Public International Law Midterm for Trimester 1 Year2020 PDF

Preview

Summary

Question 1Jurisdiction is state sovereignty and it includes power to prescriptive jurisdiction and enforcement jurisdiction. These are the three functions of a sovereign state. “Jurisdiction” also can be understanding as the term that describe the limits of the legal competence ofa state or other re...

Description

Question 1 Jurisdiction is state sovereignty and it includes power to prescriptive jurisdiction and enforcement jurisdiction. These are the three functions of a sovereign state. “Jurisdiction” also can be understanding as the term that describe the limits of the legal competence of a state or other regulatory authority or institution. According to the Article 4 of Montevideo Convention on the Rights and Duties of States, it provides that states are juridically equal. They can enjoy the same rights and have equal capacity in their exercise. At the same time, the rights of each one does not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.

The first issue is whether the Foreverland has the jurisdiction to hear the case of Becky? There have five general principle on which the criminal jurisdiction is claimed by states. These principles are not mutually exclusive. Of these five principles, some of them are more widely accepted than others. These five general principle are territorial principle, nationality principle, protective principle, universality principle and passive personality principle. The principle that suitable for this present situation is territorial principle. This principle determine the jurisdiction by reference to the place where the offence was committed. A state can exercise jurisdiction over persons, property, acts or events occurring, within its territory. A sovereign independent state should possess jurisdiction over all persons and things within its territorial limits so this principle has received universal recognition. According to the Article 3 of Harvard Research Draft Convention on jurisdiction with respect to crime provides that a state be allowed territorial jurisdiction when a crime is committed “in whole or in part” within its territory. A crime is committed “in part” within the territory when any essential element constituent is consummated there. When we discuss about this territorial principle, we shall also refer to the subjective and objective territorial principle. Subjective territorial principle means that a state has jurisdiction over offences commenced in its territory but completed or consummated abroad. Objective territorial principal means a state has jurisdiction when any essential constituent element of a crime is commenced in another state but completed or consummated in its territory.

P

1|7

In the case of Lotus, it is the leading case on the objective territorial principle. There was a collision on the high seas in the Mediterranean between a French steamer (the Lotus) and a Turkish steamer (Boz-Kourt), in which the latter was sunk with the loss of life of eight Turkish sailors. Upon arrival of the Lotus at a Turkish port, its French officer, Lieutenant Demons was arrested on the criminal charge of manslaughter. France objected to the Turkish exercise of jurisdiction over its national. The Permanent Court of International Justice held that the Turkish vessel was to be assimilated to Turkish territory, and decided that Turkey was entitled to exercise jurisdiction because a constituent element in the offence of manslaughter, death had occurred on Turkish territory. The world court had recognized the objective territorial principle in this case. The judgement in this case states that when a crime is committed in the territorial jurisdiction of one state by person of another state, the principle of constructive presence of the offender at the place where his act took effect, does not forbid the prosecution of the offender by the former state, should he come within its territorial jurisdiction”. By applying this case to our present situation, Becky had embarked on a ferry to Foreverland with the heroin and Becky was arrested on arrival in State of Foreverland by the police of Foreverland. This clearly shows that the crime is committed in the jurisdiction of Foreverland. Foreverland can apply the objective territorial principle to this case because the offence completed within its jurisdiction. Since, Becky committed the crime at the Foreverland and caught by the police of Foreverland, there have the constituent element in the offence of smuggle drug in the State of Foreverland, so the Foreverland entitled to exercise jurisdiction to hear the case. Besides, in the case of MH 17,Ukraine has primary jurisdiction based on the principle of territoriality because the crash occurred within their borders. Jurisdiction based on territoriality supersedes jurisdiction based on other principles. Therefore, Ukraine has the primary responsibility for investigating the shooting down of Malaysia Airlines flight MH17. By applying this case to our present case, Becky had embarked on a ferry to Foreverland with the heroin and Becky was arrested on arrival in State of Foreverland by the police of Foreverland. This clearly shows that Becky had committed crime to import the drug into Foreverland and caught by the police of Foreverland at the State of

P

2|7

Foreverland, so the Foreverland has the primary responsibility and jurisdiction to hear the case of Becky.

In conclusion, by applying the territorial principle, Foreverland has the jurisdiction to hear the case of Becky even though Becky is the nationals of the State of Neverland and discuss the plan to import the drugs in Togetherland. Foreverland has the jurisdiction to hear the case of Becky because the crime was committed by Becky at the State of Foreverland and caught by the police of Foreverland.

The second issue is whether Foreverland has the jurisdiction to hear the case of Teddy? There have five general principle on which the criminal jurisdiction is claimed by states. These principles are not mutually exclusive. Of these five principles, some of them are more widely accepted than others. These five general principle are territorial principle, nationality principle, protective principle, universality principle and passive personality principle. The principle that suitable for this present situation is territorial principle. This principle determine the jurisdiction by reference to the place where the offence was committed. A state can exercise jurisdiction over persons, property, acts or events occurring, within its territory. A sovereign independent state should possess jurisdiction over all persons and things within its territorial limits so this principle has received universal recognition. According to the Article 3 of Harvard Research Draft Convention on jurisdiction with respect to crime provides that a state be allowed territorial jurisdiction when a crime is committed “in whole or in part” within its territory. A crime is committed “in part” within the territory when any essential element constituent is consummated there. When we discuss about this territorial principle, we shall also refer to the subjective and objective territorial principle. Subjective territorial principle means that a state has jurisdiction over offences commenced in its territory but completed or consummated abroad. Objective territorial principal means a state has jurisdiction when any essential constituent element of a crime is commenced in another state but completed or consummated in its territory.

P

3|7

In the case of DPP v Doot, the respondents, American citizens, plan to import cannabis into the United States by way of England. In pursuance of the plan, two vans with cannabis concealed them were shipped from Morocco to Southampton. The cannabis in one of the vans was discovered at Southampton; the other van was traced to Liverpool, from where the vans were to have been shipped to America, and the cannabis in it was found. The respondents were charged with, inter alia, conspiracy' to import dangerous drugs. Court held to have no jurisdiction to try them on that count since the conspiracy had been entered into abroad. Court Of Appeal held that allowing the appeal, that although a conspiracy was complete as a crime when the agreement was made it continued in existence so long as there were two or more parties to it intending to carry out its design. English courts had jurisdiction to try the offence if the evidence showed that the conspiracy, whenever or wherever' formed, was still in existence when the accused were in England. Present case the acts of the respondents in England sufficed to establish the continuing existence of the conspiracy and their convictions had been right and should be restored. By applying this case to our present situation, Teddy had discuss the plan to import the drugs into the State of Foreverland with Becky at Togertherland. Becky then had committed the crimes at the State of Foreverland and caught by the police of Foreverland. The subjective territorial principle can apply in our present situation as the case of DPP v Doot, because Foreverland has the jurisdiction over offences and matters commencing in its territory, even if other elements of the offence take place in another state. Even though the conspiracy was done at the Togetherland, but the complete offence had done by the Becky at the State of Foreverland. So, it has jurisdiction over offences that commenced in its territory but must be completed abroad.

In conclusion, Foreverland has the jurisdiction to hear the case of Teddy by applying the territorial principle, because even though the conspiracy is conducted outside the State of Foreverland but the offence of import drugs commenced in its territory.

In conclusion, Foreverland has the jurisdiction to hear both of the case of Teddy and Becky.

P

4|7

Question 2 Mr Robert is a head of mission of the State of Myopia accredited to Malaysia. So, he can enjoy the diplomatic immunity from jurisdiction of Malaysia.

The rules of IL governing diplomatic relations were the product of long-established State practice. The law has now been codified to a considerable extent in the Vienna Convention on Diplomatic Relations, 1961. It is a form of legal immunity and a policy held between governments, which ensures that diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country's laws (although they can be expelled). It is possible for the official's home country to waive immunity; this tends to only happen when the individual has committed a serious crime, unconnected with their diplomatic role (as opposed to, say, allegations of spying), or has witnessed such a crime. Alternatively, the home country may prosecute the individual. Some countries have made reservations to the Vienna Convention on Diplomatic Relations, but they are minor. E.g. reservation by some Arab nations concerning the immunity of diplomatic bags and non-recognition of Israel. As nations keep faith to their treaties with differing zeal, also other rules may apply, though in most cases this summary is a reasonably accurate approximation. It is important to note that the Convention does not cover the personnel of international organizations, whose privileges are decided upon on case-by-case basis, usually in the treaties founding such organizations. Diplomatic relations are established by “mutual consent” between the two States concerned which are the sending

P

5|7

State and the receiving State. The general rule is the diplomatic agents are immune from the local courts.

Firstly, he can enjoy the immunity from criminal jurisdiction.Article 31(1) of the Vienna convention on diplomatic Relations 1961 states that this immunity from criminal jurisdiction is absolute (apart from waiver). Article 41 of the Vienna convention on diplomatic Relations 1961 staes that diplomats cannot do whatever they like, still under obligation to respect the laws of the receiving State. Diplomats exempted from jurisdiction of receiving State but still subjected to jurisdiction of own state. In the case of Dickinson v Del Solar, it was held that diplomatic privilege does not import immunity form legal liability but only exempted from local jurisdiction. Art 31(4) provides that immunity of diplomats from jurisdiction of receiving state does not exempt him from jurisdiction of sending State.

Secondly, he can enjoy immunity from civil and administrative jurisdiction. Diplomatic agents cannot enjoy absolute immunity. Their immunity is subject to three limitations mentioned in Article 31 of the Vienna convention on diplomatic Relations 1961.

Thirdly, he can enjoy the immunity of premises, property and means of transport. Article 22 (3) of Vienna convention on diplomatic Relations 1961states that premise of the mission and their property shall be immune from search, requisition or execution. Article 30 of Vienna convention on diplomatic Relations 1961provides the Inviolability of private residence (e.g. diplomats) and Article 24 provides that the archives and documents of the mission are inviolable.

In conclusion, these are the immunity that Mr Robert can enjoy from the jurisdiction of Malaysia.

P

6|7

P

7|7...