I. Introduction
This essay considers that the violation of human rights can indeed be address by extraterritorial jurisdiction throw the human rights legal framework, mainly throw treaties as showed jurisprudence.
In order to do that, first, the essay will define what understand by “jurisdiction” and the elements of the extraterritorial jurisdiction. Next, it analyses some key decisions and advisory opinion from the International Court of Justice and the European regional system in order to prove that extraterritoriality jurisdiction is already applicable and therefore, if the State fails to guarantee the rights contemplated in the human rights treaties, it incurs in international responsibility. Lastly, the essay will sum up the analysis and make some final remarks.
II. Notion and types of extraterritorial jurisdiction
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456). Also, as stated by Besson, a State needs jurisdiction in order to apply human rights treaties, meaning that “it conditions the applicability of those rights and duties on political and legal circumstances where a certain relationship exists between right-holders and state parties” (Besson, p. 860).
The presumption is that a state jurisdiction is territorial and if each State has jurisdiction over its own territory, consequently, other States do not have jurisdiction over those affairs in line with the international law principles of non-intervention and sovereign equality of States . In fact, territorial jurisdiction is universally recognized. However, as Ryngaert points out, jurisdiction is not only linked with sovereign and is no exclusively of domestic concern (Ryngaert, p. 7), making reference to the “extra-territorial
The case of Francovich had a significant impact on the European Union (EU) law. If a conflict arises between the EU law and the national law, the EU law highly prevails. The European Union law is a framework of treaties and legislation, which have a direct or indirect effect on the laws of the member states which are bound to the European Union. Primary and Secondary laws are the two sources of the EU law. This essay will firstly analyse the main institutions of the European Union and define various legal terms. It will then move on, to discuss the case of Francovich and the importance it had for state liability. Furthermore, it will refer to subsequent cases which are linked with state liability and had an impact on the EU Law. Lastly, my own views about State Liability will be presented.
The issue of human rights has arisen only in the post-cold war whereby it was addressed by an international institution that is the United Nation. In the United Nation’s preamble stated that human rights are given to all humans and that there is equality for everyone. There will not be any sovereign states to diminish its people from taking these rights. The globalization of capitalism after the Cold War makes the issue of human rights seems admirable as there were sufferings in other parts of the world. This is because it is perceived that the western states are the champion of democracy which therefore provides a perfect body to carry out human rights activities. Such human sufferings occur in a sovereign state humanitarian intervention led by the international institution will be carried out to end the menace.
...es’ constitutions, the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights, according to Wright, “pressed for the acceptance of its rulings in Argentine courts” (166). Not only international efforts, but also domestic efforts, to apply international jurisprudence to local courts were on the rise. For example, in 1995, CELS launched its “program for the application of international law to human right in local courts” based on the amendments to the Argentine constitution (Wright 166). Just as well, human rights lawyers pushed “courts to embrace the international principle that crimes against humanity cannot be amnestied” (Wright, 167). In sum, the International human rights lobby wanted each country to mold its human rights jurisprudence around the rulings of international human rights law, and domestic actors adopted the same goal.
In his important article, “Abiding Sovereignty” Krasner attempts to throw light on the changing global scenarios and institutions and its effect on sovereignty and the international state system. Krasner says that the sovereign states are the building blocks of the modern state system which has territorial, judicial and economical autonomy and control within
Condé, H. Victor. A Handbook on International Human Rights Terminology Human Rights in International Perspective; V. 8 Lincoln University of Nebraska Press, 2004.
This issue of Universal Jurisdiction has been a highly contested issue since its beginnings. Universal Jurisdiction allows any state to prosecute an individual who is believed to have committed a crime that is believed to jeopardize the international world order. When used appropriately universal jurisdiction is a very useful tool in the international system, however, its alleged abuses have caused individuals to question its validity. Currently the issue of Universal Jurisdiction is under debate in the General Assembly. The outcome of this debate will undoubtedly have an impact on the international system.
In fact, the Geneva Convention states that a person, regardless of their nationality, should be brought before the court of any state in which that person has committed grave breaches of law and convention. Roth states that the concept of international jurisdiction is not a new one, but that only in recent years have states been willing to act on universal jurisdiction and go after criminals of the international community regardless of their status or power within the international community. Roth believes in the ability and authority of international organizations and institutions (Roth 2001).
...t state autonomy cannot be restricted by anything but the community (state) itself. As one might assume, it follows from these differing standpoints that the way each theory view intervention, etc., will be in opposition. (Steve Smith, The Globalisation of World Politics: An Introduction to International Relations p. 173A)
The lack of automatic international compulsory jurisdiction renders ICJ inferior. Therefore the argument that referring to this court as the ‘World Court’ implies it is superior; an international equivalent of a national supreme court is null and void. Generally a supreme court is the highest ranking court. Its ruling is not subject to further review and therefore the disputing parties ha...
International law is a body of legally binding rules that are suppose to govern the relations between sovereign states. (Cornell Law School) In order to be a qualified subject, a state has to be sovereign. To be considered sovereign the state needs to have territory, a population, and a government that is recognized or legitimized to most other states. In the more modern explanation of international law now can include the rights and obligation on intergovernmental international organizations and even individuals. Examples of an international organization would be Greenpeace or the United Nations and an example of an individual would be war criminals, a leader of a state that violated human rights during a time of war. When a dispute arise and cannot be solved amongst the two actors involved they can turn to the U.N. to arbitrate and to the International Court of Justice, one of many courts within the U.N. to find a resolution to their problem. The International Court of Justice’s main task is to help settle legal disputes submitted to it by states and...
Public International law International law contains of rules and principles, which preside over the relations and communication of nations with each other. International Law that is in most other countries referred to as Public International Law concerns itself only with questions of rights among more than a few nations or nations and the citizens or subjects of other nations. In dissimilarity, Private International Law deals with controversies among confidential persons, natural or juridical, arising out of situations having important association to further than one nation. In current years the line up connecting public and private international law have became more and more doubtful. Issues of private international law may also associate issues of public international law and numerous matters of private international law nave considerable meaning for the international group of people of nations. International Law consists of the basic, classic concepts of law in nationwide legal systems, status, property, responsibility, and tort. It also includes substantive law, procedure, process and remedies. International Law is rooted in receipt by the nation states, which comprise the system. Customary law and conventional law are primary sources of international law. Customary international law results when states trail convinced practices usually and time after time out of an intelligence of legal responsibility. Lately the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may obtain any appearance that the constricting parties have the same opinion upon. Agreements may be complete in admiration to any substance except for to the leve...
The ICTY Appeals Chamber’s decision has certainly developed and refined international humanitarian law and international criminal law. The legal findings of the chamber are sound interpretations of existing laws, which are important issues and need to be properly clarified. The resultant redefinition of the concept of protected persons contra legem and the blurring of the distinction between international and non-international armed conflicts are well meant. The Court’s affirmation that the responsibility of the perpetrators or participants in international crime closes the gaps in criminal responsibility and relates to an important moral imperative.
On December 10th 1948, the General Assembly adopted a Universal Declaration of Human Rights. This declaration, although not legally binding, created “a common standard of achievement for all people and all nations.to promote respect for those rights and freedoms” (Goodhart, 379). However, many cultures assert that the human rights policies outlined in the declaration undermine cultural beliefs and practices. This assertion makes the search for universal human rights very difficult to achieve. I would like to focus on articles 3, 14 and 25 to address how these articles could be modified to incorporate cultural differences, without completely undermining the search for human rights practices.
About the power of the subjects of international law, it is the basic properties, the special legal ability of the subjects that inherited the rights and shoulder the obligations, legal responsibility in international legal relations. Subjects' power includes two aspects, and only when ones get all these two aspec...
Before we delve deeper into this topic, it is imperative to properly provide a definition of sovereignty and lay down some foundation on this topic. There are four different definitions of sovereignty – international legal sovereignty, Westphalia sovereignty, domestic sovereignty and interdependence sovereignty. International legal sovereignty deals with “the practices associated with mutual recognition, usually between territorial entities that have formal juridical independence” (Krasner 4). The main definition of sovereignty that this paper will use is the ...