THE INTERPLAY BETWEEN INTERNATIONAL LAW AND NATIONAL LAW IN THE FIRST ITALIAN PROSECUTION OF PIRACY: THE M/V MONTECRISTO CASE

2015 ◽  
Vol 24 (1) ◽  
pp. 289-314
Author(s):  
Marta Bo
Keyword(s):  
International Law ◽  
International Organizations ◽  
Horn Of Africa ◽  
New Era ◽  
The Us ◽  
Un Security Council ◽  
United Nations Convention ◽  
Definition Of ◽  
State Cooperation ◽  
The Unclos

This note scrutinizes the complex relationship between international law and national criminal law in the prosecution of piracy. UN Security Council Resolutions on Somalia have marked the beginning of a new era in counter-piracy, with much wider involvement of States and international organizations in patrols in the Horn of Africa and with an increasing number of piracy trials in courts in Europe, the US, and Africa. Increased State cooperation in enforcement and adjudication has evinced the weaknesses and ambiguities inherent in the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) which deal with piracy. This article questions the suitability of the UNCLOS definition of piracy as a standalone legal basis for detention in light of the requirements of legal certainty that must be satisfied in order to permit the arrest and the “pre-transfer arrest” of piracy suspects. This question seems to have been recently overlooked by the Italian Court of Cassation whose reasoning, while correct in relation to the assertion of jurisdiction over the pirates arrested on board the M/V Montecristo, seems flawed with regard to the assumption of jurisdiction over the pirates captured aboard the “mothership” and then transferred to Italy by the British unit participating to the NATO counter-piracy mission.

Part 1 The Cold War Era (1945–89), 6 The U-2 Incident—1960

2018 ◽  
Author(s):  
Park Ki-Gab
Keyword(s):  
Cold War ◽  
International Organizations ◽  
Military Aircraft ◽  
International Dispute ◽  
The Us ◽  
Un Security Council ◽  
Air Space ◽  
The Face ◽  
Definition Of ◽  
The Cold War

This chapter examines the aerial incident between the US and URSS that occurred on May 1960: an unauthorized incursion into Soviet airspace by a US reconnaissance plane U-2. This incident led to a serious international dispute. This chapter explains the relevant facts and context of the dispute. It then analyzes the position of the main protagonists and reactions of third states and international organizations, especially those expressed in UN Security Council debates. It deals with three main questions of legality, namely espionage, principle of sovereignty over air space and definition of aggression. The U-2 incident confirms that in order to protect its aerial sovereignty, a state is in principle permitted to use force in the face of an unauthorized incursion by a foreign military aircraft.

3. The law of treaties

2021 ◽  
pp. 33-48
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
International Organizations ◽  
The Other ◽  
Vienna Convention ◽  
Written Form ◽  
The Law ◽  
The One ◽  
Definition Of

This chapter examines the rules of international law governing the birth, the life, and the death of treaties. Treaties, a formal source of international law, are agreements in written form between States or international organizations that are subject to international law. A treaty falls under the definition of the Vienna Convention on the Law of Treaties (VCLT), no matter what form or title it may have. The most important factor is that it sets out obligations or entitlements under international law. The VCLT enumerates the rules governing the ‘birth’, ie the steps from the negotiation until the entry into force of the treaty; the ‘life’, ie the interpretation and application of the treaty; and its ‘demise’, ie its termination. The two fundamental tenets are, on the one hand, the principle ‘pacta sunt servanda’ and, on the other, the principle of contractual freedom of the parties.

Human Rights Violations before International Tribunals: Reflections onResponsibility of International Organizations

2007 ◽  
Vol 20 (3) ◽  
pp. 613-636 ◽  
Author(s):  
GUIDO ACQUAVIVA
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
Ad Hoc ◽  
Parent Body ◽  
Human Rights Violations ◽  
Parallel Processes ◽  
Un Security Council ◽  
International Responsibility ◽  
International Law Commission

The UN Security Council, as ‘parent body’ of the two ad hoc Tribunals, never introduced explicit rules on how to compensate accused persons for violations of their rights imputable to the Tribunals' organs. Notwithstanding the absence of such rules, a series of decisions by ICTYand ICTR chambers show the willingness of these institutions to address such violations when they occur. In doing so, the Tribunals appear to have followed some of the same principles on responsibility of international organizations as are being elaborated by the International Law Commission (ILC). By analysing these parallel processes, the author suggests that the elaboration of rules by the ad hoc Tribunals in the field of human rights violations and the codification by the ILC of rules on international responsibility, although distinct in aim and scope, might mutually benefit each other andshed some light on the difficulties of applying such principles in practice.

Responsibility of States and International Organizations

2019 ◽  
pp. 598-612
Author(s):  
Pierre Bodeau-Livinec
Keyword(s):  
United Nations ◽  
International Law ◽  
International Organizations ◽  
Status Quo ◽  
Current Status ◽  
General Assembly ◽  
State Responsibility ◽  
United Nations Convention ◽  
International Law Commission ◽  
Formal Status

Quite paradoxically given the importance of the topic in the system of international law, issues pertaining to responsibility of states and international organizations are not dealt with in treaties of universal character or “United Nations” treaties. So far, the General Assembly has merely taken note of the Articles on State Responsibility and the Articles on the Responsibility of International Organizations—respectively adopted by the International Law Commission (ILC) in 2001 and 2011—and refrained from taking any decision as to the final status of these texts. Three options are available: keeping the formal status quo, adopting the Articles as a General Assembly declaration, or using the text as a basis for a United Nations Convention on Responsibility. While the latter option would bring the Articles on state responsibility outside the realm of soft law, it could also have a “decodifying effect,” insofar that it could threaten the balance carefully designed by the ILC. Even though the 2001 Articles will most likely retain their current status, drafting a treaty on state responsibility could however prove useful.

Part 3 The Post 9/11-Era (2001–), 48 The Intervention in Afghanistan—2001–

2018 ◽  
Author(s):  
Byers Michael
Keyword(s):  
International Law ◽  
Security Council ◽  
Customary International Law ◽  
The Us ◽  
Un Security Council ◽  
State Actors ◽  
Complex Relationships ◽  
Self Defence

This chapter addresses the US and NATO-led intervention in Afghanistan from 2001 to the present day. It examines the different legal justifications advanced or available for the intervention, namely self-defence, UN Security Council authorization, and intervention by invitation. It explores the complex relationships between these justifications and, particularly, the strategies adopted by states in choosing between them. The chapter concludes by considering the effects of the intervention on the customary international law of self-defence as it concerns non-state actors located in “unaware or unable” states, and anticipatory or pre-emptive responses.

Part 1 The Cold War Era (1945–89), 26 The US Hostage Rescue Operation in Iran—1980

2018 ◽  
Author(s):  
Forteau Mathias ◽  
Ying Xiu Alison See
Keyword(s):  
Cold War ◽  
International Law ◽  
International Organizations ◽  
Present Contribution ◽  
Rescue Operation ◽  
Customary International Law ◽  
Self Help ◽  
The Us ◽  
Cold War Era ◽  
The Cold War

The present contribution discusses the US hostage recuse operation in Iran in 1980. After the presentation of the relevant facts and context of the (eventually aborted) operation, including the official positions of the US and Iran as publicly expressed at that time, the present contribution assesses the legality of the operation, taking into account the reactions of other states and competent international organizations. The legality of the operation is assessed under Article 2(4) and 51 of the UN Charter and other possible exceptions under customary international law such as self-help. It concludes that it is doubtful that the operation was in conformity with international law.

Regional Organizations

2019 ◽  
pp. 36-67
Author(s):  
Tan Hsien-Li
Keyword(s):  
International Law ◽  
International Organizations ◽  
Asia Pacific ◽  
Regional Organizations ◽  
Member States ◽  
Regional Institutions ◽  
History Of ◽  
Definition Of ◽  
The Relationship

This chapter examines the relationship that Asia-Pacific regional and sub-regional organizations have with international law, looking at seven international organizations that span the region. It is commonly believed that the member states of Asia-Pacific regional organizations prefer less formalized institutions and fewer binding commitments. Conventional reasons for this include their history of colonialism, less legalistic and formalized cultures, and a preference for stricter conceptions of sovereignty. As such, their organizations are often perceived as less effective. However, the effectiveness of Asia-Pacific regional institutions should not be judged by one uniform standard. Instead they should be judged on their own definition of effectiveness. There should be a broader understanding that Asia-Pacific states consciously use and participate in their regional organizations differently than in other regions, and they may prefer less institutionalized models as these serve their purposes better and can still be successful.

Book VII Treaties and Treaty-Making, 31 Treaties and other International Instruments—I General Definition, Treaty Formalities

2016 ◽  
Author(s):  
Berman Frank ◽  
Bentley David
Keyword(s):  
International Law ◽  
International Organizations ◽  
General Definition ◽  
Definition Of ◽  
International Instruments

This chapter provides a general definition of treaties and their formalities. As there is no single, all-embracing definition of the term ‘treaty’ the chapter instead reviews particular aspects of the general definition of treaties: the agreements involving international organizations and oral agreements, the requirement that agreement should be governed by international law, and the instruments not intended to give rise to legal relations. The chapter then closes its first section with questions of form and terminology. The chapter also deals with the formalities in the drawing up of treaties. These are: the initialling and signatures, the preparation of signature texts, the languages used in the treaties, and registration and publication of treaties.

scholarly journals Criminal Responsibility of States In International Law: Rethinking Or Permanent Abandonment of the Concept?

2021 ◽  
pp. 143-168
Author(s):  
Enis Omerović
Keyword(s):  
International Law ◽  
International Organizations ◽  
Criminal Responsibility ◽  
The State ◽  
Legal Responsibility ◽  
Crimes Against Humanity ◽  
International Crimes ◽  
International Obligation ◽  
Definition Of ◽  
Peremptory Norms

The responsibility of states and international organizations is an essential issue of contemporary international law. All other debates in this branch of law seem to follow up on this issue. In fact, whenever a state violates its international obligation, the question of the responsibility of such a state arises. However, in addition to being essential, this issue is also an extremely politically sensitive area, as only some states, guided mainly by demand for respect for their territorial sovereignty and the principle of equality of all states, are willing to accept all the consequences of such behavior in international relations with other subjects of international law, while those that consider themselves more equal than others (primus inter pares), particularly the great world powers, will be largely reluctant to accept legal responsibility for their illegal acts, and especially for the commission of international crimes in the narrow sense, which includes the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. With international organizations, the problems in this regard are perhaps even greater.In this paper we examine the meaning of further survival of the concept of criminal responsibility of states and international organizations, wanting to examine the concept and definition of criminal responsibility of transnational corporations at the international level, while in the second part of the article we try to shed a light on political-legal responsibility. In addition to the fact that this concept is probably unsustainable under international law, it seems that the approach to advocating for the criminal responsibility of the state, as well as international organizations, is unnecessary. Therefore, we should work on building and thoroughly elaborating the concept of international responsibility of the state and the international organization in the conditions of international crimes stricto sensu, in other words, serious breaches of obligations arising from peremptory norms of general international law. In this way, without creating legally unsustainable constructions, essentially the same goal would be achieved.

scholarly journals THE LEGALITY OF STATE’S PEACETIME MILITARY ACTIVITIES

2017 ◽  
Vol 3 (2) ◽  
pp. 327-358
Author(s):  
Adrianus Adityo Vito Ramon
Keyword(s):  
United Nations ◽  
Negotiation Process ◽  
The State ◽  
Exclusive Economic Zone ◽  
Law Of The Sea ◽  
Incident Case ◽  
Coastal State ◽  
United Nations Convention ◽  
Definition Of ◽  
The Unclos

AbstractThe research argue that in the absence of an internationally negotiated provisions that explicitly regulate foreign peacetime military activities in the Exclusive Economic Zone (EEZ) of another States, States should consider the incident case per case as well as may employed the guideline prepared by highly reputed international legal scholars. This is essential to avoid unnecessary conflict between the Coastal State and the State conducting military activities in the EEZ. The aforementioned conclusion is reached by first analysing the definition of the peacetime military activities of the State. The research would also examine the negotiation process and its negotiated provisions of the United Nations Convention on the Law of the Sea (UNCLOS) 1982 resulted from the negotiation, regulating EEZ. Subsequently, the research would examining of the practice of the States interpreting the UNCLOS 1982’s EEZ provisions, including providing the options as an interim solutions for the void in the legal instruments in the matter.  

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