International law summary
International Law (620228)
Tilburg University
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International law
Week 1: Introduction
International law delivers the framework and vocabulary that helps make international politics possible. Without international law, there could not even be states.
The different between international public law and international private law is that public law are the rules between states and private law are the rules between people in different countries.
You speak of international law as soon as two (or more) different states wants to cooperate an issue.
Supranational: it is higher than the states. They can make decisions against the states and they can overrule the states example: EU.
The starting point of international law is that states become voluntary a party to a treaty (consent to be bound). There is an exception on this rule. Ius cogens genocide is never allowed. Even when you’re not a party of a treaty.
Erga omnes are the standards that are practicable between all relations. Not only parties but also between people.
We talk about a state when the state have a (cumulative): Territory Government Population Are other states are willing to recognize the state? There is no rule how many states have to recognize a state. But 2/3 of the UN state is enough.
Right to self-determination Internal o Empty basket External o If a state keeps violating the rights of the population, in that case people have the right to succeed.
The basic rule of self-determination is that the state has to support it. London support Scotland Spain doesn’t support Catalonia Referendum of the Krim was illegal and Ukraine didn’t support it. But if a state keeps violating the people (ex. Genocide) at that moment remedial (suspicion recession). Kosovo they claimed to succeed to Servia because Servia keeps violating Kosovo.
When do we speak of law? 1. Subject
- Object
- Addressee
- It can be enforced
International law is also the law of non-governmental institutions.
International law have started in the seventeenth century. In the year 1648, the Peace of Westphalia was concluded to mark the end of the Thirty Years’ War. The publication in 1625 of Hugo Grotius’ On the law of war and peace.
Colonialism Terra nullius: a territory that belongs to no one. Terra communis: common property, and thus not susceptible of occupation and sovereignty.
International law and the global economy International law is, in part, the legal system regulating the global economy, in much the same way as it has been observed that domestic legal systems and law school curricula (at least in the Western world) from the late nineteenth century onwards were set up so as to facilitate the capitalist economy.
The international legal system John Austin (a nineteenth-century positivist thinker): international law can be seen as ‘positive morality’: it is more or less binding on states, but as a matter of morality, not as a matter of law.
Almost all nations observe almost all principle of international law and almost all of their obligations almost all of the time. Various explanations are offered for this state of affairs. One is that since states themselves make international law. The implementation and application of law is very much a matter of habit and routine, and this is no different in international law. States will continue to do what they are used to doing and this typically helps strengthen international law. An important role is also played in international law by consideration of reciprocity. If states A and B are at war, and A starts to mistreat B’s citizens, then B will be highly tempted to mistreat A’ citizens as well. Role of legitimacy. A rule that is generally perceived as useful and that has been created in the proper manner may be seen as legitimate and thereby exercise a ‘compliance pull’. States are few in number and are attached to their territories; they cannot escape from each other, and it is decidedly costly to be a pariah state.
International law does have some mechanisms to deal with violations, even if not all of these can properly be called ‘sanctions’, and here too reciprocity plays a prominent role. Retorsion. o Recalling the ambassador for consultation. o Breaking off of diplomatic relations. Countermeasures. These are characterized by their own illegality, but this illegality is rendered lawful if they are done in response to an earlier wrongful act committed by the other side. Inadimplenti non est adimplendum. If A violates a treat, then B may do the same. Self-defense. Collective security action.
only until a specified date, after which signature will no longer be possible. Once a treaty is closed for signature, a State generally may become a party to it by means of accession. Some multilateral treaties are open for signature indefinitely. Most multilateral treaties on human rights issues fall into this category, such as the Convention on the Elimination of All Forms of Discrimination against Women, 1979; the International Covenant on Civil and Political Rights, 1966; and the International Convention on the Elimination of All Forms of Racial Discrimination, 1966.
How are treaties enforced? There is no over-arching compulsory judicial system or coercive penal system to address breaches of the provisions set out in treaties or to settle disputes. That is not to say that there are no tribunals in the international legal system.
For example, the Charter of the United Nations established the International Court of Justice, the principal judicial organ of the United Nations, as a means by which Member States may settle their disputes peacefully, in accordance with international law. The Court can also give advisory opinions on legal questions referred to it by duly authorized international organs and agencies. Member States of the United Nations, in cases to which they are parties, are obliged to abide by the Court’s decisions. However, before a case can go before the Court, a State must have accepted the jurisdiction of the Court, either in general or in relation to a specific case. A State that has not accepted the Court’s jurisdiction cannot be forced to appear before the International Court of Justice.
States may also entrust the settlement of specific disagreements to other international dispute resolution mechanisms established by treaties such as the International Tribunal for the Law of the Sea, the Permanent Court of Arbitration and the dispute settlement bodies of the World Trade Organization, among others. Different treaties may also create different treaty body regimes to encourage the parties to abide by their obligations and undertake actions required for compliance. For instance, the Human Rights Committee monitors the implementation of the International Covenant on Civil and Political Rights; the Committee on the Elimination of Racial Discrimination monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination; and the Committee against Torture monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment.
The Security Council can also adopt, under Chapter VII, measures to enforce its decisions regarding threats to international peace and security, breaches of the peace or acts of aggression. Such measures may include sanctions or authorizing the use of force.
Week 2: The United Nations
The United Nations is a platform for international law. It is based on the UN Charter. Roosevelt (president of USA) labeled four freedoms (the four pillars) of the world: - Freedom of speech - Freedom of religion - Freedom from fear - Freedom from want All this pillars are in the preamble of the UN Charter. The UN is started to make this pillars reality.
The UN Charter
Article 2 (4): monopoly of force. States are not allowed to use force, except in the case of the 2 exceptions: - Self-defence (art. 51 UN) - Permission of the Security Council.
Article 51 Self-defence. It is not allowed, except when there is; - Real fear; - Imminent tread Of a strike. Sometimes a state can do the first strike and still acting in self-defence. You can’t strike just because of talking or treads. There has to be a real fear. In that case you don’t have to wait for the first strike.
There are two different kinds of self-defence; - Before the strike - After the strike
Article 2 (7) right to mind your own business. Examples: - Driving on the right side; - Taxes. If a government violating their own people, this article say it is not just the business of the state. You are not allowed to do anything, there are gaps in the cheese. Each right has his limits. Example; genocide. Responsible suffer. You have to act on the behalf of your kin.
Article 4 (1) Membership. You do not need to have a democracy state to join the UN. This is different with ECHR. The UN has an open door policy. If you want to exam the opportunity of a state to join the UN you have to make sure that the state is a real state (in line with the UN). You have to make sure that the state that will join the UN Have an: Territory Government Population Are other states are willing to recognize the state? There is no rule how many states have to recognize a state. But 2/3 of the UN state is enough. Article 5 + 6 Membership. Under circumstances a state can throw out the UN. It is never happened. A state can also send out for a few years. It is never happened because talking is better than to send the state away (you don’t have control over it anymore). Violating is never the solution.
Article 7 Organs of the UN. The International Criminal Court is not an UN organ. They have a relation based on a treaty.
Article 20 Procedure.
Hart about international law: it is law, but did not add up to a legal system, because of how they were made and enforced seemed to be lacking. But it is not true that international law is a system without sanctions and it that it lacking enforcement. International law has accepted three kind of responses to state behavior that can be qualified as sanctions. There is the idea that a breach by one side releases the other side from its obligations Inadimplenti non est Adimplendum; There is the so-called retorsion; legal response Traditionally international law has accepted the institution of reprisal or represaille illegal response. Inadimplenti non est adimplendum If state a acts in breach of a treaty, then state B can use this as a reason not to perform its side of the bargain. But this is not always the case, more likely, however, is that one of them breaches it, but the other does not view non-performance or termination as the proper remedy. Example: Rainbow Warrior case: French secret service had bombed a ship lying in port in New Zealand. Two French officials would be incarcerated for a period of three years on a French military base in French Polynesia, and could only be removed by New Zealand’s permission. It so happens that with both individuals, France violated the treaty; both were taken off the military base without New Zealand’s permission. The point for present purposes, however, is that the relief sought by New Zealand was not a termination of the treaty; instead, New Zealand argued that the two should sit out their remaining time. A situation like this will often occur; it will only be in rare cases that termination of a treaty is the preferred response to a breach of the treaty by the other side.
Bilateral vs. multilateral inadimplenti non est adimplendum It is almost definition limited to bilateral states. If it has any application at all with respect to multilateral treaties, it must be a different kind of application; a breach by A of an obligation towards B does not mean that B can unilaterally terminate the treaty, since doing so would also affect the legal position of others States.
Hence, the only feasible conclusion is that inandimplenti non est adimplendum may serve as something of a sanction, but is naturally of limited scope, applying first and foremost to bilateral treaty relations, and even then only in fairly rare circumstances.
Retorsion A retorsion is an unfriendly act made in response to an injurious act done by another state. Example: breaking off of diplomatic relations or recalling of ambassadors.
What characterizes the retorsion is that it remains within the law. Reprisals and countermeasures Countermeasures are in themselves illegal acts, which become justified by being a response to an earlier violation by the other state, and for this reason, countermeasures are listed among the ‘circumstances precluding wrongfulness’ in the Articles on States Responsibility. There are two different kinds of countermeasures; - Non-forcible - Involve the use of force
A countermeasure have three conditions according to the Naulilaa case;
- Countermeasures may be legitimately exercised only when preceded by a wrongful act;
- Countermeasures must be preceded by a request to redress the injury;
- Countermeasures must remain proportional. Otherwise, the countermeasure will be illegal.
See article 49 and further of the Responsibility of States for Internationally Wrongful Acts.
An illegal act may become legal by doing in response to an earlier violation of international law.
Collective security UN Charter: the lead role is played by the UN Security Council. This Council can order measures to be taken. Those measures fall into three broad groups: - Article 40; provisional measures - Article 41; measures not involving the use of armed force - Article 42; forcible measures
These measures will only take place when there is an existence of any threat to peace, breach of the peace, or act of aggression. If the Council does not make such a finding, then no collective action will take place. It is here that the veto right of the five permanent members is often maligned.
Veto right: its creation was based on the solid thought that if the global community want peace and security to be restored and maintained, it will need troops to do so; the veto is the price to pay for saddling five states with the responsibility to take care of peace and justice.
The UN interventions are ‘recommended’ or, nowadays, ‘authorized’, not ‘ordered’’ the Council determines that an ‘article 39 situation’ exists, and then recommends or authorizes action.
Article 25 said that the decisions of the Security Council are binding on the UN member states. Recommendations are just recommendations, so they are not binding.
Two fundamental legal issues about the standard practice of ‘authorizing’: - If the UN merely ‘authorizes’ action, can it still be called UN action? It depends particularly on the scope of UN control. If the action is in reality an action by a single state without any UN involvement, then the action can hardly de deemed UN action. - Whether the authorization is limited in time. Discussions on the duration of the intervention would considerably complicate things, so often no time limit is specified. So bringing an intervention to an end might require a separate Council decision, which would be subject to the veto. Which can lead to very strange situations.
Triggering collective action Article 39; peace, breach of the peace and act of aggression, what does this means? These notions are not defined in the Charter. The Council has quite a bit of leeway. Conduct only amounts to a threat to peace, breach of the peace or act of aggression if the Council says so – and no one can correct the Council’s assessment.
The CJEU warned the Security Council (in the case of Kadi), to the effect that the Council should strive to improve the human rights aspects of its targeted sanctions procedures, lest these remain unacceptable to important political entities such as the EU.
Limits to the Security Council Debate has been sparked on whether the Council can do as it pleases, or whether it is subject to legal limits. The Charter itself is not very clear on this topic; art. 25 suggest that member states are bound to give effect to Council action ‘in accordance with the present Charter’, but it remains unclear whether this refers to Council action, or to the obligation of the members to implement Council action; linguistically, both interpretations are possible.
Sanctions are useful and can themselves be expressions of fairness, but a political community whose members act solely out of fear for sanctions is a dictatorship.
Use of force
The law on the use of force is made up of two different regimes; - the Charter regime; - customary regime.
Abolishing war In 1899 the first Hague Peace Conference took place. It saw the adoption of a number of treaties, mostly related to controlling the means of warfare (jus in bello) rather than the right to wage war (jus ad bellum).
The Second conference in 1907 resulted in a fair numbers of instruments on controlling the means of warfare, it also led to two instruments that aimed to regulate recourse to war itself: - Drago-Porter Convention; which the parties agreed not to go to war in order to reclaim contractual debts owed to their nationals. - Convention on the Opening of Hostilities; war should not be commenced without a reasoned declaration of war, or an ultimatum accompanied by a conditional declaration of war. This convention is best regarded as terminated by desuetudo, which means that is unaccustomed.
The UN Charter This Charter lays down an almost absolute prohibition of the use of force and the threat of force in art. 2 (4). They include the maintenance of international peace and security, the development of friendly relations, and international cooperation. The right to be free from the use of force is not merely reserved for member states, but applies to all states.
Art. 2(4) is not waterproof. The prohibition only affects the activities of states ‘in their international relations’, whatever happens within a state is not the concern of international law.
Armed Activities Case between Congo and Uganda: the Court held that article 2 (4) was a ‘cornerstone’ of the Charter, and that the provision on self-defence had to be read narrowly; it did not ‘allow the use of force by a State to protect perceived security interests’ beyond the wording of article 51, although the Court stopped short of saying that an ‘armed attack’ must indeed already have occurred.
Self-defence Art. 51 UN Charter allows states their ‘inherent’ right of self-defence, but only, it seems, until the Security Council steps in; the article aims to find a balance between collective security and individual (or collective) self-defence.
Self-defence may be engaged in ‘if an armed attack occurs’. Yet, one can hardly expect states to wait until an armed attack occurs before defending themselves. For this reason, it may be claimed that art. 51 cannot mean what it says, and does not say what is means, and one may point to the customary right of self-defence which, so the argument goes, would be broader than the right as formulated in art. 51 UN. Anticipatory self-defence: self-defence in anticipation of an attack that is about to happen. It is generally accepted that in order for self-defence to be lawful, two conditions must be met: - Necessity - Proportionality Oil Platforms (between Iran and USA) the Court said that necessity and proportionality are cumulative criteria. If a state had been unable to show necessity (or vice versa), its self-defence argument had already failed.
Nicaragua case: if it could be proved that the activities of the so-called Contras, a rebel group supported by the USA, were ‘effectively controlled’ by the USA, then the USA would incur responsibility and Nicaragua would eventually be justified in directing its self-defence against the USA.
Self-defence may also take the form of attempts to rescue nationals abroad. On such a view, self- defence is justified not only when a state’s territory is under attack, but also when its nationals (residing abroad) are under attack.
The point of self-defence is to repel an attack, not to pursue the attacker. Once the attack has been repelled, or the attacker has stopped for some other reason, it would seem that the possibilities for lawful self-defence have come to an end.
Humanitarian intervention The Charter doesn’t specify it in so many words, but states are none the less entitled to use force for humanitarian reasons. Example: NATO’s intervention in the former Yugoslavia in 1999, to compel Serbia to stop committing atrocities against the population of Kosovo. Humanitarian interventions are highly controversial. In the absence of authorization by the Security Council, the general position seems to be that humanitarian intervention is prohibited, but that if it occurs and seems morally justified or legitimate, the world community grudgingly accepts it.
Terrorism There isn’t a universally definition of terrorism. Since the general definition has remained out of reach, the international community has aspired to combat terrorism in two other ways; 1. Focus on the prohibition of specific act of terrorism, regardless of the motivation behind them or the status of the perpetrator. - The Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970) - The Montreal Convention for the Suppression of Unlawful Acts against Safety of Civil Aviation (1971) 2. Focus not so much on terrorist activities themselves, but on acts related to and facilitating terrorism.
- The capacity to enter into relations with other states.
Population It is considered irrelevant how the population got there and if it is large or small.
Territory Without territory there cannot be a state. The territory should not be completely fixed; a core territory suffices, even if the boundaries remain disputed. The only important criterion is the existence of a core territory.
Government The most important requirement is that in order to qualify for statehood, a state must have an effective government, although the Montevideo Convention itself does not use the adjective ‘effective’. Island of Palmas arbitration: effective government served to allow other states to contact someone if things were going wrong. If a territory lacks effective government, there is no one to contact or hold responsible should one of your citizens get mugged. The underlying idea is that a state can be accepted as such only when it is in position to guarantee that law and order, in whatever precise form, will be upheld. The precise form doesn’t matter for international law, as long as law and order can be guaranteed, international law is satisfied.
The capacity to enter into relations with other states The requirement that a state must have the capacity to enter into international relations is not considered all that relevant, although it provides services with respect to federal states in particular.
Palestine and Kosovo are not states. The EU says that Palestine should be recognize as a state (ICC). The UN says that Palestine is an observer of an entity. So it is not a state. They changed the word entity to state. So for now Palestine is a State conforming to the UN. But 130 states have to vote for Palestine to become a real state.
Recognition of states (or governments) The most complicated, and assuredly the most politicized, aspect of statehood: recognition. According to the Montevideo Convention two different way of recognition: - Declarative theory; recognition was of no legal relevance. An act of recognition should be used merely to specify that in the opinion of other states, entity X meets the requirement of statehood. - Constitutive theory; membership is dependent on acceptance by the existing members (community of states). Recognition is vital; even if all four requirements are royally met, an entity that is not recognized will have a hard time existing.
The declarative theory aims to strip the law from political elements. That is way the constitutive theory is in practice the stronger one, if only because it is next to impossible for a state to survive without recognition. At least in this sense, recognition is often constitutive. Moreover, the one thing that is clear is that recognition is, essentially, a political act.
It would be more accurate to say that the legal criteria offer some guidance (and few entities are recognized without scoring at least reasonably well on some of the requirements), but that decisions on
whether to recognize or not are eminently political decisions, predominantly guided by political motivations.
Recognition of governments can take place either de jure or de facto, and here it is the intention of the recognition state that decides. - De jure; signifies that a government has risen to power in a legitimate way - De facto; signifies that while a government may be in power and thus constitutes a negotiating partner, the recognizing state is not very pleased with the way the government came into power.
A state admitted as a member of the UN is accepted as a legitimate member of the community of states, if only because admission into the UN signifies approval by at least two-thirds of the UN’s member states including the five major powers on the Security Council (art. 4 UN). Collective recognition by the UN does not amount to individual recognition by each and every UN member state; the symbolic validation of recognition is considered to be too important to be left to a collective organ.
The Badinter Commission; The Commission issues a number of highly relevant opinions on issues such as state dissolution, the applicability of the right to self-determination and how this affects the earlier internal boundaries and state succession: - The principle of uti possidetis, holding that earlier internal boundaries in principle continue to exist after independence or dissolution should be seen as a binding principle.
In 1991 the EU adopted a set of guidelines of recognition of the new states in Eastern Europe. The EU stipulated that new states should only be recognized if they; - Respected existing boundaries - Accepted disarmament commitments, - Guaranteed the rights of minorities and displayed a commitment to democracy, the rule of law and human rights.
The EU guidelines: a state should only be recognized if it meets with political and legal requirements held dear by existing states.
Acquisition of territory A first mode of acquiring territory, long since discarded, was discovery. Huber in the Island of Palmas Case; the law prescribed that discovery alone was not sufficient; the exercise of effective government was far more important. The notion of effective government owed much to two concepts borrowed from Roman law: - Occupatio; someone assumes ownership over a good that was not earlier subject to ownership. Res nullius: no man’s land. - Prescritpio; ownership is assumed despite rival claims. These two are potentially modes of territorial acquisition involving the use of force. Animus occupandi: exercise of authority over an extended period of time, accompanied by the will to do so.
There are more peaceful modes to acquainting a territory: - Exchange for money;
under art. 16, treaties do not devolve upon them merely because they were in force for the metropolitan state. Here, the Convention pays tribute to decolonization, and aims to compensate, former colonies for the injustices of colonialism. In cases of merger or unification, however, the presumption is that existing treaties continue to remain in force (art. 31), unless the parties concerned agree on a different solution, and much the same applies to a separation (be it secession or dissolution) under art. 34. Importantly, state successions do not affect boundary treaties or ‘other territorial regimes’, according to art. 11 and 12, and the convention is without prejudice to questions arising from military occupation (art. 40).
Once a state ceases to exist, so does its nationality, what happens to citizens of a state that becomes subject to a succession? The ILC of the UN has adopted a number of articles on this topics. The main political impetus is to prevent statelessness from occurring. In art. 5 laid down that individuals will have the nationality of the state on whose territory they habitually reside.
A membership of international organizations is also affected by a successions of states. The basic principle is that membership is personal, so once a state ceases to exist, so does its membership of an international organization. Exceptions: IMF, World Bank, etc).
International organizations
International organizations playing a pivotal role in international law.
Definition: intergovernmental organizations, created by states, usually by means of a treaty, in order to exercise a task or function that states themselves are unable or unwilling to perform.
They became important after the WWI. - League of Nations - International labour Organization (ILO)
They further gain in popularity after the WWII. - UN - IMF - WTO
The underlying idea is that states are organized on a territorial basis and organizations are built around functions. There are often considered to have such rights, powers, privileges and immunities as are necessary to enable them to exercise those functions, and nothing more.
Germen authors Matthias Ruffert and Christian Walter: much international law is created by or within international organizations.
Organizations are the creatures of their member states, and those states are usually represented in a plenary organ, such as the UN General Assembly. Such plenary organs are typically organs for debate and discussion rather than quick decision-making; they are platforms for political leaders to manifest themselves on the global stage.
Plenary organs will usually be in session once a year of even less. Many organizations have an executive organ to handle urgent matters. A typical example is the UN Security Council, whose main task is to secure international peace and security.
All international organizations no matter how small, will have; - An Administrative organ; - A secretariat; whose task will include the execution of decisions of the policy- making organs and the preparation of meetings, translation of documents etc.
Many hold that the task of the secretariat is to think of the common interest (as opposed to member states interest) and, when necessary, play a political role in thinking of new ideas, new approaches and new initiatives, while safeguarding the organization’s mission.
Are NGO’s right holders? Example amnesty international: is the NGO a victim of (human)rights violating? Yes, because there is a violating of their rights. Then they can to an international court. But if they want to talk about other rights (of other people) then they are not allowed.
The United Nations
The UN is the most important organization, it has 193 member states. It is an organizations with general jurisdiction. It also functions as a platform for discussion on numerous other topics, and it is telling that some twenty other international organizations are formally linked to the UN.
Art. 103 UN Charter: obligations for member states arising under the Charter ‘shall prevail’ over other, competing obligations. Thus, the UN occupies a hierarchically superior position, so much so that it sometimes said that the UN Charter functions as the constitution of the community states.
The five permanent members: - USA - Russia - China - France - UK The EU is a superpower as well. But it is not a state end membership is only open to states.
The UN comprises six principal organs: - General Assembly; Plenary organ. It cannot adopt law. Its prominent role is to discuss matters of global justice. - Security Council; executive organ. It has fifteen members, five of which are permanent while the others serve two-year terms. Most decisions require a majority of nine votes, including the ‘concurring vote’ of the permanent members (veto). The ten member states are elected for a period of two years, representing the world’s geographical regions. The Council has no legislative powers. It can adopt decisions that are binding on the member states by virtue of art. 25 UN, but the original idea was that such decisions would be administrative in nature, rather than legislative. - Secretariat headed by the Security-General (South Korean; Ban Ki Moon); is ordained to be impartial but the Security-General does have a role to play beyond mere administration; his task includes bringing matters to the attention of the Security Council.
The first principle of the Lotus case said that jurisdiction is territorial: A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. This is what we called the first Lotus Principle.
The second principle of the Lotus case: Within its territory, a State may exercise its jurisdiction, on any matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law.
Nationality States can claim authority over their nationals no matter where they are. In the case of dual nationality, both states have authority, although practically there will usually be a dominant nationality whose state will be keener to claim authority than the other.
Protection It is generally accepted that states can claim jurisdiction over activities that endanger them, even if those activities take place elsewhere and are ascribed to non-nationals.
Passive personality This holds that a state can prosecute anyone who harms its nationals, no matter where this occurs. It takes the nationality of the victim as its starting point.
Universality Some crimes are so abhorrent that all states can legislate and prosecute, regardless of the involvement of their territory or nationals. There are some drawbacks; universal jurisdiction thus runs the risk of becoming an exercise in ‘looking back in anger’ and it will runs the risk of becoming a figleaf for the exercise of political power, rich Western states prosecuting those individuals who offend the standards of those rich Western states.
A proposal to make the ICC work on the basis of universal jurisdiction was explicitly rejected; it now works mainly on the basis of the territoriality and nationality principles.
Extraterritorial jurisdiction
Effects doctrine: if a state have jurisdiction over acts done outside the territoriality and this act would affect the states market.
Woodpulp case: the CJEU fined four large wood pulp producers for violating EU competition rules, despite the circumstances that all four were, ate the time, located outside the EU.
Loizidou case: the ECtHR accepted that the reach of the convention included territory under occupation; in the case at hand, it held that in principle Turkey might be responsible for its behavior in the Turkish part of Cyprus.
Bankovic case; the ECtHR held that the reach of the convention did not extend outside the states parties to the convention; the behavior of NATO member states in the former Yugoslavia was therefore not covered by the convention. The Court thereby seems to suggest that the ‘legal space’ created and protected by the convention was, in principle, limited to the parties’ territories.
In Loizidou, both Cyprus and Turkey were parties to the convention. The former Yugoslavia at issue in Bankovic was not a convention party.
Concurrent jurisdiction
If a several states have jurisdiction over one and the same act, then would, in the normal course of events, the best cards are held by the state holding the suspect in custody.
The power of international organizations
Organizations are established on a functional basis; their authority derives, in one way or another, from their function or functions, and this is usually captured by claiming that international organizations can exercise legal powers. The member states may clearly specify in the treaty setting up the organization what the power of the organization and its organs are.
Sovereign immunities
It is generally accepted that states themselves can be immune from prosecution in other states, as can their representatives, and much the same applies to international organizations. For centuries, states were held to be absolutely immune, meaning, in effect, that states could not be prosecuted before the courts of other states. The underlying theory owed much to the idea that domestic courts should be used for disputes between individuals, but that disputes involving states – international disputes proper
- should somehow be settled on the international level, through diplomacy, or by means of an international tribunal.
States would still be immune for their governmental acts (acta jure imperii), but not for their commercial acts (acta jure gestionis). To identify the acts look at the nature of the transaction: if an act was by its nature a commercial transaction, regardless of its purpose, then it had to be classified as commercial, and thus immunity should not apply.
Ferrini case: the court decide that there was no conflict between jus cogens and rules on state immunity, and thus no sence in which either could be considered to be superior: ‘The two sets of rules addres different matters.’ According to the court, the rules on immunity determine whether a national court has jurisdiction, but that question is different from the question concerning the lawfulness of the activities at issue.
Heads of state and others
The leaders of states are immune from jurisdiction, at least while in office.
Warrant case (Democratic Republic of Congo v. Belgium): heads of state, heads of government and foreign ministers are immune from prosecution, at least while in office.
The fact that the statures of the ICTY and the ICTR explicitly lifted the immunity of political leaders can be seen as an affirmation that without such provision, the customary rule is still that immunity applies.
Pinochet case: Pinochet, who had ruled Chile with an iron fist between 1973 and 1990 was arrested in London. Basing itself on the 1984 Torture Convention, which creates universal jurisdiction for torture and says nothing at all about immunity, it suggested that the very creation of universal jurisdiction would be nullified if immunities prevailed. Hence, the Torture Convention had to be construed so as to lift immunities, at least once political leaders had left office.
International law summary
Course: International Law (620228)
University: Tilburg University
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