>>>>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

>>>>page 2<<<<

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

>>>>page 4<<<<

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

>>>>page 6<<<<

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

>>>>page 11<<<<

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