Lecture 2 Flashcards
S.S. Lotus (France v. Turkey), 1927
Case before the Permanent International Court of Justice (precursor to ICJ);
Facts: A collision between the SS Lotus and the SS Bozkourt on the High Seas which resulted in eight Turkish nationals drowning. Turkey issued criminal proceedings against both the captain of the Turkish vessel and the officer of the watch on the French vessel.
Question: Did Turkey violate international law when they exercised jurisdiction over a crime committed by a French national outside of Turkey?
Decision: “There is no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown…It is therefore a case of __________ jurisdiction.”
S.S. Lotus (France v. Turkey), 1927
Case before the Permanent International Court of Justice (precursor to ICJ);
Facts: A collision between the SS Lotus and the SS Bozkourt on the High Seas which resulted in eight Turkish nationals drowning. Turkey issued criminal proceedings against both the captain of the Turkish vessel and the officer of the watch on the French vessel.
Question: Did Turkey violate international law when they exercised jurisdiction over a crime committed by a French national outside of Turkey?
Decision: “There is no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown…It is therefore a case of Concurrent jurisdiction.”
Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a specific case.
The Core Principle of The Lotus case: “Everything that is not forbidden is allowed.”
Importance? International law as a permissive system – state behaviour presumed permitted unless a rule/law prohibits it.
Developments: The ____ State Principle
The Core Principle of The Lotus case: “Everything that is not forbidden is allowed.”
Reasoning: “…international law governs relations between independent states. The rules of law binding upon states therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established to regulate the relations between these co- existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed”.
Importance? International law as a permissive system – state behaviour presumed permitted unless a rule/law prohibits it.
Developments: The Flag State Principle i.e. only the flag state or the State of which the alleged offender was a national had jurisdiction over sailors regarding incidents occurring on the high seas.
S.S. Wimbledon (U.K. v. Japan), 1923 - Case before the PCIJ
Facts: SS Wimbledon was carrying munitions and artillery stores to a Polish Naval Base at Danzig. It was refused permission to enter the Kiel Canal on grounds of German Neutrality Orders regarding the Russo-Polish War. It was claimed this amounted to a violation of the Treaty of Versailles which required under Article 380 that the Kiel Canal be kept open for “vessels of commerce and of war” of all nations at peace with Germany.
Question: Was Germany obliged to make good on its violation of the international treaty notwithstanding the infringement on Germany’s sovereignty this would entail?
S.S. Wimbledon (U.K. v. Japan), 1923 - Case before the PCIJ
Facts: SS Wimbledon was carrying munitions and artillery stores to a Polish Naval Base at Danzig. It was refused permission to enter the Kiel Canal on grounds of German Neutrality Orders regarding the Russo-Polish War. It was claimed this amounted to a violation of the Treaty of Versailles which required under Article 380 that the Kiel Canal be kept open for “vessels of commerce and of war” of all nations at peace with Germany.
Question: Was Germany obliged to make good on its violation of the international treaty notwithstanding the infringement on Germany’s sovereignty this would entail?
Decision: “Germany was perfectly free to regulate her neutrality in the Russo-Polish war, but subject to the condition that she respected and maintained intact her contractual obligations.”
Reasoning: the right to enter into treaty making is an attribute of sovereignty…the German claim that their obligations did not apply to war vessels was a contradiction of the plain terms of Articles 380.
The Significance of the Lotus and Wimbledon cases:
“The two cases…together establish that in a horizontal order of sovereign equals international law is by no means impossible; indeed, it is precisely because states are sovereign that they can make international law. But the same sovereignty entails that rules can only be made on the basis of ______ ; the rules of international law emanate from the freely expressed will of sovereign states” – Jan Klabbers, ‘International Law’
The Significance of the Lotus and Wimbledon cases:
“The two cases…together establish that in a horizontal order of sovereign equals international law is by no means impossible; indeed, it is precisely because states are sovereign that they can make international law. But the same sovereignty entails that rules can only be made on the basis of consent; the rules of international law emanate from the freely expressed will of sovereign states” – Jan Klabbers, ‘International Law’
United Nations Charter (1945), Chapter XIV.
Article 92: The ____________ shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter
United Nations Charter (1945), Chapter XIV.
Article 92: The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter
Article 93(1): All Members of the United Nations are _____________ to the Statute of the International Court of Justice.
Article 93(1) of the UN Charter: All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.
Article 94 of the UN Charter:
(1) Each Member of the United Nations undertakes to comply with the _______of the _____________ in any case to which it is a party.
(2) If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the _____________, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.
Article 94 of the UN Charter:
(1) Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.
(2) If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.
Article 38(1) of the UN Charter: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international _______, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international _____, as evidence of a general practice accepted as law;
c. the general _______of law recognized by civilized nations;
d. subject to the provisions of Article 59, __________ and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Article 38(1) of the UN Charter: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Article 38 is significant because it lists the types of principles the Court will apply in deciding cases before it!
Sources of International Law:
Primary sources:
1.
2.
3.
Secondary sources:
1.
2.
Sources of International Law:
Primary sources:
- International agreements
- Customs
- General principles of law
Secondary sources:
- Judicial decisions (case law - have no binding force)
- Writings of jurists
International Agreements bind only the parties to it. Established by A) the ____ ______, and B) International ______
eg. The Geneva Conventions on the conduct of war or armed conflict; The UNESCO Convention against Discrimination in Education; The World Trade Organisation Framework Convention on Tobacco Control; Vienna Convention on the Law of Treaties etc.
International Agreements bind only the parties to it. Established by A) the United Nations, and B) International Treaties
eg. The Geneva Conventions on the conduct of war or armed conflict; The UNESCO Convention against Discrimination in Education; The World Trade Organisation Framework Convention on Tobacco Control; Vienna Convention on the Law of Treaties etc.
The Main Types of International Agreements:
1.
2.
3.
The Main Types of International Agreements:
- Treaty = an international agreement concluded between States in written form and governed by international law, embodied in a single instrument or in two or more related instruments; Bilateral treaties, Multilateral treaties – (eg. Vienna Convention on the Law of Treaty 1969) - if ratified binding on the parties;
- Charter = constituent treaties of international organizations (an institution or committee); they are the guiding rules and regulations for the functioning of that institution and also might lay down certain limitations for outsiders or participating countries (eg. UN Charter, ICJ Charter );
- Convention = 1. (broader meaning ) all international agreements
= 2. ( specific meaning) formal multilateral treaties with a broad number of parties; open for participation by the international community as a whole, or by a large number of states. Usually the instruments negotiated under the auspices of an international organization (e.g. Convention on Biological Diversity of 1992, United Nations Convention on the Law of the Sea of 1982, Vienna Convention on the Law of Treaties of 1969)
Creating Treaties - Vienna Convention on the Law of Treaties.
Article 2
A “treaty” is an international agreement concluded between ____ in _____ form and governed by international law
Article 6: Capacity of States to conclude treaties -
Every State possesses capacity to conclude treaties
Creating Treaties - Vienna Convention on the Law of Treaties.
Article 2
A “treaty” is an international agreement concluded between states in written form and governed by international law
Article 6: Capacity of States to conclude treaties -
Every State possesses capacity to conclude treaties
Vienna Convention on the Law of Treaties
“Classic” Stages in Creating a Multilateral Treaty
1. Accrediting persons to conduct negotiations on behalf of each state
2. _______ the text
3. Adopting the text of a treaty
4. Authentication of that text and signature
5. Ratification, if necessary
6. Any accessions
7. Entry into force
8. Registration and _______
Vienna Convention on the Law of Treaties
“Classic” Stages in Creating a Multilateral Treaty
1. Accrediting persons to conduct negotiations on behalf of each state
2. Negotiating the text
3. Adopting the text of a treaty
4. Authentication of that text and signature
5. Ratification, if necessary
6. Any accessions
7. Entry into force
8. Registration and publication
Invalidity and Termination of Treaties: Vienna Convention
Article 48 – error of ___
Article 49 – fraud
Article 52 – _____ in terms of use of force
Article 53 – conflict with preemptory norm
Invalidity and Termination of Treaties: Vienna Convention
Article 48 – error of fact
Article 49 – fraud
Article 52 – coercion in terms of use of force
Article 53 – conflict with preemptory norm
Material Breach: Article 60.
A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part
…
A material breach of a treaty, for the purposes of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
Supervening Impossibility: Article 61.
A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.
Fundamental changes. Article 62
Customary International Law comes from the usual behavior of states towards each other a rule is identified on the basis that states usually act in a certain way, and do so out of a sense of obligation an important source of international law because it binds all nations, and so is not limited in its application, as a treaty is, by reference to who has ratified it or acceded to it.
Examples of customary international law:
- the law of piracy
- the doctrine of non-refoulment
- granting of ______ for visiting heads of state
Customary International Law comes from the usual behavior of states towards each other a rule is identified on the basis that states usually act in a certain way, and do so out of a sense of obligation an important source of international law because it binds all nations, and so is not limited in its application, as a treaty is, by reference to who has ratified it or acceded to it.
Examples of customary international law:
- the law of piracy
- the doctrine of non-refoulment
- granting of immunity for visiting heads of state
