The Lotus case garners attention due to the fact that it was among the first cases dealing with whether jurisdiction was assumed in accordance with principles of international law. While the Lotus case was heard in the context of criminal jurisdiction over a collision in the high seas, the Lotus principle has been applied in a variety of other cases in varying contexts. For this reason, the judgment of the Permanent Court of International Justice is critiqued for specifically answering only the question in the special agreement as the continued application of the Lotus Principle as a general principle in other contexts such as anti-trust regulations may lead to ambiguous results.
PRINCIPLES OF INTERNATIONAL LAW
In the instant matter of the
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States are left with a wide discretion, limited only by prohibitive rules and wherein no such prohibitive rules exist, States have the freedom to adopt the principles that it regards as best and most suitable. The ICJ effectively held that acts or omissions that are not prohibited under international law are …show more content…
While this proposition is true, it did not in any way stop Turkey from asserting jurisdiction over acts in a foreign ship that resulted in the death of Turkish nationals aboard the Boz-Kourt as the ship is placed in the same position as national territory. The same principles of international law that apply between the territories of two different States apply and international law does not prohibit the cognizance of the acts aboard a foreign ship. This conclusion would have been amended had there been a rule of customary international law that established the exclusive jurisdiction of the State whose flag was flown. However, France failed to conclusively prove the existence of such a rule of customary international law and so, the previous conclusion
The Harvard Law Review Association. (2005). The Debate over Foreign Law in Roper v. Simmons. Harvard Law Review , 119 (1), 103-108.
There continues to be a growing debate to this day over the use of international law in the Supreme Court, and even though the case of Roper v. Simmons and Justice Kennedy, are nearly a decade old, they are both frequently
Although there were numerous movements in promoting the unity of the European, but it seems to have failed. Robertson indicates the unity principle’s outcome is less than what is desired. Thereby, as Murat notes, the court will invariably grant a leeway to the state in deciding the cases namely, the ‘Margin of appreciation’. This maxim owes it genesis from a French term ‘marge d’ appreciation’ that deemed as a doctrine which gives way to a state’s discretion in their governance.
According to Article 38 of the 1946 Statute of the International Court of Justice, the Court shall apply “international custom, as evidence of a general practice accepted as law” in its decisions (Kritsiotis 123). In other words, the International Court of Justice cites customs as a formal source of law. According to Roberto Unger, author of Law in a Modern Society, customary international law is best defined as “any recurring mode of interaction among individuals and groups, together with the more or less explicit acknowledgement of these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that out to be satisfied (Shaw 72-73). In other words, customary international laws are primarily concerned with how and why sates behave in a particular manner. Customs derive from the behavior of states (state practice) and the subconscious belief that a behavior is inherently legal (opinio juris). Evidence of state behavior is documented in the decisions of domestic courts, international courts, and international organizations. Unlike treaty law, customary laws are binding on all states. Additionally, if a treaty derives from a custom it is also binding on all states. Some of the international court cases that have been instrumental in the development of customary international law include the Nicaragua v. United States case, the Anglo-Norwegian Fisheries case, the Scotia case, the Asylum case, the Paquete Habana case, and the Lotus case.
International law is a body of legally binding rules that are suppose to govern the relations between sovereign states. (Cornell Law School) In order to be a qualified subject, a state has to be sovereign. To be considered sovereign the state needs to have territory, a population, and a government that is recognized or legitimized to most other states. In the more modern explanation of international law now can include the rights and obligation on intergovernmental international organizations and even individuals. Examples of an international organization would be Greenpeace or the United Nations and an example of an individual would be war criminals, a leader of a state that violated human rights during a time of war. When a dispute arise and cannot be solved amongst the two actors involved they can turn to the U.N. to arbitrate and to the International Court of Justice, one of many courts within the U.N. to find a resolution to their problem. The International Court of Justice’s main task is to help settle legal disputes submitted to it by states and...
The presumption is that a state jurisdiction is territorial and if each State has jurisdiction over its own territory, consequently, other States do not have jurisdiction over those affairs in line with the international law principles of non-intervention and sovereign equality of States . In fact, territorial jurisdiction is universally recognized. However, as Ryngaert points out, jurisdiction is not only linked with sovereign and is no exclusively of domestic concern (Ryngaert, p. 7), making reference to the “extra-territorial
The first problem is that ECJ’s rationale is controversial in textual terms. Article 288 simply indicate that a member state is obliged by a directive only if that particular Member State is mentioned to be bound, as a means of contrast to regulations that is bound on all Member States (General applicability). It has not considered whether a directive, which binds a Member State, could enforce an obligation on an individual.
Although merchant ships spend most of their lifetime outside the territorial waters, the current international maritime legal regime is ironically revolved around nationality of the vessel. Every vessel engaged in international trade must register in a country and is subjected to the regulatory control of that country whose flag it flies as per the existing international maritime law. Resultantly, any country has the right to allow a vessel to fly its national flag and to therefore bestow its nationality upon that vessel. When a vessel owner registers a vessel with a nation, the owner agrees to abide by that nation’s law and regulations of that ‘flag state’ in return for protection and the right of its vessel to be of that sovereign state. A system commonly known as “Flags of Convenience” (FOC) has developed, in which commercial vessels register in countries with “open registries” and consequently the ships contain practically no link at all to the flag states in which they are registered.
About the power of the subjects of international law, it is the basic properties, the special legal ability of the subjects that inherited the rights and shoulder the obligations, legal responsibility in international legal relations. Subjects' power includes two aspects, and only when ones get all these two aspec...
CONTENTIONS CONCEPTS • Sphere of Influence - When reading the Compact, it is evident that the concept of ‘sphere of influence’ plays a key role in its interpretation. This concept has, however, resulted in much legal uncertainty, debate and even criticism, as it is considered by many to be very vague and general. By the same token, the term ‘complicity’, although generously used throughout the Compact, has also not been assigned a definite and clear meaning. Schutte contends that the Compact will remain inefficient and ineffective pending the establishment of clear and certain (acceptable) means being ascribed to the concept. For purposes of the discussion contained in this Thesis, the notion of ‘sphere of influence’ should be viewed as
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
...th 2001). Roth argues that the concept of international jurisdiction is not a new idea but was exercised by the US government in the 1970 after an aircraft hijacking. Also the war crime courts established after the end of World War II exercised international jurisdiction. In fact the Geneva Convention states that is a person regardless of their nationality should be brought before the court of any state in which that person has committed grave breaches of law and convention. Roth states that the concept of international jurisdiction is not a new one but that only in recent years have states been willing to act on universal jurisdiction and go after criminals of the international community regardless of their stating or power within the international community. Roth believes in the ability and authority of international organizations and institutions (Roth 2001).
The rule of law requires compliance by the state with its obligations in International law.
Public International law International law contains of rules and principles, which preside over the relations and communication of nations with each other. International Law that is in most other countries referred to as Public International Law concerns itself only with questions of rights among more than a few nations or nations and the citizens or subjects of other nations. In dissimilarity, Private International Law deals with controversies among confidential persons, natural or juridical, arising out of situations having important association to further than one nation. In current years the line up connecting public and private international law have became more and more doubtful. Issues of private international law may also associate issues of public international law and numerous matters of private international law nave considerable meaning for the international group of people of nations. International Law consists of the basic, classic concepts of law in nationwide legal systems, status, property, responsibility, and tort. It also includes substantive law, procedure, process and remedies. International Law is rooted in receipt by the nation states, which comprise the system. Customary law and conventional law are primary sources of international law. Customary international law results when states trail convinced practices usually and time after time out of an intelligence of legal responsibility. Lately the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may obtain any appearance that the constricting parties have the same opinion upon. Agreements may be complete in admiration to any substance except for to the leve...
The judicial statement of Roskill LJ observed in The Albazero [1977] AC774 held plenty of arguments in modern world today. To reach an extent of agree or disagree the judicial statement, it should be critically analysed from a legal perspective: