Contemporary International Law Materials and Cases. 4. Table of pdf Full case, see Maritime Delimitation in the Black Sea (Romania v. Cases and Materials on International Law. By D. J. HARRIS. jrd edition. London: Sweet & Maxwell, ii+8Io pp. (including appendices and index). Hardback. Cases and Materials on International Law by D. J. Harris, LL.M. Sweet and Maxwell, xxviii+pp. In his preface to this book, the author mentions that its history.
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Trove: Find and get Australian resources. Books, images, historic newspapers, maps, archives and more. Cases and Materials on. International Law. Fifth Edition. Martin Dixon. Reader in Law, Queens' College, Cambridge. Visiting Professor of Law, City University. Cases and Materials on International Law D.J Harris. Harris' Cases & Materials on International Law, widely recognised as the leading text of its kind, is a.
The other element is state practice, which is more objective as it is readily discernible. To qualify as state practice, the acts must be consistent and general international practice. State applications[ edit ] A situation where opinio juris would be feasible is a case concerning self-defense.
A condition must be met where the usage of force is limited to the situation at hand. The act of striking an attacker may be done with legal justification; however, legal territory limits the acceptability of such a claim.
Even in this case, the usage of force must be acceptable to the conditions of the environment, the attacker, and the physical conditions of the people involved, as well as any weapons or tools used. International applications[ edit ] In international law , opinio juris is the subjective element used to judge whether the practice of a state is due to a belief that it is legally obliged to do a particular act. Opinio juris essentially means that states must act in compliance with the norm not merely out of convenience, habit, coincidence, or political expediency, but rather out of a sense of legal obligation.
On the other hand, a state would almost certainly expect some form of legal repercussions if it were to prosecute a foreign ambassador without the consent of his or her home state, and in this sense opinio juris does exist for the international law rule of diplomatic immunity.
Because opinio juris refers to the psychological state of the state actor—asking why the state behaved as it did—it can be difficult to identify and to prove.
In practice, a variety of sources tend to be used to demonstrate the existence of opinio juris, including evidence such as diplomatic correspondence, press releases and other government statements of policy, opinions of legal advisers, official manuals on legal questions, legislation, national and international judicial decisions, legal briefs endorsed by the state, a pattern of treaties ratified by the state that all include the same obligation s , resolutions and declarations by the United Nations, and other sources.
In the Paquete Habana case decided by the United States Supreme Court in on the question of whether small coastal fishing boats are immune from capture during wartime under customary international law , evidence of opinio juris included medieval English royal ordinances, agreements between European nations, orders issued to the U. Navy in earlier conflicts, and the opinions of legal treatise writers.
Finally, the context, circumstances, and manner in which the state practice is carried out can also be used to infer the existence of opinio juris. As the ICJ stated in the North Sea Continental Shelf cases of , "Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.
As Judge Lachs wrote in a dissenting opinion in the North Sea Continental Shelf cases, "At successive stages in the development of the [customary] rule the motives which have prompted States to accept it have varied from case to case.
It could not be otherwise. At all events, to postulate that all States, even those which initiate a given practice, believe themselves to be acting under a legal obligation is to resort to a fiction, and in fact to deny the possibility of developing such rules.
For this reason, the necessity of demonstrating that a behavior was prompted by a sense of legal obligation makes it particularly difficult for customary international law to develop around the prohibition of a practice. One important case in the development of modern customary international law theory is the Lotus case , in which France attempted to protest Turkey 's assertion of criminal jurisdiction over a French citizen for acts committed on the high seas outside of Turkey's territory.
In this respect the following observations should be made:  1. Lotus, flying the French flag, and the S. Boz-Kourt, flying the Turkish flag, took place on the high seas: the territorial jurisdiction of any State other than France and Turkey therefore does not enter into account. It is not therefore a question relating to any particular step in these proceedings - such as his being put to trial, his arrest, his detention pending trial or the judgment given by the Criminal Court of Stamboul - but of the very fact of the Turkish Courts exercising criminal jurisdiction.
That is why the arguments put forward by the Parties in both phases of [p13] the proceedings relate exclusively to the question whether Turkey has or has not, according to the principles of international law, jurisdiction to prosecute in this case.
The discussions have borne exclusively upon the question whether criminal jurisdiction does or does not exist in this case. It is clear, in the first place, that this result of the collision constitutes a factor essential for the institution of the criminal proceedings in question; secondly, it follows from the statements of the two Parties that no criminal intention has been imputed to either of the officers responsible for navigating the two vessels; it is therefore a case of prosecution for involuntary manslaughter.
The French Government maintains that breaches of navigation regulations fall exclusively within the jurisdiction of the State under whose flag the vessel sails ; but it does not argue that a collision between two vessels cannot also bring into operation the sanctions which apply to criminal law in cases of manslaughter. The precedents cited by it and relating to collision cases all assume the possibility of criminal proceedings with a view to the infliction of such sanctions, the dispute being confined to the question of jurisdiction concurrent or exclusive - which another State might claim in this respect.
As has already been observed, the Court has not to consider the lawfulness of the prosecution under Turkish law; questions of criminal law relating to the justification of the prosecution and consequently to the existence of a nexus causalis between the actions of Lieutenant Demons and the loss of eight Turkish nationals are not relevant to the issue so far as the Court is concerned. Moreover, the exact conditions in which these persons perished do not appear from the documents submitted to the Court ; nevertheless, there is no doubt that their death may be regarded as the direct [p14] outcome of the collision, and the French Government has not contended that this relation of cause and effect cannot exist.
In regard to the conception of "connexity" of offences connexite , the Turkish Agent in the submissions of his Counter-Case has referred to the Turkish Code of criminal procedure for trial, the provisions of which are said to have been taken from the corresponding French Code. Now in French law, amongst other factors, coincidence of time and place may give rise to "connexity" connexite.
In this case, therefore, the Court interprets this conception as meaning that the proceedings against the captain of the Turkish vessel in regard to which the jurisdiction of the Turkish Courts is not disputed, and the proceedings against Lieutenant Demons, have been regarded by the Turkish authorities, from the point of view of the investigation of the case, as one and the same prosecution, since the collision of the two steamers constitutes a complex of acts the consideration of which should, from the standpoint of Turkish criminal law, be entrusted to the same court.
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The special agreement does not indicate what clause or clauses of that legislation apply. No document has been submitted to the Court indicating on what article of the Turkish Penal Code the prosecution was based; the French Government however declares that the Criminal Court claimed jurisdiction under Article 6 of the Turkish Penal Code, and far from denying this statement, Turkey, in the submissions of her Counter-Case, contends that that article is in conformity with the principles of international law.
It does not appear from the proceedings whether the prosecution was instituted solely on the basis of that article. The penalty shall however be reduced by one third and instead of the death penalty, twenty years of penal servitude shall be awarded.
The Court is asked to state whether or not the principles of international law prevent Turkey from instituting criminal proceedings against Lieutenant Demons under Turkish law. Neither the conformity of Article 6 in itself with the principles of international law nor the application of that article by the Turkish authorities constitutes the point at issue ; it is the very fact of the institution of proceedings which is held by France to be contrary to those principles.
Thus the French Government at once protested against his arrest, quite independently of the question as to what clause of her legislation was relied upon by Turkey to justify it. The arguments put forward by the French Government in the course of the proceedings and based on the principles which, in its contention, should govern navigation on the high seas, show that it would dispute Turkey's jurisdiction to prosecute Lieutenant Demons, even if that prosecution were based on a clause of the Turkish Penal Code other than Article 6, assuming for instance that the offence in question should be regarded, by reason of its consequences, to have been actually committed on Turkish territory.
Thus it states that during the preparatory work, the Turkish Government, by means of an amendment to the relevant article of a draft for the Convention, sought to extend its jurisdiction to crimes committed in the territory of a third State, provided that, under Turkish law, such crimes were within the jurisdiction of Turkish Courts.
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This amendment, in regard to which the representatives of France and Italy made reservations, was definitely rejected by the British representative ; and the question having been subsequently referred to the Drafting Committee, the latter confined itself in its version of the draft to a declaration to the effect that questions of jurisdiction should be decided in accordance with the principles of international law.
The French Government deduces from these facts that the prosecution of Demons is contrary to the intention which guided the preparation of the Convention of Lausanne. Now the Court considers that the words "principles of international law", as ordinarily used, can only mean international law as it is applied between all nations belonging to the community of States.
This interpretation [p17] is borne out by the context of the article itself which says that the principles of international law are to determine questions of jurisdiction - not only criminal but also civil - between the contracting Parties, subject only to the exception provided for in Article In these circumstances it is impossible - except in pursuance of a definite stipulation - to construe the expression "principles of international law" otherwise than as meaning the principles which are in force between all independent nations and which therefore apply equally to all the contracting Parties.
It is true that the representatives of France, Great Britain and Italy rejected the Turkish amendment already mentioned.
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But only the British delegate - and this conformably to British municipal law which maintains the territorial principle in regard to criminal jurisdiction - stated the reasons for his opposition to the Turkish amendment ; the reasons for the French and Italian reservations and for the omission from the draft prepared by the Drafting Committee of any definition of the scope of the criminal jurisdiction in respect of foreigners, are unknown and might have been unconnected with the arguments now advanced by France.
The French Government contends that the Turkish Courts, in order to have jurisdiction, should be able to point to some title to jurisdiction recognized by international law in favour of Turkey. On the other hand, the Turkish Government takes the view that Article 15 allows Turkey jurisdiction whenever such jurisdiction does not come into conflict with a principle of international law. I of which asks the Court to say whether Turkey has acted contrary to the principles of international law and, if so, what principles.
According to the special agreement, therefore, it is not a question of stating principles which would permit Turkey to take criminal proceedings, but of formulating the principles, if any, which might have been violated by such proceedings. 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 in order 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. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory [p19] except by virtue of a permissive rule derived from international custom or from a convention.
Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases.
But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.
In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction ; within these limits, its title to exercise jurisdiction rests in its sovereignty. Having regard to the terms of Article 15 and to the construction which [p20] the Court has just placed upon it, this contention would apply in regard to civil as well as to criminal cases, and would be applicable on conditions of absolute reciprocity as between Turkey and the other contracting Parties; in practice, it would therefore in many cases result in paralysing the action of the courts, owing to the impossibility of citing a universally accepted rule on which to support the exercise of their jurisdiction.
The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty. According to one of these standpoints, the principle of freedom, in virtue of which each State may regulate its legislation at its discretion, provided that in so doing it does not come in conflict with a restriction imposed by international law, would also apply as regards law governing the scope of jurisdiction in criminal cases.
According to the other standpoint, the exclusively territorial character of law relating to this domain constitutes a principle which, except as otherwise expressly provided, would, ipso facto, prevent States from extending the criminal jurisdiction of their courts beyond their frontiers; the exceptions in question, which include for instance extraterritorial jurisdiction over nationals and over crimes directed against public safety, would therefore rest on special permissive rules forming part of international law.
The same is true as regards the applicability of this system - assuming it to have been recognized as sound - in the particular case. It follows that, even from this point of view, before ascertaining whether there may be a rule of international law expressly allowing Turkey to prosecute a foreigner for an offence committed by him outside Turkey, it is necessary to begin by establishing both that the system is well-founded and that it is applicable in the particular case.
Now, in order to establish the first of these points, one must, as has just been seen, prove the existence of a principle of international law restricting the discretion of States as regards criminal legislation. And moreover, on either hypothesis, this must be ascertained by examining precedents offering a close analogy to the case under consideration; for it is only from precedents of this nature that the existence of a general principle applicable to the particular case may appear.
For if it were found, for example, that, according to the practice of States, the jurisdiction of the State whose flag was, flown was not established by international law as exclusive with regard to collision cases on the high seas, it would not be necessary to ascertain whether there were a more general restriction; since, as regards that restriction-supposing that it existed-the fact that it had been established that there was no prohibition in respect of collision on the high seas would be tantamount to a special permissive rule.
For this contention only relates to the case where the nationality of the victim is the only criterion on which the criminal jurisdiction of the State is based. Even if that argument were correct generally speaking - and in regard to this the Court reserves its opinion - it could only be used in the present case if international law forbade Turkey to take into consideration the fact that the offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners.
But no such rule of international law exists.
No argument has come to the knowledge of the Court from which it could be deduced that States recognize themselves to be under an obligation towards each other only to have regard to the place where the author of the offence happens to be at the time of the offence.
On the contrary, it is certain that the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there.
French courts have, in regard to a variety of situations, given decisions sanctioning this way of interpreting the territorial principle. Again, the Court does not know of any cases in which governments have protested against the fact that the criminal law of some country contained a rule to this effect or that the courts of a country construed their criminal law in this sense.
Consequently, once it is admitted that the effects of the offence were produced on the Turkish vessel, it becomes impossible to hold that there is a rule of international law which prohibits Turkey from prosecuting Lieutenant Demons because of the fact that the author of the offence was on board the French ship.
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Since, as has already been observed, the special agreement does not deal with the provision of Turkish law under which the prosecution was instituted, but only with the question whether the prosecution should be regarded as contrary to the principles of international law, there is no reason preventing the Court from confining itself to observing that, in this case, a prosecution may also be justified from the point of view of the so-called territorial principle.
For even were Article 6 to be held incompatible with the principles of international law, since the prosecution might have been based on another provision of Turkish law which would not have been contrary to any principle of international law, it follows that it would be impossible to deduce from the mere fact that Article 6 was not in conformity with those principles, that the prosecution itself was contrary to them.
The fact that the judicial authorities may have committed an error in their choice of the legal provision applicable to the particular case and compatible with international law only concerns municipal law and can only affect international law in so far as a treaty provision enters into account, or the possibility of a denial of justice arises. In reply to this argument it might be observed that the effect is a factor of outstanding importance in offences such as manslaughter, which are punished precisely in consideration of their effects rather than of the subjective intention of the delinquent.
But the Court does not feel called upon to consider this question, which is one of interpretation of Turkish criminal law. It will suffice to observe that no argument has been put forward and nothing has been found from which it would follow that international law has established a rule imposing on States this reading of the conception of the offence of manslaughter. In virtue of the principle of the freedom of the seas, that is to say, the absence of any territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them.
Thus, if a war vessel, happening to be at the spot where a collision occurs between a vessel flying its flag and a foreign vessel, were to send on board the latter an officer to make investigations or to take evidence, such an act would undoubtedly be contrary to international law.
A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State the flag of which it flies, for, just as in its own territory, that State exercises its authority, upon it, and no other State may do so.
All that can be said is that by virtue of the principle of the freedom of the seas, a ship is placed in the same position as national territory but there is nothing to support the claim according to which the rights of the State under whose flag the vessel sails may go farther than the rights which it exercises within its territory properly so called.
It follows that what occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies. If, therefore, a guilty act committed on the high seas produces its, effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent.
The French Government has endeavoured to prove the existence of such a rule, having recourse for this purpose to the teachings of publicists, to decisions [p26] of municipal and international tribunals, and especially to conventions which, whilst creating exceptions to the principle of the freedom of the seas by permitting the war and police vessels of a State to exercise a more or less extensive control over the merchant vessels of another State, reserve jurisdiction to the courts of the country whose flag is flown by the vessel proceeded against.
But the important point is the significance attached by them to this principle; now it does not appear that in general, writers bestow upon this principle a scope differing from or wider than that explained above and which is equivalent to saying that the jurisdiction of a State over vessels on the high seas is the same in extent as its jurisdiction in its own territory.
On the other hand, there is no lack of writers who, upon a close study of the special question whether a State can prosecute for offences committed on board a foreign ship on the high seas, definitely come to the conclusion that such offences must be regarded as if they had been committed in the territory of the State whose flag the ship flies, and that consequently the general rules of each legal system in regard to offences committed abroad are applicable.
The case of the Costa Rica Packet is no exception, for the prauw on which the alleged depredations took place was adrift without flag or crew, and this circumstance certainly influenced, perhaps decisively, the conclusion arrived at by the arbitrator.
Thus Great Britain refused the request of the United [p27] States for the extradition of John Anderson, a British seaman who had committed homicide on board an American vessel, stating that she did not dispute the jurisdiction of the United States but that she was entitled to exercise hers concurrently.
This case, to which others might be added, is relevant in spite of Anderson's British nationality, in order to show that the principle of the exclusive jurisdiction of the country whose flag the vessel flies is not universally accepted.
Apart from that, it should be observed that these conventions relate to matters of a particular kind, closely connected with the policing of the seas, such as the slave trade, damage to submarine cables, fisheries, etc. Above all it should be pointed out that the offences contemplated by the conventions in question only concern a single ship; it is impossible therefore to make any deduction from them in regard to matters which concern two ships and consequently the jurisdiction of two different States.
He deduces from this that, in practice, prosecutions only occur before the courts of the State whose flag is flown and that that circumstance is proof of a tacit consent on the part of States and, consequently, shows what positive international law is in collision cases.Without pausing to consider the value to be attributed to the judgments of municipal courts in connection with the establishment of the existence of a rule of international law, it will suffice to observe that the decisions quoted sometimes support one view and sometimes the other.
Boz-Kourt flying the Turkish flag, Turkey's jurisdiction in the proceedings taken is as clear as if the case had occurred on her territory-as is borne out by analogous cases.
Sign up to receive product news and offers. Turkey, therefore, is entitled from this standpoint also to claim jurisdiction. In this final stage, as more States become aware of the conduct and actively participate or at least passively acquiesce to the practice, the States' actions begin to be undergirded by a belief that they are complying with an emerging customary rule.
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