Notes From Chap3

8/12/2019 Notes From Chap3

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CHAPTER 3 [Organizations]3.1 Organizations Legal Status

Int.Org=a formal institution established by agreement of the affiliated members who created it; the common

feature of most IOs is that their members all benefit from an organization working toward common objectives

A. Introduction

Int. organizations operate in more than one country and may be an organization of States (Public), individuals

(Private), or affiliated with various governmentsPublic int. organizations (PIO) must have the following characteristics:

1. Established by some form of international agreement among states (usually with commonobjectives) i.e. UN and EU created by treaty

2. Created as a new international legal entity that functions wholly or partially independent of Statesovereign control

3. Created under Int. LawProvided with capacity to enjoy rights and incur obligations with member or nonmember states *legal

personality). Excludes mere transportation arrangements (French-UK Tunnel)

Number of PIOs have gone up considerably in recent years

B. Capacity under International Law

ICJ: Reparation for Injuries Suffered in the Service of the UN (Advisory opinion)

Damages sought for loss of life of UN Mediator during the course of mediating settlement between Palestine

and Israel

Can a state (i.e. Israel) be responsible to an international organization (in this case the UN), for injury to their

employees?

Court first determines whether the IO has the legal capacity to bring a claim, or international personality?

-The IO was intended and is enjoying functions and rights which can only be explained on the basis of

large degree of legal personality and capacity to operation the international plane. Members have

entrusted it functions, duties and responsibilities to be discharged

-Court determines that the IO is in fact an international person, a subject of international laws

Next, the court addresses whether the sum of the international rights of the IO comprises the right to bring

the claim for injuries of their employees

-the court states that the IO may in fact bring such suits for redress because the individuals are acting on

behalf of the interests of the IO, not on behalf of themselves as individuals

UN Article 7: UN and associated personnel, their equipment and premises shall not be made the object of

attack

UN Article 9: Member states must enact national law making it a crime to attack UN personnel (UK&US have)

UN can bring a lawsuit as a plaintiff in a US domestic court for damages

C. Organizational Responsibility

UN is currently defining the contours of organizational responsibilities arising under Int. Law

Focus on collective security, facilitated by State participation in organizational processes

Ford Foundations advocates for increased reliance on IO as vehicle for positive change (necessity of

internationalized global cooperation)

3.2 Organizational Classification

A. Traditional Model

Traditional Model is based on a functional approach

1. public or private2. administrative or political

a. administrative tends to have far more limited goals (UN Int. Telecommunications Union)b. political are intergovernmental entities which maintain military or political order

3. global or regional (least useful)


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4. either possess or do not possess, supranational power (power over member States requiring them to actor not act in particular ways). Not the UN because cannot dispatch forces without approval of the five

members of the security council

Governmental (UN) vs.Non-

governmental organizations

[IGO vs INGO]

-NGO is not created by means of international government

agreements/treateies, rather by private initiative (individuals, corporations,

Amnesty International, International Olympic Committee)

-UN Economic and Social Council may contract or make arrangements with

NGOs, excluding political parties and liberation movements which are contrary tothe aims and purposes of the UN Charter

-Often tension in relations between NGOs and States (especially with regards to

issues of human rights I.e. Russia)

Hybrid Organizations -consists of both IGO and INGOs. Often formed by governmental and private

corporations

-Communication Satellite Corporation (COMSAT) (no capacity)

-PLO. Red Cross. American Society of International Law (limited capacity, UN

observer status)

Purpose

(political vs. administrative )

UN is general, NAFTA is specific and more binding

B. Functional Shift

Global and regional alliances are shifting from political to economic orientations

Many US leaders opposed to US entanglement in economic IOs such as WTO and NAFTA which may transfer

US sovereignty to the IO

3.3 United Nations

A. Historical Backdrop

B. UN Entities

C. UN Assessment

CHAPTER 4 [Individuals and Corporations]-Soldier Jones Hypothetical

-can State Y relatives directly negotiate with State X?

-No. As individuals, State Y relatives cannot negotiate with State X

-Can the State Y relatives pursue Soldier Jones in a State or international tribunal?

-No. They can try pursuing Soldier Jones in State Xs courts

-Agent Orange- US court dismissed claim made by Vietnamese citizens for damages against US

companies manufacturing Agent Orange

-Iran (on behalf of killed relatives) sues US in the ICJ for 1988 destruction of an Iranian

commercial jet. Iranian government would collect damages; recoveries given to victims at

governments discretion-Darfur- UN Security Council takes action on behalf of victims of Genocide

-State X has obviously violated International Law. Has Jones?

-No. Individuals lack the legal personality or capacity to incur responsibility, unless:

a. individual commits genocide (Milosevic), not merely murder [DEF]

b. Individual is a pirate [DEF]

4.1 INDIVIDUALS STATUS

Individuals Status: Evolving

-Emergence of protection of human rights


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-Nuremberg and Tokyo Military Tribunals- acknowledged the liability of the individual defendant for

genocidal conduct

-Corporations may also be charged with violations of human rights and laws of war

-UN Economic and Social Council established Permanent Forum on Indigenous Issues (2000)- Integrates

indigenous peoples and their representatives into the structure of the UN, giving these peoples parity in a

permanent representative body

-Right to petition- Individuals may bring State breach of individuals treaty-based rights to an

international enforcement body-Certain treaties for individuals and corporations to access international tribunals designed to handle

their specific claims. (France UK Channel Treaty, NAFTA)

4.2 NATIONALITY, STATELESSNESS, AND REFUGEES

Nationality: Scope

-Nationalitylegal, political and social link between the individual and the State

-Reciprocal rights and duties

-Individual-Military service and taxes

-State- protection of individual in another State

-Granting or withholding nationality-subject to exclusive discretion of States unless a treaty obligation exists to

confer (or not) nationality under certain situations. Such preexisting treaty obligation trumps the States rightsre: issues of nationality

Nationality: Acquisition

-individual nationality (citizenship) is acquired in 3 ways: (1) passively, by parentage; (2) passively, by birth; or (3)

actively, by naturalization

-PARENTAGE

-Jus sanguinis, blood rule Europe, Latin America and many English speaking countries

-BIRTH

-Jus solis, soil rule

-Efforts through treaties/conventions to prevent statelessness

-1997 European convention- treaty party grants nationality to person having at least one parent

who is national of that state. If born abroad, obligation to facilitateacquisition of that States nationality. Only

Ireland in EU is automatic

-2006 European convention- relates to state succession. Under prescribed circumstances,

successor state should grant nationality to persons of the predecessor state to prevent statelessness. (prevents

new European states from withholding nationality on discriminatory basis, i.e. united Germany, Czech Republic,

Slovakia and Kosovo)

-May be limited by amendments to the constitution

-May be treaty-based: American Convection on Human Rights

-Inter-American Court of Human Rights in 2005 determines that nationality is a fundamental

human right; party to treaty cannot deviate

-convention provides for right to nationality in two respects:

1. nationality must be granted to persons who establish a link between the state and individual

2. State parties must ensure that individuals are not deprived of their nationality in an arbitrarymanner

-Naturalization

-State makes decision regarding citizenship/naturalization requirements

-Nottebohm Case (Liechtenstein V. Guatemala)

-German citizen residing in Guatemala who gets Liechtenstein nationality

-Guatemala, at war with Germany, seizes Nottebohms assets. Liechtenstein attempts to recover

damages on Nottebohms behalf

-ICJ establishes requirements for international recognition of citizenship by another state:


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-Residence, center of interests, family ties, participation in public life, attachments

-ICJ dismisses Liechtensteins case. Under Liechtenstein national law, Nottebohm is a citizen.

Under international law, Lichtenstein cannot confer citizenship on Nottebohm for the purpose of requiring other

countries to treat him as if he were a citizen of Liechtenstein

Nationality: New Forms of Citizenship & Dual Nationality

OTHER FORMS OF CITIZENSHIP

-organizational Citizenship

European Union-internet cyberspace; Information Age; Globalization

-Political passport

issuance of passports to individuals in other nations to achieve geopolitical objectives

DUAL NATIONALITY

-US does not allow, Mexico allows

-Pros: property rights, protections, employment

-Cons: burdens of two national (testimony, taxes, military service). Vienna Convention may not apply to provide

protections, expulsion during war

-Treaties attempted to relieve negatives of dual nationality

Statelessness

-Due to world wars, political persecution (Cuba, Vietnam), relocation (Diego Garcia)-No travel documents and hence difficulties travel and work problems

-Treaty based remedies (no clear resolution):

-1930 Hague Protocol Concerning Statelessness (non-effective)

-1948 Universal Declaration of Human Rights (moral obligation discouraging UN members from

intentionally creating statelessness)

-1975 UN Convention of Reduction of Statelessness (obliges signatories to grant nationality to willing

stateless people in their borders and restricts deprivation of citizenship based on race, religion and political

beliefs)

-1989 Convention on the Rights of the Child (right to birth certificate). Government policies (i.e. China

one child) may conflict

-1997 European Convention on Nationality (everyone has a right to nationality)

Refugees

Internally displaced persons (IDPs)

4.3 CORPORATE NATIONALITY

Corporate Nationality

-corporation is considered a legal person under national laws

-What is a corporation Shield against personal liability

-Issues specific to a corporation include taxation and nationalization without just compensation

-Links to a particular State is more complex

-Frequently impact State policy since multinational corporations often have stronger balance sheets than many

small States

-According to the UN International Law Commission, corporate nationality is either:(a) the nation wherein the corporation was create and this incorporated; or

(b) that of another country, when the corporation consists of foreign nationals; and;

i. has no ties with the place of incorporation and

ii. the corporation is controlled in the other country

-If a corporation has ties with multiple nations, a tribunal must determine which nation best represents its

corporate personality. It is most often (but not definitively) the state of incorporation


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-Barcelona Traction is incorporated in Canada and owns a power company in Spain, which was declared

bankrupt by a Spanish court. Shareholders (from Belgium, UK, US and Canada). Believing forced bankruptcy was

premature and for ulterior purposes, resisted seizure.

-Since 88% of shareholders were Belgium, Belgium filed suit against Spain at the ICI

-ICJ dismisses the claim, since country of incorporation (Canada) was unwilling to pursue the claim

-50 years of incorporation and registered office in Canada (accounts, share registers, board meetings)

-Canadian nationality of the company received general recognition by 3 other governments; Canadian

government exercised protection of the company by diplomatic representation-States have freedom to determine whether to pursue claims for a corporation

-only the national State of the company can make claims

-Diplomatic protection of shareholders opens door to confusion

-CMS Gas vs. Argentina (ICSID, 2003)

-CMS attempts arbitration against Argentina, as a minority shareholder of TGN, for privatization

measures by Argentina against TGN in violation of a investment treaty between US and Argentina

-ICSID dismisses the case and the CMS claim could not be heard

CMS does not hold rights upon which it bases its claim; only TGN could claim for damages

suffered (CMS is only incurring indirect damages)

-While traditionally, only majority or controlling shareholders could be afforded protection separately

from the affected corporation, now courts are willing to hear claims by minority shareholders

4.4 INJURY TO ALIENS

A State may be held accountable for the acts of its agents, harming aliens in a way that treats them differently

from its own citizens

Not yet codified in a comprehensive multilateral treaty

Categories of injury

Which type of State conduct would trigger responsibility for injury to aliens

1. non-wealth injuries;-injury inflicted by a State directly or indirectly through some failure to act

2. Denial of justice (wrongful arrest and detention, lack of due diligence)-Discrimination against Alien (discriminatory application of local laws)

-less protections: inadequate time or representation to prepare defense

-International Minimum Standards

-Incarceration must not discriminate against aliens

-Incarceration should not exceed generally accepted procedures

-Lack of due diligence

3. Confiscation of property (right o nationalize, confiscation)4. Deprivation of livelihood (prevention of work/occupation, discrimination)

CHAPTER 5 [Extraterritorial Jurisdiction]

5.1 DEFINITIONAL SETTING

-Sovereignty: typically involves situations of unacceptable intrusions by one State into another. Whereas

jurisdictioninvolves acceptable extensions of a States power to act or react to events occurring beyond its own

borders

-Sovereign states have the following characteristics:

-International capacity to exchange diplomats with other states

-International capacity to engage in treaty making

-Immunity from the jurisdiction of the courts of other states

-ability to act independently of the consent or control of other states

-includes freedom from external control of the UN


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Article 2.7: Nothing contained in the present Charter shall authorize the UN to

intervene in matters which are essentially within the domestic jurisdiction of any state

FRICTION points: Security Council involvement with Apartheid in South Africa, Milosevic

in Yugoslavia and Sudanese ethnic cleansing in Darfur

-Hot pursuit of Taliban targets inside Pakistan by US

-Recent modern diminution of traditional State centric notion of absolute sovereignty (other than geographic,

border compliant, territorial sovereignty which remains solid)

-Rogue state terrorist involvement, watering down of absolute immunity to restrictive immunity(including for heads of state), environmental treaties such as Kyoto

Definition: jurisdiction

-states may make enact laws governing conduct occurring, at least in part, beyond their immediate borders

-Eg. 2000 Military Extraterritorial Jurisdiction Act

-Unacceptable exercise of sovereign power in the territory of another State is a violation of Customary

International Law. (State has the right to control people and activities within its borders without interference of

other states)

-improvements in communications and infrastructures may create some erosion in this notion (situations of

governmental violation of human liberties may transcend borders and create a need to act)

Covert Applications-covert activities undertaken on the basis of counter-terrorism thought may be a violation of territorial

sovereignty

-No international convention whereby States have agreed to prohibit spying

-International organizations (including UN entities, i.e. UN international weapons inspection team in Iraq) have

been used as venues for spying

5.2 JURISDICTIONAL PRINCIPLES

Jurisdictional Principles: Territorial

-Under Territorial Principle, the States jurisdictional authority is derived from the location of the defendants act

-The most widely accepted and least disputed

-Defendant may be prosecuted for violating laws of the State regardless of his nationality

-Conduct usually starts and ends within the State that is prosecuting the Defendant (subjective,

internal)

-Conduct may start outside the State and end (or have effect in) the State that is prosecuting the

Defendant (objective, external). Could start partially from outside and partially from inside the State

-S.S Lotus (France vs. Turkey 1927)

effects doctrine

-The French steamer Lotus collided with Turkish Ship. Upon arrival in Turkey, Turkish authorities

prosecuted French ships officer for involuntary manslaughter and property damage. France objects and brings

case to PCIJ for resolution.

-Criminal offenses are regarded having been committed in the national territory, if one of the

constituent elements of the offense, and more especially its effects,have taken place there.

-The French officers act of negligence originated on board the Lotus and had is effectives felt on boardthe Turkish ship, therefore Turkey should be able to exercise jurisdiction and is not in conflict with international

law

-Court also acknowledges applicability of the passive personality principle (victims being Turkish

citizens), to be discussed later

-DISSENT: This event occurred in international waters. In the high seas, the law of the flag have authority

to the exclusion of all foreign law or jurisdiction

-Hot Pursuit

crossing into neighboring states in pursuit of criminals


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-Major breach of International Law (Article 2 of UN Charter), unless there is prior treaty or ad hoc

concession

-Dramatic measures such as unilateral abduction or murder of fugitives abroad is rare

-Obstacles-insufficient military power and illegality of conduct per international and state laws

-Used by US Government in pursuit of suspected terrorists from Afghanistan into Pakistan, frequently

without permission

-Often justifications made in hot pursuit in the sea. Land/sea distinction under special conditions

Jurisdictional Principles: Nationality-State regulation of conduct of its own citizens even when their acts occur entirely outside of that State.

(relatively unfettered legal control of its citizens)

-Invoked less frequently than the territorial principle

often conflicts with the territorial principle

-Eg. Bobby Fischer defiance of US legislation preventing travel to Yugoslavia in accordance with UN sanctions

-In the Lotus case, France could have prosecuted the French ships officer Demons for negligence in damaging a

French vessel

Jurisdictional Principles: Passive Personality

-Based on the nationality of the victimwhen the crime occurs outside of the prosecuting States territory

-Least used jurisdictional basis, because ripe for abuse

if used, used in conjunction with another applicable principle-In the Lotus case, the court relied on this principle to support its prosecution of the French ships officer (in

additional to the primary territoriality argument) since the officer harmed Turkish citizens and property interests,

and it occurred outside of Turkey

Jurisdictional Principles: Protective

-If the act threatens the national security (Territorial integrity, political independence) of the State, the State

may prosecute its own citizens or other citizens for such relevant conduct outside its territory

-If the perpetrator does not enter the States whose laws have been violated, the State may seek his/her

extradition from a State where the offending individual is found

-Effect of the criminals conduct does not have to be felt within the territory of the offended State (as is the case

with the objective territorial principle) potentially adverse effect is sufficient -> potential abuse (UK and

Canada do not favor its unaccompanied with other jurisdictional factors)

-Modern application requires double criminality: This is that the crime also be a violation of the nation where

the act was perpetrated. (Sweden: no greater penalty than levied by the place of occurrence)

-E.g. US laws asserting jurisdiction over foreign accounting firms following Enron and Worldcom accounting

scandals

Jurisdictional Principles: Universal

-Certain crimes are crimes against the entire community of nations, and those perpetrators are enemies of

mankind

-Based solely on the nature of the crime

-Piracy, terrorism, slavers, war crimes, crimes against peace, crimes against humanity

-PIRACY:

-Usually committed on the high seas rather than in territorial waters (Somalia

-Includes aerial piracy (hijackings)-TERRORISM:

-Inferred from UNs 2001 Security Council Resolution 1373 to be included

-No UN treaty on international terrorism due to differences in definition

-GENOCIDE:

-Belgiums universal jurisdiction statute

Curbed by US Universal Jurisdiction Rejection Act of 2003

Internet Applications

-States find it increasingly unmanageable


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-US electronic surveillance of communications in the name of national security

-Terrorists (Al-Qaida) use of the Internet

-Pornography, gambling and addictive online video games

-2001 Council of Europe Cybercrime Convention

cooperation in the investigation and prosecution of Internet based offenses

-European Network and Information Security Agency

Help governments, businesses and consumers protect their computers and privacy interests

-Organizational involvement to control usage by certain groups by preventing computer sales and domainnames. Discourage racial threats and promote child safety

-Governments have restricted social networking (Iran, prior to presidential elections)

5.3 EXTRADITION

Extradition

-No global extradition treaty exists

-Only bilateral treaties exist regarding extradition

-Mutual interest of both states that crimes should not go unpunished. Reciprocity

-Treaties typically list the type of offenses (major) that warrant extradition

Japan/US: Those punishable by more than 1 year (murder, kidnapping, rape, bigamy, robbery,

inciting riots, piracy, drugs, bribery tax evasion, unfair business transactions, and export/import violations-Certain State constitutions prohibit extradition (Russia, Slovenia)

-US cannot other than in rare situations, extradite an individual without a treaty in place

-E.g Mr. Ntakirutimanas extradition to the ICTR (Rwanda)

-Executive branch surrender of individuals without Congressional support si rare

-There is generally no duty to surrender an individual to another nation, absent an extradition treaty

-Exception: Internationally derived duty for extradition -> terrorists

-Increased cross border collaboration. Americans committing crimes in the US who flee to Mexico, can be tried

and serve time in Mexico

-Some states have resorted to kidnapping

-While this is a violation of sovereignty, most states will not initiate a diplomatic protests of irregular extradition

involving heinous criminals

-United States vs. Humberto Alvarez-Machain,(US Supreme Court, 1992)

-US police officers kidnapped Dr. Alvarez-Machain from Mexico to appear in a Los Angeles federal court

(doctor had tortured a DEA agent in Mexico)

-District Court and Court of Appeals (affirming) determined that the abduction constituted outrageous

government conduct in violation of the Mexico/US extradition treaty, and so the doctor could not be tried in the

US and should be repatriated

-Supreme Court reverses: US courts have jurisdiction to try him

SC looks to extradition treaty: it has no specific language preventing forced abduction, and also

has no implied prohibiting abduction

-United States vs. Toscanino (NY District Court, 1974):

-Italian citizen living in Uruguay abducted by Uruguay police, turned over to Brazilian police who

tortured him and sent to the US for trial-Court: No jurisdiction where theres been deliberate, unnecessary and unreasonable invasion of the

accused constitutional rights. Cannot exert jurisdiction where presence secured by force or fraud

-State vs. Ebrahim(South Africa, 1991)

-South African citizen Ebrahim was abducted from Swaziland and taken to South Africa for conviction of

treason

-The court relies on Toscanino and makes a determination that the trial court had no jurisdiction to hear

the case

Avoiding Extradition


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-States sometimes do not abide by extradition treaties when the laws of the requesting state violate

fundamental human rights (i.e. death penalty, persecution, torture)

-Extradition treaties usually, not always, determine extraditable offense as those that violate the laws of both

parties to the treaty

-(sometimes they need only violate the laws of one country, not the other)

-Political Offense exception

-a basis for refusing extradition on political grounds (when extradition would otherwise be required)

-most countries prefer not to define political offense in their extradition treaties-little consensus on what constitutes a political crime. Purposely left vague

-Western European practice makes a distinction between crimes committed with or without a pure

ideological motive

-Anglo American practice relies on a narrow incidence theory

-offense must be incident to an uprising or other violent political disturbance, at the time of the

extraditable offense

-offense must be undertaken in the course of, or in furtherance of, that uprising

-US-UK extradition treaty: extradition shall not occur if.. made with a view to punish him on account of..

political opinions.

-Serious Crimes

-Extradition treaties will often exempt certain dangerous crimes from a political offense rescur (UK-US :Terrorism)

-Australia: Murder will practically never be a political crime

-Rendition

-surrendering an individual to a foreign government in the absence of a treaty

-covert operation whereby a person (possibly innocent) may be forcibly transferred to a State

-Human rights groups, including Amnesty International, claim that rendition has been used extensively

by the US government post 9-11 on suspected terrorists, who have later been tortured

-In February 2007, 57 nations (Exclusive of the US) met in Paris to approve a ban on secret detentions

-US and conventional Against Torture

Does not apply to individuals outside the US territory

Standard is if it is more likely than not that a person would be tortured if returned to another

country.

-State Secrets privilege, the US government may prevent disclosure of information in a proceeding if

reasonable danger of disclosing military matters/ national security

-Judicial _____?: service of process

CHAPTER 6 [Range of Sovereignty]

6.1 CATEGORIES OF TERRITORY

Categories of Territory

-Sovereign Territory: States have the right to control land located within their territorial boundaries

-increase in number of states (new states) due to fragmentation, creation of new states

-Trust Territory: protected territory under care of an established state to promote the self determination of its

inhabitants. Usually lacks political infrastructure

-Terra Nullius: belonging to no nation but capable of being legally acquired

-1885 Conference of Berlin-most of Africa was declared terra nullius

-ICJ in 1971 determined that the Berlin Conference declaration was an injustice

-More than one state may attempt to control peoples in areas that are terra nullius

-Mere occupation is insufficient to justify a claim of sovereignty over an occupied area. The area must

have been a terra nullius

-Res Communis:incapable of ever being owned or controlled


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-Entire community of nations must have unfettered access to this area

-examples include Antarctica, high seas, deep seabed, outer space

6.2 DOMINION OVER LAND

Traditional methods of Acquisition: Occupation

- (1) Occupationo original vs. Derived

basis: exclusive occupation of a geographical area for an extended period of time Derived basis: title is derived from a document, such as a treaty

o Medieval perspective- mere discovery, without actual possession, was sufficient basis forestablishing valid title

o Modern perspective- Countries have differing views whether discovery alone creates legal rights(US: discovery only is insufficient, real occupation and possession required)

o Discovery should be followed by effective occupation Physical occupation not required Continual display of authority is required (PCIJ, 1933)

Intention and will to act as a sovereign; and Some actual exercise or display of such authority

o Belligerent Occupation Temporary in nature Occupiers remain only until a final peace treaty establishes the fate of the occupied

territory

Bruges Declaration (2003, contemporary restatement) Belligerent occupation does not transfer sovereignty over territory to the

occupying power

Occupying power can only dispose of the occupied territorys resources to theextent necessary to administer the territory and meet essential needs of the

population

Occupying power assumes responsibility to maintain order and security for theinhabitants and protect its culture, heritage and infrastructure

Occupying power must provide for basic needs and respect rights of theinhabitants per international humanitarian laws

Examples include Turkish occupation of northern Cypress, Israeli occupation (conquest?)of West Bank of Jordan, the Gaza Strip and Golan Heights

Israel builds settlements in opposition to the UN security council and in violationof the 1949 Geneva Convention

The Wall, fencing in 6-18% of the West Bank. Israel Sup. Ct. /ICJ.o Humanitarian Occupation

Control of a territory by a international organization, primarily for the purpose ofreforming its political institutions

Objectives: Maintain existing States and their populations; and Restrain further splintering of nations

Legality has not been fully established In the case of Kosovo, international organization of States governed Kosovo for about 10

years

Traditional Methods of Acquisition

CONQUESTo Acquisition of territory by forcefully taking it


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o Outlawed by laws prohibiting use of force as a legitimate basis for ceding or claiming title toState territory (UN Charter, 1945)

o How to handle situation where there is a perpetual state of war? CESSION

o An international agreement that deeds territory from one nation to anothero Must first have proper title/possession to the territory before ceding it (Palmas)o Difficulties in situations when cession is forced on the granting State because it lost a war

(German requirement to cede land to Poland after WWI) PRESCRIPTION

o Acquisition of territory by occupying some part of it without objection by another partyo Accepted by most (but not all) states as a method for acquiring sovereign titleo Effective way of resolving long term border disputes (Cambodia vs. Thailand with regards to

areas surrounding a sacred temple; failure of Thailand to react to Cambodian seizure of the

temple served as tacit recognition) (judicial resolution did not resolve dispute in practice)

ACCRETIONo Increase of a States territory by new formations of land

Emergence of new islands Changes in flows of rivers

o Change should be gradual and imperceptibleo Complex due to passage of time, and both gradual and sudden changes in geography

(Chamizal Arbitration)

In a situation of gradual movement of the Rio Grande River to the south and suddenflooding, a 600 acre tract was disputed between the US and Mexico

Settled by diving the tract in accordance to accretionNew methods of territorial acquisition

Renunciationo Voluntary or involuntary relinquishment of its territorial sovereigntyo No transfer of title, unlike the treaty cession formally ceding territory to the grantee nation

Joint Decisiono

Determination by victors of war for transferring sovereignty over State territory Adjudication

o Examination of title disputes by judges or arbitratorso A means of providing a tribunal for interpreting an agreement or resolving a disputeo Parties establish sovereign rights after the tribunal examines facts and renders a decision

6.3 LAW OF THE SEA

The 3 mile cannon shot rule was the old mindset, with the area beyond 3 miles characterized asrescommunis

In 1994 the 1982 UN Convention of the Law of the Sea (UNCLOS) came into force- Historical regime did not incorporate interests of newer members of the international community

rather it served interests of large and economically powerful nations

- 162 countries and the EU have ratified UNCLOS- The U.S. Senate has still not ratified UNCLOS, despite support of U.S> presidents Clinton, Bush,

Obama

Concerns that the treaty adversely impacts US sovereignty, particularly with regards toadministration of the deep seabed


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Impact on U.S environmental policies Limitation of U.S> businesses and concerns about taxation/fees imposed in deep sea bed

INTERNAL WATERS

States have the sovereign right to control its bays, rivers and other internal waters PORTS

- States have the absolute right to control the internal waters contained within its ports- Foreign war ships in internal waters with permission can not be boarded- Merchant and private vessels have implied right to enter internal waters of another State without

express permission (can be boarded)

- Crimes committed at Port Determined by treaty or customary international law Customary international law

Historic rule: ships entering another States port became subject to that ports complete control Modern rule: Crimes not impacting the ports tranquility would be under the jurisdiction of the flag

State. Crimes causing a significant intrusion on the ports tranquility wouldbe under the jurisdiction of

the port state

- If the port State chooses not to assert jurisdiction, the flag state may then assert full authority overthe ship

BAYS- Most bays consist of only internal waters, but larger bays may have both territorial and

international waters

- Article 10 of UNCLOS : A bay is a well-marked indentation *which must be+ as large as or largerthan that of a semicircle whose diameter is a line drawn across the mouth of that indentation

- State may exercise sovereignty up to 12 nautical miles from the coast. If the semicircle diameter ofthe bay is less than 24 miles, its waters consist solely of internal waters

- If the semicircle diameter is more than 24 miles, the bay also contains high seas (internationalwaters) in the center of the mouth

- Exception: bays determined as historic bays may contain only internal waters even though themouth is wider than 24 miles. If other States do not dispute such a claim, they acquiesce to such

claims.

Ongoing dispute Hudson Bay, having a 50 mile wide mouth, disputed between U.S> andCanada


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TERRITORIAL SEA

Territorial Sea extends for 12 nautical miles from the national cost line- Extends above and below to the airspace, the seabed and subsoil

States exercise complete sovereignty over the territorial sea to the same extent it exercises sovereigntyover its landmass

Possession of this territory is mandatory (not optional); States also incur duties/obligations in theterritorial sea

BASELINE- Low water Line: Article 5 of UNCLOS, Normal baseline for measuring the breadth of the territorial

sea is the low water line along the coast as marked on large scale charts officially recognized by the

coastal state

- Straight baseline method: 1951 Anglo-Norwegian Fisheries case. Due to rocks and small islets thatinterrupted the natural course of its coastline, Norway drew straight baselines encompassing therocks and islets rather than tracking the contours of its irregular coastline. UK fishermen were upset

that Norway was claiming a greater share of the fishing area. The ICJ upheld the Norway straight

baseline method.

Innocent Passage- Article 18.1 of UNCLOS defines passage as navigation through the territorial sea for the purpose

of: (a) traversing that sea without entering internal waters or (b) proceeding to or from internal

waters

- Article 19 of UNCLOS defines innocent passage that is not prejudicial to the peace, good order orsecurity of the coastal State Ulterior motivations: spying or intelligence gathering (US navy vessels in the black sea, 1996

NK submarines in SK waters, 1968 US Pueblo seized 15.8 miles from NK, 2004 Chinese

submarine in Japan waters

Economic advantages Dissemination of propaganda (Greenpeace leaflets)

- Article 24 of UNCLOS imposes a duty not to impair the innocent passage of foreign ships Cannot impose navigational requirements denying right of innocent passage Much publicize dangers to navigation (mines) Cannot discriminate against ships or cargo of a particular nation, or ships carrying cargo to or

from certain nations

- Passing vessel must not stop unless incidental to ordinary navigation or undertaken for authorizedentry into a foreign port

- Vessels may render assistance to persons or craft requiring emergency assistance- Commercial vessels must comply with promulgated innocent passage regulations related to

customs, immigration and sanitation matters

Passenger ships must comply with local tax laws on cargo, passport regulations and waste laws- Military vessels when authorized to enter a foreign port should give notice of their arrival several

days in advance


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Contemporary concerns focus on drug trafficking that might occur right outside of the12-mile Territorial Sea

Exclusive Economic Zone

Coastal state has exclusive Economic rights in the 200 miles beginning from the coastal baseline,overlapping both the 24-mile Contiguous Zone and 12-mile Territorial Sea (Exclusive Economic Zone or EEZ)

The EEX covers one-third of all ocean space and 90% of global fishing Meant to protect economic rights of lesser-developed countries from having resources depleted by

more powerful countries

According to Article 56 of UNCLOS, the coastal state enjoys sovereign rights in the EEZ for exploring andexploiting, conserving and managing the natural resources.. of the waters superjacent to the seabed and its

subsoil..

Generally vague and open to interpretation The coastal state may wish to license rights to their EEZ (i.e. fishing, mining, marine

research)

The coastal may enforce pollution control regulations Conflicts arise with overlapping EEZ and areas where shorelines are less than 400 miles from one

another

Article 74 of UNCLOS indicates that states with opposing or adjacent coastlines areexpected to resolve their issues by agreement on the basis of international lawinorder to achieve an equitable solution

Some States have agreed on equidistance principleContinental Shelf

The right to control natural resources in the continental shelf, which may cover a range of 350 milesfrom the coastal baseline, pursuant to Article 76 of the 1982 UNCLOS

UNCLOS defines the coastal States CS as seabed and subsoil of the submarine areas that extendbeyond its territorial sea throughout the natural extension of its land territory

Situations where two or more coastal States share the same CS These states must enter into an agreements with regards to their rights and obligations

(Article 83.1)

Deep Seabed As technology for deep seabed mining advanced quickly, the UN General Assembly saw the need to have

the international community (rather than technologically advanced and wealthy states) govern the

management, exploitation and distribution of ocean resources in the seabed beyond the sovereign control

Covered by Part IX (Articles 136-153) of the 1982 UNCLOS. Article 136 states the Area and its resourcesare the common heritage of all mankind. *Area being the ocean floor and its subsoil beyond the limits of

national jurisdiction]

UNCLOS prescribes the International Seabed Authority (ISA) to control all aspects of deep seabed mining Review work plans for seabed exploration and exploitation Monitor compliance with rules, regulations, and procedures for seabed exploration and

exploitation

Promote and monitor scientific research, data collection and development ofsustainable marine technology

Recommend mining standards for the protection and preservation of the marineenvironment

While the US agreed to signing the UNCLOS, the Senate has not yet ratified the treaty US felt it was in their security and economic interests to become a party to UNCLOS ABA recommend that the rise of new regional powers after the end of the Cold War

warranted long term stability of rules related to the oceans


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However, the industrialized maritime powers felt the original language in the 1982 Part IX of UNCLOSwas inconsistent with a free market philosophy and did not give the industrialized States sufficient influence

over the ISA regime that was commensurate with their interests

To accommodate the US and other maritime powers, the General Assembly agreed to modify theoriginal text of the 1982 Par IX in a July 1992 Special Agreement

The 1994 Special Agreement included language which removed: Mandatory technology transfer (replaced with cooperation/joint ventures) Production limitations Burdensome financial obligations for private firms of powerful countries The Enterprise (subsidized international entity to monitor commercial

production of all mineral resources), which would compete against private

enterprises

6.4 AIRSPACE ZONES

Airspace Zones: Domestic Airspace

International Air Law developed quickly due to rapid advancements in air travel technology National legislation imposed limitations n international air travel and encouraged countries to enter into

international treaties

1919 Paris Convention- every Power has complete and exclusive sovereignty over the airspace aboveits territory

1994 Chicago Convention requires permission or authorization to operate international air service over or into a

territory (above landmass and territorial waters) [Article 6]

allows private aircraft (not engaged in scheduled international air service) the right tomake flights into or in transit non-stop across its territory and to make stops for non-

traffic purposes without the necessity of obtaining prior permission *Article 5+

pilot flight plan required alternation of flight plan may be required if interferes with regulations or

security concerns

Commercial aircraft regulated by International Civil Aviation Organization (ICAO), established by partiesto the Chicago Convention

International Air Transport Association (IATA) is a private organization created by commercial airlines toavoid excessive competition (i.e. flight schedules)

Open Skies Agreement gives airlines of two or more countries the right to operate air services fromany point in one country to any point in the other

Many allegations of anti-competitive activity and predatory behavior in commercial flights Governments subsidized airlines may provide unjust advantages and create artificial economic barriers

to normal market competition

1929 Warsaw Convention provides for the orderly disposition of claims against international air carriers limits liability in case of accidents outlines passenger rights in delays (but airlines not liable for all delays)

State Aircraft/ Public Aircraft are operated by military, customs and police authorities and are notgoverned by the Chicago Convention

Government aircraft cannot enter another States national airspace without its expressprior consent

Airplanes in distress: Each contracting State undertakes to provide such measures ofassistance to aircraft in distress as it may find practicable *Article 25+

Power Case (USSR, 1960) US flight of U-2 military aircraft and Soviet Union prosecution of US pilot for espionage Argues that Powers was photographing key industrial and military sites


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Claims that the craft violated the exclusive sovereignty of the Soviet Union perinternational law and that the US was behind this aggression

Implicates other allies of the US via bilateral military agreements Test firing an unarmed missile into an area of res communiswould not be prohibited Controversies:

Excessive Force: What constitutes excessive force in cases where nonmilitary aircraftstray into national airspace? (KAL Flight 007 in 1983 triggered diplomatic protests)

Upper Limit. The height of international airspace is not defined in the ChicagoConvention and there is no clear consensus

US claims 80 km above sea level Soviet Union and other states support Karman line of 110km above sea level,

where air becomes more astronautic than aeronautic

Airspace Zones: Airspace Abroad

Tokyo Convention establishes the framework for punishing individual committing violent crimes duringinternational flights

The jurisdiction of the aircrafts State of registration (flag State) prevails Exception (per Article 4):

o The offense has an effect on the territory of such State (territorialprinciple)

o The offense has been committed by or against a national or permanentresident of such State (nationality and passive personality principles)

o The offense is against the security of such State (protective principles) Hague Convention provides that certain crimes are atrocious enough to be considered crimes against al

States, allowing all States the jurisdiction to capture and punish or extradite the perpetrator (universality

principle)

Airspace Zones: Outer Space

Outer space is analogous to the historical maritime concept of res communisas it applied to the highseas

Cannot be owned or controlled by any nations. Open to the peaceful use of all States Moon Treaty Manned or unmanned landings do not constitute sovereign rights

Universe may be explored for scientific purposes, not to expand national sovereignty Purports to demilitarize outer space, preventing installation of weapons of mass

destruction in orbit or on celestial bodies. Use of military personnel for scientific

research is allowed

US missile shield programs (Star Wars, Strategic Defense Initiative) andUS/China destruction of satellites

Requires participants to bear international responsibility for activities in outer space,including damage caused by spacecraft reentering Earths atmosphere

Controversial since ~18,000 orbiting earth and ~17,000 objects, radioactive ornot, have fallen to earth, creating damage to land and orbiting satellites (For

10,000 years) such as the International Space Station

CHAPTER 7 [Treaties]

CHAPTER 8 [Arbitration and Adjudication]


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o Secondary, banned trade between Arab League members and countriesthat trade with Israel

o Tertiary, discouraged trade with Israel. League members could not dealwith companies that did any business with blacklisted countries

In 1988 the UN passes a resolution on the Elimination of Coercive EconomicMeasures as a Means of Political and Economic Coercion (unilateral action)

Countermeasures Countermeasures, or sanctions, respond to allegations of intentionally wrongful conduct 1970 UN Declaration prohibits reprisals, or retaliation via the government seizure of

property or person

public reprisals- those initiated by the state, often for injuries to its citizenscaused by foreign governments

Private reprisals- those initiated by individuals to seize property or citizens Not used as commonly now as in the past

Modern use includes confiscation of goods and freezing of assets Not justifiable unless for legitimate self defense Constrained by necessity and proportionality principles (i.e. considerable civilian

causalities)

Gunboat Diplomacy A states use of threatening conduct to intimidate another state

Military exercises, presence of military vessels, testing military equipment Brinkmanship

Saber rattling- use of non violent force. Lighting the fuse without actually firing US and North Korea Turkey amassing troops on border with Iraq (2007) US plans to place missile shield system in Poland and Czech (2008) Israeli jets enter Syrias airspace and provoke/fire upon air defenses (2007)

Clandestine Support A third-party state which supports one of the warring parties provides military or

financial support Small arms- supply of small arms and ammunition to rebel groups Suicide missions- financial support of suicide bombers (money to relatives) and

providing explosives (roadside Improvised Explosive Device or IED)

Low intensity Conflict Emerged with increased frequency after the Cold War US military definition:

politico-military confrontation between competing states or groups belowconventional war and above routine, peaceful competition among states

ranges from subversionto the used of armed force. waged by combination of means, employing political, economic, informational,

and military instruments

often localized but may have larger case implications War

Previously considered as necessity, just waro Only effective means of enforcing international law since no other

mechanism or international organization to control uses of force

Modern, no more declarations of war or formal hostilities. Rather, the focus ison whether or not a nation was the victim of armed aggression

The War on Terror


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9.2 UN PRINCIPLES ON FORCE

UN PRINCIPLES ON FORCE

UN Charter contains directives related to use of force: State may not use or threaten the use of force (Article 2.4) States may use force defensively, when responding to an armed attack (Article 51) Security Council has the sole legal capability on the use of force (Article 39, 41 & 42)

US Sanctions Multilateral. Not so effective unless the sanction is initiated by neighbors of the targeted

nation or group

Unilateral. Tends to encourage escalation of situation and threats to peace Protagonist backed by an international organization would be characterized as

furthering multinational objectives (President Carter sanctions against Iran during the

Hostage Crisis)

Smart sanctions initiated to minimize damage caused by UNs blunt sanctions policy,which hurt people it was intended to protect

UN Security Council established a Sanctions Committee to facilitate refinedapproach to design, application and execution of sanctions under Article 41

o Targeted sanctions froze assets and blocked wires of political elites, orpursued specific groups responsible (diamond smuggling)

Regional initiatives often undertaken as well Persian Gulf War I

Following Iraqs invasions of Kuwait in 1991, the UN Security Council passes Resolution687, which breadth was unprecedented and authorized all necessary means to force

Iraqs withdrawal from Kuwait and stop hostilities

Demonstrates flexibility of Charter in giving SC powers to carry out its mandate Security Council Activism

Post Gulf War, the UN seemed to emerge from its Cold War hiatus and concernedsmaller nations about potential UN dominance/hegemony (limited controls once

military operates ensue)

Application of Charter VII powers more aggressive (less concern of Article 2.7 qualifier)

Bosnia Herzegovina The SC was more passive in this conflict where Bosnian Serbs initiated a full scale war

with ethnic cleansing against Bosnias Muslim and Croatians (regions of less significance)

Resolution 836 allowed for UN members to act through regional organizations orarrangements involved NATO

Kosovo Administration. National building efforts by SC (transitional administration) Prohibition of State Force

Article 2.4 is Controversial. Some believe it is too broad to have any meaning. Othersargue that it is broad to outlaw all types of aggressive force

The International Law Commission drafted Articles on State Responsibility to providemore detail related to countermeasures

ICJ in Nicaragua vs. Untied States Court goes beyond the UN Charter as the only means of determining conduct of

state behavior (non-intervention in matters within the national jurisdiction of

states)

ICJ rules against the US ICJ reiterates opinion in future cases (Congo vs. Uganda)

Self Defense Provision Articles 51 also Controversial. Debate about what circumstances trigger self-defense Three phases


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Armed Attack Anticipatory Self-Defense Pre-emptive first strike

Application of Self Defense Nicaragua

US asserts collective self defense as legal justification, in preparation for futurearmed attach by Nicaragua or OAS member. Court disapproves

Kuwait Clear consensus about the existence of inherent right to collective self defense Individual or collective self-defense without the participation of the SC would

not be condoned

Embassy Bombings Missile attacks by US into Afghanistan and Sudan (1998) following bombings of

US embassies in Kenya and Tanzania

Necessity and proportionality? Reprisal or self defense?

December 11,2001 Nuclear Weapons

9.3 PEACEKEEING OPERATIONS

Peacekeeping and limitations

Peacekeeping is also undertaken by other non-UN regional organizations Peacekeeping budget constituted 70% of the UNs overall budget in 2006 UN institutes 2,500 member Rapid Reaction Team in 2006 Limitations

States are unwilling to provide requisite State sovereignty to the UN (Article 2.7 of theUN Charter retains primacy of State sovereign power)

No standing UN army/military force Insufficient funding Patchwork (Inadequate) cooperation by States

1950 Uniting for Peace (UFP) Resolution 377 Allows the General Assembly its own ability to initiate measures to restore peace

(independently of the Security Council), including the use of armed force

In the even the SC is unsuccessful to maintain peace because of permanentmember vetoes

Basis for the first peacekeeping operation: 1956 Suez Canal Crisis Required establishment of the UN Emergency Force

Concerns related to UN peacekeeper effectiveness in Bosnia, misconduct/rape cases in the Congo,corruption and mismanaged funds

9.4 MULTILATERAL AGREEMENTSMultilateral Agreements

Treaty based attempts to control use of force by States The 1899 and 1907 Hague Conferences were international treaties negotiated at two separate peace

conferences at the Hague

First formal statements of disarmament, laws of war and war crimes, adopted bymilitary infrastructure in many countries

Established an arbitration system to settle international disputes (Permanent Court ofArbitration)

Served as a basis for future treaties


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Prohibitions on biological and toxic weapons are now frequently referenced League of Nations

Prohibited war until three months after an arbitral/judicial decision regarding aparticular dispute

First collective security measure; war against one member of the League was equal towar against all members of the League (leading to immediate severance of financial

relations)

9.5 HUMANITARIAN INTERVENTION

Humanitarian Intervention

No specific language regarding humanitarian intervention is mentioned in the UN Charter Debateregarding whether Article 56 provides a legal or moral basis for justifying human intervention: All Members

pledge themselves to take joint and separate action in cooperation with the Organization for the achievement

of the purposes set forth in Article 55. *universal respect for human rightswithout distinction as to race, sex,

language or religion.+

Pledge=legal obligation Narrow view, only genocide warrants military intervention

Forms of Intervention Military/ Nonmilitary Unilateral/ Collective

Unilateral intervention may conflict with standards of territorial sovereignty anduse of force

Is there a right to humanitarian intervention? What cases are justifiable for intervention when they havenot been attacked or threatened with attack?

International Commission on Intervention and State Sovereignty (2001) Just cause threshold: military intervention requires serious and irreparable harm

occurring (or imminent to occur) to human beings

Large scale loss of life, actual or apprehended, with genocidal intent or not,which is the product of deliberate state action, state negligence or inability to

act, or a failed state situation Large scale ethnic cleansing actual or apprehended, whether carried out by

killing, forced expulsion, acts of terror or rape

Strictly humanitarian aid not regarded as unlawful intervention Duty to intervene where gross violations of fundamental human rights (Genocide Convention) Political domination vs. humanitarian intervention (contaminated?) Collective intervention is more justifiable than unilateral intervention (makes Rescue difficult to justify) Regional enforcement actions would require security council authorization, in accordance with Article

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Case of Yugoslavia

Documents

Notes From Chap3