International law, Sixth edition
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International Law MALCOLM N. SHAW
Habana 175 US 677 (1900) and the Scotia 14 Wallace 170 (1871). See also the Lotus case,
PCIJ, Series A, No. 10, 1927, p. 18; 4 AD, p. 153. For further examples in the fields of state and diplomatic immunities particularly, see below, chapter 13. 186 See e.g. Congo v. Belgium, ICJ Reports, 2002, pp. 3, 24; 128 ILR, pp. 60, 80. 187 See e.g. Vermont v. New Hampshire 289 US 593 (1933) and Iowa v. Illinois 147 US 1 (1893). 188 See e.g. Parry, British Digest, pp. 103–5 and Lauterpacht, Development of International Law, pp. 23–5. See also R. Y. Jennings, ‘International Lawyers and the Progressive Development of International Law’ in Makerczyk, Theory of International Law at the Threshold of the 21st Century, 1996, p. 325, and Pellet, ‘Article 38’, p. 790. 189 See above, chapter 1. s o u r c e s 113 With the rise of positivism and the consequent emphasis upon state sovereignty, treaties and custom assumed the dominant position in the exposition of the rules of the international system, and the importance of legalistic writings began to decline. Thus, one finds that textbooks are used as a method of discovering what the law is on any particular point rather than as the fount or source of actual rules. There are still some writers who have had a formative impact upon the evolution of particular laws, for example Gidel on the law of the sea, 190 and others whose general works on international law tend to be referred to virtually as classics, for example Oppenheim and Rousseau, but the general influence of textbook writers has somewhat declined. Nevertheless, books are important as a way of arranging and putting into focus the structure and form of international law and of elucidating the nature, history and practice of the rules of law. Academic writings also have a useful role to play in stimulating thought about the values and aims of international law as well as pointing out the defects that exist within the system, and making suggestions as to the future. Because of the lack of supreme authorities and institutions in the inter- national legal order, the responsibility is all the greater upon the publicists of the various nations to inject an element of coherence and order into the subject as well as to question the direction and purposes of the rules. States in their presentation of claims, national law officials in their opin- ions to their governments, the various international judicial and arbitral bodies in considering their decisions, and the judges of municipal courts when the need arises, all consult and quote the writings of the leading juristic authorities. 191 Of course, the claim can be made, and often is, that textbook writers merely reflect and reinforce national prejudices, 192 but it is an allegation which has been exaggerated. It should not lead us to dismiss the value of writers, but rather to assess correctly the writer within his particular environment. Download 7.77 Mb. Do'stlaringiz bilan baham: |
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