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>>>>page 1<<<<
1.) La Grand- involved in an attempted bank robbery- tried in February; arrested January 7, 1982- appeal for sentences but rejected*throughout all the proceedings, they were not
informed of their right to consular assistance-did not acquire American citizenship
US - cited circumstances, pre-text/excuse of
conduct; ignored by Germany- paragraph 16 - La Grand -didn't mention
German citizenship- paragraph 17 - *the two brothers [did not even speak German]
- typical American behavior*were not informed of consular assistance*through co-detainees (also German) ->
knowledge of Art. 36 VCCR on Dec. 21, 1998 - US authorities of their right to consular access
(paragraph 24)Breard (p. 170 - Contemporary Practice of the United States) Paraguay - withdrew the caseGermany - more resources to continue the case
Q#3 Article 36 1(6)Two parts
1. Authorities of reselving state must inform consular
2. Authorities (r.s) - inform the person detained- violated by the United States
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US response admitted the breach (Article 36 1(b))Germany
- US violated as rights of Germany1(a) and 1(c)- right to communicate with its nationals- US violated Germany's rights to visit provide
assistance*paragraph 40
-US-claims were "particularly misplaced"- German claims (on ab and c) -> same!
*US-admitted violation against (b) -right to consular
assistance of La Grand
-but hesitated to agree that it has violated (a) and (c)Germany - right to compensation if the US is proved to lack international responsibility/reparation
The Court (paragraph 42)-violation of one article may lead to (another)
violators of another article, although this may not always be the case.
Q#4 Implications of Consular Assistance as human right paragraph 75
Germany's stand - Article 36 - individual right- initial position
During the proceedings (paragraph 78)-consular assistance
1. individual right2. described as a human right
Attitude of the US:Paragraph 76: Vienna Convention - right of states not of wherein individuals could derive rights
1. individuals2. right to consular assistance
Court's conclusion:Article 36 1(b) - individual right
1. "... his rights"A. HIS: possessive adjective
2. paragraph 77- detainee may object consular
assistance to the authorities of receiving - informing
>>>>page 3<<<<
-other courts have already considered Article 36 (1(b)) as an in individual right
US- Germany (accusation) *death penalty -
popular- turning the court into a court of appeal
- Germany was trying to appeal a national case to the ICJ
*right to life (court's judgment *) - US may not be able to comply with the judgment
Indicator (Paragraph 111 & 112): US behavior:
Dept. of State simply transmitted the
provisional orders to Arizonian authorities
*Initially Germany argued that the right to consular assistance
1. as individual right2. this right is human right
Formulation Article 36 1(b)1. "his right"2. Paragraph 77 - 'objection'
ICJ- didn't want to contradict other courts- if accepted - must examine right to life:
possible non-compliance with the judgment
Q#5Germany
- demanded assurances of non-repetitionpar. 118
- existence of neat repetition (possibly)- appropriateness of assurances +
guarantees1. existence of a real risk of repetition2. seriousness of the injury suffered by
Germanypar. 83 "eloquent" - German - not satisfied
Objection of the US1. par. 1192. par. 119 - new obligation3. US
- was already "strengthening the regime of consular notification (local/state level)
*reference cards were printed 400,000-project size
Court par. 123- individuals were exposed to prolong
detention/sentenced to severe penalties
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Procedural Default-Paragraph 23Tams:
1. cause - cased by an external factor/consular assistance may change. Courts
dismissed*2.prejudice -
Par. 123 (US)- allow - review(preferably judicial review)/reconsideration of the conviction
*Minimize (US)Par. 72 - Even if the La Grand brothers were
informed no change will occurPar. 74 - Court's argument
Valdez - Mexico*US played the role in the drafting of Optional
Protocol*US violates the VCCR - violation of rights of US
nationals
Torres*US didn't withdraw from VC but withdrew
from the Optional Protocol-avoid more cases; time consuming, costly,
humiliating-US: "law-abiding"
- w/optional protocol- humiliating- US does not like apologizing
Dispute Settlement by the ICJ (Optional Protocol not V.C)
- hesitation of states to ratify VC if DS was in the VC.
>>>>page 5<<<<
Problem 62.) Yugoslavia - disintegrated
Serbia + MontenegroBosnia + HercegoviniaSloveniaCroatiaFYROM (Macedonia)
- Former Yugoslavia- due to protest of Greece
Problem:1. Serbia - Montenegro
- considered itself as the continuing state of Yugoslavia2. 4 other states: successor states
- argued that all 6 were successor states*dispute
-Serbia - Montenegro could not apply membership to UN + occupy the seat of Yugoslavia in the UN
- would not have to prove that it was a peace - loving state - "ethnic -cleansing" taking
place-could claim assets of Yugoslavia
-Serbs (Bosnian Serbs) - Christian Orthodox hilling the Muslims (early '90s)1993
- Srebrenica-massacre by Bosnian serbs
Difference of former Yugoslavia + former USSR-agreement of states that Russia will take the
seat of USSR in the Security council*signed agreement 1992
- capital of Kazakhstan- no reason for dispute
*Former Yugoslavia - disagreement of successor states
*Blum- supported Serbia & MontenegroReasons (Current Developments reading)
1. Case of British India and Pakistan (had to apply for membership) + Bangladesh
2. Serbia - Montenegro - nearly half of Yugoslavia's territory + population
Counter - Arguments-p.244 - Responses
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Opinions of the Batinder Arbitration CommitteeOpinion 1:
-Sept. 29-SFRY - dissolution2. (b) in a federation, the Federal Presidency,
the Federal council etc should meet the criteria of participation and representatives inherent in a
federal state- "proper representation of states"- in a federal state, each of the organ should
have representation from each constituent unit and must participate
- Presidency of SFRY - rotating presidency
*Federal Army: criteria of representation + participation
-the troops should come from the different units of the Federation
Indicators:1. Federal authorities were not able to
prevent the armed conflict; unable to stop the fighting2. Referendums were organized
- In favor of independence* Opinion #8 par.3 (c) (4th July,
1992)
- Federal authorities no longer have control over the territories
- process of dissolution*SFRY does not exist
Response of Serbia - Montenegro - Opinions-attitude of Serbia -Montenegro- opened/rejected the opinions*strictly speaking the opinions were non-
binding/not legally binding
Assessment of legal Consequences of the OpinionsAnalogy with Recognition:*Theories of Recognition
1. Constitutive Theory of Recognition- meaning (shaw)- disadvantages
1. unrecognized states (may not be) pre-test to non-complaince to the
ruler of international law.
example: Israel (seat at the UN, Taiwan does not)
>>>>page 7<<<<
2. existence- recognized
only by others- "partial -
existence"state practice
- (to the two theories)- combine the two
theories*consecutive theory -
prevail: Circumstances*situations of
uncertainty or doubt
Consequences of Recognition-
Q#2 Conditions [p.252 (Shaw)]; 677 Murphy's Serbia Montenegro
1. independence1. 2. withdrawal of 2. facilitation
*Conditions on Successor States (Shaw)- for recognizing the successor states1.2. guarantees for the rights
3.4. commitment to settle the disagreement5.
Legal Basis: (Opinion #8) par. 4if Recognition is declaratory,
-recognition is not pre-requisite for the foundation of a state but it is discretionary; act
that states may choose in a manner of their choosing (political act, not an obligation
-conditions/requirements should not violate international law; requirements - EC didn't
constitute int'l law breaches rather compliance of successor state to int'l law (N charter)
Q#6 Should the Philippines have recognized the Libyan National (Transnational) Council in June 2011?Transnational
- Philippines considering recognition of governments and not of state
>>>>page 8<<<<
*state of recognition - Libya has been recognition
*Philippines didn't break diplomatic relations with Libya-Change of government, even if unconstitutional, state continues to exist
Why June 2011 (Talinon)Event in Libya: NTC - government of Libya*courageous act of the Philippines (June 2011)
- The TNC had not yet become the gov't of Libya
*August 2011 - NTC gov't of Libya; recognition before the actual take over
UK: RecognitionBefore 1980: distinguish recognition of
government and recognition of state
Philippines*issue was never brought up again
>>>>page 9<<<<
3.) Problem 7 (Cassese)Territorial SeaTerritorial Waters
-Subject to sovereignty of territorial state
exception: -foreign ships may pass on their way to (internal
waters) the open sea/territorial sea of other state -innocent passage
-no need for the consent of the territorial state as long as there's no threat, spying, etc.
-compliance to the ruler on the territorial state
Foreign warships-submarines must navigate on the surface*flags
Great powers vs. Coastal State
Jurisdiction over violations/ offenses on-board (Foreign ships)
- Jurisdiction on the Flag states- Ships + Aircrafts have nationality
8 miles- limit of the shore canons (justification)- great powers - breadth of territorial sea- from the low water line
Base lines- lines used to draw the low water mark*Norway - water line - heavily indented
Method of straight baselines (p.85)1. must not depart to any appreciable extent
from the general direction of the coast2. the sea areas lying within the lines must be
sufficiently closely linked to the land domain to be the subject to the regions of internal waters3.4.
>>>>page 10<<<<
Contiguous Zone- maximum of 12 miles - breadth- 24 nautical miles from the baseline- 12 miles - territorial sea, 12 miles contiguous
zonewithout contiguous zone, risk ship committed as
infraction could escape to the high seas-zone of transition to prevent ships who
committed infractions from escaping to the high seas
Exclusive Economic Zone-max 100 nautical miles
-state rights-sovereign rights, not sovereignty-extent of rights: limited
Coastal states: p. 88-exploring , exploiting, conversing +
managing living and non-living natural resources-Laws and regulations by the Coastal
States1. licensing of fishermen, fishing
vessels + equipment + fees2. determining the species w/c
may be caught + fining quotas to catch3. regulate seasons+ areas of
fishing (types , sizes + amount of gear)4. fixing age and size of fish +
other species that maybe caught*quotas of foreign fisherman
Powers of the State (8 coastal)- may not prevent other states from exercising
their right of navigation + overflight, aircrafts may fly over the waters (exclusive economic zone) + right to lay cables + pipelines
Continental Shelf-coastal states - sovereign rights- part of underwater land, covered with shallow
water- geological formation
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Differences (Continental Shelf Vs. EEZ)<Continental Shelf>- may extend beyond 200 miles in exceptional
careerSuper adjacent watersDelimitation: problems <200 miles>
Regulations by the Coastal States- justification of 200 miles
High Seas- free for energy state (res communis)- shrunken - existence of Continental Shelf + EEZ
Freedom of States (p.90)- freedom of navigation + overflight of
laying submarine cables + pipelines, fishing, scientific research, construction of
artificial island + other installations<permitted by international ruler>
Article 110 of the 1982 Convention
Right of hot pursuit- start in the areas of territorial jurisdiction
continues to #5- must not be interrupted- seize ship
Developing Countries- had to compute with the large fishing vessels
of developed countries- lean with the EEZ
Territory (Shaw)Means of Acquiring territory
1. Western Sahara (latin term) - 2. Accretion
- new land is formed - geographical process
- avulsion - violent maybe shifted
- navigable3. Cession
- peaceful transfer of territory from one sovereign to other
- Philippines - Treaty of Paris - Dec. 10, 1898
- Right of self determination
>>>>page 12<<<<
4. Conquest + use of force- act of defeating an
opponent/occupying all/part of its territory- form of annexation - once the
war has ended- illegal act; prohibition of
thread + use of force
5. effective control/occupation- validity Palma's case page
840, paragraph 4o if there is no
conventional line*if treaty exists, effective
occupation can't overpower ito if there's a
provision on the conventional line
Palma's Case Q#1- "discovery"
- United Stated
- successor state of Spain (case of the Philippines); p.887 (agreement of US - sovereignty
through discovery + treaty over Palmas)- Arbitrator on discovery:
p. 844 (paragraph 2)1580 - 1640 (Spanish + Portuguese)
- "I (Dha) de (or das) Palmeinas"- the Portuguese name - "Spanish (for)
discovery"p.845 (1st complete paragraph)
- Spanish only saw the island and did not land' no contact with the natives
- Willing to grant that discovery max of Spain (Arbitrator) but...
*value of discovery p. 845 (2nd); last*evaluation of Law p.845
- the same principle w/c subjects the act creative if a right to the law in force at
the time the right arises, demand that the existence of the right, its continued manifestation, shall follow the conditions required by the evaluation of law
- Discovery only served as notice to the other states (Shaw)
*Agent of the State-
>>>>page 13<<<
Q#2: Claim on the basis of contiguity: The US- Title: relative rather than absolute (Shaw p191)
o State with better argument- P838-839
o Customary to examine – states claiming sovereignty possesses a title – superior to that which the other state might possible bring forward against it
>>>>page 14<<<<
4.) PROBLEM 7Self determination – could only be applied to colonial situations
- A people ruled by minority, under illegal occupation; *no right of cession under international law
- Cannot be the basis to claim territory
Acquiescence and recognition Combodia + Thailand
o Question of sovereignty over the Temple of Preah Vihear
o Thai Prince: temple area -> French flago Map: temple within Cambodiao Thailand did not protest or asked for
further copieso Thailand estopped – could not change
its position
Importance/Vital – in asserting territorial claims- if the acquisition is against the will of the foreign sovereignOpposition of the new sovereign: former may have been defeated or expelled from the territory; former: acquiescence -> strengthen claim of new sovereign
UTI POSSIDETIS page 627- effect of the freezing the territorial titles existing at the moment of independence*YUGOSLAVIA
- Latin America – Spanish emire was divided into units
- Justification for uti possidetis: prevent instability; without uti possidetis, states might fight each other due to re-drawing the borders/demand borderlines to be re-drawn
- ensure stability of borders at the time of independence
Clear uti possidetis line- illegal occupation- Colonial effectivities (colonial control or practices) could not prevail without uti possideties or without clear U.P line- colonial contact will show how the title…
- international tribunal – observe colonial authorities
>>>>page 15<<<<
Border treaties/boundary treaties Not binding only on the parties Rights on all states Could be source of titles Rationale: there is a need for stability of the
boundaries5.) PROBLEM 8:France – conducting nuclear tests (underground) – South Pacific
- Moruroa + Fangataufa atolls- atmospheric nuclear tests – radioactive
fallouts- 1960s – in the Sahara; France possessed
territories/colonia; **complaints from Algeria
French attitude (South Pacific) – nuclear testing – causes no harm to the environment
Rebuttals/Argumentd For the moment, the radioactive elements had
not yet spread (nothing had happened), but after 500-1000 years, there might be a leakage
Half-life of 10, 000 years – debris of pas explosions
o Radioactivity in plankton found near Moruroa + plutonium in seawater
o **debris will never disappear (“half” would still be left)
Rainbow warrior (British nationality) Headed to Vanuatu to Moruroa
August -> letter from France to New Zealand on the incident: inexcusable crime
France- initiated an investigation Conclusion: Denying French involvement in the
event
Q#1: To establish the responsibilityTHREE FACTORS:
1. Existence of international legal obligation2. Act/omission which violates the obligation3. Loss or damage has resulted from unlawful act
or omission <failure to act>a. It was not even clear that the author of
the damage was a stateb. France blamed non0state actors (Short
article by journalist)First factor: did there exist responsibility or international obligation to New Zealand
France: obligation to respect territory of New Zealand
o French agents illegally entered New Zealand
o Duty to refrain from the use of forceo **ultra vines – exceeding power (p. 788
Shaw) State will still be responsible
(even if orders didn’t come)Condition #2
Exhaustion of domestic remedies by the individual if he or she has secured a judgment from the supreme court
o Justification For the purpose of the rules:
give the state the opportunity to solve the problem
**the rule does not apply if one state violates the right of another
CLAIMS ON THE ISSUEBritain – did not take up a claim on Rainbow Warrior
Close ties with France Like France, Britain has nuclear weapons Would appear that Britain is endorsing anti-
nuclear campaigns
Portugal – photographer killed was “Portuguese” Was not Portuguese at the time of his death Born in Portugal but became Dutch because he
didn’t want to fight the colonial wars in Angola NO Claim on behalf of Fernando Pereira
Denmark – claim on behalf of Pereira Dutch Citizen Page 210 “judgment”
New Zealand Since 1957, NZ and France -> founding
members of the EEC France demanded the others should support
the; at least not to embarrass France
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