INTERNATIONAL LAW
What is meant by the term
“nation” or “state”?
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
WHAT IS MEANT BY THE LAW OF
NATIONS?
What is international law?
• Please give your
opinions about the meaning of the following terms:
• “INTERNATIONAL”
• “LAW”
• “INTERNATIONAL
The meaning of
international law
•
Modern approach:
“the body of law that regulates the
activities of entities possessing
international personality”
•
Traditional approach:
The division of
international law
PUBLIC
INTERNATIONAL LAW
(INTERNATIONAL LAW)
PRIVATE
What is “private international
law”?
• The body of law of law that regulates the
relations between persons and entities in diferent states
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
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
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
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
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
SOME BRANCHES OF
INTERNATIONAL LAW
• International criminal law• The law pertaining to use of force • International humanitarian law
• Law of the Sea • Diplomatic Law • Consular Law
• Law of State Responsibility
Why these areas should be
regulated by international
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
Fundamental conficts over
international law
The concept of “a nation-state”
(nations controlled by a
centralized system of
government)
•
Do you agree with “the
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”
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
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
Fictitious Case
• Group A: the head of the
regional organization (International Fruits Organization)
• Group B: the Apple
Republic
• Group C: the
international law
Moot Court (International Fruits
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
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)
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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
INTERNATIONAL LAW WITHIN THE
STATE
(Session 5 & 6)
What is the
function of
Is there a relationship between
international law and national law
THEORIES REGARDING THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL
LAW (MUNICIPAL LAW)
Monism 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
DUALISM APPROACH
• international and
national law are
distinct legal orders (they are not parts of a unifed whole).
How do a national court adopt an international law based on monism
Discuss With Your Partner
•
The French Constitution provides
that treties are “law” that must be
applied within the French legal
system.
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.
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.
Do You Think That
International Law vs National
Law
Can a state breach its obligation in
international law on the ground that its national law
prevails
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
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
Hypothetical Case
• Defnition of
Refugees Under the 1951 UN Convention covers “persecution based on race,
religion, nationality, etc.
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WHAT IS THE MEANING OF
“SUBJECT OF LAW”?
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
SUBJECTS OF INTERNATIONAL
LAW
PEOPLE REPUBLIC OF CHINA
SUBJECTS OF INTERNATIONAL
LAW
1. STATE;
2. INTERNATIONAL ORGANIZATION;
3. HOLY THRONE;
4. INDIVIDUAL;
5. BELIGERENCY.
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
Give your arguments!
•
Is Republic Maluku Selatan (RMS) a
state?
INTERNATIONAL ORGANIZATION
• ORGANIZATION WHOSE MEMBERS CONSIST OF STATES
• HAVE A SIGNIFICANT MEMBERSHIP
Give examples of international
organization
•
Regional organization
HOLY THRONE
• LATERAN TREATY 1928;
• HAS SOVEREIGNITY AS THE SUBJECT
OF INTERNATIONAL LAW;
• CAN NOT BE
Give your opinions
Do you agree
if the
BELLIGERENCY
• THE GROUP OF
PEOPLE MAKE AN
ACTION TO SEPARATE THEMSELVES FROM THE SOVEREIGNITY OF A STATE.
• THEY POSESS HALF
OF NATONAL
Give your opinions
• Is Gerakan Aceh Merdeka (GAM) a subject of
INDIVIDUAL
•
A person or citizen is a
subject of international
law.
•
For example: Former Iraqi
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
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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?
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Recognition of States and
Governments
(Session 10 & 11)
The Meaning of
“Recognition”
Recognition generally
refers to one state’s
willingness to establish or
maintain ofcial relations
Is it important for a state to obtain a recognition from another state?
Germany France England
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
Types of recognition
Recognition
of States
Recognition
of
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
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.
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
Types of Recognition of
States
•
Expressed
recognition
•
Implicit
recognition
•
Collective
recognition
•
Premature
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
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
Collective Recognition
•
Via international treaty or
multilateral conference
Example: 5 ASEAN
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
Types of Recognition of
Government
• Similar to the types of recognition of
state
• De facto and de
jure recognition
• Recognition of belligerency
• Recognition of
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
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
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
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
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Sessions
STATE RESPONSIBILITY
Session 12 & 13
What do you
know about
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.
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?
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
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?
State Responsibility vs
State Sovereignty
•
Can a state that conduct a wrongful
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
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
The scope of sovereign
immunity
1. States
2. Heads of State
3. State
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
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
Make A Hypothetical Case
Regarding Absolute and
Restrictive Immunity
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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
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.
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.
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Mid Semester
Mid Semester
Exam
Human Rights
(Session 15 & 16)
What is the
meaning of the term “human
rights” according to you?
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
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
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
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
Is this case against Human Rights?
(Indonesian Case)
Let’s watch, analyze, criticize and
make recommendations
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:
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
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.
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.
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
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.
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.
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,
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Citizenship
(Sessions 17 & 18)
The Meaning of Citizenship
Citizenship (an individual’s
nationality) is a bond between
an individual and a state that
establishes reciprocal rights and
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.
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
PARENTAGE
• The child’scitizenship was that of the parents
• Jus Sanguinis or ‘blood rule’ for establishing
citizenship.
• Applied in Europe,
Latin America and many English
speaking countries.
BIRTH
•
A nationality by
birth rule.
•
Jus soli
or “soil
rule” for
determining
citizenship.
•
Give your
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
NEW FORMS OF
CITIZENSHIP
1. Citizenship
provided by an
international
organization
2. Citizenship in a
borderless
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
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
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
Unusual Burdens As A Results of
Dual Nationality
• Give your
opinions:
1. Jurisdiction 2. Taxes
3. Military service 4. Protection when
STATELESS
• WHAT DO YOU KNOW ABOUT ‘A STATELESS’ PERSON?
• CAN YOU GIVE EXAMPLES WHAT CAUSES THE STATUS OF STATELESS ON AN
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
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.
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 …
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,
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Jurisdiction
(Session 19 & 20)
•
What is the
The Meaning of Jurisdiction
•
Jurisdiction refers to the power
of a state to:
1. Enact laws that proscribe
certain criminal conduct
2. Apprehend ofenders
FIVE JURISDICTIONAL
PRINCIPLES
1. Territorial principle
2. Nationality principle
3. Passive personality principle
4. Protective principle
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
Nationality Principle
•
Based on the nationality of the
defendant
•
Nationality principle:
Defendant’s conduct violates State X
law
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
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)
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.
WORK IN PAIRS
•
Make your own
hypothetical
cases relating
to the
application of
the fve
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
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
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
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
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
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
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
The Extraditable Ofenses
• Inciting riots
• Piracy
• Drug law violation
• Bribery
• Evasion of taxes
• Unfair business transactions
• Violations of import-export
“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
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
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
Avoiding Extradition
(Political Ofense Exception)
• Most extradition treaties contain anescape 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
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
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In The Next
In The Next
Sessions
Territory
(Session 21 & 22)
Why is it
signifcant to
determine a
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
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
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
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
Terra Nullius
Was Australia
prior to the
arrival of
Europeans
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.
New Modes of Territorial
•
Renunciation
•
Joint Decision
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
Make your Own Examples
•
Explain the
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
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
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In The Next
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Sessions
Dispute Resolutions Under
International Law
•
Arbitration
•
Diplomacy
•
Judicial Methods (Litigation)
•
Alternative Dispute Resolution
What is arbitration?
Arbitration (Non Litigation Dispute
Resolution)
•
Parties often
determine who
will decide
DIPLOMACY
•
The national participants do
not submit their disputes for
resolution by an “outside”
Litigation
•
The court composition and
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.
International Dispute Resolutions
(Discussions)
• Your country breaches
International Law.
• Which dispute
resolution methods you prefer?
• Arbitration, ADR,
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
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
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
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
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”
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
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
FINAL EXAM CLUES
• The concept of jus soli and jus sanguinis • How 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 jurisdiction • The concept of res communis
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Semester Exam
Semester Exam
Good luck!!!
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