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

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-