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International Law: Cases and Materials with Australian Perspectives: Second Edition Donald R Cambridge University Press 978-1-107-69119-3 - International Law: Cases and Materials with Australian Perspectives: Second Edition Donald R. Rothwell, Stuart Kaye, Afshin Akhtarkhavari and Ruth Davis Frontmatter More information International Law Second edition CASES AND MATERIALS WITH AUSTRALIAN PERSPECTIVES International Law: Cases and Materials with Australian Perspectives is the author- itative textbook on international law for Australian international law students. Written by a team of experts, it examines how international law is developed, implemented and interpreted, and features comprehensive commentary throughout. It balances analysis of international law in a global context with a strong focus on Australian perspectives and practice. All core areas of the law are covered, with chapters on human rights, law of the sea, international environmental law, and enforcement of international law. Cases and treaties are dissected to highlight the key principles, rules and distinctive learning points. This new edition has been thoroughly updated in line with recent developments in the field and includes a new chapter on the use of force, as well as expanded content on the enforcement of international law, including sanctions, law enforcement against pirates and the 2011 Libyan conflict. International Law provides clear and rigorous analysis and is an indispensable resource for law students. Donald R. Rothwell is Professor of International Law at the ANU College of Law at the Australian National University. Stuart Kaye is Professor of Law and Director at the Australian National Centre for Ocean Resources and Security at the University of Wollongong. Afshin Akhtarkhavari is Associate Professor and Reader in Law at the Griffith Law School. Ruth Davis is Lecturer in Law in the Faculty of Law, Humanities and the Arts at the University of Wollongong. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-69119-3 - International Law: Cases and Materials with Australian Perspectives: Second Edition Donald R. Rothwell, Stuart Kaye, Afshin Akhtarkhavari and Ruth Davis Frontmatter More information © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-69119-3 - International Law: Cases and Materials with Australian Perspectives: Second Edition Donald R. Rothwell, Stuart Kaye, Afshin Akhtarkhavari and Ruth Davis Frontmatter More information INTERNATIONAL LAW CASES AND MATERIALS WITH AUSTRALIAN PERSPECTIVES Second edition Donald R. Rothwell Stuart Kaye Afshin Akhtarkhavari Ruth Davis © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-69119-3 - International Law: Cases and Materials with Australian Perspectives: Second Edition Donald R. Rothwell, Stuart Kaye, Afshin Akhtarkhavari and Ruth Davis Frontmatter More information 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Published in the United States of America by Cambridge University Press, New York Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107691193 © Cambridge University Press 2014 This publication is copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2011 Reprinted 2011 (twice), 2012 Second edition 2014 Cover designed by Sardine Graphic Design Typeset by Integra Software Services Pvt. Ltd Printed in Singapore by Markono Print Media Pte Ltd A catalogue record for this publication is available from the British Library A Cataloguing-in-Publication entry is available from the catalogue of the National Library of Australia at www.nla.gov.au ISBN 978-1-107-69119-3 Paperback Reproduction and communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 15, 233 Castlereagh Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 E-mail: [email protected] Cambridge University Press has no responsibility for the persistence or accuracy of URLS for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-69119-3 - International Law: Cases and Materials with Australian Perspectives: Second Edition Donald R. Rothwell, Stuart Kaye, Afshin Akhtarkhavari and Ruth Davis Frontmatter More information CONTENTS Preface page xiii About the authors xvi Acknowledgements xvii Table of cases xix Table of statutes xxvi Table of treaties and other international instruments xxviii Abbreviations xxxv 1 The nature of international law 1 1.1 Introduction 2 1.2 Nature and significance of international law 4 1.2.1 International law, humanity and the rule of law 9 1.2.2 Respect for international law 14 1.2.3 Do rules or norms matter in creating international order? 17 1.2.4 The institutional framework 20 1.3 Public and private international law 24 1.4 The role and nature of participation in international law 27 1.5 The limits of international law 37 1.6 Australian perspectives 46 2 Sources of international law 52 2.1 Introduction 53 2.1.1 Formal and material sources 56 2.1.2 Hierarchy of norms 58 2.2 Customary international law 61 2.2.1 Jurisprudence of the ICJ 63 2.2.2 Local or regional custom 88 2.2.3 The persistent objector 90 2.2.4 A critique of customary international law 93 2.3 Treaties 95 2.4 Treaties and customary international law 98 2.5 General principles of law 105 2.6 Subsidiary sources of international law 111 v © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-69119-3 - International Law: Cases and Materials with Australian Perspectives: Second Edition Donald R. Rothwell, Stuart Kaye, Afshin Akhtarkhavari and Ruth Davis Frontmatter More information 2.6.1 Judicial decisions 111 2.6.2 Contributions of publicists 115 2.7 Alternative sources of international law 116 2.7.1 UN practices and the formation of international law 117 2.7.2 Soft law 124 3 Law of treaties 127 3.1 Introduction 128 3.2 What is a treaty? 131 3.2.1 Instruments of less than treaty status 133 3.2.2 Unilateral declarations 137 3.3 Treaty negotiation 139 3.4 Treaty creation 142 3.5 Entry into force of a treaty 144 3.5.1 VCLT provisions 145 3.5.2 Australian practice 149 3.6 Reservations, objections and declarations 151 3.6.1 Reservations 154 3.6.2 Declarations 160 3.7 Legal obligations 164 3.7.1 Following entry into force of a treaty 165 3.7.2 By States which have signed but not ratified the treaty 167 3.8 Treaty interpretation 168 3.8.1 Application of the VCLT rules 170 3.8.2 Australian approaches 173 3.9 Invalidity of a treaty 179 3.10 Suspension or termination of a treaty 183 3.10.1 General provisions 184 3.10.2 Termination as a consequence of material breach 186 3.10.3 Impossibility of performance and fundamental change of circumstances 188 3.11 Treaty amendment and modification 192 4 International and municipal law 196 4.1 Introduction 197 4.2 International law in municipal law 199 4.2.1 The monism–dualism debate 199 4.2.2 Transformation and incorporation 204 4.2.3 Impact on municipal law by decisions of international tribunals 207 vi Contents © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-69119-3 - International Law: Cases and Materials with Australian Perspectives: Second Edition Donald R. Rothwell, Stuart Kaye, Afshin Akhtarkhavari and Ruth Davis Frontmatter More information 4.3 Australian law and international law 208 4.3.1 Development of Australia’s international personality 209 4.3.2 The courts and Australia’s developing international personality 213 4.4 International law and its influence upon the common law 218 4.5 Treaties and municipal law: basic principles 226 4.6 Treaty-making 228 4.7 Municipal implementation of treaties 233 4.8 Treaties and municipal law: the courts 245 4.9 Treaties and municipal law: the legislature 261 5 International legal personality 268 5.1 Introduction 269 5.2 Statehood 271 5.2.1 Permanent population 273 5.2.2 Defined territory 274 5.2.3 Government 277 5.2.4 Capacity to enter into relations 278 5.2.5 The Holy See (Vatican) 280 5.2.6 The status of Taiwan 283 5.2.7 The status of Palestine 285 5.3 Peoples and the right to self-determination 289 5.4 Secession 295 5.5 Recognition of States 301 5.5.1 Recognition of statehood and recognition of governments 303 5.5.2 Criteria for recognition 305 5.5.3 State practice: recognition of the Former Yugoslav Republic of Macedonia 309 5.5.4 Australian practice 314 5.6 International organisations 320 5.7 Other international legal persons 328 6 Sovereignty over territory 332 6.1 Introduction 333 6.2 Occupation 334 6.3 Critical date 352 6.4 Discovery 357 6.5 Accretion 358 6.6 Cession and annexation 360 6.7 Postcolonial critiques 362 Contents vii © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-69119-3 - International Law: Cases and Materials with Australian Perspectives: Second Edition Donald R.
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