Exam 2 Other terms Flashcards
1
Q
Who holds full legal personality in International Law?
A
nation states
2
Q
Who enjoys partial legal personality?
A
Individuals, MNCS, national liberation movements, corporations.
3
Q
Who enjoys no legal personality?
A
Ethnic groups indigenous groups terror groups minority groups NSG territories NGOs
4
Q
Elements of statehood: Objective
A
Are required to have full legal personality.
They are known as the doctrine of the three elements.
- Territory
- Population
- Government
5
Q
Elements of statehood: Subjective
A
Ability to enter into international relations
However, the easiest way to enter this into the objective section is to say that if they are a member of the United Nations they have met this category.
6
Q
How do you become a member of the United Nations?
A
Security Council 3/5 in favor (A veto can kill this immediately)
UNSG Endorsement
General Assembly 2/3 majority
7
Q
Four Dimensions of territory
A
- Its territory
- The air above it- The exact number of feet above has not been determined.
- All the way down to the core of the earth.
- Part of the ocean or lake if they are a coastal nation. It is now 12 miles.
8
Q
Legal Extraction of State Resources
A
- You can take oil from the center of the Earth as long as you are digging into your territory.
- Slant drilling- When you go down and then you go sideways into somebody else’s territory is clearly illegal.
9
Q
Kuwait Slant Drilling 1990
A
Hussaine said that Kuwait was slant drilling into Iraq so they deserved to be punished. This, however, does not justify an invasion.
10
Q
Population
A
-Permanent
-Non-Transient
-Self-Perpetuating
This is why Antartica does not qualify as a country because those scientists are transient. The one country that is recognized as a nation-state but is not allowed to self-perpetuate is the Vatican.
11
Q
Basic tests of Government
A
Internal Authority:
Set national laws
external authority:
conduct foreign policy
12
Q
Levels of UN Membership
A
Member-state (The US)
Non-member observer state-slightly elevated (Switzerland was this until 2002)
Observer-cannot vote but can have delegates in the UN. (The Palestinians used to be but now is non-member, the ANC used to be, SWAPO used to be, these are both national liberation movements).
13
Q
Categories of states: Full states
A
Full sovereignty and independence which is the vast majority of states.
14
Q
Categories of states: Unions
A
Two legal persons acting together as one. An example of these would be confederations, real unions, or federal states.
15
Q
Categories of States Confederations
A
Create supranational organs and give it power and authority over them. This is only over the states not over the citizens so these governments still determine the rights of their citizens.
-If they are a member of an international organization then they are treated as one country in international law and get one seat.
16
Q
Examples of Confederations
A
Denmark and Iceland in 1918-1944
USA 1778-1787 the 13 colonies originally formed a confederation and even had different currencies.
UAE, United Arab Emirates, the biggest country’s gov represents all of them.
17
Q
Real Unions
A
Two nations state signed an agreement to create something above their govs, they also agree to not go to war with each other. They are bound to the same ruler. This one rules all people.
18
Q
Example of Real Unions
A
The Austro Hungarian Empire 1867-1918.
The two Yemens: 1990s they formed a union and now there is only one Yemen.
The union of Syria and Egypt 1958-1961.
This was under Nasser and for this time there was only one seat the UAR. They wanted to unite all of the Arab countries under Nasser. The Syrians eventually wanted out.
19
Q
Federal States
A
Permanent union of what used to be countries. Government with the authority over former states and citizens.
The former states have no legal personality.
-The difference between a federation and a real union is that a real union is not as permanent and can break apart easily.
20
Q
Qualified full members: Neutral states
A
We are not interested in going to war, an individual decision that can be revoked.
Ex. Sweden is the longest standing neutral country because it has been neutral since 1902.
21
Q
Qualified full members: Neutralized Country
A
A country that has the status forced on them, or put on them as a condition by other states. Switzerland has been neutral since 1818 and this was imposed on them.
22
Q
Qualified full members: states admitted under special conditions
A
special conditions attached when they want to join the world community.
Ex. Montenegro 1878: Racial and religious tolerance.
Poland 1878-Protection of Minorities.
Austria 1955- No Japanese or German designed aircraft.
There are not stipulations on what the conditions case be.
23
Q
Divided States: Cold War Phenomenon
A
Almost anywhere where the US and the USSR met in the battlefield to shake hands and say they had defeated an adversary they would keep their bipolar system on each side.
24
Q
Ex of the Cold War Phenomenon
A
Germany
South and North Korea
China-between Taiwan and the mainland.
Vietnam-North and south too in Geneva 1962 they were going to have a war to choose but the US did not let it happen because Ho Chi Min would win.
Cyprus-The only one which is not a division of east and west. 1976 might be more of an illegal occupation.
25
Special subjects
```
Vatican-A nation state that cannot repopulate.
Knights of Malta-they do not have territories
Condominiums
Associated States
Sealand (Specific Place)
Micronations
National Liberation movements
Leased territories.
```
26
Order of the Knights of Malta
Founded during the crusades and originally headquartered in Israel, they made their way to Cyprus and eventually into Italy. They have 8,000 members and they do not have any territory. They are referred to as a "landless state" because the nations that work with them want to acknowledge charitable work they do and give them a heightened status. They are currently recognized by 40 countries.
27
Condominiums
Territory jointly owned by two states.
-The territory has no government, no sovereignty, and no legal personality. The subjects with the legal personality are the two states.
Ex. 1889-1956 Britain and Egypt jointly ruled Sudan.
28
Isle of Pheasants
A piece of territory that separates the French from the Spanish. What France and Spain decided to do was to jointly own the isle of Pheasants. They take turns every 6 months policing it. The island itself has not legal personality.
29
Associated States
Delegate foreign and defense policy.
30
Micronations
Model nations, very small that claim nationhood but are not recognized.
You can find most of them in countries of Australia and New Zealand. They are overwhelmingly farmers that do not want to pay taxes and they argue that they are allowed to do this under the principles of self-determination.
-They are 14 claiming it. They do not the legal personality, if a nation state had recognized them then the chances of it having sovereignty would have gone up dramatically but if its just a group or a family no one cares.
31
National Liberation Movement
Believe they should be considered the sole and legitimate voice of their people. The elites such as the African National Congress, PLO (Palestine), and SWAPO were the three national liberation movements that were granted partial legal personality.
-These movements are seeking self determination.
32
Leased Territory
Today it is not common for Royals to give part of their kingdom to their kids and lost territory is most common during the loss of war but your best chance is to rent from them in the form of a lease.
You pay a fee to use it for the period of time.
However, you do not get the title of the area.
However, you do not get the title of the area.
This does not have any affect on sovereignty.
There can be arrangements where jurisdiction lies with the country that is paying the lease if something happens in the country that has to do with the leasing citizen only then the leazing country should have jurisdiction but this has to be agreed upon and all legal personality remains with the owner.
-You can lease out not only surface area but also your coastline.
Ex. Panama canal is a leased area. Hong Kong was a leased territory
Guantanamo Bay is a leased territory from Cuba and it was written that both sides have to agree to end the lease before doing so.
33
Why IOs have some personality
- HQ agreements
- Immunity of officials (UN officials have immunity)
- It will host dignitaries from other countries.
- Sanctity of property is another reason, no one can enter without permission.
- Functional Matters
34
Individuals and International Law
- 1900-Nation states were very important and individuals have no real power.
- 1950-Individual power came to increase.
- 2000-Much higher than in the beginning of the century but still not as much as states.
* Organizations almost always have more rights*
35
Overview of Ireland and Britain
The United Kingdom and the Republic of Ireland
Ireland broke away but the six norther counties did not and remained in the UK.
The Eastern Rising of 1916 paved the way for Ireland to become independent and it was very violent.
The Independence war of 1919 proved successful for the Irish.
Northern Ireland is protestant with a minority of Catholics.
Northern Ireland Preferences:
-unionists-Pro Uk union 36%
-Nationalists want to be part of Ireland and Catholic and it makes up 24%.
-40% don't want to give their opinion.
36
The Troubles
Irish Republic Army is in norther Ireland but they are catholic and a terrorist organization.
1960-1998
3,600 Killed in a lot of violence and assasination.
-1972 violence
-IRA bombing in London during Bloody Sunday in a downtown financial district.
Sandy Row: on one side you have the unionists flying the British flag and on the other side you have the Catholics.
37
Where individuals have legal personality
- The world bank-Affected individuals have legal personality in this organization.
- US-Iran Tribunal-we froze all of the Iranian assets we could get or hands on and we wanted to give them back to the individuals. The tribunal was created for that purpose and you go there and sue the US and that tribunal will rule on compensation.
- UNCC (Kuwait)-A group of legal experts that issue a ruling on whether people from Kuwait can get legal retribution from Iraq and Iraq has to pay.
- PCA-Permanent court of attribution
- NAFTA- If you are bankrupted by the new deal on free trade you can go as an individual and say this yourself.
- European Union-
38
MNCs
There is a home country but the company has subsidiaries that sell things abroad.
- You only qualify as a multinational if you own the facilities.
- In the 1800s they had no legal personality at all and were viewed as an extension of the country they were based in.
- 1965-Multinational corporations as a matter of practicality were granted partial legal personality.
- EU gave them full legal personality
- The MNCs and the state they are
39
Objects of International Law: NGOs
Organizations with international membership because the overwhelming majority of NGOs do not have international membership.
-It is made up of individuals (not states).
-No legal personality
-They are objects of international law but do play a supportive role in the development of international law
>The red cross stands out above the others as being a supportive organization, has access to the battlefield and hosts many international conventions on rules of international conflict.
40
Objects of International Law: Ethnic Groups
Tend to be minorities all over the if the world were divided into them there would be alot more countries.
- There is no personality for ethnic minorities because we cannot define them very efficiently. Also there is a great of fear that giving them a voice will make them seem like a nation state in the making as if they are independent.
- Some nations will go straight to them rather than to the nation.
41
Ex. of ethnic groups
Aceh, Indonesia-There was a great tsunami and Indonesia was a member of OPEC but it is not anymore because it consumes all of its oil.
>The world said they needed to help them and send aid but the government said that everything should be sent through the capital not to the region because they are afraid they will start to be recognized.
42
Objects of International Law: Indigenous People
The original and formally recognized people of a place that have been wrongfully spelled or deprived.
- They can be found in about 40 countries with about 200 million people.
- They have no legal personality or representation other than their government which is one that deprived them in the first place.
43
Objects of International Law: Non self-governing territories
Geographically and culturally distinct from the country that is ruling them and they are in a subordinate position and do not have the same rights as the ones that rule them.
-Our expectations is that it will become an independent country.
44
Truly non self-governing
US Virgin Islands and the Cayman Islands.
45
At some point they become internally self-governing
Puerto Rico
46
At some point they become their own state
Namibia did become its own state.
47
Objects of International Law: Colonial Enclaves
They are very small and are controlled or administered by a nation state.
-They have no legal personality and they have no expectation of statehood or independence. It is expected to eventually merge with the larger state because they are just too small.
48
Examples of Territorial Enclaves
- The Falkland islands are considered to be a colonial enclave
- Ceuta is controlled by the Spanish and it is a little island in the tip of Morocco.
49
Objects of International Law: Terrorist Group
There are two ways of viewing them:
-As instruments of the state-If we look at it as an extension of the country then we hold the country responsible for what they have done but otherwise they have no legal personality.
>If Hesbola acts people often blame Syria because it has influence over it.
-As an independent state
50
The Centrality of Territory in IL
- The physical anchor of the state
- Locale of the population and government
- Source of power and resources
- Source of conflicts with other states
51
The complexity of British Territory
- The 4th largest empire in history
- The empire came apart and became a series of nation-states, some of which have become part of the common-wealth while others have declined to be part of it.
- It was also split into overseas non self-governing territories like the Virgin Islands and the Caymans, they are the sovereign domain of the British.
52
Sovereign Territory
- Territory owned by a state
- Includes land air and water
- Recognized by other states
- No legitimate counter claim
* The fifth largest territorial state is Brazil*
53
Private Islands
Some is able to buy an entire island for themselves and put a house on it.
- They could be either sovereign territory or terra nulius
- Can be established by terra nulius and nothing existed there before.
- Land and sovereignty purchased from a country.
- The land can be purchased which is the easiest one because you get the protection of that country's military.
54
Trust
An international city such as Jerusalem which cannot be claimed as an international domain
55
What are all the different categories of the territory?
- Sovereign
- Terra nulius
- Trust
- Colonial enclave
- Res communis
- Leased
- Condominium
56
Acquisition of Territory
The traditional way of acquiring territory is no longer legal these are:
- Discovery-where you would just plant a flag and claim something as your own.
- Conquest-If you use warfare to claim territory it is called territorial aggrandizement. Not legal since 1945.
- *The only exception to the rule of territorial aggrandizement is that you could not fully consume the country before 1945. After 1945 it became illegal.
57
Can past grievances be remedied?
The answer is no for practical reasons.
58
Question on the validity of the acquisition of territory
The question is the international law in force at the time of acquisition.
- If France conquered part of Africa in the 1800s then at the end of WW2 they did not have to give it up.
- Iran invaded Kuwait and annexed it as a province in 1990 and it was unanimous that this was an illegal acquisition by force.
59
Modern Modes of Acquisition
The establishment of effective control
-A response to discovery which is not enough, you must actually have a presence there and you must occupy it, it has to be territory that is not occupied by another country.
-In order to establish it you must meet two elements:
>Demonstration of the intent to act as a sovereign
>Demonstration to exercise authority in the territory.
60
Cession
Peaceful transfer from one country to another.
- Since 1945 this cannot happen by coercion.
- It can be by purchase, exchange, or as a present, title, by demise which is impossible today because it was back in the day when kings ruled supreme such as in 1701 when the Spanish king died he gave his kingdom to the grandson of the king of France, or treaty by ending of a war.
61
Gibraltar
A commercial country off of Spain.
-The war of the Spanish succession ended with the treaty of Utrecht, which included that England was awarded Gibraltar.
-Spain challenged it:
>No legal obligation for England to return it.
>Treaty verifies cession from Spain to England.
62
Shetland Island
Island off of the coast of Scotland but used to be part of Norway.
-In 1468 Norway pledged as collateral (dowry) to Scotland. The payment was never made and Scotland took the title.
63
Prescription
Transfer of sovereign territory without formal approval or knowledge.
-The country with the title will abandon it.
>Reverts to Terra Nulius status.
>Another state treats it like its own and becomes the sovereign territory of the 2nd country.
^Usually happens with islands.
64
Evidence of Objections
War
Legal Option
Diplomatic protest
65
Ex of War Option
Lybia extended control over gulf of Sidra.
| -US fought the Libyan control.
66
Ex of the diplomatic protest option
Islands occupied by USSR 1930s.
| -Japan too weak to challenge so Japan protested instead.
67
Accretion
The process of growth or enlargement by a gradual buildup: such as an
- increase by external addition or accumulation (as by adhesion of external parts or particles)
- The increase of land by the action of natural forces.
68
Common ways of accretion
volcanic eruption or changes in the water level.
69
Volcanism
If volcanic eruption in the high seas that produce land mass that appears in the water.
-Becomes terra nullius
70
International River uses
```
Provide water
Are a source of energy
Transportation
State boundary
-Can change course
-Principle used with river boundaries
```
71
Principle used with river boundaries
```
Median point
1 bank
This is a no mans land.
-No one owns the river just the bank.
-Rare
```
72
Thalweg
```
Line drawn at the deepest point with the fastest flow of river water.
Advantages:
-Equal access to deepest part
-Boundary change is automatic
Disadvantages:
-Confusion
-Claims and counterclaims
```
73
Chamizal Arbitration
USA and Mexico
Rio Grande is the boundary river and a flood caused a change called the chamizal tract.
-The change in land was claimed by Mexico (Avulsion)
-Claimed by USA (Alluvium)
Judge split the tract
In 1963 America gave it all.
74
Artificial Land
Land constructed by humans.
- Might be an extension
- Island
- Or connections such as a bridge.
75
Law of the Sea
Only littoral states can construct land and have to be environmentally friendly, you cannot destroy the environment.
-If it is an artificial island it does not impact the zones.
76
Adding land in internal waters
completely legal
77
Land added to edge of the state
- An example would be Hong Kong which has had area added to its edges.
- Dubai's islands
- This is also perfectly legal
78
Land added in territorial waters
- The world, Dubai is in their territorial waters but it is not connected to their countries.
- We also see this with islands built for oil.
- The rules: If Bahrain extends outward into its territorial seas and the seas follow it.
- If you build islands inside of your territorial waters there is no change, there must be some sort of meaningful convention.
79
Land added in International Waters
Kazakhstan's oil island has twelve oil wells and 500 workers.
- this is the world's largest oil discovery in 50 years.
- it is 50 miles off of the coast so it is international waters, they have ownership but not sovereignty.
80
Hot Zones for artificial islands
-The Caspian Sea
-The Persian Gulf
-The South China Sea
>China has claims of sovereignty that overlap with Vietnam.
>There are six or seven countries claiming simultaneously the same island in the South China Sea.
>The Chinese are claiming that this is within their territorial sea and therefore they have sovereignty over them.
81
Jurisdiction
- You have jurisdiction over people even if they are outside the country.
- You also have non-citizens in your country, there is a debate over whether we have jurisdiction over them
- Special accomodations such as the Cherokee nation.
- Military forces abroad and here.
82
Jurisdiction Questions
Which Nation's Laws
Which Nation's courts
Under what conditions
83
Jurisdiction Principles: Territorial
A state's laws apply to its territory.
State sovereignty
Its courts have jurisdiction if something happens within the country.
-The 9/11 attacks happened in the US and thus his nationality does not matter and where he is at the moment does not matter.
-We do not have jurisdiction over diplomats and foreign dignitaries.
-Members of foreign militaries have certain protections from the law.
-Others that states choose to give immunity to are also immune.
84
Jurisdiction Principles: Protective
Sovereign states can prosecute non-nationals for actions abroad that must endanger your state or interfere with the operation of your government.
>Terror acts abroad that are scheming to hurt our country.
85
Jurisdiction Principles: Nationality
Each state decides conditions for prosecuting its own for actions abroad.
-Our thereshold is, we usually look for it affecting foreign relations.
86
Mark Rich
Made his money in the aluminum industry and made it in the former soviet space and inflated the price.
-He is not paying taxes on that money he has generated abroad because it is largely generated illegally.
>He runs away and goes to Switzerland. His ex-wife wants him to come back and so she goes to Bill Clinton and he was given a pardon.
>Now we have two scenarios:
He is a citizen of the US or he has renounced his citizenship.
>When he was pardoned in January of 2001 it is only covered in a certain period, taxes that he hadn't paid since then he was still responsible for.
>There is a push for him to say that he has renounced his citizenship. However, if he does this we can turn him away before he gets in.
>If not he will be arrested so he decided to renounce his citizenship
87
Jurisdiction Principles: Passive Personality
Claim of Jurisdiction by a state against foreign nationals for offenses committed abroad. Which have or which will harm the state's citizens.
* How it differs from protectionism* This extends the nationality principle to the perpetrator even if he is not a citizen of your country.
- The Rome Vienna Massacre terrorist went in looking for American women and children.
- Protective and passive extends our courts and laws because of cybercrimes, drugs, and terrorism.
88
Jurisdiction Principles: Universal
Includes Erga Omens Offenses such as piracy, crimes against humanity and genocide.
89
Belgium and the law of universal jurisdiction
Decided to create domestic laws which allowed it to very easily prosecute criminals for erga omnes offenses.
- all that mattered was that it happened in 1993 and the only thing we needed to know was the perpetrator.
- They got alot of lawsuits and requests were made for all of the big criminals.
90
Operation Condor (1970s)
There were quire a few dictators from the hard right in south America and those governments entered into an agreement to track down, detain, and then kill the opponents of these government.
- They didn't just put on the list bonified communists, they put anyone they did not like. The US gave its support.
- It targeted guerrillas, nuns, union leaders, students, and student leaders. More than 60,000 people killed.
91
Baltasar Garzon
A judge from Spain who indicted Augusto Pinochet of Chile.
- In 2002 asked Henry Kissinger to come to Spain as a material witness.
- Every legal effort to bring Kissinger to Spain failed and thus Kissinger was shunned by foreign governments for fear of him being indicted as a material witness.
* Kissinger fears that universal jurisdiction will make heads of state fearful of traveling*
92
Universal Jurisdiction and Recent Conflicts: Operations Cast Lead (2008-2009)
- Rockets were fired into Israel attacking civilians and the Israelis responded with military force against the Gaza strip.
- Because of the Gaza war a British warrant was issued for Prime Minister Livni at the time of the war under Universal Jurisdiction.
93
Universal Jurisdiction and Recent Conflicts: The Iraq War (2003-2012)
- There was use of shock and aw which we used on Iraq to scare them to surrender.
- When Mr. Bush visited Canada he was protested against him because he allowed water boarding.
- In Canada Federal laws that say that if someone enters Canadian soil that has committed a similar crime the prosecutors are required to investigate.
94
Citizenship
A citizen is also called a national and it is a true member of the state.
-There is only one citizenship principle, it comes from a general principle of international law.
95
One general principle of international law
If you are born in a country of parents that are nationals of the country you are a citizen of the country.
-Every other law of citizenship is determined by the country. This falls under domestic law.
96
Jus Soli
Determines citizenship by the place you are born.
97
Anchor Babies
Babies born to non-citizens in the United States who are citizens by virtue of being born here.
- The basis for the parent's claim to citizenship is that the child has citizenship to the country.
- 42% of immigrant babies are anchors.
- 382,000 anchor babies per year.
- 10% of all babies born
- "Birth Tourism" is also on the rise.
- Without anchor babies we would have negative birth demographics.
98
US immigration options
-One option would be to Amend the 14th Amendment but that is not easy to do because you would need essentially the whole country on board.
-You could pass domestic legislation but it must be in accordance with the Constitution. The domestic law could say one parent must be a citizen or one parent must be a resident.
Then the US Supreme court would have to decide whether it is Constitutional.
99
US exceptions to Jus Soli
- Children born to foreign heads of state or diplomats.
| - Children born to foreign military occupiers of our territory. If we were invaded.
100
US Policy on Children Taken abroad
Born here and they gain US citizenship and then the child is taken abroad.
-If they leave as a child they must come back before the age of 25 to restate their citizenship. This does not apply if their parents are American.
101
1961 treaty to reduce statelessness
(people who do not have any citizenship)
1975 entered into force, few parties ratified.
It will grant citizenship to people born in the high seas.
-Their citizenship will be that of the flag of the ship.
102
Jus Sanguinis
Determine citizenship by your parents' citizenship.
| This was observed under Roman Law.
103
Other ways to attain citizenship
- Naturalization
- Juri Matrimoni
- Adoption of a minor
- Special Accommodations
104
Juri Matrimony
To marry into another citizenship.
-Throughout much of contemporary history if you are as a woman married a man of another country you automatically take on the husband's citizenship and now you cannot go to your own consulate and can be conscripted into the military. You become stateless if marriage ends.
105
Bobby Fisher
He grew up as a chess player in New York and became our best chance at beating the Russians. Henry Kissinger encouraged him to win at the world championship. Then he just disappeared.
- In 1992, 20 years after he won in Iceland he played Boris Spasky again and won again. The problem was that they played in Yugoslavia and when they played the match it was illegal because they had sanctions.
- We went after him because he said horrible things about 9/11 and Israel etc so that is why we wanted to prosecute.
- We finally told the Japanese to bring hi to us and they didn't want to because they knew it wasn't about chess.
- Iceland gave him citizenship under special accommodations
106
Dual/Multiple citizenship
It is automatic if you are born in PR by law you are an American and a Puerto Rican.
107
Republic of Ireland's Law
Ireland's Jus Soli extends to Northern Ireland, they will automatically be British because they were born in Northern Ireland but they can also choose to be citizens of Ireland.
108
Benefits of Dual-Citizenship
- Easier to travel. You can choose one to use to avoid things like visas etc.
- Give you access to jobs in those countries.
- Can expedite your exit in the event that something happens there.
109
Problems with Dual Citizenship
- Can cause confusion
- You can lose your rights.
- May be forced into military service.
110
Nottebohm Principle
If there is an objection to your citizenship, international law can apply the effective nationality principle. We want to see an effective link.
111
Supranational Citizenship
Anyone who is a citizen of Italy will also be a citizen of every other country in the EU.
112
Estonia's Citizenship problem
The Russian empire had always been in and around it and the USSR absorbed it. The Russians encouraged Estonians to leave and Russians to migrate there.
- The Russians that lived there still viewed themselves to be Russian citizens.
- The Estonians wanted the Russians out and due to public pressure it defined citizenship as having to trace their heritage in Estonia since 1918 and a knowledge of 50,000 Estonian words.
- However, regional laws of the EU prevent discrimination based on culture, language, etc. The EU said it was fine if they keep their domestic law but then you won't be welcomed into the EU.
- This was 1991 and they still wanted to be part of the EU and Nato.
113
Stateless people
Someone without nationality.
114
Sri Lanka's Tamils
An example of Stateless people
- The British used to control all of south asia and this was part of it.
- In Sri Lanka workers were imported, many Tamils from the region of India near Sri Lanka.
- After they became independent they had the legal capacity to define citizenship any way that they wanted and they decided that they are from India and should go back to India which was also having a debate of whether they should define themselves as Ethno-Religiously or nationally. They ended up defining themselves nationally.
- The Tamils from Sri Lanka have been fighting the government from the beginning in a civil war.
115
De Factor Stateless
They have a lawful claim to citizenship but you preclude for practical reasons.
- You can become a citizen if you want but you have to pay a really high fee.
- The country might be breaking down and so you can't get through the process because govs aren't functioning and it is not safe to travel.
- Discrimination: fearful that if they show up at a government office they would be discriminated against.
* All of these can be solved*
116
De Jure Stateless
-The government may take away citizenship.
-The country may no longer exist.
-You could be born in a stateless entity for example in the West Bank.
-Because of one of the Great Revolutions that fundamentally changes the country so much that when you look at it is it not the country you used to know.
>France 1789
>Russia 1917
>Iran 1979
-Voluntary Stateless
117
Voluntary Stateless
-An American WW2 veteran said that the problem with the world were nation states and made himself an ID card. He had his own currency based on electricity.
-Mike Gogulski-1973, he was born in Winter Park, Florida and he was a computer hacker and extraordinarily critical of the United States. In 2008 at the age of 35 he moved to Slovenia.
He renounced his American citizenship and enjoys life as a stateless person.
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Palestinians
- In Jordan they no longer give them automatic citizenship. I they are born in the West Bank they are automatically stateless and their government will provide for them what looks like a passport but countries decide to recognize it or not.
- If they are born in the Gaza strip they are stateless.
- If they are born in East Jerusalem you can choose your citizenship so they have the option of becoming Israeli citizens. In a period since 1987 about 4% of Palestinian babies have decided to apply (In this case they were De Facto Stateless).
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State Responses: Doing Nothing
Iraq invaded Iran after the Iranian Revolution in 1980 and it lead to an emergency security council meeting and decided that there was nothing that could be done and called them to return to their agreed borders. This bothered Iran greatly.
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State Responses: Rewarding Illegal Behavior
- Augusto Pinochet of Chile. We liked the fact that he was far right and military because we needed that hard right ally and we supported him.
- South Africa was rewarded for the Apartheid government because it was strategically critical since it was surrounded by communist governments.
- After the Oslo accords a terrorist and leader of the Palestinian side was rewarded.
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State Responsibility
- There is a treaty or custom
- An international Legal obligation
- Any time a state behaves outside the parameters of the law it gives a rise to state responsibility.
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State Responsibility US and UNESCO
UNESCO deals with the education science and cultural issues. We are a founding member but have quit it twice.
- You are legally required to give notice. -Notification and departure happened for the first time in 1984, the timing of it suggests that its plan was not to leave UNESCO but also to do harm to it because we did it in the middle of the two year budget process but it was perfectly legal and there is no state responsibility, no violation.
- In 2011 when Obama was very unhappy with UNESCO because it voted to include Palestine as a member state, we left immediately without paying state dues and thus this gives right to state responsibility so when we go back we might be asked to give them the dues we owe.
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All state behavior
Anything and everything that a nation can do.
Regulated by:
-Ius Gentium- Some have enforcement mechanisms included in the treaty. (Rejection from the Organization etc.)
-You do not need enforcement mechanisms to give rice to state responsibility.
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However, what if something falls outside of regular state responsibility
- This can still make you responsible
ex. A satellite falling out of orbit and causing damage to something and then you are responsible even though you didn't violate international laws.
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Ideal Model of State responsibility
- What states are required to perform
- What constitutes a violation
- Remedy for that violation
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Free Trade
What exactly are they required to perform? They offered him Malbouro cigarette he wanted but they put it all the way at the top where no one could see it and this is not in violation of the agreement.
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Subsidy
You immediately go to a judge to see if you are responsible for violating a subsidy.
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2001 Draft Articles (ILC)
- Not a binding treaty
- Well received by states
- ICJ had cited it
* This is soft law because nation states are very reluctant to sign a document that says this is what will always happen if you break international law.
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States are responsible for actions by their
- Government
- Government Organs and Representatives.
- Citizens empowered by the government: Sometimes states are responsible for what their citizens do but not always, you need to connect those actions to the violations committed by the state.
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State vs. Individual Responsibility
It depends on the situation and whether or not they are connected to the state.
If it is blamed on the state and not the individual then it is called the international dilect.
-If it is your fault then we call it an international crime.
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9/11
It was not difficult to connect Bin Laden to Afghanistan's government and so NATO went to war in our defense so we went straight to a war option.
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Enforcement of State Responsibility
Obligations with Enforcement procedures such as WTO and UNCLOS (Convention of the law of the sea) both tell you what should happen if someone breaks the law.
-Most treaties don't have set rules so you get to determine what will happen.
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Chernobyl 1986
We didn't get a sense of something happening until an American student set off the radiation detectors at an American embassy.
The wind currents had spread the meltdown all across Europe from it s location in Ukraine.
-They failed to take precautions with the plant.
-Failure to warn the world.
-Gorbachev's first test.
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Fukushima 2011
A tsunami devastated a nuclear facility.
- Failure to anticipate a natural disaster.
- They tried to help and warn
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Objective Responsibility
Very frequently called the risk theory and what it says is that we do not need to look at intent because intent is subject what we know is that it happened and if you broke the law you are responsible regardless of intent.
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Subjective Responsibility
Fault Theory: International Behavior or neglect is what you want to see to be able to fault someone.
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Consequences of Wrongful Acts: Cessation
Stop what you are doing and stop breaking the rules. I f it is a one time act this would not apply. It might be augmented by Guarantees of Non-Repetition.
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Consequences of Wrongful Acts: Reparations
The court may decide to charge reparations. Restitution (to get it back to what is was) and compensation (to pay financial compensation).
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Three traditional forms of Compensation: Traditional
You calculate the damages: material (broken glass) and non material (suffering) and there is also satisfaction (admit to me that you did it on purpose).
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Three traditional forms of compensation: Ex-gratia payment
Iran vs USA (1989)
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Global Settlement
The action of a country: State A that does harm to the citizens of a country we will call State B. There is a state responsibility and State B demands compensation and two state negotiate settlement.
- Generally for broad behavior that affects people from different walks of life or people over time.
- State A makes payment to State B and State B is supposed to distribute that to its affected citizens but there is no international law that requires state B to distribute the funds.
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Reasons for an invasion: Prior Consent
The US invaded Haiti to put the leader back in power but because we were invited by the official Haitian government.
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Reasons for an invasion: Self Defense
Israel was invaded by Syria and Egypt and they were able to use military force to fight the invasion and they won. This was not a problem because they had been invaded.
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Self-Defense Rule: Proportional Response
- If we have a significantly active war. The country that initiates the war assumes responsibility for it and whether or not they are in violation.
- The other side has the right of self-defense and as long as they act with the legal minimum necessary force to prevent the attacking force then it is perfectly legal and that is self-defense.
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Three tests to determine if something is force majure
Externatliy- State had nothing to do the with the event's happening.
Unpredictability- The event could not have been forseen.
Irresistibility-The consequences of the event are unpreventable and there is nothing we could do about it.
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Distress
The key here is that the situation must be life-threatening and there but be life-threatening and it cannot be a matter of convenience.
If it is distress the individual is not responsible for violating the law.
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Plea of Necessity Requirement
Action is the only way to safeguard vital interest.
| Action does not seriously impair the interest of the other.
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State responsibility
- The state is responsible -if it should have prevented the actions.
- if the state host fails to provide remedy
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State responsibility for property
-States have the right of expropriate
>Eminent domain: the government can act on behalf of everyone at the expense if the individual.
>Restrictions are placed on taking of property owned by a foreign state.
