Jurisdiction and sovereignty Chapter 6

1. Jurisdiction and sovereignty Chapter 6

2. Next Report • Minimum of 1500 words, Times New Roman, single space, 1-inch margins from MS Word (Around 4 pages) • Provide only your student ID number • http://www.icj-cij.org/docket/index.php?p1=3&p2=1 • Simplify it, understand it, explain it, and add your analysis of the case. • Quality of paper > length of paper • Due date: November 20th and presentations the following week

3. International Law Report • Choose a pending case before the ICJ • Your report should consist of the following sections: • Interesting Facts and Background Information 0-5 • The Legal Rules Applicable to the Facts (consider ICJ’s sources of law) 0-5 • Analysis – how you think the Court will use the law 0-10 • Conclusion – And your expected conclusion of the case 0-5

4. General Principles • Jurisdiction means the ability of a court to exercise power in a place or upon a person or on some property. • Unless an exception applies, one state cannot exercise jurisdiction over another. • However, a state under prescriptive jurisdiction, can make laws beyond their territorial domain.

5. General Principles 4. States can get jurisdiction even outside of their own territory, unless a contrary rule exists. (Antarctica) * Should the IRS be allowed to tax its citizens who are earning money in Korea?

6. Jurisdiction to prescribe • Prescriptive jurisdiction means the power of a state to assert the applicability of its national law to any person, property, event, wherever the situation may occur. • Every state has the right to say what they want to say.

7. Jurisdiction to enforce • But states cannot enforce its jurisdiction onto another state. • They can if they get permission. (Guantanamo Bay, Cuba) • However, states can enforce people and property within their territorial borders. (Japanese journalist stuck in Korea). • They cannot enforce jurisdiction if however they agree not too (Speeding tickets by UN diplomats)

8. 5 types of jurisdiction Under civil and criminal law • Territorial • Nationality • Universal • Protective • Passive personality * Concurrent jurisdiction * Double jeopardy

10. Sovereignty • Sovereignty means the most extensive form of jurisdiction under international law. • It means full and unchallengeable power over territory and all the persons within. • Limitations in international law are Jus Cogens and diplomatic privileges along with other agreements or treaties. • A world without sovereignty would mean chaos.

11. 5 factors to claim sovereignty • Occupation and prescription (Island of Palmas case; U.S. had treaty, Netherlands were actually there) • Apparent display of sovereignty means local administration has established a system of law (Manifest Destiny and Reverse Manifest Density in California) • Intention to acquire sovereignty (Mens Rea)

12. 5 factors to claim sovereignty 4. Continuous display and the critical date (the point in time, when sovereignty is clear) 5. Peaceful display – the exercise of state power must not be challenged by other “states.” * Should one family be able to punish another family’s child?

13. Island of Palmas Case • Palmas (Miangas) is an island of little economic value or strategic location. It is two miles in length, three-quarters of a mile in width, and had a population of about 750 in 1932, when the case was decided. Palmas lies between Mindanao, the southernmost part of thePhilippines, and the Nanusa Islands, the northernmost part of Indonesia other than Palmas. • In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas lay within the boundaries of that cession to the U.S. In 1906, the United States discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. The question before the arbitrator was whether the Island of Palmas (Miangas), in its entirety, was a part of the territory of the United States or the Netherlands. • The legal issue presented was whether a territory belongs to the first discoverer, even if they do not exercise authority over the territory, or whether it belongs to the state which actually exercises sovereignty over it. (Which way do you think the law should be?)

14. More ways to gain sovereignty • Accretion is when land is extended naturally by land reclamation or by result of soil deposits • Avulsion is when there is new land due to volcanic activity • Judicial decisions can determine who gets the territory (Island of Palams Case) • Principle of self-determination p. 171 (Tibet)

15. Violations of sovereignty • U.S. capture of Bin Laden in Pakistan (did not ask Pakistan for permission) • Israel vs. Eichmann (did not ask Argentina for their permission) • U.S. activity in Libya • Russian troops in Ukraine * Why does this happen? Same as with IL in general, enforcement is difficult

16. Discovery • Think of Christopher Columbus’s supposed discovery. He only had an inchoate title to territory under Spanish law • European countries “discovered” new lands all over the Americas and in the South Pacific • Any civilization existing that wasn’t Christian was deemed to have no rights to the land • Cession and treaty is a way to transfer territory (Alaska and Hong Kong) • Shockingly, until 1945, use of force was an acceptable form to acquire territory (think about the nature of European colonization)

17. Other places • Outer space is owned by mankind (however the U.S. dominates space technology with China and Russia following) • Antarctica (South Pole) has been claimed by many nations with signed territories (it has resources) • The Arctic (North Pole) is mostly frozen sea and is said to also be owned by mankind despite Russia’s claim to it (no resources but strategically important for military operations) • Airplanes and ships belong in jurisdiction to the states in which they are registered.

18. International Law Report Modification • You may choose to find an international law issue around the world and assume ICJ jurisdiction instead of choosing a present case. • If you choose this route, you will not be able to benefit from the facts and record of law, that is already established by the ICJ. • The positive benefit is that you can explore a topic that is of interest to you.

19. Grading criteria • Interesting Facts and Background Information 0-5 • The Legal Rules Applicable to the Facts (consider ICJ’s sources of law) 0-5 • Analysis – how you think the Court will use the law 0-10 • Conclusion – And your expected conclusion of the case 0-5