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International Law as a “living law”.

Peculiarities of IL (in comparison with national law).

Main difference lies in 3P: permissions, restrictions, prohibitions (less than 10%).

International law is characterized by contiguity – constant legal system.

No central power – more democratic character.

Regulation of different relation between different subjects.

Subjects of international law are different.

The Case of the S.S. "Lotus" (France v. Turkey), 1927.

 

The Lotus case concerns a criminal trial which was the result of the 2 August 1926 collision between the S.S. Lotus, a French steamship (or steamer), and the S.S. Boz-Kourt, a Turkish steamer, in a region just north of Mytilene (Greece). As a result of the accident, eight Turkish nationals aboard the Boz-Kourt drowned when the vessel was torn apart by the Lotus.

On 7 September 1927 the case was presented before the Permanent Court of International Justice, the judicial branch of the League of Nations, the predecessor of the United Nations.

The issue at stake was Turkey's jurisdiction to try Monsieur Demons, the French officer on watch duty at the time of the collision. Since the collision occurred on the high seas, France claimed that the state whose flag the vessel flew had exclusive jurisdiction over the matter. France proffered case law, through which it attempted to show at least state practice in support of its position. However, those cases both involved ships that flew the flag of the flag state and were thus easily distinguishable. The Court, therefore, rejected France's position stating that there was no rule to that effect in international law.

The Lotus principle or Lotus approach, usually considered a foundation of international law, says that sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition. The application of this principle – an outgrowth of the Lotus case – to future incidents raising the issue of jurisdiction over people on the high seas was changed by article 11[1] of the 1958 High Seas Convention. The convention, held in Geneva, laid emphasis on the fact that only the flag state or the state of which the alleged offender was a national had jurisdiction over sailors regarding incidents occurring in high seas.

The principle has also been used in arguments against the reasons of the United States of America, for opposing the existence of the International Criminal Court (ICC).[2]

 

International Law as a “living law”.

Eugen Ehrlich. The point Ehrlich sought to make was that the "living law" which regulates social life may be quite different from the norms for decision applied by courts, and may sometimes attract far greater cultural authority which lawyers cannot safely ignore. Norms for decision regulate only those disputes that are brought before a judicial or other tribunal. Living law is a framework for the routine structuring of social relationships. Its source is in the many different kinds of social associations in which people co-exist. Its essence is not dispute and litigation, but peace and co-operation. What counts as law depends on what kind of authority exists to give it legal significance among those it is supposed to regulate. Ehrlich's teaching is that the sources of law's authority are plural and insofar as some of those sources are political and others cultural they may conflict. But not all the norms of social associations should be thought of as 'law', in Ehrlich's view. Legal norms (understood sociologically, rather than juristically) are typically distinguished from merely moral or customary ones by powerful feelings of revulsion which typically attach to breach of them. They are, thus, regarded as socially fundamental. In addition, legal norms concern certain kinds of relationships, transactions and circumstances which he described as 'facts of the law' - specially important topics or considerations for social regulation.



 

Legal rules are supposed to be applied contemporary to modern life. The rule should be applied from the point of view from the time of application. Law changes without special actions.


Date: 2015-12-11; view: 740


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