Test 1 Full Notes

8 Pages
313 Views
Unlock Document

Department
Political Science
Course
POL340Y5
Professor
Aurel Braun
Semester
Fall

Description
• Scotia Case o American vessel (Berkshire) collided with British vessel  American vessel sank andAmericans sued  British were complying with British law of the seas (were most powerful nation at the time so they basically created the laws)  Berkshire was only bound to show coloured lights, which wasn’t followed; only white light  so couldn’t be reimbursed for losses o “Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no law of one or two nations can create obligations for the world. Like all the laws of the nations, it rests upon the common consent of civilized communities. It is of force not because it is prescribed by any superior power, but because it is generally accepted as a rule of conduct.” o Weakness: customs are a very slow process, develop very slowly • West Rand Central Gold Mining Co o Company owned by British Gold Mining company  SArepublic seized 3000 dollars of Gold from company o SArepublic was conquered by British empire  company sought to recover gold from British o Company claimed that all duties, rights and obligations were inherited by annexation of republic o Ruling  Government of conquering state gets to decide which obligations they will keep and which they won’t  The only part of IL that applies to England is that which is accepted in Britain or so widely accepted in the IL community that it is irrefutable  It’s a foreign policy matter  dom courts can’t interfere in matters of IL o Reps the relationship b/w int’l and municipal law o Huge setback for IL  purpose of courts is to maximize protection of IL, which wasn’t upheld here  IL doesn’t apply unless you have the express consent of the gov’t • Mortensen v Peters o Mortensen (Danish citizen) accused of violating fisheries act in the Moray Firth at a distance of more than 3 miles from land using illegal fishing method o Laws in question  Mortensen argued that the statutes apply only to British citizens and the area that it occurred in was outside British territory  Peters argued that the statutes and bylaws are universal and anyway, even if it wasn’t within British territory, they have the right to protect fishing industry outside their jursdiction o Issues  Does statute apply to all in British territory and whether Firth of Moray was in British jurisdiction and whether dom courts were bound by statutes contravening a rule in IL o Upheld  Wording of legislature clearly applied toALL people, regardless of citizenship  Precedence  Court is not deciding whether the act of legislatures is ultra vires, which means that ‘it’s beyond the power of the government’ o How legislatures and courts interact o Domestic law trumps IL  parliament rules supreme, regardless of whether it contravenes IL • Missouri v Holland o Missouri sues game warden Holland o Whether a treaty and statute are void if they are in contradiction to the Constitution of the US o Decision:  Court upheld both the treaty and the statute  treaty is valid and the migratory law used by the treaty is also valid  The power to make treaties is delegated specifically to the fed gov’t  Treaties made under the authority of the US, along with laws made in pursuance thereof, are declared to be the law of the land  The treaty in question does not contravene any prohibitive wards to be found in the constitution o Individual states cannot be relied on to protect nat’l interests o Federal gov’t has right to make int’l treaties without state consent, as long as it’s within the constitution o Courts say we respect IL, but the constitution also rules supreme • The Lola o US claims that two fishing vessels and their cargos are prizes of war  Were engaged in Cuban coastal waters sailing under Spain o Question is whether unarmed vessels are subject to capture as prizes of war by the opposing side o Unarmed fishing vessels are exempt from seizure by a belligerent o By ancient usage, by civilized nations, (customary law), fishing vessels are exempt from capture o US recognized in previous cases o When there is no treaty or legislative act, you refer to customary IL • The Lotus Case o Collision b/w French (Lotus) and Turkish steamer o Whether turkey had the right to institute proceedings under Turkish law in Turkish courts against the French officer in charge at the time of the collision o Decision: the court found that all vessels on high seas are under the law of their flagged state and all states should have the power to exercise jurisdiction o At the time, there was no IL in regards to collision, so turkey could do whatever they wanted in terms of prosecution o Only if the host country • Charming Betsy o US seized Danish cargo ship  Former US turned Danish captain manning a former US ship o Challenge: whether US has violated IL by capturing ship and confiscating contents of cargo o Customary IL says that we agree not to seize unarmed ships o Requires courts to interpret statutes consistently with international law absent a clear statement of congressional intent o We operate on the assumption that courts do not intend to violate IL  Since it’s not clear here what the law meant specifically, we operate on the assumption that legislatures didn’t intend to violate it; so we hand the ship back, it was a mistake • Trend tex o Contradicts West Rand, which said that IL doesn’t apply unless you have the express consent of the gov’t  This case says that judges have the authority to use customary law as they found it regardless of any pol consent o Stare decisis – judges are obliged to respect precedent established by previous decisions • Island of Palmas Case o Territorial sovereignty involves the exclusive right to display the activities of a state  But, state has a duty to protect w/I this territory the rights of other states  The legal issue presented was whether a territory belongs to the first discoverer, even if they do not exercise authority over the territory, or whether it belongs to the state which actually exercises sovereignty over it o It’s not enough to prove you’ve had sovereignty over an island for a certain period of time  Doctrine recognizes that the continuous and peaceful display of sovereignty is as good as title. This display must be open and public. o Firstly, title based on contiguity has no standing in international law. o Secondly, title by discovery is only an inchoate title. o Finally, if another sovereign begins to exercise continuous and actual sovereignty, (and the arbitrator required that the claim had to be open and public and with good title), and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery. • Maddison vs Murbrey o It gave the judicial branch the power to review legislation (judicial review) Achille Lauro Case • Civilian ship hijacked o Hijacking is offense againstALL nations • Jewish-American citizen killed by hijackers – US has interest in case now • Egypt agrees to let the hijackers off scot free if they release the passengers – give them plane and let them fly o US intercepts plane with jet and force it to land in NATO airbase in Italy o US can act under int’l law b/c  Jus Cogens  Murder of one of its citizens o Landed in Italy b/c they have a strong extradition treaty with Italy o US shows proof and asks Italy for
More Less

Related notes for POL340Y5

Log In


OR

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit