INTERNATIONAL LAW AND ORGANIZATION
JURISDICTION TO PROSECUTE IN INTERNATIONAL CRIMES
According to (Dervort, 1998) a state has jurisdiction to punish individuals of a different state that break public law by committing felony acts such as shooting against citizens of its country.
In a situation where person A stands in a country X and shoots person B who is in country X such a person breaks public law and jurisdiction to institute proceedings may either be in country X or Y. To determine which country has jurisdiction we have to take the following factors into consideration.
The bases under which a country can prosecute do not always apply in all cases but are guided by the principles of territoriality, effects, passive personality, protective personality and nationality.
According to (Dervort, 1998) the territorial principle argues that criminal violations committed within a country’s sovereign boundaries breaking its criminal law is within the jurisdiction of that country and criminal proceeding can be instituted despite the nationality of the offender.
As put in (Dervort, 1998) the nationality principle on the other hand argues that a country has jurisdiction over its citizen’s criminal acts and can institute criminal proceedings against them even if similar proceedings are being carried out by another country where the crime was committed.
The principle of passive personality argues that a country may institute criminal proceedings against an individual who performs criminal acts outside its territory but the victim of the actions was its national according to (Dervort, 1998).
As put in (Dervort, 1998) to resolve the issue of criminal proceedings being instituted in two different countries the principal of effects is applied especially in felony acts such as shooting. It argues that where criminal activities are carried out in a different county but its effects are felt in a different country as long as the have possession of the offender
Finally the principle of protect personality argues that a state can institute legal proceedings against a person who commits outside its territory as long as such interfere with the security of the state or are directed towards agents of the state as put in (Dervort, 1998)
Country X has jurisdiction because person A committed the criminal action outside the countries X territory, that is in country y but the action was intended was to have effect within the countries X territory.
Person A committed the criminal act even if not in country’s X territory and he or she is not a citizen of the country directed X his or her criminal action towards persons A of the threatened their security.
Given the above facts country X, can take legal proceedings against person A if they have possession of person B, even if country Y is making similar parallel proceeding because they have jurisdiction.
THE LAW OF TREATIES
Treaties are entered into by countries to establish more favorable trading environment. According to (Dervort, 1997) create a sense of obligation and hence binding the countries to perform those obligations under international law. However a country cannot violate its own state laws and this provides a platform for countries violating international treaties.
Bilateral treaties are entered into though negotiations between agents of the two states and the proceedings of the process vary depending on the countries involved. In our case the United States enters into a self executing friendship treaty with country A.
As put in (Dervort, 1997) the putting of signatures on a treaty by representatives with competent authority gives the treaty legal effect and the parties to the treaty are bound by the treaty as soon as its ratified. When the United States Congress ratified the treaty for country A’s automobile corporations doing business in the United States it gave the self executing friendship effect legal effect.
According to (Dervort, 1997) authentication is the process of ensuring that the terms in the treaty document are correct and are not subject to further alterations. Country A not objecting to the United States reservation until it went into effect binds then to the treaty because the process of negotiation provides room for objection of the terms in the treaty and since country A waited until the treaty went into effect to object they have no legal backing unless the negotiation process had provided for certain conditions be met before the document went become binding. Such conditions include the exchange of the documents between the two countries after authentication adoption and signing of the document.
According to Dervort 1997 a treaty two similar treaties can be adopted as long as the terms and purpose of the treaties are not similar. The United States having a similar treaty as the one in it is passed with country A is binding only if the terms to the treaty and purpose of the two treaties are different.
DIPLOMATIC AND SOVEREIGN IMMUNITY
Sovereign immunity as put in (Dervort, 2007) protects a country from being sued in its own courts for monetary damages unless it had agreed to such terms before with the individual instituting the proceedings. This helps countries to act in confidence that their actions will not be subject to scrutiny in their own law courts or international courts.
However in recent times due to increased international trading nations are moving from the old repugnant laws that advocated for absolute immunity to more devolved laws advocating for restrictive immunity in commercial activities.
MBI an American country carrying out its operations in the US and supplying its goods to the U.S and another country D wants to institute legal proceedings against country D for failure to pay for military tanks supplied to it by MBI. County D claims that it failed to pay because the military tanks because they are defective and yet they have deployed them to the battle front line. MBI sues for breach in country’s D courts but the breach is dismissed based on sovereign immunity.
MBI can institute legal proceedings against country D in the United States but it has first to ensure the conditions below are met for successful proceedings to be possible.
In the United States there are laws that dictate the extent to which the court system in the United State can institute legal proceedings against a sovereign country. For MBI to sue country D in United States it has to ensure that all condition are met for the legal proceedings to be instituted by determining whether country D is a foreign state , if the united sates have jurisdiction and if there is subject matter in the case.
MBI has to determine if country D is a foreign state because if it is all foreign states have immunity against suits in U.S courts unless exceptions had been made.
Territorial jurisdiction gives the courts ability to prescribe over events or persons in certain geographical boundaries. If the United State has territorial jurisdiction then MBI can institute legal proceedings against MBI in the United States.
Then finally MBI has to determine whether the United States courts have Subject matter jurisdiction over the case this will MBI which gives the courts ability to institute proceedings in the united state. If all the above conditions are met then it will be possible For MBI sue country D in the U.S.
According to (Dervort, 2007) the acts of state argues that actions that are judicial or legislative in nature and whose effects are felt only within that country’s boundaries are not subject to judicial proceedings in other countries.
In a case where country E nationalizes MBI operations as an act of state and sells them to MBI’s competitor Fire Power Inc. Fire Power Inc has no legal standing in court because according to (Dervort, 2007), the supreme court after hearing the Sabatino case came to a conclusion that courts in the United states should not decline to hear cases on the basis of the act of state doctrine to arbitrate on cases violating international law where the accuser complains of loss of title to property or ownership to any party including a sovereign state claiming they did so as an act of state according to (Dervort, 2007). Therefore Fire Power Inc law suit cannot be dismissed on the basis of act of state.
Dervort T.R.V, (1998), International Law and Organization.