The effect of domestic law in international courts and tribunals - Essay Example

?International courts have to consider domestic law in their decisions. With reference to International jurisprudence discuss the effect of domestic law in international courts and tribunals. 1. Introduction As per Article 38(1)(d) of the International Court of Justice’s (ICJ) Statute, the international court is to apply “judicial decisions and teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”. The development of law with regards to the consultation with domestic law is ambiguous and an extent cannot be declared as such. However various pleadings brought before the ICJ are replete with myriad references to legal literature and case laws. In this regards it is noteworthy that the proceedings of international courts and tribunals are often replete with judicial decisions as well as juristic writings. These are discussed below in greater detail as per their influence on the proceedings of international courts and tribunals. 1.1. Judicial Decisions During the proceedings of international courts and tribunals, the decisions of international courts and municipal courts as well as publications of academics can be referred to. These references are not as sources of law but rather as means to recognise various laws established through other sources. The actual practice of the ICJ is not to refer to domestic decisions but even then the ICJ does invoke its own previous case laws (Thirlway, 1972). International law does not recognise the rule of stare decisis. The decision of any international court or tribunal has no binding force of any kind except that recognised by the contesting parties. Such recognition is only valid for the particular case under consideration (International Court of Justice, 2012) as per Article 59 of the statute of the ICJ. Even then international courts and tribunals still refer to past decisions as well as advisory opinions in order to augment their explanations for a current case. Another customary practice by international courts and tribunals is to consider the resolutions passed by the General Assembly that are indicative of customary international law. 1.2. Juristic Writings Again Article 38(1)(d) of the ICJ statute provides that “teachings of the most highly qualified publicists of the various nations” serve as beacons for “subsidiary means for the determination of the rules of law”. Although the works of various prominent jurists are not considered as source of international law but they are considered indispensable to developing rules that are sourced from custom, treaties as well as general principles of law even those derived from the decisions of domestic courts. Such principles are accepted practice for the interpretation of international law in various cases. One such case that was utilised by an international court was the decision by the United States Supreme Court in the Paquete Habana case (175 US (1900) 677 at 700-1). 2. Conclusion Conclusively it can be said that the decisions of domestic courts are considered by international courts and tribunals but this practice is limited when compared to other sources of international law. The varying legal principles in use by different nations restrict the use of decisions made by domestic courts in international law. “Does the Court need to consider in order for a rule to be established as customary, if there must be absolute conformity and practice with the rule or is it enough that there is a general consistency”. Do you agree with this statement? 1. Introduction When international law is considered it must be kept in mind that rules can be established as customary even if there is only general consistency with the rule and not absolute conformity. It must also be noted that absolute conformity is not possible when considering international law because states hold their interests supreme. Moreover nations cannot be forced to accept decisions taken under international law and instead international law is practiced through wilful recognition of the states involved. 2. Approaches to International Law The various approaches used for international law are based in large part on international relations due to the interaction of state bodies. The realist approach dictates that states are “locked up in a perpetual struggle for survival” which provides them with obligation to maximising their territory and power (Bradford, 2004). Therefore practically states are only going to follow rules and customs in international law that augment their influence in the global arena. In contrast, when the liberalist approach is considered it becomes clear that states’ attitude to international law is dictated by domestic politics and attitude towards rule of law at large. It is also argued that democratic states have more respect for international law and its customs because the involved stakeholders are more interested in strengthening transnational cooperation (Bradford, 2004). However even these states may prefer to further their interests at the cost of observance of international law. Another major approach is the rational choice and game theory approach. This approach dictates that economic interests take precedence when it comes to international law and that involved nations try to enhance utility through the use of international law. The other side of the argument reveals that nations would again be more interested in furthering their economic agendas even at the cost of observing international customs and rules (Ratner, 1998). 3. ICJ Statute Article 38(1)(b) of the ICJ’s statute clearly defines that international custom that is evidenced as general practice will be accepted as law. This principle was clearly expounded in the North Continental Shelf Case where the court opined that the practice of the state should be generally consistent. These rules should amount to settle practice as well as the principle of opinion juris sive necessitatus. Therefore the court would form customary international law or other such customs through state practice and opinion juris that may differ from case to case. 4. Conclusion When all of these arguments are put together it becomes obvious that observance of international laws is not strictly enforced unless the participating states observe these laws voluntarily. Hence it is common for international law to establish customs when a pattern of general consistency emerges rather than looking for absolute conformity. What are the rights of warships to unhindered passage through territorial seas. Is there a difference between nations that have navies and those that do not? Discuss making reference to the Corfu Channel Case and its relevance to the above. 1. Introduction Under the United Nations Convention on the Law of the Seas (UNCLOS) III, enemy warships have right to “innocent passage” through territorial waters without any form of hindrance. In terms of territorial waters, two situations are possible which are territorial seas and archipelagic waters. Both situations warrant similar rights to passing warships that are discussed below. 1.1. Territorial Waters The coastal state can set laws from 12 miles of its baseline. All kinds of vessels are provided the right of innocent passage through any territorial waters including military craft that are provided transit passage. Naval vessels are allowed to pass through territorial waters if they do not maintain postures that would be considered illegal in territorial waters. UNCLOS III defines “innocent passage” as transiting through waters in “an expeditious and continuous manner” which is not “prejudicial to peace, good order or the security” of the concerned coastal state. In this regard it must be borne in mind that fishing, weapons practice, spying and polluting are not considered innocent. Moreover submarines and other underwater naval vessels are required to navigate on the surface as well as display their flag clearly. Coastal states are allowed to refuse or suspend innocent passage in territorial seas if it undermines their security for any reason (United Nations, 2012). 1.2. Archipelagic Waters In the case of archipelagic waters, the areas are considered to be part of the state’s internal waters. However these waters are treated as territorial waters and right to innocent passage is allowed to foreign vessels as well as military craft with the same conditions as those observed in territorial waters (Global Solutions, 2012). Moreover there is no segregation for nations that possess navies and those that do not for right to innocent passage. 2. Corfu Channel Case British ships crossing the Corfu Channel came under fire from Albanian fortifications after which more ships were dispatched to gauge the Albanian reaction. However as the flotilla proceeded it encountered mines and lost one ship while the other was badly damaged. In response the British tried to clear up the Corfu channel unilaterally recovering 22 contact type mines. The matter was referred to the ICJ by the British after the Albanian side showed little signs of cooperation. The ICJ opined that Albania had no right to fire on the British ships crossing the Corfu channel and had no authority to lay mines or to order their installation. On the other hand, the British side was reprimanded for removing mines without approval from the Albanian authorities (Chung, 1961). 3. Conclusion With reference to the Corfu channel case, it is apparent that the right to innocent passage is undeniable even to military craft as long as it is innocent passage. Moreover a nation cannot operate to install or remove devices in another nation’s territorial waters without prior approval. 4. Bibliography Bradford, W.C., 2004. In the minds of men: A Theory of Compliance with the Laws of War. Social Science Research Network. Chung, I.Y., 1961. Legal Problems Involved in the Corfu Channel Incident. International Affairs (Royal Institute of International Affairs 1944–), 37(4), pp.505-06. Global Solutions, 2012. About the Law of the Sea. [Online] Available at: HYPERLINK "http://globalsolutions.org/law-justice/law-sea-treaty" http://globalsolutions.org/law-justice/law-sea-treaty [Accessed 27 January 2012]. International Court of Justice, 2012. Statute of the Court. [Online] Available at: HYPERLINK "http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0" http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0 [Accessed 27 January 2012]. Ratner, S.R., 1998. International Law: The Trials of Global Norms (in The Frontiers of Knowledge). Foreign Policy Special Edition: Frontiers of Knowledge, 110, pp.65-80. Thirlway, H., 1972. International Customary Law and its Codification. Leiden: A. W. Sijthoff. United Nations, 2012. UNCLOS. [Online] United Nations Available at: HYPERLINK "http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf" http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf [Accessed 27 January 2012]. Read More