Public international Law rules
Considering how Public international Law rules are made, do you think that the known passage from the the PCIJ, Lotus case France v Turkey (07/09/1927), Series A, No. 10, p.18. “The rules of Law binding upon states emanate from their own free will… Restrictions upon the independence of states cannot therefore be persumed” Accurately explains the normative force of international law? could the opposite be presumed, specifically that state sovereignty is limited in factor of rules aiming at protecting the community values and general interests and that such rules can be forced on states without their consent or even against their will?
Sources needed are found in the following link : https://www.sendspace.com/file/8pn074
Table of Cases
Lotus case France v Turkey (07/09/1927)
Introduction
In the lotus case, the ICJ accurately explains the normative force of international law by suggesting that the rules binding any state originate from a free will, which implies that no presumption exists in regards to restriction of states independence . In other words, states’ obligation is to abide by the international legal obligations that they have consented to. Based on this understanding, any state objecting to a given reservation has the free will to decide whether a given treaty is contention between it and the State reserving it. However, another presumption is that the sovereignty of any state is limited in factors aiming to protect the values of a given community. These rules are enforceable on any state without their will or consent. This discussion seeks to bring out these ideas with a closer look at the known passage in the PCIJ, Lotus case between France and Turkey.
Background of the Lotus Case
The decision in the Lotus Case was made in 1927. In this case, a collision between a French and Turkish vessel had taken place in the high seas. The French vessel- Lotus remained in good shape after this collision and no causalities on the French side. However, the Turkish vessel- Boz-Kourt was severely damaged, and it sank into the ocean, killing eight of its occupants, all of who were Turkish nationals. There were ten survivors from the Boz-Kourt inclusive of the vessel’s captain, and they took them to Turkey aboard the Lotus. On arriving in Turkey, both captains of the two vessels were presented with charges relating to manslaughter. Demon, who was the captain of the French vessel, was given fine and 80-day imprisonment1. However, the French government gave concerns on this decision by issuing a protest demanding the transfer of Demon’s case to France or his immediate release. France and Turkey came to an agreement that the case should be left in the jurisdiction of the Permanent Court of International Justice1.
The question the Court had to answer is whether Turkey violated international law by exercising jurisdiction on a crime committed outside turkey by a French national. Also, the Court sought to establish if Turkey was liable for paying compensation to France. ICJ ruled that Turkey did not violate international laws by undertaking the measured it did1.
The primary principle of the Lotus Case notes that a state cannot exercise its authority outside its territory unless a global treaty or customary law allows it to do so. Within its jurisdiction, a state may exercise its authority, in any matter, even though there’s no particular rule of international law permitting it to do so. In these cases, States have a broad measure of discretion, which is just limited by the restrictive regulations of international law1.
International legislation doesn’t prohibit a state from exercising jurisdiction in its land over acts that took place abroad. In case the individual who committed the offense is present in that State, the State can detain her and try her in a courtroom. In other words, applying its authority even when there’s absolutely no rule in international law expressly permitting a state to achieve that is justified .
In this Lotus Case, “the ICJ findings were that an act or omission that’s not prohibiting under federal regulation is permitted”1. In other words, a state is allowed to exercise authority within its territory over acts that occur outside its land as long as there isn’t any rule in international law expressly prohibiting it.
The Court maintained that that international law prohibits a state from exercising jurisdiction in its land, regarding any situation which relates to actions that have taken place overseas, and where it can’t count on some permissive principle of global law1. Such a perspective would only be tenable if universal law included a general prohibition to states to expand the application of the legislation and the jurisdiction of the courts to persons, property, or acts outside their territory. In the event, within an exception to the general prohibition, it enabled States to do this in some particular scenarios.
States may not extend the application of the law and jurisdiction of their courts to persons, property, or actions beyond their territory. It leaves them in this respect a full measure of discretion, which will be only limited in some instances by restrictive rules. Every state has the free will to adopt the principles that it deems as best and most appropriate. This discretion left to states by international law explains the number of policies that they’ve been able to embrace without understanding or complaints on the part of states . In such circumstances is the fact that it shouldn’t overstep the limits that international law places upon its jurisdiction; in its sovereignty, its name to exercise authority rests within these constraints.
In case the presence of a specific rule was a pre-requisite to exercise jurisdiction, it might, in many instances, lead to paralyzing the actions of the courts, owing to the impossibility of mentioning a universally accepted principle . The Court’s findings are based on the sovereign will of states. The international law governs relationships between States. Limits upon the independence of states cannot be presumed against communities to achieve common goals4. Expressing principles of law, accepted and established in order from their free will as expressed in traditions. The law rules binding states emanate to govern the relationships between those co-existing independently.
Territorial Jurisdiction
According to France’s allegations, the vessel’s flag has jurisdiction over offenses committed on board the boat in high seas1. “The Court disagreed. It maintained that France, as the flag did not enjoy exclusive territorial sovereignty in the high seas regarding a collision with a vessel carrying the flag of another state. The Court held that France and Turkey both have jurisdiction in respect of the episode; there was authority”1.
“The Court’s position was that a ship within the high seas should assimilate to the territory of the flag State. This State may exercise its authority in the same manner because it applies its jurisdiction over its area, to the exclusion of other States, over the boat. The Court equated the vessel to land. The Court held that the offense generated its effects on the Turkish ship and at a place assimilated to Turkish territory. As such, the application of criminal law is unchallengeable, even regarding offenses. The Court concluded that Turkey had jurisdiction over this case”1.
As such, a guilty act committed on the high seas generates its effects on a boat flying another flag. The same principles must be implemented as if the territories of two distinct States were involved . The conclusion must be drawn in such a way there isn’t any rule of international law prohibiting the State from taking such actions. The impact of the offense goes from regarding the crime as having been committed in its territory. The Court explained that a State would have jurisdiction in situations where the offense is committed beyond its territory1. This scenario is what is referred to as a territorial authority . In other words, an individual has to prove that the offense is united with the international law requirements for territorial jurisdiction to be established in situations where the element is absent. The offense non-existent is rendered by separation. It is only natural that every episode is made a whole. It is, therefore, a case of jurisdiction. These two components are legally inseparable. The offense where Lieutenant Demons seems to have been ought to be able to do so concerning exercise the authority of imprudence or negligence.
The Customary International Law
On the formulation of international law, a dictum emerges from the Lotus instance. France had alleged because States are inclined to prosecute before the flag State that inquiries on crash instances are found in criminal cases . France argued that this lack of prosecutions points to some rule in law. The Court disagreed, maintaining that it demonstrates that States had frequently abstained from instituting criminal proceedings1. Instead, they understood themselves as being able to do this, for just if these abstentions were predicated in their being mindful of having a responsibility to abstain, could it be possible to talk of a global custom. The fact that is does not allow you to recognize that States have been aware of having responsibility1. To put it differently, opinion Juris is represented inactions of the States, but also in omissions when these omissions are created after a belief that the said law obligates the State to refrain from specific behavior .
The ICJ has to determine if the unilateral declaration under international law. The ICJ argues that the applicable international law does not prohibit a unilateral declaration of independence and inquired . According to the finding, the Court decided that this adoption didn’t violate any rule of law1. Judge Simma disagreed with the Court’s methodology1. He attributed the method to the principle established in the Lotus case: what isn’t prohibited is allowed under the law1. He criticized the Lotus dictum as an outdated century positivist approach that’s overly discriminated towards State approval. He explained that the Court should have considered the possibility that law could be intentionally neutral or silent on the global lawfulness of particular acts1. Rather than concluding that the absence of prohibition meant that a unilateral declaration of independence is allowed under international law, the Court should have inquired whether under specific states law tolerates or allows unilateral declarations of independence.
The Sovereignty Of Any State Is Limited In Factors Aiming To Protect The Values Of A Given Community.
Sovereignty remains bedrock to international law. However, in the world of today, sovereignty is regarded as a shield for protecting individuals and solving our shared problems . The acknowledgment of duties led to the acceptance of rights that were international. This recognition of rights and accountability of individual liberty is justified. The Universal Declaration of Human Rights agreed by the United Nations’ general meeting was a document that did that . It outlines an extensive and thorough list of Human Rights, which are enjoyed by all people and to be maintained by all countries8. The implementation of Human Rights lies within the grasp of states themselves. Human Rights challenge the ability of the country to act without question within its borders, although not directly challenging the core concept of state sovereignty . Human Rights continue growing in importance, and it is not to claim that as Liberal ideas continue to propagate across the developing world, Human Rights will continue to challenge the country’s sovereignty in a manner that is changing and direct. The bright, universal standards go over and beyond some of those agreeing states national laws. The United Nations Declaration declares that a nation’s action and all should mirror the criteria . The Universal Declarations of Human Rights is never an optional set of guidelines but a binding philosophy that challenged authority and the behavior. In particular, it challenges the State’s power to create any legislation it needs, placing a frame of values and holding it accountable for a system .
Situations involving systematic human rights violations require humanitarian intervention. The mindset within the Global community towards Human Rights seems to improve significantly regardless of the seeming lack of Validity on the peace . The increased importance placed on Individual Rights has a Greater role in recent years. It has been vital in redefining the opinion that the global society on this concept, even though the recent proliferation in Human Rights promotion has not directly challenged the right of a state . Changes seen in the understanding of sovereignty reflect a procedure for expressing new standards, and new perceptions of norms, into the structure of global law and politics. In the past half-century, Human Rights insinuated into our understanding of sovereignty and consequently have been broadly and increasingly profoundly integrated to the practices of politics and global law . The knowledge that Human Rights are significant, together with territorial integrity, gives their leaders responsible and states. External respect for its national boundaries of nations and the internal regard for the safety and well being of its people now coincide.
According to the primary principle of the Lotus Case, a state cannot exercise its authority outside its territory unless a global treaty or customary law allows it to do so. Within its jurisdiction, a state may exercise its authority, in any matter, even though there’s no particular rule of international law permitting it to do so . In these cases, States have a broad measure of discretion, which is just limited by the restrictive regulations of international law. Based on this understanding, the ICJ accurately explains the normative force of international law by suggesting that the rules binding any state originate from a free will, which implies that no presumption exists in regards to restriction of states’ independence.
In regards to territorial jurisdictions based on international law, the legal position is that a ship within the high seas should assimilate to the territory of the flag State . This State may exercise its authority in the same manner because it applies its jurisdiction over its area, to the exclusion of other States, over the boat. The ICJ held that the offense generated its effects on the Turkish ship and at a place assimilated to Turkish territory . As such, the application of criminal law is unchallengeable, even regarding offenses. The Court concluded that Turkey had jurisdiction over this case. This goes further to strengthen the position that the Lotus case accurately explains the normative force of international law by implying that no presumption exists in regards to restriction of states independence
Another critical point raised in this discussion is that states may not extend the application of the law and jurisdiction of their courts to persons, property, or actions beyond their territory . Such a scenario leaves them in this respect a full measure of discretion, which will be only limited in some instances by restrictive rules. Every State has the free will to adopt the principles that it deems the most appropriate . This discretion left to states by international law explains the number of policies which they’ve been able to embrace without understanding or complaints on the part of states. Under such circumstances, a country shouldn’t overstep the limits that international law places upon its jurisdiction; in its sovereignty, its name to exercise authority rests within these constraints . As such, the normative force of international law is justified in the sense that no presumption exists in regards to restriction of states’ independence as implied by the international legal standards and requirements.
Conclusion
The increased importance placed on Individual Rights has a Greater role in recent years. It has been vital in redefining the opinion that the global society on this concept, even though the recent proliferation in Human Rights promotion has not directly challenged the right of a state. Changes seen in the understanding of sovereignty reflect a procedure for expressing new standards, and new perceptions of norms, into the structure of global law and politics. In the past half-century, Human Rights insinuated into our understanding of sovereignty and consequently have been broadly and increasingly profoundly integrated to the practices of politics and global law. Based on this understanding, any state objecting to a given reservation has the free will to decide whether a given treaty is contention between it and the State reserving it. The sovereignty of all States is a right as laid out on international law to exercise powers on specific jurisdiction. It retooled and has been redefined as a duty to use control. Law, although state-based, has become more lenient regarding cross-border intervention to protect Human Rights. The implementation of Human Rights lies within the grasp of states themselves. Human Rights challenge the ability of the country to act without question within its borders, although not directly challenging the core concept of state sovereignty. Human Rights continue growing in importance, and it is not to claim that as Liberal ideas continue to propagate across the developing world, Human Rights will continue to challenge the country’s sovereignty in a manner that is changing and direct. As such, the sovereignty of any state is limited in factors aiming to protect the values of a given community and these rules are enforceable on any state without their will or consent.
Bibliography
Books
A. Anghie, Imperialism, Sovereignty and the Making of International Law, CUP, 2005.
A.-M. Slaughter, S.-R. Ratner, “The Method is the Message” (1999) 93 AJIL 410
I. Brownlie, ‘The Reality and Efficacy of International Law’ (1981) 52 British Yearbook of International Law 1
James Crawford, Brownlie’s Principles of Public International Law, 9thedition (Oxford University Press, 2019)
Malcolm D. Evans (ed.), International Law, 5thedition (Oxford University Press, 2018)
Malcolm Shaw, International Law, 8thedition (Cambridge University Press, 2014) and 8th edition
PCIJ, Lotus, (France v. Turkey), 1927
R. Higgins, Problems and Process (1994), Chapter 1
Journals
A.C. Arend, ‘Do Legal Rules Matter? International Law and International Politics’ (1998) 38 Virginia Journal of International Law 107
Anthony Clark Arend, ‘Do Legal Rules Matter? International Law and International Politics’ (1998) 38 Virginia Journal of International Law 107
E. Jouannet, “A Century of French International Law Scholarship” (2009) 61 Maine Law Review 83
E. Jouannet, “Universalism and Imperialism: The True-False Paradox of International Law?” (2007) 18 EJIL 397 M.
H.-J.Morgenthau, “Positivism, Functionalism, and International Law” (1940) 34 AJIL 260
Helmersen, S.T., “Finding ‘the Most Highly Qualified Publicists’: Lessons from the International Court of Justice” (July 22, 2019), European Journal of International Law, 30 (2019), No. 2, pp. 509-535.
Jan Klabbers, International Law, 2ndedition, (Cambridge University Press, 2017)
Karvatska, S. B. “Travaux Préparatoires: Application by the International Court of Justice in Interpretation of International Law” (May 3, 2019), Actual Problems of International Relations, 138 (2019), pp. 144-152.
Koskenniemi, “International Law in Europe: Between Tradition and Renewal” (2005) 16 EJIL 113
M. Koskenniemi, “The Fate of Public International Law: Between Technique andPolitics” (2007) 70 Modern Law Review 1
M. Koskenniemi, “The Politics of International Law” (1990) 1 EJIL 4
M. McDougal, “International Law, Power and Policy: A Contemporary Conception” (1953) 82(I) RCADI 137
M. Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2011) 21 EJIL 967
P. Allott, ‘The Concept of International Law’ (1999) 10 European Journal of International Law 31
S. Hall, “The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism” (2001) 12 EJIL 269
T. Franck, “Legitimacy in the International System” (1988) 82 AJIL 705
UN GA, Resolution 2131 (XX), “Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty”, 21-12-1965
UN GA, Resolution 2625 (XXV), “Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations”, 24-10-1970
Website
United Nations, “International Law, Codification, Legal Affairs, Commission, ILC, Instruments and Reports, Yearbook” (United Nations)
