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(1)

INTERNATIONAL LAW

(2)
(3)
(4)

What is meant by the term

“nation” or “state”?

(5)

The defnition of ‘nations’ or

‘states’

Political bodies

Societies of men

Who have united together and

combined their forces

In order to procure their mutual

(6)

WHAT IS MEANT BY THE LAW OF

NATIONS?

(7)
(8)

What is international law?

Please give your

opinions about the meaning of the following terms:

“INTERNATIONAL”

“LAW”

“INTERNATIONAL

(9)

The meaning of

international law

Modern approach:

“the body of law that regulates the

activities of entities possessing

international personality”

Traditional approach:

(10)

The division of

international law

PUBLIC

INTERNATIONAL LAW

(INTERNATIONAL LAW)

PRIVATE

(11)

What is “private international

law”?

The body of law of law that regulates the

relations between persons and entities in diferent states

(12)

SOURCES OF INTERNATIONAL

LAW

Primary sources: 1. International treaties 2. Custom

3. General principles of law

Article 38 of the Statute of the

International Court of Justice

(13)

Article 38 of ICJ Statute

International convention, whether general or particular, establishing rules expressly recognized by the contesting states;

International custom, as evidence of a general practice accepted as law;

The general principles of law recognized by civilized nations;

Subject to the provisions of Article 59,

judicial decisions and the teachings of the most highly qualifed publicists of the

(14)

The meaning of the three primary

sources of international law

International treaty law is comprised of obligations states expressly and

voluntarily accept between themselves in treaties.

Customary international law is derived from the consistent practice of states

accompanied by opinio juris, i.e. the

conviction of states that the consistent practice is required by a legal obligation. • General principles of law is the legal

(15)

Interpretation of International

Law

• 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

(16)

The components of

Art.31(1)

1. “Ordinary meaning”: a restrictive

interpretation which bases on the actual text (the textual approach).

2. “In their context”: the idea behind the

treaty; what the writers intended when they wrote the text (the subjective approach).

3. “in the light of its object and purposes”: the interpretation that best suits the goal of the treaty (the efective interpretation

(17)

SOME BRANCHES OF

INTERNATIONAL LAW

International criminal law

• The law pertaining to use of force • International humanitarian law

Law of the SeaDiplomatic Law • Consular Law

Law of State Responsibility

(18)

Why these areas should be

regulated by international

(19)
(20)

What is required by the

“International System”?

A normative system (to achieve our common

values)

A process that regulates competing

demands

A framework for predictable and agreed

community behaviour

(21)

Fundamental conficts over

international law

The concept of “a nation-state”

(nations controlled by a

centralized system of

government)

Do you agree with “the

(22)

Fundamental conficts over

international law

Relations between nation-states

were dictated by Treaty,

unenforceable agreements to

behave in a certain way towards

another state

What is your opinions regarding the

concept of “Countries Blocks”

(23)

Fundamental conficts over

international law

The nation-state as the primary unit of international afairs

State may choose voluntarily to enter into commitments under international law

The creation of the United nations as an international law making body

Do you agree that the UN endanger nation states by taking power away from state government and ceding it

(24)

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

(25)

Fictitious Case

Group A: the head of the

regional organization (International Fruits Organization)

Group B: the Apple

Republic

Group C: the

international law

(26)

Moot Court (International Fruits

(27)

MOOT COURT REGULATIONS

Group C (International Animals Organization):

1. Making an opening statement 2. Describe briefy the facts of case

3. Make a conclusion and decision (summarize the case & arguments)

Group A (International Fruits Organization):

1. Restate the facts of case

2. Advance problems raise from the Apple Republic 3. Advance arguments

4. Defend the arguments

Group B (The Apple Republic)

1. Restate the facts

(28)

MOOT COURT SCENES

Group C (point 1 & 2)

Group A (point 1 & 2) Group B (point 1& 2)

Group A (point 3) Group B (point 3)

Group A (point 4) Group B (point 4)

Group C (point 3)

(29)

Thank You

Thank You

&

&

See You Again

See You Again

In The Next

In The Next

Sessions

(30)

SHARING INFORMATION ON

INTERNATIONAL ISSUES

Prior to the beginning

of the class, one of you should stand up in

front of the class and share your information on international issues around the world.

You may get the

(31)

INTERNATIONAL LAW WITHIN THE

STATE

(Session 5 & 6)

What is the

function of

(32)

Is there a relationship between

international law and national law

(33)

THEORIES REGARDING THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL

LAW (MUNICIPAL LAW)

Monism Approach

(34)

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

(35)

DUALISM APPROACH

international and

national law are

distinct legal orders (they are not parts of a unifed whole).

(36)

How do a national court adopt an international law based on monism

(37)

Discuss With Your Partner

The French Constitution provides

that treties are “law” that must be

applied within the French legal

system.

(38)

THE APPLICATION OF MONISM THEORY IN A NATIONAL COURT

Treaties (conventions) and the

orders of international organizations

are applicable/ efective without any

action being required to convert

international law into municipal law.

(39)

THE APPLICATION OF DUALISM

THEORY IN A NATIONAL COURT

National court may only apply

international law when the law has

been incorporated into national law

or when the court incorporate

international law on its own motion.

(40)

Do You Think That

(41)

International Law vs National

Law

Can a state breach its obligation in

international law on the ground that its national law

prevails

(42)

The statement of the Permanent

Court of International Justice (ICJ)

‘A state cannot adduce as against

another state its own Constitution

with a view to evading obligations

incubent upon it under international

(43)

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 fee 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 ratifes the 1951 UN Convention

(44)

Hypothetical Case

Defnition of

Refugees Under the 1951 UN Convention covers “persecution based on race,

religion, nationality, etc.

(45)

Thank You

Thank You

&

&

See You Again

See You Again

In The Next

In The Next

Sessions

(46)
(47)

WHAT IS THE MEANING OF

“SUBJECT OF LAW”?

(48)

SUBJECTS OF INTERNATIONAL LAW

ENTITIES OR

ELEMENTS;

HAVE A CAPABILITY

TO CONDUCT

LEGAL ACTS IN THE FIELD OF

INTERNATIONAL LAW.

POSESS RIGHTS

AND OBLIGATION UNDER

(49)

SUBJECTS OF INTERNATIONAL

LAW

PEOPLE REPUBLIC OF CHINA

(50)

SUBJECTS OF INTERNATIONAL

LAW

1. STATE;

2. INTERNATIONAL ORGANIZATION;

3. HOLY THRONE;

4. INDIVIDUAL;

5. BELIGERENCY.

(51)

A state should have legal personality

in order to be a subject of international

law

PERMANENT

POPULATION;

DEFINED TERRITORY;GOVERNMENT;

SOVEREIGNITY;

THE CAPABILITY TO

ENTER INTO THE RELATIONSHIP BETWEEN STATE;

RECOGNITION BY

(52)

Give your arguments!

Is Republic Maluku Selatan (RMS) a

state?

(53)

INTERNATIONAL ORGANIZATION

ORGANIZATION WHOSE MEMBERS CONSIST OF STATES

HAVE A SIGNIFICANT MEMBERSHIP

(54)

Give examples of international

organization

Regional organization

(55)

HOLY THRONE

LATERAN TREATY 1928;

HAS SOVEREIGNITY AS THE SUBJECT

OF INTERNATIONAL LAW;

CAN NOT BE

(56)

Give your opinions

Do you agree

if the

(57)

BELLIGERENCY

THE GROUP OF

PEOPLE MAKE AN

ACTION TO SEPARATE THEMSELVES FROM THE SOVEREIGNITY OF A STATE.

THEY POSESS HALF

OF NATONAL

(58)

Give your opinions

Is Gerakan Aceh Merdeka (GAM) a subject of

(59)

INDIVIDUAL

A person or citizen is a

subject of international

law.

For example: Former Iraqi

(60)

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

(61)

Thank You

Thank You

&

&

See You Again

See You Again

In The Next

In The Next

Sessions

(62)

THE CASE OF GENERAL NORIEGA (EX PANAMA PRESIDENT)

United States vs Noriega No.88-0079 C.R (S.D.Fla fled Feb 4, 1988) & United States v Noriega No.88-28 CR-T

(M.D.Fla fled 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?

(63)

Thank You

Thank You

&

&

See You Again

See You Again

In The Next

In The Next

Sessions

(64)

Recognition of States and

Governments

(Session 10 & 11)

(65)

The Meaning of

“Recognition”

Recognition generally

refers to one state’s

willingness to establish or

maintain ofcial relations

(66)

Is it important for a state to obtain a recognition from another state?

Germany France England

(67)

The signifcances of recognition for

a state

1. To obtain equality status with other

members of the international

community

2. To acquire international rights and

contracting international

obligations

(68)

Types of recognition

Recognition

of States

Recognition

of

(69)

What is the diference between recognition of state and government?

• The tree is the state

• The leave is the government

Please analyze this illustration and

relate it to the

diference between the recognition of state and

(70)

The diference between recognition of

state and government

Analogy:

The tree is the state. The leaves are

various governments. While

governments (leaves) may come

and go, the state (the tree remains)

Once the recognition is given to a state,

the recognition cannot be withdrawn.

(71)

The real case

Saudi Arabia and the United Arab Emirates

withdrew their recognition to Afghanistan Taliban government when it refused to

surrender Osama bin Laden in the aftermath of the events of September 11, 2001.

Is it permissible for the two state to withdraw their recognition to Taliban

government?

Can they also withdraw their

(72)

Types of Recognition of

States

Expressed

recognition

Implicit

recognition

Collective

recognition

Premature

(73)

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

(74)

Implicit Recognition

Sending a diplomatic agent

Having a talk with an ofcial 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

(75)

Collective Recognition

Via international treaty or

multilateral conference

Example: 5 ASEAN

(76)

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

(77)

Types of Recognition of

Government

• Similar to the types of recognition of

state

De facto and de

jure recognition

• Recognition of belligerency

• Recognition of

(78)

De Facto Recognition

The government of a state is not

constitutionally valid

The ruling power has been efectively

implemented in the entire territory of

a state

The government is usually

established by a revolution

(79)

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

(80)

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 ofcially

recognized a leftist guerilla movement

that had fought several years against the

(81)

Recognition of national liberation

movements

• Not yet applied universally

Western countries such

as USA and UK still reject this type of recognition

Example: the recognition of PLO through UN

(82)

Thank You

Thank You

&

&

See You Again

See You Again

In The Next

In The Next

Sessions

(83)

STATE RESPONSIBILITY

Session 12 & 13

What do you

know about

(84)

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.

(85)

When a state responsibility/liability

arises?

A state can incur liability for either “intentional” or “negligent” conduct.

What is the diferent between “intentional” and “negligent”

conduct?

(86)

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

(87)

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?

(88)

State Responsibility vs

State Sovereignty

Can a state that conduct a wrongful

(89)

SOVEREIGN IMMUNITY

When sovereign immunity applies, one

State’s judge cannot assert jurisdiction

over another state in its courts.

Example: Country A cannot be tried by

the court of County B without Country

A’s consent.

Reparations must be sought in some

(90)

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

(91)

The scope of sovereign

immunity

1. States

2. Heads of State

3. State

(92)

Types of Immunity

Absolute Immunity

A foreign head of

State was not subject to any civil or criminal prosecution during

and after leaving ofce

Total immunity from suit in other states, regardless of the

nature or purpose of the sovereign’s 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

(93)

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:

1. sovereign versus private 2. Public versus private

(94)

Make A Hypothetical Case

Regarding Absolute and

Restrictive Immunity

(95)

Thank You

Thank You

&

&

See You Again

See You Again

In The Next

In The Next

Sessions

(96)

REVIEW

MATERIAL 1-13 Session 14

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

(97)

Hypothetical Case

• Country A’s 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 fres 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.

(98)

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.

(99)

Thank You

Thank You

&

&

See You In

See You In

Mid Semester

Mid Semester

Exam

(100)

Human Rights

(Session 15 & 16)

What is the

meaning of the term “human

rights” according to you?

(101)

The Meaning of Human

Rights

Human rights are those rights

possessed by an individual that

cannot be withheld or withdrawn by a

state”

“The protection of individuals and

groups against violations by

(102)

International Bill of Human

Rights

1. The 1948 Universal Declaration of

Human Rights (UDHR)

2. The 1966 International Covenant on

Civil and Political Rights (ICCPR)

3. Its two optional protocols

4. The 1966 International Covenant on

Economic, Social, and Cultural

(103)

The 1948 Universal Declaration of

Human Rights (UDHR)

First Category covers “civil and

political rights”:

1. The right to life, liberty, and security of the person

2. The right to leave and enter one’s own country

3. Freedom from slavery and torture

4. Freedom from discrimination, arbitrary arrest, and interferences with privacy 5. The right to vote

(104)

The 1948 Universal Declaration of

Human Rights (UDHR)

Second category consists of

economic, social, and cultural

rights:

1. The right to own property

2. The right to work

(105)

Is this case against Human Rights?

(Indonesian Case)

Let’s watch, analyze, criticize and

make recommendations

(106)

The 1966 International Covenant on

Civil and Political Rights (ICCPR)

The essential provisions are:

Articles

2,4,6,7,8,9,12,17,18,19,20,23,26,27,28

Your Tasks:

(107)

Two Optional Protocols to the

ICCPR

The frst Protocol

is designed to

monitor compliance with the ICCPR

via Article 28 Human Rights

Committee

The frst Protocol

enabled the

committee to receive and consider

(108)

Two Optional Protocols to the

ICCPR

The second Protocol is a separate treaty

that was designed to put teeth into ICCPR previsions.

- Art. 6 of the ICCPR attempts to limit death penalty practice

- States that ratify the second Protocol thereby agree not to impose the death penalty under any circumstances.

(109)

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.

(110)

Human Rights Treaties in

Europe

1. The European Human Rights Convention

(ECHR) contains civil and political rights that are virtually identical to those set forth in the UN Covenant on Civil and Political Rights.

2. The European Social Charter contains the

same economic and social rights set forth in the UN Covenant on Economic, Social and Cultural Rights.

• The Executive Body is the Council of Ministers

(111)

Latin America’s Human Rights

Norms

1. The 1948 Charter of the Organization of American States (OAS).

2. The 1948 American Declaration of the Rights and Duties of Man.

3. The 1978 American Convention on Human Rights.

• The norms are monitored by the Inter-American Commission on Human Rights.

(112)

Africa’s Human Rights

Program

The 1986 African Charter on Human and People’s Rights.

The 1986 African Charter contains many of the human rights principles mentioned in the UN Charter and the UN Universal

Declaration of Human Rights

The 1986 African Charter established the African Commission on Human Rights,

which monitors human rights enforcement on the African Continent.

(113)

Your assignment (1500 words)

The Violations of Human Rights in

Asia

(The analysis of the International Bill

of Human Rights)

You may choose:

1. Any real case regarding the

violation of human rights in a

country in Asia (example,

(114)

Thank You

Thank You

&

&

See You Again

See You Again

In The Next

In The Next

Sessions

(115)

Citizenship

(Sessions 17 & 18)

(116)

The Meaning of Citizenship

Citizenship (an individual’s

nationality) is a bond between

an individual and a state that

establishes reciprocal rights and

(117)

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.

(118)

How is citizenship acquired?

1. Passively by parentage

2. Passively, by being born in a state

that considers a child born there its

citizen

3. Actively, by naturalization of an

individual who voluntarily changes

allegiance from one state to

(119)

PARENTAGE

The child’s

citizenship was that of the parents

Jus Sanguinis or ‘blood rule’ for establishing

citizenship.

Applied in Europe,

Latin America and many English

speaking countries.

(120)

BIRTH

A nationality by

birth rule.

Jus soli

or “soil

rule” for

determining

citizenship.

Give your

(121)

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

(122)

NEW FORMS OF

CITIZENSHIP

1. Citizenship

provided by an

international

organization

2. Citizenship in a

borderless

(123)

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:

1. The right to move and reside freely within the territory the territory of the member states;

2. 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;

3. Protection by the diplomatic or consular authorities of any member state, on the same conditions as the nationals of that state;

4. The right to petition the European Parliament about any matter that comes within the Community’s

(124)

CITIZENSHIP IN A BORDERLESS

WORLD

• With the advent of the information age, or the electronic world of

‘cyberspace’, citizen one day may not be dependent on the

relationship between the individual and the state.

Globalization will revise the degree to which

nation-states are

(125)

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

(126)

Unusual Burdens As A Results of

Dual Nationality

Give your

opinions:

1. Jurisdiction 2. Taxes

3. Military service 4. Protection when

(127)

STATELESS

• WHAT DO YOU KNOW ABOUT ‘A STATELESS’ PERSON?

CAN YOU GIVE EXAMPLES WHAT CAUSES THE STATUS OF STATELESS ON AN

(128)

STATELESS

Individuals are stateless when they lack the

nationality of any state.

Loss of one’s 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

(129)

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 fed 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.

(130)

Refugees under International

Law

Article 1.A.(2) of the 1951 Geneva

Convention on the Status of Refugees:

A refugee as any person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality,

membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of

the protection of that country; or, who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or …

(131)

Refugees’ Legal Status Under

International Law

Article 33.1 of the 1951 Convention:

A state may not return an individual to his or her homeland if ‘his life or freedom

would be threatened on account of his

race, religion, nationality, membership of a particular social group or political opinion’.

Are the 42 Papua protected by DIMA,

(132)

Thank You

Thank You

&

&

See You Again

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In The Next

In The Next

Sessions

(133)

Jurisdiction

(Session 19 & 20)

What is the

(134)

The Meaning of Jurisdiction

Jurisdiction refers to the power

of a state to:

1. Enact laws that proscribe

certain criminal conduct

2. Apprehend ofenders

(135)

FIVE JURISDICTIONAL

PRINCIPLES

1. Territorial principle

2. Nationality principle

3. Passive personality principle

4. Protective principle

(136)

Territorial Principle

Based on the location of the defendant’s act. Two relevant applications are the subjective

form-associated with conduct commencing within a state and the objective form-when the conduct commences outside but has its ultimate efect within the prosecuting state.

Subjective Form:

Defendant’s conduct violates State X law Conduct starts within State X

Completed within State X

Objective Form:

Defendant’s conduct violates State X law Conduct starts outside State X

(137)

Nationality Principle

Based on the nationality of the

defendant

Nationality principle:

Defendant’s conduct violates State X

law

(138)

Passive Personality Principle

Based on the nationality of the

victim

Passive personality principle:

Defendant’s conduct violates State

X law

Victim

is a citizen (national) of X

(139)

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:

Defendant’s conduct violates state X law Conduct may start and end outside State X (Territorial must either start or end in X)

(140)

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:

Defendant’s conduct sufciently heinous to violate the laws of all states.

(141)

WORK IN PAIRS

Make your own

hypothetical

cases relating

to the

application of

the fve

(142)

Your Hypothetical Cases

Principle of Territory:

+ Subjective Form:

Mr. lmberg, a Swiss citizen plotted the overthrow of the Italian Government. He was captured by the Italian Police in Rome where he planned this coup d’etat.

+ Itay has possesses the subjective

(143)

Your Hypothetical Cases

Principle of Territory: + Objective Form:

Mrs. lmberg, a Swiss citizen plotted the overthrow of the Italian Government. She began the plots in Belgium, then she went to Italy to join her husband. She was

captured by the Italian Police in Rome where she planned this coup d’etat.

+ Itay has possesses the objective

(144)

Your Hypothetical Cases

+ Nationality Principle

The US government imposes a policy that “No US citizen is permitted to travel to

Yugoslavia to comply with the UN

Resolution”.US Chess master, Bobby Fischer defed the ban.

Although his conduct took place in foreign soil, the US could rely on the nationality principle to legitimize any ensuing

(145)

Your Hypothetical Cases

Passive Personality

Due to a negligence of a French ship’s ofcer, the French ship struck a British

ship and killed 10 British ship crews while the ship was passing the Black Sea.

British government relied on the passive personality principle to support its

prosecution of the French ship’s ofcer. The ofcer’s conduct harmed British

(146)

Your Hypothetical Cases

Protective Principle

A Canadian citizen made false statements while trying to obtain a visa from the US Consulate in Montreal.

The court relied on the protective principle because all the elements of the crime

occur in the foreign country and

(147)

Your Hypothetical Cases

Universality Principle

Piracy was usually committed on the

high seas rather than within the

territorial waters of any nation. The

pirates often fed to distant land or

(148)

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 fed to

(149)

The Extraditable Ofenses

• Inciting riots

Piracy

• Drug law violation

Bribery

Evasion of taxes

• Unfair business transactions

Violations of import-export

(150)

“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

(151)

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, Milosevic’s defense

lawyer characterized any attempt to extradite him as an “outright kidnapping, an act of legal terrorism”.

Is it possible to extradite a criminal

(152)

Avoiding Extradition

(Extradition Limitations)

Extradition treaties typically require the

extraditable ofenses be those that violate the laws of both parties to the treaty. The conduct charged may violate the laws of one country but not the other.

Hypothetical case:

Country A does not apply the death

penalty in criminal cases, but Country B does. A citizen of Country B was accused of the sex-torture slaying 13 people. May Country A refuse the extradition of

(153)

Avoiding Extradition

(Political Ofense Exception)

Most extradition treaties contain an

escape clause that is characterized as a political ofense.

The requested state thereby retains the discretion to deny extradition.

There are no clear standards for the exercise of this discretion.

The amendment to the 1986 US-UK

extradition treaty: “extradition shall not

(154)

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 fy the aircraft to Country Y. May Country X request the

(155)

Thank You

Thank You

&

&

See You Again

See You Again

In The Next

In The Next

Sessions

(156)

Territory

(Session 21 & 22)

Why is it

signifcant to

determine a

(157)

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

(158)

Sovereign Territory

States possess the right to control the

land located within their territorial

boundaries.

The extend of that sovereignty is

ordinarily defned by oceans, mountains,

and other natural frontiers and barriers.

Please determine the territorial

(159)

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

(160)

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

(161)

Terra Nullius

Was Australia

prior to the

arrival of

Europeans

(162)

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.

(163)

New Modes of Territorial

Renunciation

Joint Decision

(164)

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

(165)

Make your Own Examples

Explain the

(166)

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

(167)

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.

Make your examples to explain the

(168)

Thank You

Thank You

&

&

See You Again

See You Again

In The Next

In The Next

Sessions

(169)
(170)

Dispute Resolutions Under

International Law

Arbitration

Diplomacy

Judicial Methods (Litigation)

Alternative Dispute Resolution

(171)

What is arbitration?

(172)

Arbitration (Non Litigation Dispute

Resolution)

Parties often

determine who

will decide

(173)

DIPLOMACY

The national participants do

not submit their disputes for

resolution by an “outside”

(174)

Litigation

The court composition and

(175)

Alternative Dispute Resolution (ADR)

• Negotiation: is completely controlled by the

immediate parties to the dispute. Negotiations between states are normally conducted through diplomatic channel.

• Inquiry: is conducted by someone who is not a party to the dispute and who attempts to provide an

objective assessment of the respective positions. • Mediation: involves the assistance of an outsider

who is not a party to the dispute.

• Conciliation: ia third-party dispute resolution in a more formalized setting than negotiation or

mediation.

(176)

International Dispute Resolutions

(Discussions)

• Your country breaches

International Law.

Which dispute

resolution methods you prefer?

Arbitration, ADR,

(177)

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

(178)
(179)

The Permanent Arbitral Entities

• The Permanent Court of Arbitration: is not a court. Its judges serve on small arbitration panels

available for the arbitration of inter-State dispute.

The International Chamber of Commerce Court of

Arbitration: facilitates the arbitration of private business disputes.

The International Centre for Settlement of

Investment Dispute: refers mixed arbitration disputes (between a State and a private

(180)

Courts

1. The Permanent Court of International

Justice (the frst 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

(181)

The International Court of

Justice (ICJ)

The ICJ hears cases referred to it as

follows:

1. As specifcally provided in the UN

Charter

2. As provided in the ICJ Statute

3. Under special international

(182)

International Criminal Court

(ICC)

The ICC try individuals accused of the following:

1. Genocide, as defned in the 1949 Genocide Convention

2. International and internal war crimes,

“committed as part of a plan or policy or as part of a large-scale commission of

such crimes”

(183)

Ad Hoc International Criminal Tribunals

• The Nuremberg and Tokyo Tribunals in 1945 (Germany and Japanese war crimes)

The International Criminal Tribunal for the

Prosecution of Persona Responsible for Serious Violations of International Humanitarian Law

Committed in the Former Yugoslavia (ICTY) in 1992 (war crimes in Bosnia)

• The International Criminal Tribunal for the Persons Responsible for Genocide and Other Serious

Violations of International Humanitarian Law

Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of

(184)

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

(185)

FINAL EXAM CLUES

The concept of jus soli and jus sanguinisHow to determine that some is a refugee May a country force a refugee to go back

to the country in which he is being suppressed?

The concept of extradition

The concept of territory and jurisdictionThe concept of res communis

(186)

Thank You

Thank You

&

&

See You In Final

See You In Final

Semester Exam

Semester Exam

Good luck!!!

(187)

MID SEMESTER EXAM

Anggora is a new independent State located in Zip

Continent. There are 5 other States sharing the Continent with Anggora. One of the State is Siam. This State is bordered by a long wide river with Anggora. Zeto is also the neighbouring State of

Anggora. The border between Anggora and Zeto is a mountain. All States in this Continent have entered into a military agreement. The situation in Zeto is not peaceful since there is a certain group of people

demanding an independent from Zeto. As the part of Military Agreement, Siam sends its troops to Zeto via Anggora. The ship which loads Siam’s troops is

having troubles when entering the territorial sea of Anggora. In order to reach the land of Anggora safely, the ship has to dump a number of its supplies into the sea. Just a few days after the passing of the Siam

ship, Anggora naval ofcers notice that lots of fshes are foating and dying due to some of the chemical

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