Modern Origins of InternaRonal Law

Modern Origins of Interna0onal Law 1. Interven*on as a law-­‐making context 2. Sources of law: natural law 3. Sources of law: posi*ve law 4. Law of na*ons: natural law 5. Law of na*ons: posi*ve law 6. The Hainan Incident 1
1. Interven0on as a law-­‐making context how do interna*onal laws come about? 2
2. Natural law rules of right conduct that are considered intrinsic to human nature. 3
Canadian Charter of Rights and Freedoms Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: 1.  The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably jus*fied in a free and democra*c society. 4
Canadian Charter of Rights and Freedoms 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communica*on; (c) freedom of peaceful assembly; and (d) freedom of associa*on. 3. Every ci*zen of Canada has the right to vote in an elec*on of members of the House of Commons or of a legisla*ve assembly and to be qualified for membership therein. 5
2. Sources of law: natural law Huig de Groot in De jure praedae (On the law of prize), wriVen 1605: 9 rules by which laws may be derived 13 precepts of natural law Huig de Groot (Hugo Gro*us) 1583-­‐1645 6
Huig de Groot’s 9 rules by which law may be derived: 1. What God has shown to be His Will, that is law. 2. What the common consent of mankind has shown to be the will of
all, that is law. 7
Huig de Groot’s 13 precepts of natural law: 1. It is permissible to defend one’s life. 2. It is permissible to acquire for oneself, and retain, things that are useful for life. 3. No one may inflict injury upon another. 4. No one may seize possession of that which has been taken into the possession of another. 5. Evil deeds must be corrected. 6. Good deeds must be recompensed. 8
Huig de Groot’s 13 precepts of natural law: 7. Individual ci*zens should not only refrain from injuring other ci*zens, but should furthermore protect them, both as a whole and as individual. 8. Ci*zens should not only refrain from seizing the possessions of others, whether these be held privately or in common, but should contribute individually both that which is necessary to other individuals and that which is necessary to the whole. 9. No ci*zen shall seek to enforce his own right against a fellow ci*zen other than by judicial procedure. 9
Huig de Groot’s 13 precepts of natural law: 10. The magistrate shall act in all maVers for the good of the state. 11. The state shall uphold as valid every act of the magistrate. 12. Neither the state nor any ci*zen thereof shall seek to enforce his own right against another state or its ci*zen, other than by judicial procedure. 13. All laws should be observed simultaneously; when this is impossible, the law of superior rank shall prevail. 10
3. Sources of law: posi0ve law laws bestowed by a poli*cal or judicial authority. 11
3. Sources of law: posi0ve law laws bestowed by a poli*cal or judicial authority. Canadian Charter of Rights and Freedoms 1.  The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably jus*fied in a free and democra*c society. 12
4. Law of na0ons: natural law Huig de Groot, De jure praedae (On the law of prize), wriVen 1605 Huig de Groot, De jure belli ac pacis (On the law of war and peace), 1625 John Selden, De jure naturali et gen:um (On the law of nature and of na*ons), published 1640 13
Huig de Groot’s 9 rules by which law may be derived: 1. What God has shown to be His Will, that is law. 2. What the common consent of mankind has shown to be the will of
all, that is law. . . . 8. Whatever all states have indicated to be their will, that is law for
all of them. 9. In regard to judicial procedure, precedence shall be given to the
state that is the defendant, or whose ci*zen is the defendant; but if
the said state proves remiss in discharging its judicial duty, then the
state that is the plain*ff, or whose ci*zen is the plain*ff, shall be the
judge. 14
5. Law of na0ons: posi0ve law 15
6. Hainan Island Incident 1 April 2001 Mission PR32
April 1, 2001
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1 April 2001 Mission PR32
April 1, 2001
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Wang Wei, photo released in 2014 on the 13th anniversary of his death Shane Osborn, taken during his run for Republican senate nomina*on in Nebraska in 2014 18
19 August 2014 Mission PR32
April 1, 2001
Chicago Conven0on on Interna0onal Civil Avia0on, 1944 Ar0cle 1 The contrac*ng States recognize that every State has complete and exclusive sovereignty over the airspace above its territory. 20
Chicago Conven0on on Interna0onal Civil Avia0on, 1944 Ar0cle 1 The contrac*ng States recognize that every State has complete and exclusive sovereignty over the airspace above its territory. Ar0cle 2 For the purposes of this Conven*on the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protec*on or mandate of such State. 21
Chicago Conven0on on Interna0onal Civil Avia0on, 1944 Ar0cle 3 (a) This Conven*on shall be applicable only to civil aircrac, and shall not be applicable to state aircrac. (b) Aircrac used in military, customs and police services shall be deemed to be state aircrac. (c) No state aircrac of a contrac*ng State shall fly over the territory of another State or land thereon . . . 22
Chicago Conven0on on Interna0onal Civil Avia0on, 1944 Ar0cle 5 Each contrac*ng State agrees that all aircrac of the other contrac*ng States, being aircrac not engaged in scheduled interna*onal air services, shall have the right . . . to make flights into or in transit non-­‐stop across its territory . . . without the necessity of obtaining prior permission . . . 23
Sovereignty claim of the People’s Republic of China Source: BBC 24
The U.N. Conven0on on the Law of the Sea, 1982 Ar0cle 2 1. The sovereignty of a coastal State extends beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 25
The U.N. Conven0on on the Law of the Sea, 1982 Ar0cle 2 1. The sovereignty of a coastal State extends beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. 26
The U.N. Conven0on on the Law of the Sea, 1982 Ar0cle 2 1. The sovereignty of a coastal State extends beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. 3. The sovereignty over the territorial sea is exercised subject to this Conven*on and to other rules of interna*onal law. 27
Ar0cle 3 Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nau*cal miles, measured from baselines determined in accordance with this Conven*on. 28
Ar0cle 3 Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nau*cal miles, measured from baselines determined in accordance with this Conven*on. Ar0cle 17 Subject to this Conven*on, ships of all States, whether coastal or land-­‐locked, enjoy the right of innocent passage through the territorial sea. Ar0cle 19 1. Passage is innocent so long as it is not prejudicial to the peace, good order to security of the coastal State. 29