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Sovereignty In International Law

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Under international law today sovereignty can be defined as “the legal status of a state that is not subject within its territorial jurisdiction to government, foreign state or foreign law other than public international law”. A state furthermore, has jurisdiction over all individuals within its territory. However, in certain instances it will not exercise this jurisdiction. There is no clear indication of what defined territory is, but a provision was laid down in case law. In the North Sea Continental Shelf case , the justice held that there can be no set definition on what land frontiers of a state must be. He also said that it is not a necessary antecedent that a state has clearly defined or have undisputed borders . It is also not a …show more content…

In terms of sovereign immunity courts must decline to hear cases against foreign sovereigns. This type of immunity applies to the head of a foreign state, government of a foreign state as well as specific governmental departments of a foreign state. It is important to draw a distinction between the terms iure imperii and iure gestonis, with the latter being a form of restrictive sovereignty and the former, absolute sovereignty which states that a foreign state and its agents are immune from any types of suits instituted against them. With regards to the courts there has been a divided opinion as to whether or not heads of state have immunity form international crimes that are committed. On the one hand, international courts have said that there is no such immunity available whilst, the position in the International Court of Justice differs allowing for heads of state immunity under customary international law.
In the case of Pinochet it was argued that immunity is only applicable if the acts that have been committed were part of the official capacity and duties of the head of state. Thus, no head of state has the authority to torture any individuals as it amounts to a violation of jus …show more content…

Following this decision, article 46A Bis too was adopted providing serving head of states as well as senior government officials immunity. The adoption of Article 46A Bis and the decision of the ICC reveal the tension that exists between the principles of sovereignty and furthermore, the duty to prosecute those that commit these crimes. The actions of the AU in this regard is seen to be conflicting with the rule in both customary international law and treaty law, that head of state immunity cannot be raised when an individual is alleged to have committed a crime under international law. The AU’s decision on Africa’s relationship with the ICC emphasizes the fact that it is the first time that a sitting head of state and his deputy have had criminal proceedings brought against them in an international court. Thus, the decision further requests that the trials of Kenyatta and Ruto be suspended until they complete their terms of office. The actions depicted by the AU points to the unwillingness of African states to hold individuals in positions of power accountable for gross human rights violations on a continent where the rights of victims are not

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In Florence Kelley’s heart wrenching call for awareness of child labor she uses quite a few rhetorical devices. An anaphora is the most recognizable as she’s trying to nail in how she would could be helping the children. Pathos is another of her persuasion methods used in her tone. Kelley also uses a fair amount of imagery throughout the passage. First and foremost, Kelley’s use of an anaphora is what really pulls the audience’s attention.

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In the case that there is sufficient evidence of guilt as well as coconspirators, torture may be allowed but none that is inhumane. Document B: The Massachusetts Body of Liberties allows torture in the case that somebody is deemed guilty by clear evidence. In the Laws of Connecticut Colony, no torture is allowed whatsoever. Document C: Mather advises judges to continue the regular American method of obtaining confessions and to abstain from torture, for confusion is more likely to get a confession than torture. Document D: Henry warns that Congress will attempt to extort confession by practicing torture.

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Under fairness ethics, it is not fair for the torturer to deal with these consequences. To better understand fairness turn the tables around and determine if the same treatment is justifiable. Think about the invasion in Iraq, what if an Iraqis capture an American? Should Iraqis torture the American in efforts to learn which areas in Iraq need evacuation to save lives (Mayerfeld 2008)? Individuals would not be hesitant to defend the American’s rights and oppose torturing him This biased opinion develops only the basis of who is the victim. Hence, emphasizing the lack of equality when evaluating the morality of using torture.

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Even though “sovereignty” may be a concept that has originated in ancient times, it is still very relevant today. The concept of sovereignty could still be seen in modern events, whether at global, national, or domestic level. Sometimes, it is seen as a positive concept, sometimes it is seen as negative. As with everything, sovereignty can have both its benefits and downsides. Last September, Guatemala faced problems when their government wrestled with the United Nations for control on their own national affairs.

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They directly support diplomatic actions and receive the same immunity from the police and criminal courts. However, they receive a lesser grade of immunity from civil courts. They can be sued in civil court; however, they cannot be sued for actions in relation to their official duties. This exception does not apply to their family members (Kacou).

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THE PINOCHET CASE In Re Pinochet spanning across three judgments, portrays a rather progressive view of sovereign immunity. By upholding human rights and conversely arguing in favor of the people, the House of Lords rejected the notion that a Head of State was free to act in any manner to rule his people. The irony of the situation was that it was Pinochet who signed the Torture Convention that he himself fell prey to . FACTS Pinochet Ugartewas the Head of the State of Chile from 11 September 1973 to March 1990.

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