Term
| Jurisdiction in International Law |
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Definition
•The authority to impose laws
•No INR treaty on Jurisdiction
•Old view: going back to SS Lotus Case, assumption you do have jurisdiction unless someone can prove otherwise
•New View: Reversed, you have to show that you have jurisdiction |
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Term
| 5 principles that establish jurisdiction |
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Definition
Territorial Principle
Nationality Principle
Passive Personality Principle
Protective Principle
Universality Principle |
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Term
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Definition
| anything that occurs on your territory, you have jurisdiction |
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| Objective Territorial principle |
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Definition
| an action that occurs outside your territory but causes injury to your territory (focuses on commercial law) |
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Definition
Territorial Jurisdiction
Th court ruled: a country's laws can have an extra territorial effect if the actions are intended to have some affect within the home country. |
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| Subjective Territorial principle: |
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Definition
| an action initiated in your country but it had affect in another country |
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Definition
| states who have jurisdiction on their nationals at home and abroad , can be prosecuted at home (Law must specify whether it must be followed at home/abroad) |
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Nationality Principle
Court ruled that nationals living in other countries are still subject to to penalty for violating US law. |
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| Passive personality principle |
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Definition
| those who cause harm to your nationals, who are from another state/territory, you can claim jurisdiction |
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Definition
Passive Personality Principle
A state is allowed to exercise jurisdiction over offenses committed against its nationals abroad regardless of the nationality of the perpetrator or where it took place. |
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Definition
| when someone causes harm to your national security, needs to protect your fundamentals |
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People who have committed an International crime, a crime that is "erga omnes" which is a crime against all
•International Crimes: Piracy, Slave trade, War crimes, crimes against humanity, genocide |
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Term
| Absolute sovereign immunity |
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Definition
| no other state can exercise authority on another state (political capacity) |
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Term
| Restrictive sovereign immunity |
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Definition
| Immunity on Governmental function, no immunity is granted on non-governmental function, does not extend to its commercial or private conduct |
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Definition
| represent their home gov’t in foreign affairs in another state. they have complete immunity from the host countries criminal jurisdiction but most of the host countries civil jurisdiction. (24/7, 365) |
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Term
| Vienna Convention on Diplomatic Relations |
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Definition
- These relations are carried out by mutual consent: (a) you don't have to have embassies in your county, (b) relations don't have to occur if you don't wish to
- “Diplomatic mission” embassy is inviolable
- Article 22: under special authority to protect embassy, embassy's property cannot be searched or seized, cannot seize embassy bank accounts (regular state authority), no matter if it is owned presented does not make it viable, the propriety is still inviolable |
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| 3rd avenue associates v Permanent Mission of Zaire |
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Definition
| Court holding supports inviolability of diplomatic missions based the decision on customary law and article 22 of the Vienna Convention of Diplomatic Relations |
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Definition
| court sent a diplomat to prison after his criminal diplomatic immunity was waived by his country. civilians have request host country to request civil immunity to be waived. |
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Definition
| consular affairs protect their nationals interest while they are abroad. Conduct related to official functions grants them consulate immunity. (9-5) |
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| Vienna Convention on Consular Relations |
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Definition
- Not permitted the same immunity from jurisdiction as diplomatic agents
- Article 31: emphasizes that consular premises are inviolable and may not be entered by the authorities of the receiving state without consent
- Article 41: except in case of serious felony, consular be arrested. Consular must appear before |
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| court ruled that the embassy is inviolable but is not foreign territory. |
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Definition
- Individuals act as agents of state
- If anyone acts in a governmental capacity the state is held liable or responsible
- The gov’t position within subdivision is irrelevant
- State is responsible for any individual acting in a gov’t capacity |
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Term
| Circumstances precluding wrongfulness: Extenuating Circumstances |
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Definition
Consent
Force Majeure
Distress
Necessity
Self-Defense |
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Definition
| Where a state consents to an act by another state which would otherwise constitute an unlawful act, wrongfulness is precluded provided that the act is within the limits of consent given |
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Definition
- materially impossible to fulfill this obligation
- cannot use this if you made this situation
- things that occur outside your control
- must continue occupying to the obligation after you fixed this situation
- Ex. Natural disasters |
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Definition
- A situation of extremes
- Ex. Ship wreckage or plane crash most common
- Must resume duties afterwards situation is fixed
- Limitation: cannot risk another group of lives in danger while trying to save the lives of others that you are responsible for |
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Term
| Rainbow Warrior (NZ v France) |
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Definition
| Court said that in order to claim force majeure in had to be absolutely impossible to fulfill the obligation. Distress is a circumstance precluding wrongfulness as long as the emergency is ongoing. |
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Definition
- Essential national interest
- Violating INR law is the only means in saving your state “grave and immediate threat”
- Limitation: cannot invoke necessity if there is another alternative in fixing the situation, cannot be the cause of the situation, only applies as long as the condition continues (continue to comply with obligation), cannot be justified using Jus Cogens “no derogation is permitted” |
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| the court said that necessity is a circumstance precluding wrongfulness if an eminent essential threat against national interests could be proven. |
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| Can only invoke conduct that is contrary to their international obligations |
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Definition
Reprisal
Retorsion
Recipical |
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Definition
| you do something illegal, but International Law allows it because you were a victim of violation of international law. International law says it has to be proportionate to the injury suffered. Cannot include the use of force. |
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| when you do something hostile, that is legal but you wouldn’t do otherwise a breach had occurred |
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| if the state is not fulfilling its specific duty under a treaty, then the other state does not feel like they should fulfill their obligation to the other state. This has to be an obligation that corresponds to those that have been breached |
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| Air Services Agreement Case (US v France) |
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Definition
| Court said that countermeasures are within the state's right during negotiations but cannot be initiated after arbitration has began |
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Definition
Restitution
Indemnification/ Compensation
Satisfaction |
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Definition
| return to the Status Quo before the wrongful action |
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| Indemnification/ Compensation |
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Definition
| monetary compensation, INR law does not allow punitive damages |
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Definition
| reparation for non material damages "moral injury", not financially quantifiable, official apology or speech, ICJ says if the court finds the other side responsible that is all the apology you get (legal finding) |
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| Responsibility for injury to aliens (standards of treatment) |
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Definition
• Aliens subject to law of the host state
• If the host state violates you or causes harm and constitutes violation of International law then you can seek help from home state
• Diplomatic protection
• Standards of treatment: came in the concept of compensation |
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Term
| International minimum standard |
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Definition
• One of the main views: USA is a main advocate (first world view), if a foreign national suffers injury they may expect an INR minimum standard of behavior ( requirements for compensation)
• Compensation must be prompt, adequate, effective (real money) |
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| Principle of equality (local standard) |
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Definition
| - Foreign aliens should be treated as each national would be treated in that state |
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| Exhaustion of local remedies |
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Definition
| one of the main prerequisites for your home state to take up your International case |
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Term
| Claims of the Finnish Ship Owners |
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Definition
| Court ruled that there is no need to continuing pursuing local remedies if the result is futile. |
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Definition
• This is the second main view: this is the third world view
• International law does not set any International minimum of treatment
• Aliens voluntarily subject themselves to the laws of the host state
• Foreigners or citizens shouldn't be compensated
• No right of diplomatic protection
• International law requires that it not be discriminatory
• Foreign nationals shouldn't be treated better than locals
• Some authors have claimed that aliens can wave their right to diplomatic protection |
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Definition
• A stipulation that is put into contracts sometimes
• A foreign national waives their right to seek diplomatic protection because of a dispute
• International law does not support this |
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Term
| Substantive bases of responsibility |
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Definition
| imputation; any individual acting in any governmental capacity, if they fail to do something or do something that causes injury to a foreign alien then it is up to the state to deal with |
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US Mexico General Claims Commission:
Court ruled, that if any governmental official at any level that does something that violates the state’s international obligations, the state is responsible whether they are acting ultra vires "beyond one's legal power or authority" or not. |
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US Mexico General Commission:
The court ruled that the state is internationally responsible for the denial of procedural justice |
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Definition
US Mexico General Claim Commission:
Court ruled that, There is an international requirement that states try to take reasonable measure to:
1.prevent injury to aliens and
2.Promplty try to prosecute those who harm aliens |
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Term
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Definition
- When you expropriate things it has to be for a public purpose, non discriminatory, have to be compensated ( prompt, adequate and effective)
- International law agrees with public purpose rule, no clear standard when it is or is not for a public purpose |
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Definition
| The court ruled, Because the contract was international, the rights and the duties of the contract are held at an international level. Therefore, international law must be taken into consideration when making reparations. |
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- usually assessed on the basis of the ‘fair market value’ of the property lost, although the method used to calculate this may depend upon the type of property involved
- Damage includes both material and non-material (or moral) damage |
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- under the UN system there is now a requirement to settle disputes in a peaceful manner, meaning through either non-judicatory methods or judicatory methods.
- Before WW1, some developments made arbitration and the Hague Conferences which created the permanent court.
- Article 33: is a means of settling disputes |
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Definition
Negotiation
Good offices
Mediation
Conciliation
Inquiry |
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Definition
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Term
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| when a 3rd party brings the two sides together but after stays out of negotiations |
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| when a active 3rd party takes part of the negotiations but only helps parties reach a settlement (Facilitates) |
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| can be 1 or more people which develop a settlement proposal, makes findings as facts just like the investigation, settlement proposal is not obligatory but hard to ignore |
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| fact finders which investigate the dispute, neutral parties, panel of experts, investigate and provide objective assessment of facts |
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| Dogger Bank Incident (UK v Russia) |
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Definition
Inquiry
- France an ally to both countries request for them to settle their dispute through inquiry (who was at fault & where does responsibility lie) |
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• A mutual third party enters to make a decision for the parties involved
- Decision is enforced here
• the Hague Conferences which created the permanent court of arbitration which is very misleading because it is similar to a bureau
• When 2 parties submit an agreement to settle the dispute in arbitration is called “Comprimis D’arbitrage” |
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Definition
- The subject matter of the dispute
- Specifies number of Arbritrators and who they will be
- The law that the tribunals will apply to the case (arbitrators cannot use any other law to decide a case)
- Talks about procedures is someone fails to cooperate |
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| Chamizal Tract (US/Mexico Boundary Commission) |
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Definition
- Claims commission says “ to decide solely to choose whether the chamizal tract is USA’s or Mexico
- Tribunal divided it between two parties
- But when a tribunal diverges from the rules of the comprimis the decision is nullified |
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Overlapping Juridiction
In this case, it was deemed that in the case of conflicting laws, those of the US must be adhered to. |
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Extradition
This case deals with the issue of kidnapping and extradition. |
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| Schooner Exchange v McFaddon |
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Definition
Absolute Sovereign Immunity
-Court ruled that states cannot exercise authority over other states. court isn't able to enforce jurisdiction because of absolute sovereign immunity |
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| court ruled sovereign immunity doesn't protect private acts--> because the state was engaging in commerce its acts were private |
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| court ruled when a government is acting as a participant in the market , then the acts are commercial |
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| Argentina v Amerada Hess shipping |
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| the court did not have jurisdiction over killing and torture because of the Foreign Sovereign Immunities Act only covered commercial acts. |
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| the court had jurisdiction because of the foreign sovereign Immunities Act was amended to include torture and extrajudicial killing |
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| 1st national City Bank v Bank of Cuba |
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| sovereign immunity is implicitly waived when a country sues in US courts, because it can be subject to counter suits |
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| court ruled that recognition required for head of state immunity. head of State immunity can be withheld and is subject to recognition |
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| Head of State Immunity does not extend to violations of International criminal law. Violating International criminal law can never be an official government function. |
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