When the international community emerged no state was powerful enough to impose its will and principles on all other members of the community and to proclaim a set of fundamental principles to regulate social intercourse. Legal principles evolved spontaneously based on states’ convergent interests. While there was no overreaching principle that had binding force with respect to all members of the world community, states seemed to base their actions on three basic postulates: freedom, equality and effectiveness. Freedom meant that state had a wide range of action on the international scene (freedom to form alliances with whomever they chose to, to enter into agreements that were aligned with their interests etc.). Equality meant that no state had legal authority to impose a set of norms on any other state. Finally the concept of effectiveness meant that international law took into account existing power relationships and translated them into legal rules. In other words, this principle is based on the theory that only those claims and situations which are effective can produce legal consequences. For example: if a new state emerges from secession, it will be able to claim international status only after it can demonstrate that it controls permanently and durably a defined territory and the population that lives therein. Under traditional international law, force was the principal source of legitimation. Situations were recognized as legal if they rested on firm display of authority. Under modern international law, certain states have advanced the argument that legality should prevail over authority and that a situation should not be recognized as legitimate, although it is effectives, so long as it offends fundamental values. The above three postulates are a consequence of the laisser-faire attitude that dominated traditional international law.
Because of WWII and the massive loss of human life, states attempted to lay the foundations of a system to insure world peace and security. UN Charter, art. 2 proclaimed the following principles:
- self determination of people
- peaceful settlement of disputes
- prohibition of the threat or use of force
In the 60’s socialist and developing countries that emerged from the era of colonialism demanded that the above principles be expanded so as to reflect the new international reality. The principles agreed upon in the 60’s were proclaimed in the Declaration on Friendly Relations of 1970, which was adopted by consensus but is not legally binding. These principles restated the ones in art. 2 of the UN Charter and extended their application to all states (art. 2 applies only to those states members of the UN). The principles as expanded are:
- sovereign equality of all states
- self-determination of people
- ban on threat or use of force
- the peaceful settlement of disputes
- the non-interference in the domestic affairs of other states
- duty of co-operation with the mission of the UN
- good faith
Some of these standards (cooperation and good faith) unless they are made part of legally binding instruments remain expressions of policy guidelines. We should also note that the above stated principles are not the only principles of international law and that many principles have emerged from state practice. A look at various treaties, declaration, states’ diplomatic practices have led to the emergence of certain principles that have universal scope.
In a world that is divided (politically, economically, culturally), when we speak of principles we mean those standards on which there is universal consensus, such that it attributes those standards the rank that constitutional principles have within national systems.
The sovereign equality of states
One of the major principles proclaimed by the UN Charter and reaffirmed by the Declaration of 1970 is the “sovereign equality of all states.”
There is unanimous consensus on this principle and therefore it has come to be considered as a fundamental premise on which all international relations rest.
Sovereignty
Sovereignty comprises the following powers:
Authority (jurisdiction) over individuals living on the territory of a sovereign state. This jurisdiction has 3 forms: jurisdiction to prescribe legally binding norms upon private and public entities within the territory of the state; jurisdiction to adjudicate (power to settle disputes over legal subjects within territory or sometimes outside territory); jurisdiction to enforce legal norms.
Prescriptive jurisdiction
Principle: it is usually territorial
Exception: extraterritorial jurisdiction; sometimes, states may enact legal norms that are binding on the basis of nationality and thus, have extraterritorial scope; or norms that regulate conduct that is beyond the territory of the state, but is deemed prejudicial to its interest. Extraterritorial jurisdiction is exercised in dealing with terrorism abroad. It may not however infringe on the sovereignty of other states by providing enforcement acts that take place on foreign territory.
Examples: 1986 Omnibus Diplomatic Security and Antiterrorism Act which asserted US jurisdiction over attacks on US national abroad; Helms-Burton Act 1996 that provided for sanctions against foreign companies that purchased property in Cuba confiscated in 1960 from US owners.
Jurisdiction to adjudicate
Principle: is based on territoriality, active nationality (based on nationality of offender)/passive nationality (nationality of the victim), or the protective principle (jurisdiction over offences that affect a states’ national interest).
Exception: universal jurisdiction (relates to acts committed by foreigners against foreigners on foreign soil). According to the principle of universal jurisdiction a state is empowered to bring to trial persons accused of international crimes regardless of the place of commission of the crime, or the nationality of the victim or offender. Some states have a restrictive view of this principle and apply universal jurisdiction only if the accused is in that state’s custody; other states have taken a broader approach and apply the principle even when the accused is not in the custody of the forum state. These states have justified extraterritorial jurisdiction by saying that it pertains only to the most serious crimes which warrant international protection and that such exercise of jurisdiction does not infringe upon sovereignty of another state, nor does it constitute undue interference in its internal affairs. Many of the states that initially supported a liberal view of extraterritorial jurisdiction have later tempered their approach. For example, Spain later limited the application of that principle to situations where the forum state has failed to exercise jurisdiction.
Jurisdiction to enforce
Question: An Algerian national has murdered several French nationals in Algeria blaming them of espionage. France has sent some private individuals who have captured the perpetrator and have brought it to justice before the French courts. Is this legal under international law? Would Algeria have a claim against France? Could it ask for compensation? See Eckman case p. 52.
Principle: confined to the territory of state where act occurred. The principle of sovereignty commands that acts of enforcement cannot be exercised by a state beyond its territory without the consent of the state where enforcement was sought. That was confirmed by the PCIJ in the Lotus case.
What about a situation where an individual has been abducted from foreign territory and brought to justice in a different state?
Most state courts have complied with the Lotus principle. UK courts (in Regina case) held that British courts should decline jurisdiction over the accused if he has been brought to the UK after being abducted. The abduction constitutes a violation of international law and the principle of sovereignty and the right approach for trying such individuals would be to request the cooperation of the state where the accused resides and demand extradition.
2. Power to freely use the territory under a State’s jurisdiction, especially to further every state’s national security.
3. Question: Can the US send some enforcement agents in Mexico to capture U.S. drug-dealers that are responsible for the death in the U.S. of several Mexican citizen? No. See for similar facts Dominguez v. State. The right of a state to exclude others from its territory. States have a right to regulate, and therefore to exclude private and public activities from their territory and if these acts are imputable to foreign entities who lack authorization to engage in such activities, the victim state may claim compensation
Legal Equality
All states are legally equal. Their equality may be disturbed by factual – their geographical location, whether they have natural resources or not. Legal constraints that one State may impose on its self a valid if that state accepts them knowingly and in the free exercise of its sovereign powers.
Non-intervention in the internal or external affairs of other states
The principle of non-intervention is designed to ensure that each state respects the ghts of other states. This principle has led to the evolution of several customary rules:
- rule prohibiting the interference in the internal organization of a foreign state – a state may not bring pressure to influence the institutions of another state, nor may it interfere in the relations between a state and its own nationals. Can a state allow on its territory an organization that aims at overthrowing the government of a foreign state? Yes, especially if the subversive activity is carried out by private persons without any involvement by the state on which territory the activity takes place. However, since 1945 there emerged a consensus among states the traditional prohibition of indirect armed aggression, also should cover the toleration by states of subversive activities against states organized in the territory of the former. What can a state do to be in compliance with the rule in such case? Maybe proceed to expulsion of the individuals concerned; restriction on the traffic of arms and ammunitions. The customary rule that evolved from the principle of non-interference only prohibits a state from instigating, organizing and lending its support to such organizations.
- Rule that states are duty-bound from assisting insurgents when a foreign government is faced with civil strife
Before 1945, these rules could have been derogated from if a states considered its interests to be paramount. Csq – the protection afforded by these rules was precarious. Since 1945, principle was reinvigorated by the introduction by the UNC of the principle of non-recourse of threat or use of force. The proliferation of international organization prompted states to define the contours of this principle so as to delineate the areas that are still immune from outside interference. The evolution of human rights which led to possibility of states to exert pressure over other states in applying human rights standards.
New forms of intervention
- economic pressure, economic coercion which can destablize a country’s political system. Economic pressure is legal unless they are designed to coerce another state so as to obtain from it a subordination of the exercise of its sovereign rights and to secure from it an advantage of some sort.
- Various subtle forms of undue influence through the more powerful states’ standing in international organizations.
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