International Law (Sixth edition)

By Malcolm N. Shaw, Q.C.
Cambridge and New York: Cambridge University Press, 2008

To be frank, the sixth edition of Malcolm Shaw’s International Law is a rather forbidding book. Its 1,500 pages provide a rather exhausting overview of international law, and the book has the feel of a treatise rather than an introduction. It goes without saying that it is not possible to provide a précis of its 23 chapters.

Still the first chapter seems to capture the ambivalence of the book, which has a contemporary and a conventional side. This comes to the surface in its review of the history of the international law. Shaw acknowledges that the development of the international law in the 19th century had a European bias. He also emphasizes the increasing importance of custom and opinio juris—as opposed to treaties—in the continuing development of the international law. At the same time, however, his assessment of Hugo Grotius (the “supreme” Renaissance man) is tired and uncritical. We now know that Grotius’ assertion of the freedom of the seas had its origins in a legal brief justifying the theft of cargo from a ship flying under the flag of another country.

Although Shaw tries to stay out of ideological debates, this may be a mistake, since the narrative suffers from a lack of direction. At the same time, there seems to be an implicit bias in favour of legal positivism. The major failing is that the book does not acknowledge the extent to which the system has been governed by the reality of power. It is not clear why Shaw backs away from such an acknowledgement, since it is a common theme in political science, where the international law is often seen simply as a mechanism through which states assert their own self-interests. 

The other chapters deal with specific subjects of interest rather than discrete parts of the law. Chapter 8, for example, is devoted to “Individual criminal responsibility in international law”. There is a discussion of the law of piracy, the Nuremberg trials, the Red Cross Conventions, and the International Criminal Tribunals for Yugoslavia and Rwanda, followed by a brief but instructive account of the International Criminal Court. There is no discussion of the legitimacy of the institution, however, which has been compromised by its treaty origins. Shaw mentions the attempts by the United States to void the possibility of prosecution but does not discuss the problem of selectivity. This is a mistake, as there have already been complaints that the ICC is targeting the third world.

Chapter 19 contains an informative discussion of the International Court of Justice, which acknowledges the problem of “politicization” but does not go far enough in recognizing the problem that this poses to judicial independence. Shaw’s description of the law often reads like an executive summary for legal professionals -- exactly right, but difficult for students. Chapter 23 deals with “International institutions”, but the focus is on their legal personality and a variety of technical issues. Shaw has an expert’s interest in the legal regulation of the complex bureaucratic machinery that now administers so many aspects of our economic and political life.

Shaw raises many problems but does not face up to the foundational issues in the international law. He openly worries, for example, that the sudden proliferation of new systems of regulation will lead to the “fragmentation of international law” (p. 65). There is a serious concern “that the centre will not be able to hold and that international law might dissolve into a series of discrete localised or limited systems with little or no interrelationship.” (65) The solution, however, is to recognize that the world’s legal systems are converging into a single system of law, which can only operate coherently and consistently when the system is seen as a whole.

This entails a shift from a system based on the idea that states are free agents to a system in which the law takes precedence over the will of individual states. This requires some acknowledgement of the inherent authority of this body of law. Like many jurists, Shaw cannot bring himself to openly acknowledge that the voluntary system of international law is deeply flawed and incapable of resolving major conflicts. It is a mistake to minimize the danger that this presents in a world where states have the power to destroy entire populations, as well as each other. Surely the crucial issue is whether humanity has gone beyond the point where it can rely upon politics – and the incessant coercion and intrigue that goes with it -- in regulating the affairs of the community of states.

There are far more mundane issues. The book will tire ordinary undergrads and is more suited to a law school. This is evident in the discussion of the law of the sea and the delimitation of maritime boundaries. The hefty index will be helpful to students, but the use of acronyms is a mistake. There are no entries for “International Court of Justice” or “International Criminal Court” and the student must make do with UNAMIC, UNAMIR, UNAMIS, UNAMSIL, UNASOG, and UNAVEM 1. Surely there is learning in the proper names of institutions and organizations. There is a helpful list of websites, which is available as a list of hyperlinks at Cambridge University Press. This commendable move is negated by the fact that the Appendix fails to mention this.
  

None of the objections is fatal. The sixth edition of International Law meets its primary objective, which is to provide a comprehensive account of the current system. The book contains a wealth of information. As a teacher, my main criticism is that it would have been better to narrow the discussion to the more fundamental issues and write more extensively and thoroughly on them. The author’s expertise is on display, everywhere, and readers should be warned that Shaw’s narrative has the feel of a three day, twelve country tour of Europe about it.