International Law, Malcolm Shaw

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The nature and development of international law
In the long march of mankind from the cave to the computer a central role
has always been played by the idea of law – the idea that order is necessary
and chaos inimical to a just and stable existence. Every society, whether
it be large or small, powerful or weak, has created for itself a framework
of principles within which to develop. What can be done, what cannot
be done, permissible acts, forbidden acts, have all been spelt out within
the consciousness of that community. Progress, with its inexplicable leaps
and bounds, has always been based upon the group as men and women
combine to pursue commonly accepted goals, whether these be hunting
animals, growing food or simply making money.
Law is that element which binds the members of the community to-
gether in their adherence to recognised values and standards. It is both
permissive in allowing individuals to establish their own legal relations
with rights and duties, as in the creation of contracts, and coercive, as
it punishes those who infringe its regulations. Law consists of a series of
rules regulating behaviour, and reflecting, to some extent, the ideas and
preoccupations of the society within which it functions.
And so it is with what is termed international law, with the important
difference that the principal subjects of international law are nation-states,
not individual citizens. There are many contrasts between the law within
a country (municipal law) and the law that operates outside and between
states, international organisations and, in certain cases, individuals.
International law itself is divided into conflict of laws (or private inter-
national law as it is sometimes called) and public international law (usually
just termed international law).1 The former deals with those cases, within
particular legal systems, in which foreign elements obtrude, raising ques-
tions as to the application of foreign law or the role of foreign courts.2
1 This term was first used by J. Bentham: see Introduction to the Principles of Morals and
Legislation, London, 1780.
2 See e.g. C. Cheshire and P. North, Private International Law, 13th edn, London, 1999.
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2 international law
For example, if two Englishmen make a contract in France to sell goods

situated in Paris, an English court would apply French law as regards the
validity of that contract. By contrast, public international law is not sim-
ply an adjunct of a legal order, but a separate system altogether,3 and it is
this field that will be considered in this book.
Public international law covers relations between states in all their myr-
iad forms, from war to satellites, and regulates the operations of the many
international institutions. It may be universal or general, in which case the
stipulated rules bind all the states (or practically all depending upon the
nature of the rule), or regional, whereby a group of states linked geograph-
ically or ideologically may recognise special rules applying only to them,
for example, the practice of diplomatic asylum that has developed to its
greatest extent in Latin America.4 The rules of international law must be
distinguished from what is called international comity, or practices such as
saluting the flags of foreign warships at sea, which are implemented solely
through courtesy and are not regarded as legally binding.5 Similarly, the
mistake of confusing international law with international morality must
be avoided. While they may meet at certain points, the former discipline
is a legal one both as regards its content and its form, while the concept of
international morality is a branch of ethics. This does not mean, however,
that international law can be divorced from its values.
In this chapter and the next, the characteristics of the international
legal system and the historical and theoretical background necessary to a
proper appreciation of the part to be played by the law in international
law will be examined.
Law and politics in the world community

It is the legal quality of international law that is the first question to be
posed. Each side to an international dispute will doubtless claim legal
justification for its actions and within the international system there is
no independent institution able to determine the issue and give a final
decision.
Virtually everybody who starts reading about international law does so
having learned or absorbed something about the principal characteristics
of ordinary or domestic law. Such identifying marks would include the
3 See the Serbian Loans case, PCIJ, Series A, No. 14, pp. 41–2.
4 See further below, p. 92.
5 North Sea Continental Shelf cases, ICJ Reports, 1969, p. 44; 41 ILR, p. 29. See also M.
Akehurst, ‘Custom as a Source of International Law’, 47 BYIL, 1974–5, p. 1.

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1

The nature and development of international law

For example, if two Englishmen make a contract in France to sell goods

Law and politics in the world community

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