International law, Sixth edition
The principle of domestic jurisdiction
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International Law MALCOLM N. SHAW
The principle of domestic jurisdiction
6 It follows from the nature of the sovereignty of states that while a state is supreme internally, that is within its own territorial frontiers, it must not intervene in the domestic affairs of another nation. This duty of non-intervention within the domestic jurisdiction of states provides for the shielding of certain state activities from the regulation of interna- tional law. State functions which are regarded as beyond the reach of international legal control and within the exclusive sphere of state man- agement include the setting of conditions for the grant of nationality 5 See generally, G. C. Cheshire and P. M. North, Private International Law, 13th edn, London, 1999. Questions may also arise as to the conditions required for leave for service abroad: see e.g. Al-Adsani v. Government of Kuwait and Others 100 ILR, p. 465. 6 See e.g. Brownlie, Principles, pp. 290 ff., and M. S. Rajan, United Nations and Domestic Jurisdiction, 2nd edn, London, 1961. See further above, chapter 4. 648 i n t e r nat i o na l l aw and the elaboration of the circumstances in which aliens may enter the country. However, the influence of international law is beginning to make itself felt in areas hitherto regarded as subject to the state’s exclusive jurisdiction. For example, the treatment by a country of its own nationals is now viewed in the context of international human rights regulations, although in practice the effect of this has often been disappointing. 7 Domestic jurisdiction is a relative concept, in that changing principles of international law have had the effect of limiting and reducing its extent 8 and in that matters of internal regulation may well have international repercussions and thus fall within the ambit of international law. This latter point has been emphasised by the International Court of Justice. In the Anglo-Norwegian Fisheries case 9 it was stressed that: [a]lthough it is true that the act of delimitation [of territorial waters] is necessarily a unilateral act, because only the coastal state is competent to undertake it, the validity of the delimitation with regard to other states depends upon international law. 10 The principle was also noted in the Nottebohm case, 11 where the Court remarked that while a state may formulate such rules as it wished regarding the acquisition of nationality, the exercise of diplomatic protection upon the basis of nationality was within the purview of international law. In addition, no state may plead its municipal laws as a justification for the breach of an obligation of international law. 12 Accordingly, the dividing line between issues firmly within domestic jurisdiction on the one hand, and issues susceptible to international legal regulation on the other, is by no means as inflexible as at first may appear. Article 2(7) of the UN Charter declares that: [n]othing contained in the present Charter shall authorise the United Na- tions to intervene in matters which are essentially within the domestic ju- risdiction of any state or shall require the members to submit such matters to settlement under the present Charter. 7 See above, chapters 6 and 7. 8 Whether a matter is or is not within the domestic jurisdiction of states is itself a question for international law: see Nationality Decrees in Tunis and Morocco case, PCIJ, Series B, No. 4, 1923, pp. 7, 23–4; 2 AD, pp. 349, 352. 9 ICJ Reports, 1951, p. 116; 18 ILR, p. 86. 10 ICJ Reports, 1951, p. 132; 18 ILR, p. 95. 11 ICJ Reports, 1955, pp. 4, 20–1; 22 ILR, pp. 349, 357. 12 See above, chapter 4, p. 133. j u r i s d i c t i o n 649 This paragraph, intended as a practical restatement and reinforcement of domestic jurisdiction, has constantly been reinterpreted in the decades since it was first enunciated. It has certainly not prevented the United Nations from discussing or adopting resolutions relating to the internal policies of member states and the result of over fifty years of practice has been the further restriction and erosion of domestic jurisdiction. In the late 1940s and 1950s, the European colonial powers fought a los- ing battle against the United Nations debate and adoption of resolutions concerning the issues of self-determination and independence for their colonies. The involvement of the United Nations in human rights matters is constantly deepening and, until their disappearance, South Africa’s do- mestic policies of apartheid were continually criticised and condemned. The expanding scope of United Nations concern has succeeded in further limiting the extent of the doctrine of domestic jurisdiction. 13 Neverthe- less, the concept does retain validity in recognising the basic fact that state sovereignty within its own territorial limits is the undeniable foundation of international law as it has evolved, and of the world political and legal system. 14 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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