International Law and Policy - Report Example

International Law and Policy Student’s Name Institutional Affiliation International Law and Policy Week Five One of the elements of a sovereign state is the ability of the capability to apply effective control over a defined territory. The importance of control over territory is based on the significance of the economic, strategic, and the symbolic value of the territory. Exercising control over territory and individual grants territorial supremacy under international law. The existence of a political authority that controls a certain territory is more important than the existence of physical boundaries (Worster, 2009). The existence of statehood calls into question when a state can no longer exercise control over its territory. The challenge comes about when the defenses of a state are overrun by belligerents. The territorial by-pass alters the territorial powers and sovereignty of a state. Certain factors that can destabilize control over territory include economic blockade, ideological and political penetration by another state or entity can lead to the disruption of statehood. Warfare in the form of nuclear, air or atomic that undermines the defenses of a state also lead to question control over territory (Herz, 1957). Control over territory has formed the basis for the emergence of new states under international law because of the existence of the right to sovereignty. Therefore, a state has absolute authority over all persons and property in its territory. Effective territorial control means that there is legitimate governance. Many failed or weak states have reclaimed territorial control and reclaimed their status under international law. The principles of territorial integrity and state sovereignty has ensured that states do not use force to occupy other states and claim control over the territory as the US did in Afghanistan (Scudder, 2010). Week Six Jurisdiction is the power of the government to exercise authority over people and entities in its territory. Jurisdiction stems from the principle of state sovereignty and there are different types of jurisdictions under international law including prescriptive and enforcement jurisdiction. Every state has unlimited prescriptive jurisdiction which means that the legislature can make, amend, or repeal laws covering any activity, person, or subject irrespective of their nationality or location. The state can exercise prescriptive jurisdiction as they please in their territory (Colangelo, 2013). However, international law prohibits a state from enforcing its legislation in the territory of another state without an international agreement or permission from a rule of customary international law. The prohibition was established by the Permanent Court of International Justice in the Lotus case. Enforcement jurisdiction in international legal relations is exclusive to territorial. The state has the right to enforce legislation through authoritative forces such as the police within its territory. The police or similar forces can investigate a crime and arrest a suspect within its territory. A state can only operate in a foreign jurisdiction by virtue of a permissive rule or authorization under international law (Liivoja, 2010). Country B can exercise direct extraterritorial jurisdiction based on the nationality of the offender. The seriousness of the crime grants country B jurisdiction to bring Citizen X of country A to justice. Further, country A can assist country B by implementing laws that criminalize the use of internet to cyber-attack the defenses of another nation. For example, EU Council Framework Decision 2008/919/JHA of 28 November 2008 on combating terrorism criminalize the use of the internet in any state to incite terror activities abroad. Therefore, country A can prosecute Citizen X for committing a crime to country B while still in the jurisdiction of country A. Week Seven Diplomatic immunity in Australia stems from the country’s ratification of the Vienna Convention on Diplomatic Relations 1967. Australia enacted into law the Diplomatic Privileges and Immunity Act 1967 that grants diplomatic agents immunity from criminal and civil prosecution, arrest and detention in the country. The diplomatic immunity extends to direct family members of the foreign representative. The daughter of the Russian ambassador cannot be prosecuted under ACT or the Australian law unless the Russian government offers a waiver. Under the national diplomatic privileges and immunities laws, foreign diplomats can only be prosecuted when the home government of the diplomat offers a waiver of the privileges and immunity laws (Gardner & Anderson, 2012)). Section 7 of the ACT ratifies the Vienna convention, thus, forming part of the Australian law. Thereby, the Australian government can request the foreign government to waive criminal immunity so as to prosecute the daughter of the Russian ambassador. Additionally, an agreement between the ACT Government and the Department of Foreign Affairs and Trade shields the foreign diplomats and their families from prosecution under local jurisdiction (Pickering & Ham, 2015). Russia can choose to waive diplomatic immunity for the daughter of the ambassador and allow Australia to prosecute her under the Australian laws or Russia can sanction the ambassador and his family. The family is called back home and the Russian diplomat’s daughter will face charges under the Russian laws. Therefore, the family of the deceased demonstrator can bring a claim for compensation against the Russian state. Thus, the family can bring about both criminal and civil actions in the Russian jurisdiction. Week Eight The international law on state responsibility is contained in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARS) and they form part of international customary laws. To establish state responsibility under the Articles, three conditions must be met, a state must violate an international obligation, the conduct in question is attributable to the state, and non-existence of circumstances precluding wrongfulness. After the shooting down of the MH17, the UN and various governments started discussing how to prosecute the perpetrators. The claim was that pro-Russian rebels in Eastern Ukraine shot down the aircraft but there is no clarity around the circumstances. Ideally, the state over whose territory the crime occurred bears responsibility (Gibney, 2015). The first issue raised by the incidence was the jurisdiction of the ICJ in prosecuting the contentious case. The court can declare a state responsible for violation of international obligations and order such a state to provide reparations for loss and damages. The court can also entertain cases regulating the safety of civil aviation based on international treaties. However, the Court’s jurisdiction is based on the consent of states (Ishan Jan & Haruna, 2015). Neither Russia, nor Ukraine seems interested in expressing consent to grant the Court jurisdiction. State responsibility is to arrest the alleged perpetrators and either prosecute or extradite them to another state for prosecution after establishing the causes and effects of the crash. The issue raised under international law on state responsibility was whether Russia breached its obligations to investigate and provide information to the ICAO on the involvement of the Russian and Ukranian nationals in the incident and to prosecute or extradite those responsible (De Hoon et al, 2014).  The principles of state responsibility were established by the ICJ in Nicaragua v United States case and the Article 4, 8 and16 of the ILC. The principles demand that a state can only bear international responsibility where there is effective control over another state or an entity and clear proof that the principal state directed or enforced the specific act of violation. The incident also illuminated the rigid application of the ‘effective control’ test. The element of intent must be clear so as to impose state responsibility (De Hoon et al, 2014).  Week Nine Reservation of a treaty provision means that there is a limitation to the undertaken commitment. The reservation must be included in the document of ratification. A declaration is made by a state to show its understanding of the matter contained therein or the interpretation of a provision (Kohona, 2004). An example of a situation where Australia has used a reservation and interpretive declaration in fulfilling its diplomatic aim in the international community is the Declaration made upon ratification of the Convention on the Rights of Persons with Disabilities. The declaration states that Australia recognizes that people with disabilities enjoy equal legal capacity with other people in all aspects. On 13th August 1980, Australia agreed to be bound by the ICCPR subject to certain reservations. The instrument under Article 2(2) requires that Australia takes all the necessary legislative as well as other measures to affect the rights contained in the Convention. Australia has made reservations on Articles 10, 14(6) and 20 of the ICCPR. The state reviews the reservations occasionally to determine the relevance of the reservations. The Australian government claims that the reservations to the Convention are in line with the Vienna Convention on the Law of Treaties. Hence, the reservations to the Articles are justified and consistent with the objectives and purpose of the ICCPR (Devereux, 2005).  Australia’s attempt to restrict its ratification of the Rome Statute may seem to clash with emerging jurisprudence on the validity of reservations to a Human Rights instrument. Most scholars are of the View that unlike treaties, Human Rights instruments should not be subject to reservations. As a result, the reservations to the Rome Statute may be harmful to Australia’s diplomatic interests. Week Ten International community member states achieve international co-operation by setting out the agreed terms in the texts of a treaty. The individual states must sign and ratify the treaty for it to be legally enforceable. Therefore, international instruments are an important part of international law for individual states. The executive government in Australia is granted the authority to commit the state to international treaties by the constitutional system. Further, the section 51 of the Constitution on the External Affairs power enables the Parliament to enact legislations that can be considered beyond its legislative powers. As a sovereign state, Australia can enter into treaties with other states. The provision is in the Constitution and it allows parliament to make laws that implement the terms of the treaty so as to fulfill international obligations arising from it. Further, the court also held that international treaties to which Australia is part of can only form part of Australian law after they have been incorporated into municipal law by statute (French, 2009). Therefore, for the provisions of a treaty to be fully enforceable in Australia, there must be a parliamentary statute ratifying the instrument. On the other hand, certain principles such as the rules of customary international law do not require ratification. Legislation that simply approves or recognizes a treaty ratified by Australia means that the country has signed the international instrument, but parliament has not ratified it (Thorp, 2011). As a result, Australia is party to the treaty, but the state is not legally bound by the provisions of the treaty until ratification. Week Eleven International laws ban the use of force in any form. The issue of international terrorism poses a serious challenge to the UN in enforcing the common legal principles. Terrorism in reference to non-state actors is a challenge to international law because it is not clear what or whether any International Humanitarian Law applies. Under the structure of international law only states, and not individuals, commit human rights violations. Additionally, some terrorist crimes cannot be defined as human rights violations. Terrorists and non-state actors have adopted new mechanisms to achieve their objectives. The non-state actors and terrorists target the assets of an uninvolved third country so as to put pressure on another state. The involvement of a third state has created numerous challenges before international law ((Tams, 2009). The definition of international terrorism has been the main challenge facing the United Nations. There is no standard definition for terrorism adopted by the UN, which has prevented it from been classified as a crime under the UN instruments. The other challenge is on the agreed measures that a state can take to prevent and punish terrorists. Member states of the international community are guided by the norms of international law when dealing with international terrorism. Therefore, any response to suppress the acts of international terror must be within the established principles of international law. Additionally, the UN Charter does not adequately provide for action to be taken against violence originating from non-state actors (Wood, 2013). The UN has taken steps to overcome the challenge of drafting specific terrorism treaties and adopting various resolutions against terrorism. Further, a committee of delegates is currently working on a comprehensive draft convention on international terrorism. The UN has also granted the United Nations Security Council power to authorize a military action in response to terror threats from non state actors (Salinas, Samuel & White, 2012).  The Security Council has also set up a Counter Terrorism Committee (CTC) to monitor the progress of states in curbing terrorism and the use of force by non-state actors. References Colangelo, A. J. (2013). What Is Extraterritorial Jurisdiction. Cornell L. Rev., 99, 1303. De Hoon, M., Fraser, J., & Leyh, B. (2014). Legal Remedies For Downing Flight MH17. Public International Law and Policy Group. Devereux, A. (2005). Australia and the birth of the International Bill of Human Rights: 1946 - 1966. Annandale, N.S.W: Federation Press. French, C. J. R. (2009). International Law and Australian Domestic Law. In speech to the Supreme Court of New South Wales Annual Conference, Hunter Valley (Vol. 21). Gardner, T. J., & Anderson, T. M. (2012). Criminal law. Belmont, CA: Wadsworth Cengage Learning. Gibney, M. (2015). The Downing of MH17: Russian Responsibility?. Human Rights Law Review, 15(1), 169-178. Herz, J. H. (1957). Rise and demise of the territorial state. World Politics, 9(04), 473-493. Ishan Jan, M., & Haruna, A. (2015). War Crimes and the Downing of Malaysian Airliner MH-17. Pertanika J. Soc. Sci. & Hum. 23 (S): 83 – 96. Kohona, P. T. (2004). Reservations: Discussion of Recent Developments in the Practice of the Secretary-General of the United Nations as Depositary of Multilateral Treaties. Ga. J. Int'l & Comp. L., 33, 415. Liivoja, R. (2010). The criminal jurisdiction of states: a theoretical primer. No Foundations: Journal for Extreme Legal Positivism, 7. Pickering, S., & Ham, J. (2015). The Routledge handbook on crime and international migration (1st ed.). Abingdon: Routledge. Salinas,.F. A., Samuel, K. L. H., & White, N. D. (2012). Counter-terrorism: International law and practice. Oxford [etc.: Oxford University Press. Scudder, J.(2010).Territorial Integrity: Modern States and the International System. Exploring Geopolitics. Tams, C. J. (2009). The use of force against terrorists. European Journal of International Law, 20(2), 359-397. Thorp, A. (2011). Parliament’s new statutory role in ratifying treaties. House of Commons Library Standard Note SN/IA/5855. www. parliament. uk/briefingpapers/sn05855. pdf (May 18, 2014). Wood, M. (2013). International Law and the Use of Force: What Happens in Practice?. Indian Journal of International Law, 53, 345. Worster, W. T. (2009). Law, politics, and the conception of the state in state recognition theory. Boston University International Law Journal, 27 (1). Read More