(International Class)
The Law of Nations is the science of the rights exist between Nations and States, and of the obligations corresponding to these rights
Article 31(1) of the Vienna Convention on the Law of Treaties: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose
Fictitious Case
The Apple Republic is an independent state but there are many rebellions in its territory demanding for a new independent state separated from the Apple Republic. States in the region in which this new republic located have entered into a regional peace treaty. The treaty regulates that each state may only have 20.000 armies and 5.000 planes for air force. The Apple Republic has 30.000 armies and 15.000 planes. The Apple Republic has been criticized by other states in the region for its over-limited military planes.
Fictitious Case
Group A: the head of the regional organization (International Fruits Organization) Group B: the Apple Republic Group C: the international law counsel from a neutral state (a mediator of International Animal Organization)
Group A (point 3)
Group A (point 4)
Group B (point 3)
Group B (point 4)
Group C (point 3)
Is there a relationship between international law and national law (municipal law)?
THEORIES REGARDING THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW (MUNICIPAL LAW)
Monism Approach
DUALISM Approach
MONISM APPROACH
International and municipal law as a single legal system. Legal regulations as a single legal system binds states and individuals. Do you agree with monism theory?
DUALISM APPROACH
international and national law are distinct legal orders (they are not parts of a unified whole).
Do you agree with dualism theory?
How do a national court adopt an international law based on monism and dualism theories?
Treaties (conventions) and the orders of international organizations are applicable/ effective without any action being required to convert international law into municipal law.
International Law
automatically
National Court
International Law
Adoption/ incorporation
National Law
Do You Think That International Law May Conflict With National Law?
Can a state breach its obligation in international law on the ground that its national law prevails international law?
A state cannot adduce as against another state its own Constitution with a view to evading obligations incubent upon it under international law or treaties in force
Hypothetical Case
Kumkum is a President of Lo-Han-Kuo state. His country is very advanced in technology. The neighboring country, the Republic of Beng-Beng is experiencing a civil war between white and black people. The government is pro to white people and starts to suppress black minority people. The opposition leader of Beng-Beng Republic, Mr.Adum and his followers were almost killed by the government troops. Hence, they decide to flee to Lo-Han-Kuo state. President Kumkum does not want to involve with the internal war in Beng-Beng Republic, so he decides to refuse Mr.Adum and his followers. Lo-Han-Kuo state ratifies the 1951 UN Convention Relating to the Status of Refugees.
Hypothetical Case
Definition of Refugees Under the 1951 UN Convention covers persecution based on race, religion, nationality, etc. Can President Kumkum refuse Mr.Adum and his followers?
Israel
VS
PLO
INTERNATIONAL ORGANIZATION
ORGANIZATION WHOSE MEMBERS CONSIST OF STATES HAVE A SIGNIFICANT MEMBERSHIP HAVE A STRUCTURE OF ORGANIZATION
HOLY THRONE
LATERAN TREATY 1928; HAS SOVEREIGNITY AS THE SUBJECT OF INTERNATIONAL LAW; CAN NOT BE ATTACKED BY ANY STATE IN THE TIME OF WAR
BELLIGERENCY
THE GROUP OF PEOPLE MAKE AN ACTION TO SEPARATE THEMSELVES FROM THE SOVEREIGNITY OF A STATE. THEY POSESS HALF OF NATONAL TERRITORY AND REAL AUTHORITY.
INDIVIDUAL A person or citizen is a subject of international law. For example: Former Iraqi Presiden, Saddam Husein.
Analyze this case (what is the consequence of considering a person as a subject of international law? Slobodan Milosevic, the Yugoslav leader blamed for starting four Balkan wars and impoverishing and isolating his country, was delivered to a prison cell and eventual trial by the UN war crimes tribunal
THE CASE OF GENERAL NORIEGA (EX PANAMA PRESIDENT) United States vs Noriega No.88-0079 C.R (S.D.Fla filed Feb 4, 1988) & United States v Noriega No.88-28 CR-T (M.D.Fla filed 4, 1988)
SESSION 9
1. Summarize the facts of the case 2. What are the issues under the case? 3. How do you react as Panama citizen regarding the case? 4. How do you react as American citizen regarding the case?
The Meaning of Recognition Recognition generally refers to one states willingness to establish or maintain official relations with another State or its government
Slovenia
Germany
France
1. To obtain equality status with other members of the international community 2. To acquire international rights and contracting international obligations 3. To engage in international relations
Types of recognition
Recognition of States
Recognition of Government
Please analyze this illustration and relate it to the difference between the recognition of state and government
Expressed Recognition
Diplomatic letters/notes, statements, telegrams Example: The statement of French President to recognize the independency of Algeria on 3 July 1963. International treaty Example: Japan recognized Korea via article 12 of Peace Treaty on 8 September 1951.
Implicit Recognition
Sending a diplomatic agent Having a talk with an official or a head of state Making an agreement with the state Example: Prime Minister of Israel, Shimon Perez, visited Morocco on 21 July 1986 and had a talk with King Hassan II to seek solutions for Middle East problems.
Collective Recognition
Via international treaty or multilateral conference Example: 5 ASEAN countries on 18 April 1975 recognized Cambodia
Premature Recognition
Recognition is given to a state although the state does not have complete constitutive components (no constitution, territorial borders are not clear) Example: recognition of a number of states to Palestinian.
De Facto Recognition
The government of a state is not constitutionally valid The ruling power has been effectively implemented in the entire territory of a state The government is usually established by a revolution Example: Iranian revolution that has made Shah Reza Pahlevi step down.
De jure recognition
The ruling power has been recognized in the entire state The government is established by an election or the Constitution The government in power has no competing government Example: Indonesia obtained its de facto recognition in 1945-1949 and it obtained its de jure recognition after recovering its sovereignty.
Recognition of belligerency
A belligerent group seizes power in its own country or a portion of it A belligerent group has a de facto power Example: France and Mexico officially recognized a leftist guerilla movement that had fought several years against the Colombian government
The meaning of responsibility under international law Responsibility is associated with obligations. State responsibility under international law means obligations of a state associated with its international status. Responsibility = liability
A state can incur liability for either intentional or negligent conduct. What is the different between intentional and negligent conduct?
Fundamental Elements of State Responsibility 1. The existence of a legal obligation recognized by International Law. 2. An act or omission that violates that obligation 3. Some loss or articulable damage caused by the breach of the obligation.
Hypothetical Case
A vessel of Country A passed the territorial water/sea of County B. Suddenly, the tank of the vessel leaked and sum amount of oil polluted the sea of Country B? Questions: 1. Is there a state responsibility issue in this case? 2. What area of law does this case relate to? 3. Does the conduct of Country A a intentional or negligent conduct? 4. What is the responsibility/liability of Country A? 5. What happens if Country A does not want to be responsible for its conduct?
Can a state that conduct a wrongful act be tried in another state court?
SOVEREIGN IMMUNITY
When sovereign immunity applies, one States judge cannot assert jurisdiction over another state in its courts. Example: Country A cannot be tried by the court of County B without Country As consent. Reparations must be sought in some other forum, possibly via a diplomatic intervention.
Equality of States
Why does a country have immunity from suit in the courts of another country? Article 2.1 of the United Nations Charter provides that the organization is based on the principle of the sovereign equality of all its Members
Types of Immunity
Absolute Immunity A foreign head of State was not subject to any civil or criminal prosecution during and after leaving office Total immunity from suit in other states, regardless of the nature or purpose of the sovereigns acts. Restrictive Immunity Most states no longer extend absolute immunity to entities owned or operated by foreign governments. An entity operated by a State, in its capacity as a trader competing with other private merchants, is not necessarily given immunity from suit.
Restrictive Immunity
Most States currently apply some form of the restrictive standard for resolving sovereign immunity questions How to distinguish the application of absolute immunity from restrictive immunity: sovereign versus private Public versus private Commercial versus non commercial Political versus trade-related
1. 2. 3. 4.
1 & 2: Law of Nations 3 & 4: Law and the International System 5 & 6: International Law within the State 7 & 8: Subjects of International Law 9 : General Noriega Case 10 & 11: Recognition of States and Governments 12 & 13: State Responsibility
Hypothetical Case
Country As chemical factory was established near the border of Country B. Country A has taken maximum steps to avoid pollution or any chemical contamination to the river bordering between Country A & B. The revolution was about to begin in Country A. As the result of gun fires between the ruling government and anti government group, one of the main pipes of the was badly damaged. Dangerous chemical in the pipe spread to the river. 10.000 cows of Country B died after drinking the water from the river. The anti government group eventually replaces the existing government of Country A through a people revolution. Country B wishes to sue Country A for the death of its cows. Country B has not made decision whether to recognize the new government of Country A. The pollution occurred before the new government was established.
Hypothetical Case
Questions: 1. Does this case deal with national law or international law? Why 2. Which branch of international law does deal with this case? Why? 3. State the main issues of this case. 4. Give your advise to the government of Country A. 5. Give your advise to the government of Country B.
4.
Lets watch, analyze, criticize and make recommendations regarding the movie
Your Tasks:
Please explain the contents of each provision
The 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR)
The ICESCR requires state parties to provide adequate or improved living conditions for its inhabitants and to facilitate international cooperation to achieve this objective. The essential provisions: articles 3,6,7,9,11,10,11,13,15,16,17. Your task is to explain the contents of each article
Nationality
Nationality is a legal, political, and social link between the individual and the state Nationality establishes mutual expectations for both the state that confers it and the individual who acquires it Examples of the rights of a state: imposing taxes on an individual, serving military forces. Example of the rights of an individual: obtaining a state protection
PARENTAGE
The childs citizenship was that of the parents Jus Sanguinis or blood rule for establishing citizenship. Applied in Europe, Latin America and many English speaking countries. Give your examples
BIRTH
A nationality by birth rule. Jus soli or soil rule for determining citizenship. Give your examples
Naturalization
Individuals may actively change their nationality through the process of naturalization. The national law of the country from which nationality is sought establishes its naturalization requirements. Please explain how to obtain Indonesian nationality through the process of nationalization
ORGANIZATIONAL CITIZENSHIP
Early 1974, the Paris Summit of the Heads of States launched a study of the conditions under which the citizens of the Member States could be given social rights as members of the [European] community. The rights of EU citizens within the EU: The right to move and reside freely within the territory the territory of the member states; The right to vote and be a candidate at municipal elections in the member state in which he resides, although not a citizen of the member state, under the same conditions as nationals of that state; Protection by the diplomatic or consular authorities of any member state, on the same conditions as the nationals of that state; The right to petition the European Parliament about any matter that comes within the Communitys fields of activity and that affects that citizen.
1.
2.
3. 4.
DUAL NATIONALITY
A dual national possesses the citizenship of more than one nation An individual may acquire dual nationality because: 1. He/she was born in a nation that applies the jus soli rule of automatic nationality by birth 2. Simultaneously acquire the parents citizenship when their home nation applies the jus sanguinis rule of parental nationality.
STATELESS
WHAT DO YOU KNOW ABOUT A STATELESS PERSON? CAN YOU GIVE EXAMPLES WHAT CAUSES THE STATUS OF STATELESS ON AN INDIVIDUAL?
STATELESS
Individuals are stateless when they lack the nationality of any state. Loss of ones original citizenship-typically conferred by birth or parentage, without obtaining a new citizenship-renders the individual stateless. The individuals cannot claim the bond of citizenship with any state to protect them. There is no state to come to aid of an individual who is in need of diplomatic representation.
REFUGEES
WHAT IS THE MEANING OF REFUGEES ACCORDING TO YOU? Ahmad is a Palestinian who fought for the liberation of Palestine. Due to the suppression of Israel, he fled to Lebanon. Is Ahmad a refugee? Nguyen lived in South Vietnam, but since the civil war in Vietnam, he could not live comfortably anymore. He decided to run away from Vietnam in order to obtain a better life. Is Nguyen a refugee?
FIVE JURISDICTIONAL PRINCIPLES 1. 2. 3. 4. 5. Territorial principle Nationality principle Passive personality principle Protective principle Universality principle
Territorial Principle
Based on the location of the defendants act. Two relevant applications are the subjective formassociated with conduct commencing within a state and the objective form-when the conduct commences outside but has its ultimate effect within the prosecuting state. Subjective Form: Defendants conduct violates State X law Conduct starts within State X Completed within State X Objective Form: Defendants conduct violates State X law Conduct starts outside State X Completed or has effect within State X
Nationality Principle
Based on the nationality of the defendant Nationality principle: Defendants conduct violates State X law Defendant is a citizen (national) of X Conduct may start and end anywhere
Protective Principle
Authorizes a state to exercise jurisdiction over individuals when their criminal acts occur outside of its borders. Such acts must be threaten the security, territorial integrity, or political independence of the state. Protective principle: Defendants conduct violates state X law Conduct may start and end outside State X (Territorial must either start or end in X) (Protective need not have effect in X)
Universality Principle
Covers certain crimes that are considered to be committed against the entire community of nations. Any nation wherein the perpetrator of such a crime is found has the jurisdiction to arrest the criminal (who may be extradited). Universal crimes: piracy, slavery, war crimes, crimes against peace, crimes against humanity, genocide, torture. Universality Principle: Defendants conduct sufficiently heinous to violate the laws of all states. Conduct started and completed anywhere. All states may prosecute (not just X)
WORK IN PAIRS
Make your own hypothetical cases relating to the application of the five jurisdictional principles.
British government relied on the passive personality principle to support its prosecution of the French ships officer. The officers conduct harmed British Citizens and British property interests.
The court relied on the protective principle because all the elements of the crime occur in the foreign country and jurisdiction exists because these actions have a potentially adverse effect upon security or governmental function.
EXTRADITION
Is the process whereby one nation surrenders someone accused of a crime to another nation. Extradition treaties are necessary because extradition is not automatic. There is no duty to surrender an individual to another nation. Example: a citizen of Peru committed a crime in his country, then he fled to Venezuela. Is it obliged for Venezuela to return the criminal to his own country?
Irregular Alternatives
States do not always depend on extradition treaties when they seek to prosecute certain individuals. They may expel or deport wanted individuals without going through a formal extradition process, regardless of whether an applicable extradition treaty exists. The individual defendant does not always have the legal capacity to rely on the violation of international law as a defense to his or her criminal prosecution. The most notorious defendants typically claim they cannot be prosecuted because if an irregular extradition, regardless the merits of the accusations
Irregular Alternatives
Slobodan Milosevic, the former President of Yugoslavia, claims that he was improperly deported from Yugoslavia to the UN Criminal tribunal in the Netherlands rather than being properly extradited under Yugoslavian law. Before his departure, Milosevics defense lawyer characterized any attempt to extradite him as an outright kidnapping, an act of legal terrorism.
Is it possible to extradite a criminal although his Constitution does not allow a citizen to be brought before a foreign court?
Hypothetical Case
The government of Country X has a trouble with a group of people who protests the performances of the government from time to time. One of the protesters hijacks the plane and forces the pilot to fly the aircraft to Country Y. May Country X request the extradition of the hijacker?
Categories Of Territory
Territory owned by a sovereign state (sovereign territory) Territory not owned by any state because of its special status (trust territory) Territory capable of being owned but not yet under sovereign control (terra nullius) Territory that cannot be owned by any nation (terra communis)
Sovereign Territory
States possess the right to control the land located within their territorial boundaries. The extend of that sovereignty is ordinarily defined by oceans, mountains, and other natural frontiers and barriers. Please determine the territorial boundaries of Indonesia (provide your map)
Trust Territory
The land which is not subject to the sovereignty of any state because some of special status. Example the United Nations trusts territories after World War II. Under the UN Charter, this category of territory is under a temporary disability to control its own area-which may occur because of a lack of political infrastructure.
Terra Nullius
Areas that were deemed terra nullius belonged to no one. They were capable of acquisition. In the event of a sovereignty dispute, state that occupied or administered such areas usually established a legitimate claim by showing that the dispute territory was initially terra nullius.
Terra Nullius
Was Australia prior to the arrival of Europeans terra nullius?
Res Communis
Territory is incapable of ever being legally owned or controlled. It belongs to no one and must remain available for all to use. The clearest example of res communis are the high seas and outer space.
Renunciation
There is no transfer of title. In 1947, Italy renounced title (previously obtained by conquest) to its territories in northern Africa. A state may voluntarily relinquish its territorial sovereignty as well. This method of transferring sovereignty is sometimes referred to as acquiescence, estoppel, and even prescription
Make your Own Examples Explain the meaning of renunciation by giving examples.
Joint Decision
Victorious state claimed and exercised a right to dispose of certain property that the defeated state had obtained by forceful conquest. Make your examples to explain the meaning of joint decision.
Adjudication
Title disputes to state territory are often examined by judges or arbitrators. Adjudication is the result of an international agreement that authorizes a mutually acceptable tribunal to resolve a dispute between the participating states.
What is arbitration?
Please give your opinions
Arbitration (Non Litigation Dispute Resolution) Parties often determine who will decide what after the dispute arises
DIPLOMACY
The national participants do not submit their disputes for resolution by an outside third-party entity.
Litigation
The court composition and power to act are established before the dispute arises.
Arbitration
Ad hoc Arbitration: there are no pre-established rules and procedures predating the agreement to arbitrate.
Permanent Arbitral Entity, such as the Permanent Court of Arbitration: are immediately available with objective rules and procedures for resolving international disputes.
Courts
1. The Permanent Court of International Justice (the first World Court): resolves disputes between states materialized after World War I. 2. In 1945, the United Nations created a new world Court and the companion Statute of the International Court of Justice
REVIEW MATERIALS 15 - 24
Sessions 15 & 16: Human Rights Sessions 17 & 18: Citizenship Sessions 19 & 20: Jurisdiction Sessions 21 & 22: Territory Sessions 23 & 24: Dispute Resolutions
Thank You & See You In Final Semester Exam Good luck!!!