national Law received well-deserved encomiums when the first edition was published in 1965, and it need only be said that the second edition is even better, as it has taken detailed cognisance of the major develop- ments in International Law, in case law as much as in textbooks, written since then. It would hardly be fitting for anyone other than an expert in the subject to criticise Professor O'Connell, particularly as he has been appointed to a Chair in Oxford University since the publication of this learned work. An endeavour will however be made to give an idea of the vast material contained in the volumes. Part One deals with General Principles. In discussing the formation of international Law, a well recognised distinction is made between the general principles of law and custom. The law for- mative agancies are set down as—Treaties, codification, judicial decisions and text writings. It is then pointed out that the Monism position of Kelsen aims at the elimination óf the old scholastic problem of the relation- ship between intellect and will. On the other hand Hegelian Dualism implies that law is an act of the sovereign will of the ruler. The Transformation Doctrine by which, in order to become part of municipal law, each individual who is the subject of international law must he consciously incorporated in it, applies in Ireland. The supreme Adoption Theory on the other hand pre- sumes a mandate from the sovereign to incorporate inter- national law. The Harmonisation Doctrine implies that international law and municipal law form one body of doctrine and that potential conflicts between their respective roles must be minimised by a process of judicial harmonisation. As regards the municipal law rules in the relationship of International Law and of municipal law, the position in England, the United State-, France, Italy and Germany is fully discussed. In discussing the problem of Personality in International Law, the problems of de facto insurgent governments and of international Organisations receives full treat- ment. The individual is declared to have fully protected rights in international law. Part Two deals with Recognition and details the circumstances in which it applies in relation to either independence of new states, or of change of govern- ment, or of territorial change, or of belligerency. In dealing with the problem of judicial cognisance of un- recognised governments, the position of English, Ameri- can and Continental Law is examined The question of retroactivitv of recognition will doubtless arise in Bangla Desh. Part Three deals with Treaties and emphasises that there is no recognised test for determining what is a treaty—it depends on the intention and good faith of the parties. The full rules as to signature, ratification and reservation to treaties are given, as well as to registration. As regards the operation of treaties, the rules as to interpretation are vital, particularly by reference to such matters as —the common interpre-

tation of the parties, customary international law, tra- ditional policies, the "travaux préparatoires". The prob- lems of termihation and of revision of treaties are fully considered. Part Four deals with Sovereignty. The State as a person in international law is supposed to have a per- manent population, a definite territory, a government, and capacity to enter into relations with other States. States are then defined for the purposes of the United Nations, and mention is then made of sovereign entities which are not typical States, such as the Vatican, Switzerland, Monaco, etc. The Fundamental Rights of. State include those of independence, self- defence and legal equality. Problems like the Monroe Doctrine and the rule against intervention by the United Nations are fully considered. An example of titular, residual and distributed sovereignty is the Panama Canal Zone. A full description is given of the trust territories administered by the United Nations. A comparison is then made between the British Common- wealth, the French Community and the Netherlands Ream. Part Five deals with State Succession, which may itself arise from ce~sion, or annexation, or emancipa- tion, or the formation of a union, or federation. Normally the personal treaties of the predecessor State do not bind the successor State but dispositive treaties relating to railways and rivers are binding. The bulk of the legal system of the predecessor State is usually unaffected by the change. Changes of government do not of course effect the personality of the State. Part Six deals with Territory, which is defined as "any area of the earth's surface which is the subject of sovereign rights and interests". The modes of acquisi- tion of territory are occupation, or historic rights, or prescription, or accretion, or annexation, or cession, or debellatio, which is the conquest of a foreign State which is so total that it includes the devolution of sovereignty; this was the status of Germany after the War. Maritime Territory deals with the character of the territorial sea under the various legal systems and the methods of measurement of territorial seas. Prob- lems like the rights of innocent passage through straits and the extent and division of the continental shelf receive full treatment. As regards Airspace, the law applicable to aircraft in flight, particularly in re- lation to the Tokyo, Chicago, Warsaw and Guadalajara Conventions, are fully considered. The Rights i n respect of foreign territory are considered under the headings of International Servitures, such as Customs- Free Zones and Fishery Rights, the law governing transit, International Rivers such as the Nile, the Rhine, the Danube, the Mississippi, the Amazon, etc. —then International Canals like the Suez and Panama Canals. Part Seven deals with Jurisdiction. It first considers Maritime Jusisdiction under such headings as—the Nationality of a merchant ship, the Territoriality Doctrine under the various law systems, jurisdiction over territorial sea, the problem of innocent passage, free- dom of the seas limited by pollution, nuclear damage, and broadcasting at sea by pirate stations, the problem of piracv, and the doctrine of hot pursuit, by which & state is entitled to continue on the high seas a pur- 58