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States and International Law

States and International Law . Lecture 19 February 25. 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 –

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States and International Law

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  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 TODAY: III. States and International Law • Kosovo’s declaration of independence - is it legal? • Tinoco Arbitration • Kadic v. Karadzic

  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 UN’s 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 Kosovo’s 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/insights080229.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?

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