I. THE LAW OF THE INTERNATIONAL LEGAL SYSTEM
Purposes:
Establish and maintain order
Enhance reliable expectations
Protect “persons,” their property and other interests
To further other values
Role of Sovereignty In International Law
If an entity is a state as defined it has the attributes of sovereignty.
If a state has the characteristics that define a state, it has resultant attributes of statehood: TEST
defined territory
government in control
permanent population
capacity to participate in diplomatic relations
Exercise of state autonomy includes will, moral authority, power to consent, entry into voluntary relations, concluding agreements and together forms a social contract that creates int’l political system.
Corfu Channel Case (United Kingdom v. Albania) I.C.J. 1949
Action to determine state sovereignty
Facts: During the first incident, Royal Navy ships came under fire from Albanian fortifications. The second incident involved Royal Navy ships striking mines and the third incident occurred when the Royal Navy conducted mine-clearing operations in the Corfu Channel, but in Albanian territorial waters, and Albania complained about them to the United Nations. Together these incidents were considered early episodes of the Cold War.
Rule of Law: Sovereignty confers rights upon states and imposes obligations on them.
Holding: North Corfu Channel should be considered as belonging to the class of international highways through which passage cannot be prohibited by the coastal state in time of peace. The geographical situation of the channel as connecting two parts of the high seas and its use as a waterway for international navigation is decisive.
Albania may have been justified in regulating use but not in prohibiting passage or in subjecting it to the requirement of special authorization.
Judgment for the United Kingdom on the issue of damages
International Law Defined
Hart, The Concept of Law (1961)
Binding Character of International Law
Kelsen, Pure Theory of Law (1967)
State Behavior in International Law
Henkin, How Nations Behave (1979)
Mechanisms of Enforcement in International Law
Non-Forcible Measures
Damrosch, Enforcing International Law Through Non-Forcible Measures (1997)
Power as Enforcer of the Law
Morgenthau & Thompson, Politics Among Nations (1985):
Enforcement Without Centralized Sanctions
Brierly, The Law of Nations (1963)
United Nations and Law Enforcement
United Nations Charter, Article 2(4)
U.N. Charter includes prohibition on use or threat of force between states. That apart, the Charter was not designed to include a code of international law. The Security Council does not police and enforce international law and the Charter did not create institutions to enforce international law, except in respect of the prohibition on the use of force and related treats to international peace and security.
Compliance Without Enforcement
Rare Enforcement But Usual Obeyance
Koh, “Why Do Nations Obey Int’l Law” Yale L.J. (1997)
There is a transnational legal process that explains why nations obey international law.
International regulation is accomplished through treaty regimes (Chayes Managerial Model)
Three Factors: efficiency, national interest and regime norms
Compliance arises not from fear of coercive sanctions but through interactive processes of justification, discourse, persuasion.
States obey norms that have a high degree of legitimacy (Franck)
Determinacy – ability of a rule to convey a clear message
Symbolic Validation – ritual or signal of pedigree that communicates authority
Coherence – application of a rule is consistent and justifiable in principled terms
Adherence – nexus btw rule of obligation +
e of Law: There is no rule of international law prohibiting a state from exercising criminal jurisdiction over a foreign national who commits acts outside the state’s national jurisdiction. There is an implied sense that international law permits all that it does not forbid.
Holding: Both states may exercise concurrent jurisdiction
Reasoning: The first and foremost restriction on states is that, failing the existence of a permissive rule to the contrary, it may not exercise its power in any form in the territory of another state. (See Columbia v. Peru) Here because, the effects of the alleged offense occurred on a Turkish vessel, it is impossible to hold that there s a rule of law which prohibit Turkey from prosecuting the officer simply because he was not physically on board the Turkish vessel at the time of the incident. Put another way, the location of the effect of the offense is sufficient to establish juris.
Turkey Position: (consistent with maj): jurisdiction should extend to all claims that impact Turkish territory
France Position: Jurisdiction only extends to what happens under your flag or on Turkish territory
Dissent: Put down proposition that France had the burden of showing a customary law rule that prohibited Turkish exercise of jurisdiction. Took issue with idea that “restrictions on the freedom of states cannot be presumed.”
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)
ICJ 1996
advisory opinion examining whether the threat or use of nuclear weapons is permitted under i-law
