Judicial decisions – Cases and Materials
Kosovo
The Court only need to determine whether the declaration of independence
violated either general international law or lex specialis created by the security
council. International law doesn’t contain a prohibition of declarations of
independence. The Kosovo declaration didn’t violate International law. The
population of Kosovo has the right to self-determination/remedial secession.
Whether international law confers the right upon the population of an existing
state to separate from it is a subject with radically different views.
The S.S. Lotus
A state may under international law not exercise its power in any form in the
territory of another state. Jurisdiction can’t be exercised by a state outside its
territory except by virtue of a permissive rule derived from international custom
law/a convention – no prohibition on exercising jurisdiction in its own territory.
There is no rule of international law reserving jurisdiction of crimes committed in
high seas to the State flag; Turkey did not violate any law by arresting the
lieutenant. Sovereign states may act in any way they wish so long as they do not
contravene an explicit prohibition > contrary to art. 15 of a convention . The
subjective element of state practice is the belief that practice is legally binding.
Island of Palmas
The arbitrator concluded that Spain held the title when Spain "discovered"
Palmas. However, for a sovereign to maintain its initial title via discovery, they
have to actually exercise authority even by as simple an act as planting a flag on
the beach. Spain did not exercise authority over the island after making an initial
claim after discovery and so the American claim was based on relatively weak
grounds.
The arbitrator said that there was no positive international law for the American
view of terra firma in which the nearest continent or island of considerable size
gives title to the land in dispute.
Thus, a title that is inchoate cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty (which the NL had). Peaceful and
continuous display of territorial sovereignty is as good as title. However,
discovery alone, without a subsequent act, cannot suffice to prove sovereignty
over the island. The territorial sovereignty of the defendant, Netherlands, was not
contested by anyone from 1700 to 1906 so the title of discovery was, at best, an
inchoate title and does not prevail over the Netherlands claims of sovereignty.
Reparation for Injuries
Organization in the performance of its duties suffering an injury in circumstances
involving the responsibility of a (non)member state has the capacity to bring
international claim against the responsible member state with a view to obtain
the reparation due in respect of the damage caused to the organisation/to the
victim or to persons entitled through the organisation. Claim is based on a breach
of obligations due to the organisation.
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Kosovo
The Court only need to determine whether the declaration of independence
violated either general international law or lex specialis created by the security
council. International law doesn’t contain a prohibition of declarations of
independence. The Kosovo declaration didn’t violate International law. The
population of Kosovo has the right to self-determination/remedial secession.
Whether international law confers the right upon the population of an existing
state to separate from it is a subject with radically different views.
The S.S. Lotus
A state may under international law not exercise its power in any form in the
territory of another state. Jurisdiction can’t be exercised by a state outside its
territory except by virtue of a permissive rule derived from international custom
law/a convention – no prohibition on exercising jurisdiction in its own territory.
There is no rule of international law reserving jurisdiction of crimes committed in
high seas to the State flag; Turkey did not violate any law by arresting the
lieutenant. Sovereign states may act in any way they wish so long as they do not
contravene an explicit prohibition > contrary to art. 15 of a convention . The
subjective element of state practice is the belief that practice is legally binding.
Island of Palmas
The arbitrator concluded that Spain held the title when Spain "discovered"
Palmas. However, for a sovereign to maintain its initial title via discovery, they
have to actually exercise authority even by as simple an act as planting a flag on
the beach. Spain did not exercise authority over the island after making an initial
claim after discovery and so the American claim was based on relatively weak
grounds.
The arbitrator said that there was no positive international law for the American
view of terra firma in which the nearest continent or island of considerable size
gives title to the land in dispute.
Thus, a title that is inchoate cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty (which the NL had). Peaceful and
continuous display of territorial sovereignty is as good as title. However,
discovery alone, without a subsequent act, cannot suffice to prove sovereignty
over the island. The territorial sovereignty of the defendant, Netherlands, was not
contested by anyone from 1700 to 1906 so the title of discovery was, at best, an
inchoate title and does not prevail over the Netherlands claims of sovereignty.
Reparation for Injuries
Organization in the performance of its duties suffering an injury in circumstances
involving the responsibility of a (non)member state has the capacity to bring
international claim against the responsible member state with a view to obtain
the reparation due in respect of the damage caused to the organisation/to the
victim or to persons entitled through the organisation. Claim is based on a breach
of obligations due to the organisation.
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