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.
Inquirey and conciliation
third party intervention on a more formal basis to determine facts and if agree to determine terms of mutually acceptable settlement
is non binding but high influence.
Red Crusader inquirey- facts concerning stopping of brittish trawler off faroe islands by danish fishing vessel.
successful conciliation- reccomendations for norway and icecland following continental shelf dispute- the commissions reccomendation was implemented in a Norway-Iceland Treaty.
Arbitration
reference of dispute to an adhoc tribunal for BINDING decisions.
the parties agree on issue, machinery ad procedure of tribunal including selection of arbitrators. parties can state that the opinion will only be advisory but have to consent.
successful arbirtaion- US french Air agreement.
other arbirtaions- australia and japan re whaling
Judicial settlement
reference of dispute on consent of parties to ICJ or some other standing and permeneta judicial body for a binding decision. can agree on non binding deciion
Judical settlement through other agencies
some parties request the assistance of the UN or other global agencies. sometimes a third party may request assistance, maybe good offices, mediation ect. the rights and obligations of parties are in each case set out in their respective charters. UN has dealt with issues in the middle easta nd Iran-Iraq. Kuwait ect
legal dispute settlement often given in advance
law of the sea, trade and investment
Subjective jurisdiction
where crime starts
The offence has started in one state and has been actually committed in another state.
DDP v Doot
group of men planned import drugs into UK. UK said although they never did it, it was a plan to go against la wof UK so were tried in the UK. this principle is used in the 1993 criminal justice act- may be guilty wether or not you became party to conspirisry in engand or any act occured in england
Objective territorial Jurisdiction
application of states national laws whent he offence has been completed within the territory of the state
Lotus case- court decided turkey applying objective jursidiction as their nationals died on the turkish ship.
same as the lockerbie case- the plane blown up in scottish territory.
effects doctrine
when effects of nationals/aliens in state B have an effect in state A affecting state A’s economic interests ect. not where crime terminated but where effects felt.
Anti-trust law- ‘western house’ case- US had adopted protection methods with regards to buying urnaiam from other countries- who in turn made price very high. weestern house then sued- this is an offence committed outside the US yet still effected them- this is not a crime but an economic offece/torte
national principle
every state possesses sovreignty ad jurisdictional powers over ts nationals.
Usoli principle- that you aquire nationality by birth
Usagni principle- aquire nationality by blood. some countries prevent bigamy while others do not (earl case)
passive personality principle
national state of the victim allowed to assert jurisdicion.
this does not get much opposition due to terrosim but in COngo v belgium case, the judges argued that the passive personality priciple was met with relevent legal opposition.
Mr Cutties case
he wrote soemthing derogotray about a mexican antional and when he went o mexico he was tried- US argued that the papers never left the US, the crime did nto happen in mexico.
protective principle
state may preside jurisidction over aliens who have committed an act in their state which is deemed to threted their security. i.e. genocide/ terrosim.
Is attached heavily to state sovreignty, it can be invoked for political reasons.
Joyce case
pro nazi came to UK, climed he was irish and tried to get UK passport, then moved to germany where he allied with the nazi regime which was considered by the UK to be an act of treason- considered crime under the protective principle
Protective principle; US v Zehe
Under international law, the “protective principle” gives a country the jurisdiction to prescribe a rule of law attaching legal consequences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, provided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems. [United States v. Zehe,
Eichmann
the israli police going to argentina was unlawful but in about para 35 of the judges decision they discuss the fact that perhaps the protective pricniple could be applied as his acts did threatent he security of israel and affected the whole fo the jewish epople, however how can you say that hwhen Israel didnt even exist as a state when the crimes were being committed.
Universal principle
crimes which are so severe and heinious that every state has a legitimate interest in their oppression.
i.e. crime sof priacy, egnocide. according to sir edward coke- hostis humani generis. every community had the right to inflict puncishment on him.
Treaty based jurisdiction- prosecute or extrdite
1979 convention agaisnt the taking of hostages
torture
states ensure that all acts of tortur are offences in domestic law and take meauses to establish jursidction. states agree to extradite or prosecute
extradition
process of transferring suspect from country he is located in to where he has committed the offence. this is usualy done on the basis of a treaty
Soreing case
judgment of the European Court of Human Rights (ECtHR) which established that extradition of a young German national to the United States to face charges of capital murder violated Article 3 of the European Convention on Human Rights (ECHR) guaranteeing the right against inhuman and degrading treatment.[1]
ottoman
Othman (Abu Qatada) v. United Kingdom was a 2012 judgment of the European Court of Human Rights which stated that under Article 6 of the European Convention on Human Rights the United Kingdom could not lawfully deport Abu Qatada to Jordan, because of the risk of the use of evidence obtained by torture
decentralised system
international law is not passed by or derived from one single law makiing body.
instead for law you need consistent and uniform state practice and opinio juris
obligation
derives from consent
pacta sunt servanda
‘trreaties should be complied with’
Art 26 VCLT 1969
every treaty in force is binding upon the parties and must be performed in good faith (the fact that domestic law cannot be used as a justification for non complience with international law)
the only limit is jus cogens norms
