#6246 - Brainstorming & Troubleshooting - Public International Law (Revision Version)

Territory How the territory is acquired Occupation * Occupation can only occur where the territory was terra nullius, i.e., no previous sovereign. *> The fact that _____ was inhabited by tribes or people having a social and political organisation means that the territory was not terra nullius at the time _____:Western Sahara * Occupation requires both possession and administration at the time of the critical date. *> The critical date in this case is ____ because it is the date on which the dispute crystallised. *> Anything occurring after the critical date will not be counted. * Besides discovery, possession depends on an intention to exercise sovereignty: Eastern Greenland. *> According to the facts, State A merely exercised protection after the discovery of and therefore it is not sufficient to constitute possession:Western Sahara. *> However, since ____ was uninhabited at the time of discovery, physical occupation is not necessary. Open authorised declaration is sufficient to constitute an occupation: Clipperton Island. * In terms of administration. *> Because _____ was thinly populated (or unsettled), little actual exercise of sovereign rights is sufficient in the absence of a competing claim: Eastern Greenland Case - Therefore, it is not necessary for State A to show additional exclusive rights other than ____ . *> The facts that ____ supports a continues and peaceful display of sovereignty at the time of ____: Island of Palmas. - In addition, (other States' rights protection within the territory) is also a strong argument that State A had effectively maintained its sovereignty within the territory. * Further, since ___ is claimed by both State A and State B, *> It has to be mentioned, although acquiescence is not a means of acquiring title, it is a proof of a better claim: Eastern Greenland Case, - therefore, State B's acquiescence indicates that the sovereign rights exercised by State A is unlikely to be questionable. Prescription * Prescription means acquiring the title by possession where territory previously under another sovereignty. * A peaceful and uninterrupted display of administration for a certain length of time before and until the critical date indicates a prescription. *> The critical date in this case is ____ because it is the date on which the dispute crystallised. *> There is no prescribed requirement for how long a certain length of time should be. However, the fact showed that before (the critical date) (the territory) had been under the control of State A for (a period of time) should be long enough for other States to have a reasonable chance of asserting the rights. *> In terms of a peaceful and uninterrupted display of sovereignty at the time of ___, State B's acquiescence is a persuasive evidence. Cession * Cession refers to the "peaceful transfer of territory from one sovereign state to another". There are two essential requirements (1) that the state intended sovereignty should pass; and (2) that of ceding state actually have title to the territory they are purporting to cede. * The fact that (a formal treaty was enacted between State A and B) provides at least some preliminary support for a finding that it was intended sovereignty should pass. * The second requirement, that of nemo dat quod non habet, would depend on considerations beyond the facts provided, but from the information provided there is no indication other than that (State A did not have title to the territory) Conquer * The law of conquest has declined in significance to the point where it provides, under the doctrine of intertemporal law, justification only for the titles acquired before the force used to obtain them was declared illegal by customary international law. * Even in a case of self-defence, the force used must be proportionate to the threat of immediate danger: Nicaragua (Merits) case Accretion / avulsion 1 Whether the plaintiff has a legal personality to bring the claim Personality, Statehood State: art. 1, Montevideo Convention * A permanent population: *> The facts indicate ___ and this would support that there is a viable, stable and permanent population. * A defined territory: *> There is no exact limitation for how well defined a territory should be. *> A defined territory only requires a sufficient consistency, - even though its boundaries have not yet been accurately delimited: Deutshe v Polish. *> Territorial sea * Government: effective and stable government. *> The requirement of "government" will be satisfied if there is an effective and stable government exercising control over a defined territory: Anland Islands. - The facts illustrate ______ and accordingly, this may suffice. *> Failed State - Although ____ may be regarded as a failed State because ____, it will nevertheless be recognised as having an effective government, similar to the situation of Somalia in the 1990s. * Capacity to enter international relations, i.e., independence *> "Capacity to enter legal relations" is also referred to "independence": Austro-German Customs Union case *> Nothing in the facts indicates that State A is under the control by any other State or external political power. *> In addition, the fact that (a State A's ambassador was established in ( ); a number of UN members recognise State A..) supports a view that State A has the capacity to enter into legal relations with other States. *> Accordingly, the requirement is satisfied. Independence * Succession *> According to the facts, State B is replaced by State A and as a consequence treaty B made by State B will not be succeeded to State A by virtue of Clean State theory. *> However, ius cogens norm will still be binding. * Principle of uti possidetis *> State A cannot alternate the existing frontier on boundaries by force because the principle of uti possidetis has been accepted as a CIL:Yugoslavia Arbitration No. 3 * Self-determination *> Self-determination is recognised as a right egra omnes: East Timor case, and a jus cogens norm in IL:Western Sahara case *> All people have a right to self-determination and people is to be understood in the sense of all the people of a given territory. (Resolution 1514) *> The fact that group A only constitute minority as opposed to group B should not be an impediment for their right to selfdetermination:Western Sahara case *> However, in post- colonial times, it is unclear what "peoples" qualify for this right, and what it means in practice. *> Further, as was noted in the Yugoslavia Arbitration No. 2, a right of self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis) except where states agree otherwise. Recognition of Government * Where a government is not recognised by the court, neither all the new laws and decrees made by the unrecognised government nor the executive and judicial acts done by the agency appointed by that government should be regarded as valid: Carl Zeiss case *> As a consequence, the act done by the Government should not be attributable to the State due to an absence of recognition of that Government. * Recognition, once given, is retroactive in effect from the time that the recognised government established itself: Luther v Sagor *> Accordingly, the act ___ is recognised by __ undoubtedly. Recognition of State * Under the constitutive theory, it would be fatal for State B not to recognise State A because the political act of recognition is a precondition of the existence of legal rights. * On the other hand, under the declaratory theory, State B's non-recognition will little sense:Yugoslavia Arbitration No.10 2 Jurisdiction Domestic jurisdiction -- one aspect of sovereignty Territorial principle * ___ may rely on the territorial principle to exercise jurisdiction because the crime was commenced within its territory. * ___ may rely on the territorial principle to exercise jurisdiction because the essential element of the crime was consummated within its territory. * ___ may rely on the territorial principle to exercise jurisdiction because the effects caused by the crime are sufficient to grant itself jurisdiction. Nationality principle Passive personality principle Protective principle: must have a "liking point" * ___ may rely on the protective principle to exercise jurisdiction because there is a legal connection that links (the offender) with itself: Eichmann Universal principle International contentious jurisdiction Qualification * UN Charter members art. 93 UN Charter, * Parties to the Statute art. 93(2) UN Charter, i.e., though non UN members; * By making a declaration accepting ICJ's jurisdiction: art. 35(2) ICJ Statute Jurisdiction: art. 36 ICJ Statute * The jurisdiction of the Court is based on the consent of States: Mutual Assistance case. *> Agreement / treaty *> Forum prorogatum *> Unilateral declaration, i.e., optional clause * Reservation available - ratione personae - ratione temporis - ratione materiae Principle of reciprocity: jurisdiction is conferred on the Court only to the extent two declarations coincide: AngloIranian Oil Co. case * However, it only applies to "the scope and substance of the commitments entered into", it does not apply to the formal conditions of the creation, duration or extinction of the reservation: Nicaragua case (Jurisdiction and Admissibility) * Third party intervention * General rule: No jurisdiction to rule on the rights and obligation of third States: East Timor case * Exceptions *> Third party request: art. 62 ICJ Statute *> Party of a treaty and the treaty is being interpreted by the court: art. 63 ICJ Statute 3