Post on 10-Feb-2018
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of Law
International Law
International Business Class
Spring 2012
Public International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of Law
International Law
Course 2
International Business Class
Spring 2012
Public International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Two major sections to the course:
1. “Procedural” – To whom doesinternational law apply and how is it
created?
2. “Substantive” – What is the content of
international law?
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Defining International Law “textually”:
• “International”: “pertaining to the relations
between nations”
• “Nation”: “a political state”
• “Law”: “body of rules, flowing from enactment or
custom, regarded as binding”
•Therefore, textually, “International Law” is the
body of rules flowing from formal “enactment” orfrom custom pertaining to the relations between
political states and regarded as binding on those
states.
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Implications of the “textual” definition for a discussion of
International Law’s origins along the historical timeline:
• Slightly less broad definition still too broad:
• International Law is some sort of substantive code
of conduct governing relations between different“peoples”
Medieval Conception of
“Natural Law”:
Initially based on the
divine, and then on humanreason.
Antiquity or
perhaps theearly Middle
Ages
Historical Timeline
Defining International Law
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Defining International Law
Implications of the “textual” definition for a discussion of
International Law’s origins along the historical timeline:
• Pre-requisite for “textual” definition: the state
• “State” is “the body politic as organized for supreme
civil rule and government”
16th Century
Early
Modernity
Historical Timeline
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Defining International Law
Historical Timeline
Implications of the “textual” definition for a discussion of
International Law’s origins along the historical timeline:
• Pre-requisite for “textual” definition: the state
• Classical conception of international law: states
consenting to rules governing international conduct
19th Century
By this period, natural
law mostly supplantedby positivist conception
of consenting states
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Defining International Law
Historical Timeline
Implications of the “textual” definition for a discussion of
International Law’s origins along the historical timeline:
• Pre-requisite for “textual” definition: the state
• Classical conception of international law: states
consenting to rules governing international conduct
End of WWII
Challenge to the
“classical”conception?
Human Rights:
• international law that
governs how a state
treats human beings
• a natural law-like visionthat does not sit well with
the “classical”
conception
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Defining International Law
Historical Timeline
Implications of the “textual” definition for a discussion of
International Law’s origins along the historical timeline:
• Pre-requisite for “textual” definition: the state
• Classical conception of international law: states
consenting to rules governing international conduct
• Is the state-centric classical conception still fully
accurate? Modernity
A “modern” definition of international law?:
“international law is the body of lawintegrating the world as a whole into a
single world community, subject to the rule
of law”
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Historical Timeline
First theoretical hypothesis:
“Pseudo-theories” of International Law
1. Evolution of International Law
• A pattern of “punctuated equilibrium”?
• Slow evolution and then rapid
development after times of crisis
WWI
1618: Thirty
Years War
WWII
Cold War
War on
Terror?
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Relevance of International Law in International Politics
Does international law matter in international politics?
Realists: Not really - Liberals: Yes
Simple answer:
• Every day, in things as basic as internationalpostal and telecommunications services,
and international trade
Complex answer:
• International law matters because:
1. the decision-making elites in all states acknowledge
the existence of something called "international law"
2. international law provides a language for diplomacy
3. international law gives normative value to actions
and claims made by international actors
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of Law
International Law
Course 3
International Business Class
Spring 2012
Public International Law
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Relevance of International Law in International Politics
Does international law matter in international politics?
War in Iraq: U.S. Efforts to Justify Actions
Using International Law• Secretary of State Powell on Feb. 5,
2003
• Iraq’s non-compliance with
Security Council Resolution 1441
• Iraq could provide weapons to
terrorists, placing the United
States at grave risk
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Relevance of International Law in International Politics
Does international law matter in international politics?
War in Iraq: U.S. Efforts to Justify Actions
Using International Law
• Security Council Resolution 1441
• Meaning of “material breach”
• US view that SC 1441 could be
used to justify action against Iraq
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Relevance of International Law in International Politics
Does international law matter in international politics?
• War in Iraq: U.S. Efforts to Justify
Actions Self-Defence Notion
• Self-defense permissible in response to an
actual attack or when such an attack is imminent.
• US doctrine of pre-emptive self-defense: the
“Bush Doctrine”.
• Consistent with international law?
• Will it change international law?
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
“Pseudo-theories” of International Law
Second theoretical hypothesis:
2. Functions of International Law
• Stabilizing Purpose: Creating a system
favouring deliberation and reason over
raw power to smooth international
relations.
• Normative Purpose: Fostering a better way
of international politics, by articulatingshared values.
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Sources of International Law
• International Law is built on the notion of sovereign states.
• The notion of sovereignty at the heart of International law is
hostile to the notion of a supra-national entity making
international law.
• International Law typically (though not always) about lookingfor evidence of state consent (e.g., treaties).
The S.S. Lotus (1927, P.C.I.J .):
“International la governs relations between independent
States. The rules of law binding upon States thereforeemanate from their own free will as expressed in conventions
or by usages generally accepted as expressing principles of
law… Restrictions upon the independence of States cannot
therefore be presumed.”
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Silvia
Martiș
Tăbu
șcă,
PhD
Romanian-American University
School of LawPublic International Law
Sources of International Law
Statute of the International Court of Justice, Article 38:
• The sources of international law that may be applied
by the ICJ are:
1. International conventions;
2. International custom;
3. General principles of law;
4. Judicial decisions and the teachings of the most
highly qualified publicists.
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Silvia
Martiș
Tăbu
șcă,
PhD
Romanian-American University
School of LawPublic International Law
Sources of International Law: Treaties
Treaties: Preliminary Observations
• 1. There is no magical form or format for a treaty; the
focus is on intent to be bound.
• Eastern Greenland Case
• Qatar v. Bahrain Maritime Delimitation Case???
• 2. The rules of treaty law in international law have
evolved over time; concept of inter-temporal law.
• Passage over Indian Territory Case
• 3. An agreement between a state and a non-stateactor (other than an international organization) will not
be an international treaty.
• Anglo-Iranian Oil Case
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Silvia
Martiș
Tăbu
șcă,
PhD
Romanian-American University
School of LawPublic International Law
Sources of International Law: Treaties
Creating Treaties
• Vienna Convention on the Law of Treaties ,1969/80
Article 2
A “treaty” is an international agreementconcluded between states in written form and
governed by international law.
Article 6: Capacity of States to conclude treaties
Every State possesses capacity to conclude treaties.
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Silvia
Martiș
Tăbu
șcă,
PhD
Romanian-American University
School of LawPublic International Law
Sources of International Law: Treaties
Legal Effect of Treaties
• Vienna Convention on the Law of Treaties
Pacta Sun t Servand a
Article 26
Pacta sun t servanda
Every treaty in force is binding upon the parties to it and
must be performed by them in good faith.
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Silvia
Martiș
Tăbu
șcă,
PhD
Romanian-American University
School of LawPublic International Law
Sources of International Law: Treaties
Legal Effect of Treaties
• Vienna Convention on the Law of Treaties
Application to Third Parties
Concept of pacta tertiss nec nocent nec prosunt:
Article 34: A treaty does not create either obligations orrights for a third State without its consent.
Exceptions: Third Party States can have rights
• Article 36: A right arises for a third State from a
provision of a treaty if the parties to the treaty intendthe provision to accord that right either to the third
State … and the third State assents thereto. Its
assent shall be presumed so long as the contrary is
not indicated, unless the treaty otherwise provides.
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of Law
International Law
Course 4
International Business Class
Spring 2012
Public International Law
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Subjects of International Law
• State is a legally defined entity.
• Modern international law sets out four basic criteria for
a state:
1. A permanent population2. A defined territory
3. A government
4. A capacity to enter into relations with other states
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Subjects of International Law
Key Subjects of International Law: The State
2. Defined Territory:
• Size: No maximum or minimum size
• Generally requires occupation and control
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Subjects of International Law
Key Subjects of International Law: The State
3. Government:
• No requirement for a particular form of government
• Must be some effective control of territory
• Emergence of Finland in post-WWI: strict rule.
• Belgium and Somalia.
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Subjects of International Law
Key Subjects of International Law: The State
4. Capacity to enter into foreign relations (independence):
• Must have competence under own constitutional
system to enter into foreign relations.
• States do not cease to exist where delegate someauthority to a supranational entity.
• State is agreeing, in an exercise of its sovereignty
to limit its independence.
European Union ???
• “independence” means the sole right of
decision in all matters economic, political andfinancial.
• simply entering into treaties that limit this does
not vitiate independence so long as state is not
under the legal authority of another state.
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R i A i U i it P bli I t ti l L
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Subjects of International Law
Key Subjects of International Law: The State
Changes in the State: State Succession
• State succession deals with the emergence of new states:what are the legal obligations of these new states?
• Bound by customary international law
• Treaties are more complicated:
• One state merges into another, surviving state’sduties persist
• A state acquires a piece of territory, the state’s
obligations extend to this new territory
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Romanian American University Public International Law
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
Subjects of International Law
Key Subjects of International Law: United Nations
Established by the United Nations Charter (1945)
1. Purposes
• Article 1:
• To maintain international peace and security
• To develop friendly relations among nations based on
respect for the principle of equal rights and self-
determination of peoples
• To achieve international co-operation in solvinginternational problems of an economic, social,
cultural, or humanitarian character, and in promoting
and encouraging respect for human rights
• To be a centre for harmonizing the actions of nations
in the attainment of these common ends
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General Assembly
Membership: All members
of the UN (Art. 9); onecountry one vote (Art. 18)
Powers:
Caveat 1: may
discuss but not
recommend on a
situation being
considered by
Security Council
(Art. 12)
Caveat 2:
recommendations
are not binding on
member states(Art. 10)
Discussion &
Recommendation:may discuss any questions or
any matters within the scope of
the present Charter and make
recommendations on same (Art.
10)
Financial
Role:
Approve
overallbudget (Art.
17)
Appointment Role:
e.g. non-permanent
members of the
Security Council,members of the
Economic and Social
Council (Art. 18);
along with Security
Council, ICJ judges
(Art. 4 of ICJ Stat.)
Romanian-American University Public International Law
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Silvia
Martiș
Tăbușcă, PhD
Romanian-American University
School of LawPublic International Law
UN Security Council
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Security Council
Membership: 15
members, 5 of whom arepermanent (Art. 23)
Powers:
Council Resolutions
binding under Art. 25
Chapter VI:
investigate
disputes and
make
recommendations
to resolve them
Chapter VII: Council
declares existence of
any threat to the
peace, breach of the
peace, or act of
aggression (Art. 39)
Peace and Security Powers
Economic
Sanctions
(Art. 41)
Use of Force
(Art. 42)
Appointment
Role: e.g.
along withGeneral
Assembly, ICJ
judges (Art. 4
of ICJ Stat.)
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Romanian-American University Public International Law
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Silvia
Martiș
Tăbușcă, PhD
Romanian American University
School of LawPublic International Law
International Court of Justice
International Court of Justice
(15 judges)
Contested Case (between
states only)
Basis for Jurisdiction (Art. 36):
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International Court of Justice
(15 judges)
Contested Case (betweenstates only)
Basis for Jurisdiction (Art. 36):
Under treatiesSpecial
agreement
conferring
jurisdiction
(compromis)
Compulsory jurisdiction
Effect of Decision: binding, final
and without appeal (on the state
parties)
Advisory Opinions (requested by UN organs)
Effect of Decision: have no
binding effect, though have moral
force
Romanian-American University Public International Law
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Silvia
Martiș
Tăbușcă, PhD
Romanian American University
School of LawPublic International Law
International Court of Justice
Western Sahara Case: Self-Determination Denied
• ICJ asked two questions:
1. Was Western Sahara Terra Nullius at the Time of
Colonization by Spain?
• No. It was not terra nullius because its inhabitants
had sufficient political and social organization.
2. What Were the Legal Ties of This Territory with the
Kingdom of Morocco and the Entity that would become
Mauritania?
• the Court did not find “legal ties of such a nature
as might affect … the principle of self -
determination through the free and genuine
expression of the will of the peoples of the
Territory.”
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Romanian-American University Public International Law
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Silvia
Martiș
Tăbușcă, PhD
y
School of Law
International Law
Course 5
International Business Class
Spring 2012
Public International Law
Romanian-American University Public International Law
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Silvia
Martiș
Tăbușcă, PhD
y
School of LawPublic International Law
State Jurisdiction Over Territory
1. Territory over which states have sovereignty
2. Res nullius (terra nullius)
3. Res communis
4. Common heritage of humankind (actually a subset of res
communis)
• How does international law govern the acquisition of
territory by existing states (land, sea, air, even space)?
• How does international law regulate claims by peoples
inhabiting territories controlled by states who wish to exert
self-determination?
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Romanian-American University Public International Law
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Silvia
Martiș
Tăbușcă, PhD
y
School of LawPublic International Law
State Jurisdiction Over Territory
State Jurisdiction Over Territory: Sorts of Territory
1. Territory over which states have sovereignty
• Acquiring sovereignty over territory:
1. “Primary” title:
• Accretion
• Effective occupation of terra nullius
Concept of terra nullius:
Colonial concept of “discovery”
Modern conception less dismissive
of indigenous peoples (Western
Sahara Case)
Romanian-American University Public International Law
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Silvia
Martiș
Tăbușcă, PhD
y
School of Lawub c te at o a a
State Jurisdiction Over Territory
State Jurisdiction Over Territory: Sorts of Territory
1. Territory over which states have sovereignty
• Acquiring sovereignty over territory:
Effective Occupation and Prescription in action:
Island of Palmas Case:
• no effective occupation ever exercised by
Spain, thus no title in 1898, thus no title
possessed by the United States
• in any event, even if Spain did have somesort of inchoate title by virtue of simple
discovery, an inchoate title could not prevail
over the continuous and peaceful display of
authority by another state (in this case the
Netherlands).
Romanian-American University Public International Law
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Silvia
Martiș
Tăbușcă, PhD
School of Law
State Jurisdiction Over Territory
State Jurisdiction Over Territory: Sorts of Territory
1. Territory over which states have sovereignty
• Acquiring sovereignty over territory:
2. “Secondary” title continued:
• Cession, Renunciation or Abandonment
• Cession: given from one state to another
under international agreement
• Renunciation: renounced by one state,
passing into the hands of another state whichexercises sovereignty
• Abandonment: renounced by one state, and
left as res nullius
• Presumption against abandonment
Romanian-American University Public International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over Territory
Loosing State Jurisdiction Over Territory: Self-Determination
1. Defining Self-Determination:
• “all peoples have the right freely to determine, without
external interference, their political status and to pursue
their economic, social and cultural development”
2. Sources of Self-Determination
• recognized as a rule of customary international law and
is invoked in Articles 1 and 55 of the United Nations
Charter
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Romanian-American University Public International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over Territory
Loosing State Jurisdiction Over Territory: Self-Determination
A. Who are peoples?
• Sometimes refer to some level of ethnic homogeneity
• But note that many of the states that emerged after
colonialism were not ethnically homogenous
• UN Special Rapporteur on the Sub-Commission on
Prevention of Discrimination and Protection of Minorities:
1. The term "people" denotes a social entity possessinga clear identity and its own characteristics
2. Relationship with a territory
3. A people should not be confused with ethnic,
religious or linguistic minorities
Romanian-American University Public International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over Territory
Loosing State Jurisdiction Over Territory: Self-Determination
B. Non-self-governing status
• General Assembly friendly relations resolution:
Self-determination may not be employed to "dismember
or impair...the territorial integrity or political unity of
sovereign and independent States conducting themselves
in compliance with the principle of equal rights and self-
determination of peoples... and thus possessed of a
government representing the whole people belonging tothe territory"
• self-determination, in international law, has been invoked in
the context of colonial and non-self-governing peoples (as well
as perhaps peoples struggling against severe repression)
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Romanian-American University
S h l f LPublic International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over Territory
Loosing State Jurisdiction Over Territory: Self-Determination
Example: East Timor: Self-Determination Denied
• Challenge to the Australia-Indonesia Timor Gap treaty
• Case turned on whether Indonesia illegally
invaded East Timor and thus could not claimsovereign authority over the relevant zone
• Indonesia denied the court’s competence
• Australia argued case could not be heard without
Indonesia because it affected Indonesia’s rights
• Portugal claimed that the Timorese right to self-
determination was a right erga omnes
• Court agreed with that erga omnes, but concluded
it could not hear the case without Indonesia
Romanian-American University
S h l f LPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over Territory
Loosing State Jurisdiction Over Territory: Self-Determination
Self-Determination Good or Bad?
• The normative role of international law vs. the stabilizing
role
• because the criteria for self-determination are so fuzzy,and the meaning of peoples so uncertain, does this
mean that self-determination runs the risk of every little
ethnic group claiming state status, dismembering
states and fighting bloody civil wars?
Romanian-American University
S h l f LPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
International Law
Course 6
International Business Class
Spring 2012
Romanian-American University
S h l f LPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over Territory
State Jurisdiction Over Territory: Integrity of Boundaries
Concept of Uti Possidetis
• Former colonial boundaries graduate to international
boundaries upon independence
Burkina Faso v. Mali (ICJ)
• Frontier dispute between two
French colonies;
• Applied uti possidentis
principle.
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Romanian-American University
School of LawPublic International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over Territory
State Jurisdiction Over Territory: Oceans
1. Ocean over which states can have sovereignty (internal waters
and the Territorial Sea)
• Article 2 of the LOS Convention: Territorial Sea extends
12 miles from the coastal state’s baselines
• Determining baselines
• Anglo-Norwegian Fisheries Case
• low-water mark vs. straight baselines
• Court concluded that straight baselines wereappropriate given the nature of the Norwegian
coast
Romanian-American University
School of LawPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
Rough comparison
of territorial sea with
and without straight
baselines
Romanian-American University
School of LawPublic International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
Here, more than
24 miles, so canclose off only part
Area of indentation larger
than semi-circle whose
diameter is a line drawn
across the mouth of the bay
Straight baseline can bedrawn where this line is not
more than 24 miles
Where are
straightbaselines
appropriate?
• LOS Art. 10:
Bays – an
indentation is abay so long as its
area is as large
as, or larger
than, that of the
semi-circlewhose diameter
is a line drawn
across the mouth
of that
indentation .
Romanian-American University
School of LawPublic International Law
Rights over
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Silvia
Martiș
Tăbușcă,
PhD
School of LawRights over
Territorial Sea
Right of innocentpassage through
territorial sea:
• Must meet the
LOS requirements
for “passage” and“innocent”
• e.g ., to be
innocent may
not be
prejudicial to
peace, good
order and
security of the
coastal state
InternalWaters
Straight
baseline for
24 miles of
oversized bay
(Art. 10)
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Romanian-American University
School of LawPublic International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over Territory
State Jurisdiction Over Territory: High Seas
• Pure res communis
• on these commons all states have freedom of the high
seas, such as freedom of navigation or freedom of
overflight
• No state may validly purport to subject any part of the
high seas to its sovereignty
Romanian-American University
School of LawPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over People & Things
• Distinction between state jurisdiction over territory
(sovereignty over territory) and state jurisdiction over
people and things
• Sovereignty over territory generally means sovereignty
over people and things in that territory (with
exceptions we will discuss)
• But states may sometimes also have jurisdiction over
people and things that are not in their territory
• Definition of “jurisdiction”: jurisdiction is a government’s
powers to exercise authority over things and persons
• Problem of jurisdiction: people and things move between
states and assorted states may have a legitimate interest
in what happens to those people and things
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Romanian-American University
School of LawPublic International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over People & Things: Prescriptive Jurisdiction
1. Nationality Principle: a state may pass a law regulating
the overseas conduct of its own nationals
• Notion of “nationality”: clearly the nationality principle
depends on an understanding of “nationality”
• Nationality of Individuals:• jus soli (birth of the state’s territory);
• jus sanguinis (nationality by virtue of the
nationality of one’s parents)
• Naturalization: acquiring nationality after birth
• Nottebohm Case : notion of a genuine
factual link
• Corporations:
• Barcelona Traction: state in which
corporation incorporated or has head office
Romanian-American University
School of LawPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over People & Things: Prescriptive Jurisdiction
2. Passive Personality Principle: variant of the nationality
principle, but here the state seeks to regulate an act
committed abroad by a non-national in which the victim is a
national
• E.g., German Penal Code
3. Protective Principle: regulation of overseas conduct of the
sort that jeopardizes the state’s key interests
• E.g. espionage, counterfeiting, conspiracy to violate
immigration or customs laws
4. Universal Principle: some crimes so heinous thatirrespective of where they are committed, states may seek to
regulate them
• E.g. crimes against humanity, war crimes, certain
terrorism crimes, piracy
Romanian-American University
School of LawPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over People & Things: Example
Eichmann case (Israeli district and supreme courts)
• Eichmann apprehended in Argentina and spirited to Israel
• Prompted flurry of diplomatic protest from Argentina
• Israeli court held that the illegality of the means by which
the accused was within its territorial jurisdiction not material
• Israeli court held that jurisdiction to prosecute Eichmann for
acts that had taken place in Europe existed under
something resembling a protective principle and also under
the universal principle
“Not only do all the crimes attributed to the appellant bear aninternational character, but their harmful and murderous
effects were so embracing and widespread as to shake the
international community to its very foundations. The State of
Israel therefore was entitled, pursuant to the principle of
universal jurisdiction...to try the appellant.”
Romanian-American University
School of LawPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over People & Things: Limits on State Jurisdiction
Under this heading, we will discuss three broad areas in which
state jurisdiction is constrained by international law, even on
their own territory:
• Constraints on what a state can do to foreigners
• Constraints on the jurisdiction states can have over foreign
diplomats
• Constraints on the jurisdiction states can have over other
states
Romanian-American University
School of LawPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă,
PhD
School of Law
State Jurisdiction Over People & Things: Limits on State Jurisdiction
• Constraints on what a state can do to foreigners
• foreign nationals must comply with the state’s laws
• but international law demands that the state extend to
these foreign nationals certain basic standards of proper
treatment:
1. states have to accord foreigners human rights, much
as they have to accord their own nationals human
rights
2. international law accords extra special rights to
foreigners setting a basic floor below which treatmentcannot fall:
• Competing concepts of “national treatment” and
“minimum treatment”
Romanian-American University
School of LawPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă,
PhD
State Jurisdiction Over People & Things: Limits on State Jurisdiction
• Constraints on what a state can do to foreigners
• Concept of “minimum treatment”:
• Neer case (U.S.-Mexico Claims Commission)
• to be a violation of international law, the treatmentof the alien should amount to an outrage, to bad
faith, to willful neglect of duty, or to an insufficiency
of governmental action falling clearly short of
reasonable standards
• Modern standard likely higher
• Hinges on whether an act is unfair or
unreasonable, inflicting serious injury to
established rights of foreign nationals
Romanian-American University
School of LawPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Tăbușcă,
PhD
State Jurisdiction Over People & Things: Limits on State Jurisdiction
• Constraints on what a state can do to foreigners
• Concept of “minimum treatment”:
• Includes the concept of “denial of justice”
• injury consisting of, or resulting from, denial of
access to courts, or denial of procedural fairnessand due process in relation to judicial
proceedings, whether criminal or civil.
Expropriation:
• it is considered a violation of international law for a
state to take the property of a national of another statethat
(a) is not for a public purpose, or
(b) is discriminatory, or
(c) is not accompanied by provision for just
compensation
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Romanian-American University
School of LawPublic International Law
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Silvia
Martiș
Tăbușcă,
PhD
State Jurisdiction Over People & Things: Limits on State Jurisdiction
• Constraints on what states can do to foreign diplomats
• Vital part of customary international law, codified by the
Vienna Convention on Diplomatic Relations
• Who is covered: Article 1 of the Convention on
Diplomatic Relations defines a "diplomatic agent" asthe head of a diplomatic mission or a member of the
diplomatic staff of the mission
• What is covered: immunity (inviolability)…
1. from the exercise by the host state of jurisdiction to pass
laws in relation to acts or omissions in the exercise ofthe agent's official functions
2. from arrest, detention, criminal process, and, in general,
civil process in the receiving (host) state
• Host states may resort to declaring diplomat persona
non grata
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Romanian-American University
School of LawPublic International Law
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Silvia
Martiș
Tăbușcă,
PhD
State Jurisdiction Over People & Things: Limits on State Jurisdiction
• Constraints on jurisdiction states can have over other states• Types:
• Ratione personae: state immunity that exists by reason
of the person concerned
• immunity exists to certain key representatives of the
state – the foreign minister, the head of government
or state etc. – so long as they hold office
• Ratione materiae: state immunity that exists by reason
of the matter concerned
• matter is immune because it is a matter intimatelyconnected to a foreign state
• problem of deciding when is a subject matter
so identified with the state it should be immune
• Modern approach is to deny this immunity in
commercial matters
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Romanian-American University
School of LawPublic International Law
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Silvia
Martiș
Tăbușcă,
PhD
State Jurisdiction Over People & Things: Limits on State Jurisdiction
• Constraints on jurisdiction states can have over other states• Problem of immunity vs. human rights:
• Ratione personae example: Belgium v. Congo case
• ICJ:
• under customary international law, there is noexception to the rule according immunity from
criminal jurisdiction and inviolability to
incumbent Ministers for Foreign Affairs, where
they are suspected of having committed war
crimes or crimes against humanity
• But immunity from jurisdiction enjoyed by
incumbent Ministers for Foreign Affairs does
not mean that they enjoy impunity in respect of
any crimes they might have committed,
irrespective of their gravity
Romanian-American University
School of LawPublic International Law
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Silvia
Martiș
Tăbușcă,
PhD
International Law
Course 7
International Business Class
Spring 2012
Romanian-American University
School of LawPublic International Law
7/22/2019 Silvia Martis Tabusca - International Law
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Silvia
Martiș
Human Rights: Introduction
• Human rights are a constraint on state jurisdiction
• Human rights must be viewed as representing a break from the
statecentric model of international law
• Starting point for discussion:
• Could begin well back in history
• But real evolution of international human rights law is a
product of the Second World War