States and International Law

1
States and International Law

• Lecture 19
• February 25

2
Assignment

• February 27
• VI. Individuals and International Law
• Individuals as objects of intl law
• The Nottebohm Case
• Review for midterm
• Midterm, March 2 EKLCE 1B20
• Wednesday, March 4 Guest Speaker
• Adjunct Professor David Akerson
• Friday, March 6
• Individuals as subjects of intl law
• The UN and Human Rights Law
• Universal Declaration of Human Rights -at the
  back of our textbook
  
• - International Covenant on Civil and Political
  Rights
  
• http//www.unhchr.ch/html/menu3/b/a_ccpr.htm
• - International Covenant on Economic, Social
  and Cultural Rights
  
• http//www.unhchr.ch/html/menu3/b/a_cescr.htm

3
Western Sahara

• Issues
• (1) Is the consent of an interested state
  relevant for the appreciation of the propriety of
  giving an opinion?
  
• (2) Was Western Sahara at the time of
  colonization by Spain terra nullius?
  
• (3) Did either Morocco or Mauritania have a legal
  ties sufficient to establish territorial
  sovereignty over Western Sahara at the time it
  was colonized by Spain?

4
States and International law

• The concept of State
• Statehood
• - permanent population
• - defined territory
• - organized government
• - capacity to enter into relations with other
  states

5
Recognition of states

• Declaratory theory prevailing theory
  recognition only a political move recognition
  not required for the new state to be considered
  legitimate. Recognition merely declares or
  acknowledges the existing fact of statehood.
• Constitutive theory more historic - members of
  the intl community must recognize a state for it
  to establish its de jure intl legal personality

6
Kosovo

• Declaration of independence is it legal?
• Kosovo was an autonomous province, part of
  Republic of Serbia under the Socialist Federal
  Republic of Yugoslavia
  
• Ethnic Majority Albanian with a Serb minority
• 1989 autonomy ended by Slobodan Milosevic
• Through the 1990s, Kosovar Albanians sought
  restored autonomy
  
• 1998 Serb government initiated police and
  military actions in Kosovo widespread
  atrocities
  
• NATO bombing 1999 no mandate from Security
  Council (humanitarian intervention) avoiding
  genocide

7
Kosovo - continued

• UN Security Council passed resolution 1244 (1999)
  after NATO bombing
  
• Authorized UNs administration of Kosovo
• Framework for resolving the final political and
  legal status of Kosovo
  
• March 2007 Comprehensive Proposal for the
  Kosovo Status Settlement
  
• - envisioned independence

8
Kosovo continued-2

• Troika EU, Russia, and US oversaw
  negotiations between Serbia and Kosovar
  Albanians
  
• December 10, 2007 reported unable to reach
  agreement
  
• February 17, 2008 Parliament of Kosovo declared
  Kosovo independent and sovereign state
  
• A constitution of the Republic of Kosovo was
  proclaimed on 15 June 2008

9
Kosovo independence Legal analysis

• UN resolution 1244
• Serbia and Russia secession not allowed
  without Serbian agreement
  
• Res. 1244 - neither promotes nor prevents
  Kosovos secession
  
• International law does not prohibit secession
• Depends on the facts

10
Criteria of legal secession

• Secession external self-determination
• (internal self-determination protection of
  minority rights within a state)
  
• 1. secessionsts are a people
• 2. state seriously violates their human rights
• 3. no other effective remedies under either
  domestic or international law
  
• Source http//www.asil.org/insights/2008/02/insig
  hts080229.html
  
• Kosovo has been recognized by 55 states, 68
  states have said they do not recognize Kosovo.
  

11
TINOCO CLAIMS ARBITRATION

• 1. Court
• 2. Sources
• 3. Facts
• 4. Issue
• 5. Holding and Decision
• 6. Reasoning
• 7. Significance of case

12
TINOCO CLAIMS ARBITRATION

• Issue Does a government which asserts control
  throughout the country with the acquiescence of
  the people become a de facto government?

13
Kadic v. Karadzic Case

• Issues
• May claims for torture be brought only if the
  torture is official under the Alien Tort
  Statute?
  
• Does the customary international law of human
  rights, such as proscription of torture, apply to
  states without distinction between recognized and
  unrecognized States?