international Flashcards
Lawler case
case of prisoner in Gibraltor (brittish soil) escaped onto spanish soil. could the UK official capture him on spanish soil and enforce UK laws?
If Spain had asked for restitution then it is likly then to achieve the status quo the UK would have had to return the prisinor back to spain
Lotus case
A state cannot excercise jurisdiction outside it’s territory unless prohibited by an international treaty or customary law (france tried to argue customary law existance by the ommission of judgements regarding the jurisdiction on ships- this argument was not accepted by a court, that just because something doesn;t hapen doesn’t mean tha it is customary law.)
Within it’s terrotory a state may excersiise jurisdiction on any matter even if there si no rule of international law expressly permitting it- they have a wide discretion. ‘it’s title to jurisdiction rests in it’s sovreignty.’ Court said that restrictions upon the independance of states cannot be presumed.
A ship in the high seas is assimilated to it’s flag ship (supported by art 11 of geneva convention). Turkish vessel= turkish territory. Thus france and Turkey had concurrent juridiction, yet due to the fact that the effects were on the turkish shp, they had jurisdiction- so long as the constituent element of the crime was committed in their territory- ‘SUBJECTIVE TERRITORIAL JURISDICTION’- for this one must prove that the leement and the actual crime are inseperable.
re customary law- the fact that cases like this had not really been heard before was due to states abstaining from taking proceeddings as opposed to there being any element of opinio juris whereeby states felt legally obliged not to do so.
Case critisied by judge sima in the KOsovo AO, that the assumption that an bscense of a prohibition means that unilateral declaration of independance is permitted under international law.
Lockerbie
case of agreement to over-ride lotus and gibralter principles re territorial jurisdiction.
should men be trialed in US or UK as both countries effected- went for neutral state- holland. Scottish courts would apply scottish laws- jurisdiction enforced in third country.
Sarvarka
Indian prisinor escaped on way to be trialed in UK. was stopped by french police who then handed him over to UK authorities. FRance then asked for restitution or compensation as Britain tried to enforce jurisdiction on french soild. but french had CONSENTED
Eichmann
Israeli’s kidnapped him from argentinato be tried for war crimes, argentina wanted restitution bbut instead they accepted a publiic apology.
Bases for international jurisdiction;
Territory- over own property, person, acts or events within territory.
(active) nationality- states may regulate the conduct of their nationals wherever they are in the world
Passive personality- a state may prescribe law for situations where nationals are a victim of the conduct being regulated i.e terrorist attacks
Protective Jurisdiction- state can legislate on crimes considers threat to security, integrity and economic interests i.e. espionage and counterfeit goods.
Universal- state may legislate on certain crimes that are contrary to the interests of the entire international community. every state has an interest. clear cut crimes- piracy and war crimes. orentlicher now says list includes terrorism
Pulp mills case re jurisdiction
The court are only able to consider claims based upon instruments within jurisdiction. case brought under comprimissior clause- court had jurisidction over water but not air pollution.
Consent dictates the scope of jruisdiction
Monetary gold case
court will not be able to hear a claim which touches upon the legal rights or obligations of a third state when they have not consented for this case. because albania was the subject matter of the dispute, proceedings had to stop.
Fourum progatum
If a State has not recognized the jurisdiction of the Court at the time when an application instituting proceedings is filed against it, that State has the possibility of accepting such jurisdiction subsequently to enable the Court to entertain the case: the Court thus has jurisdiction as of the date of acceptance in virtue of the rule of forum prorogatum.
this happened in corfu channel case
East Timor case
As indonesia not in proceedings and hadn’t consented, the case stopped
Nauru phosphate grounds case (UK and NZ and australia)
where third party obligations are the subject f the dispute then you cannot decide the case unless you have decided on the thrid party dispute
ICJ art 59 consent
the decision of the courts has no binding force except between the parties and in respect of that particular case
UN charter art 94 (2)
if party fails to perform obligations arising from court judgement then the other party can have recourse with the SC to give effect to the judgement- however this does not really apply- Nicorgua tried to invoke art 94 but US refused to comply as they are in the SSC and they used their power of veto.
who can request an advisory opinion?
security council
General assembly
‘other organs or specialized agencies
Advisory Jurisdiction
Status of Eastern Carelia case- the Court could not deliver an advisory opinion in relation to the obligations of Russia towards Finland regarding Eastern Carelia, given that Russia had not given its consent to have this issue resolved through the League of Nations or the Court.
Western Saharan Advisory opinion
If spain really did object to the North Africa state’s claims on sovreignty then they should have made it clear from the outset- this was deemed to overule the principle of consent and go against easter carelia case.
Risks with settling a dispute through legal means
unpredictable results
binding results
may lead to reperations owed to another state
can be expensive
risks of not settling a dispute through legal means
can hinder international relations
can create uncertainty
can also be expensive, in australian and japanese arbitration whaling case australi spent over 15 million
having ongoing dispute is unsettling, hindeirng international relations and strategies i.e. anti- terrorism
can cost a lot to manage disputes i.e. in Rockhall case they spent a lot trying to make rokhall inhabitable
Johnathon charney-third party dispute settlement and international law
the growth in the variety of dispute settlement procedures will contribute to an improved and increasingly pervasive system of peaceful settlement of disputes under the rule of intenational law.
Proffessor Louis Sohn
It is axionm that the best way fo solving a dispute is for the two parties to negotiate together in the absence of a third party
examples
Algerias role in Iran hostages dispute
Popes role in Argentina/Chillie beagle channel dispute
Soviet mediation of the KAshmir dispute
the third party in these cases has a sense of public responsibility and prestige and honour as opposed to forwarding its own interests or having a legal or institutional responsibility to do so i.e. UN secertary generals are paid.
diplomatic measures
give control of outcome primarily to states involved
article 33 UN charter
negotiation mediation conciliation arbitration judicial settlement resort to regional agencies or arrangements resort to UN
legal means
give outcome primarily to thrid party/parties
good officies and mediation
unable to resolve by negotiation, agree t limited intervention by third party to break impasse.
good offices- facilitate and implement communication and negotiation
mediator plays a more active role and expected to advance non binding proposals- recent example is EGYPT- ISRAEL PEACE TREATY.
