THE GENERAL PRINCIPLES OF LAW

Transcription

1 THE GENERAL PRINCIPLES OF LAW

2 THE GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL TRIBUNALS TO DISPUTES ON ATTRIBUTION AND EXERCISE OF STATE JURISDICTION PROEFSCHRIFT TER VERKRIJGING VAN DEN GRAAD VAN DOCTOR IN DE RECHTSGELEERD HElD AAN DE RIJKSUNIVERSITEIT TE LEIDEN. OP GEZAG VAN DEN RECTOR MAGNIFICUS DR. B. G. ESCHER. HOOGLEERAAR IN DE FACUL TEIT DER WIS- EN NATUURKUNDE. PUBLIEK TE VERDE DIGEN OP WOENSDAG 3 APRIL DES NA MIDDAGS TE 3 UUR DOOR ALEXANDER MARIE STUYT GEBOREN TE AMSTERDAM 'S-GRAVENHAGE MARTINUS NIJHOFF 1946

3 PATRIS PIAE MEMORIAE ET MATRI IN MEMOR,IAM PR,OFESSOR,IS BENJAMIN MAR,l1 TELDERS ISBN ISBN (ebook) DOI /

4 INTRODUCTION CHAPTER I. CONTENTS TERRITORIAL JURISDICTION 1. NATURE OF TERRITORIAL JURISDICTION 2. ATTRIBUTION OF TERRITORIAL JURISDICTION. A. Acquisition B. Delimitation. I. Boundary line II. B 0 u n dar y Z 0 n e 3. EXERCISE OF TERRITORIAL JURISDICTION A. International rivers. I. Riparian States. II. Non - rip a ria n S tat e s B. State succession. I. Conflict with jurisdictions of the prepage IX decessor State. 71 II. Con f Ii ct wit h juri s d i c ti 0 n s 0 f the prede cess or State or third States. CHAPTER II. PERSONAL JURISDICTION 4. NATURE OF PERSONAL JURISDICTION. 5. ATTRIBUTION OF PERSONAL JURISDICTION. 6. EXERCISE OF PERSONAL JURISDICTION A. Citizens abroad. B. Private vessels outside territorial waters. I. The high seas. II. The mar gin a I sea III. The in I and w ate r s CHAPTER III. GOVERNING JURISDICTION 7. NATURE OF GOVERNING JURISDICTION 8. ATTRIBUTION OF GOVERNING JURISDICTION A. Formation of States B. Transformation of States H

5 VIII page 9. EXERCISE OF GOVERNING JURISDICTION. 221 A. Diplomatic and consular service. 221 B. Public vessels outside territorial waters. 226 I. The h i g h sea s. 227 II. The mar gin a I sea 228 III. The in I and wa t e r s 231 C. Military forces on foreign territory (military occupation). 241 I. Military occupation of alien territory i n tim e 0 f pea c e 241 a. Garrison troops. 241 b. Occupation troops 246 II. 0 c cup a ti en e m y t e r ri tor y i D ti m e of war 250 a. Relations between the occupying State and its occupation troops 250 b. Relations between the occupying State and the occupied State. 251 c. Relations between the occupying State and the inhabitants of the occupied State 254 CONCLUSIONS 262 ABBREVIATIONS 267 INDEX 268

6 INTRODUCTION When war is being waged, man is inclined to ask himself whether only force is governing the relations between States. War, it is argued, rests on a fact, not on law, and so the existence of international law, asa body of rules applicable to the relations between States or to the relations between States and international institutions, is called into question. Is international law-both the law of peace and of war-really based on general principles of law, such as domestic law, or is it but a conception of the spirit? The problem of the significance of general principles in international law has already been examined bi; many authors, especially in relation to article 38 3 of the Statute of the Permanent Court of International Justice, which Court is to apply, apart from international conventions and custom, "the general principles of law recognized bij civilized nations." The purpose of this study was to construct a new method of inquiry into the general principles, upon which international law is based. International law is unwritten law. Its positive rules must be sought in treaty texts, diplomatic correspondence, or decisions of international tribunals. The latter material will be especially used in this study, so as to avoid data of a rather political and subjective nature. Moreover, the international judge or arbitrator is mostly asked to apply general rules of international law.1) I shall have occasion, furthermore, to justify my contention in the Preface of my "Survey of international arbitrations, " that decisions of arbitral tribunals have "attained an increasing influence on the development of international law." How should decisions of international tribunals be analysed in order to arrive at a synthesis of the general principles of international law? Some authors 2) gather a number of precedents, such as "it is a principle of universal jurisprudence that...", "the general principle of civil law, according to which...", "according to general and universally rec()gnized principles of justice...", etc., and they conclude then, that, bi; way of analogy, principles of civil law, of natural law, 1) As to international arbitrations, cf. my "Survey of international arbitrations, ", The Hague 1939, under 4b of each case. 2) Such as J. Spiropoulos: Die allgemeinen Rechtsgrundsatze im Volkerrecht, Kiel 1928; A. von Verdross: Les principes gene raux du droit dans la jurisprudence internationale, Recueil des Cours 52 (1935) - 191, etc.

7 x INTRODUCTION etc., could be transmitted into international law. It seems, however, to be a too simple method of gathering precedents without any logic connection: international law, as was observed by Professor J. H. W. Verzijl, acting as President of the French-Mexican Claims Commission of 1924, is something else than the simple result of an arithmetical addition and substraction of precedents.3 ) Since it is generally accepted that the elements of a State are: t rritory, population, and a political organization,4) it may be argued that each State is invested with a territorial, a personal, and a governing jurisdiction. It is clear that, in the relations between States as members of the international community, conflicts of state jurisdictions may arise. Such a conflict-apart from a conflict with a political character-may regard, in general, either the attribution of jurisdiction (e.g.: does territorial jurisdiction over island P belong to State A or to State B?), or the exercise of jurisdiction (e.g.: is State A, in the exercise of its territorial jurisdiction, obliged, by virtue of a general rule of international law, to admit vessels of State B into its ports?). It appears, as shall be seen hereafter, that general rules of international law originate, inter alia, in the conflict of state jurisdictions and that some general principles of law underlie the category of rules regarding the attribution of state jurisdictions, whereas other general principles of law underlie the category of rules with respect to the exercise of state jurisdictions. The following scheme has been drawn up: Chapter I deals with territorial jurisdiction; 1 with the nature of this jurisdiction, 2 with the attribution of territorial jurisdiction, 3 with the exercise of that jurisdiction. Chapter II deals with personal jurisdiction; 4 with the nature of personal jurisdiction, 5 with the attribution of that jurisdiction, 6 with the exercise of personal jurisdiction. Chapter III deals with governing jurisdiction; 7 with the nature of governing jurisdiction, 8 with the attribution of that jurisdiction, and 9 with the exercise of governing jurisdiction. This study is merely an essay in method, having for its object the analysis of general rules of international law 5) in order to arrive at a synthesis of the underlying general principles. It is not the purpose 3) "Heureusement, toutefois, Ie droit international est autre chose que Ie simple resultat d'une addition et soustraction arithmetiques de precedents.", Pinson case, ed. Paris 1933, p. 48, Survey No ) "Or, un Etat n'existe qu'a la condition de posseder un territoire, une collectivite d'hommes habitant ce territoire, une puissance publique s'exen;:ant sur cette collectivite et ce territoire. Ces conditions sont reconnues indispensables et I'on ne peut concevoir un Etat sans e1les.", Mixed Arbitral Tribunal Germany-Poland, decision of August I, 1929, vol. 9 of the French Recueil, p ) Rules concerning the law of treaties, of procedure, of damages, have been.left aside.

8 INTRODUCTION XI of this study, however, to examine the nature of these general principles as well-that activity lying outside the domain of the positive science of law -, but the conclusions may, perhaps, have some interest as an introduction to the philosophy of law, while the three Chapters may have a more practical interest with regard to the juridical aspect of some state-activities in the international community. I am greatly indebted to Mr. R. Borregaard, M.A., of London, for kindly reading the original text and making a number of valuable suggestions for correcting and improving the technical language used, a task which he conscientiously performed. 6) 6) I must apologize. to my countrymen for not having publishe,d this dissertation in my own language, but this book joins my Survey, which has also been published in the English language since the Anglo-American arbitral decisions take the greatest part in it..