>>>>page 1<<<<

1.) La Grand
- involved in an attempted bank robbery
- tried in February; arrested January 7, 1982
- appeal for sentences but rejected
*throughout all the proceedings, they were not
informed of their right to consular
assistance
-did not acquire American citizenship
US
- cited circumstances, pre-text/excuse of
conduct; ignored by Germany
- paragraph 16 - La Grand -didn't mention
German citizenship
- paragraph 17 -
*the two brothers [did not even speak German]
- typical American behavior
*were not informed of consular assistance
*through co-detainees (also German) ->
knowledge of Art. 36 VCCR on Dec. 21, 1998 - US
authorities of their right to consular access
(paragraph 24)
Breard (p. 170 - Contemporary Practice of the United
States)
Paraguay - withdrew the case
Germany - more resources to continue the case

Q#3 Article 36 1(6)
Two parts
1. Authorities of reselving state must
inform consular
2. Authorities (r.s)
- inform the person detained
- violated by the United States

>>>>page 2<<<<

US response admitted the breach (Article 36 1(b))
Germany
- US violated as rights of Germany
1(a) and 1(c)
- right to communicate with its nationals
- US violated Germany's rights to visit provide
assistance
*paragraph 40
-US
-claims were "particularly misplaced"
- German claims (on ab and c) -> same!
*US
-admitted violation against (b) -right to consular
assistance of La Grand
-but hesitated to agree that it has violated (a)
and (c)
Germany - right to compensation if the US is proved to
lack international responsibility/reparation

The Court (paragraph 42)
-violation of one article may lead to (another)
violators of another article, although this may not
always be the case.

Q#4 Implications of Consular Assistance as human right
paragraph 75
Germany's stand
- Article 36 - individual right
- initial position
During the proceedings (paragraph 78)
-consular assistance
1. individual right
2. described as a human right

Attitude of the US:
Paragraph 76: Vienna Convention - right of states not of
wherein individuals could derive rights
1. individuals
2. right to consular assistance

Court's conclusion:
Article 36 1(b) - individual right
1. "... his rights"
A. HIS: possessive adjective
2. paragraph 77
- detainee may object consular
assistance to the authorities of receiving -
informing

>>>>page 3<<<<

-other courts have already considered Article 36
(1(b)) as an in individual right

US
- Germany (accusation) *death penalty -
popular
- turning the court into a court of appeal
- Germany was trying to appeal a national case
to the ICJ
*right to life (court's judgment *) - US may not
be able to comply with the judgment
Indicator (Paragraph 111 & 112): US
behavior:

Dept. of State simply transmitted the

provisional orders to Arizonian authorities
*Initially Germany argued that the right to
consular assistance
1. as individual right
2. this right is human right

Formulation Article 36 1(b)
1. "his right"
2. Paragraph 77 - 'objection'

ICJ
- didn't want to contradict other courts
- if accepted - must examine right to life:
possible non-compliance with the judgment

Q#5
Germany
- demanded assurances of non-repetition
par. 118
- existence of neat repetition (possibly)
- appropriateness of assurances +
guarantees
1. existence of a real risk of repetition
2. seriousness of the injury suffered by
Germany
par. 83 "eloquent" - German - not satisfied

Objection of the US
1. par. 119
2. par. 119 - new obligation
3. US
- was already "strengthening the regime
of consular notification (local/state level)
*reference cards were printed 400,000
-project size

Court par. 123
- individuals were exposed to prolong
detention/sentenced to severe penalties

>>>>page 4<<<<

Procedural Default
-Paragraph 23
Tams:
1. cause - cased by an external
factor/consular assistance may change. Courts
dismissed*
2.prejudice -

Par. 123 (US)- allow - review(preferably judicial
review)/reconsideration of the conviction

*Minimize (US)
Par. 72 - Even if the La Grand brothers were
informed no change will occur
Par. 74 - Court's argument

Valdez - Mexico
*US played the role in the drafting of Optional
Protocol
*US violates the VCCR - violation of rights of US
nationals

Torres
*US didn't withdraw from VC but withdrew
from the Optional Protocol
-avoid more cases; time consuming, costly,
humiliating
-US: "law-abiding"
- w/optional protocol
- humiliating
- US does not like apologizing

Dispute Settlement by the ICJ (Optional Protocol not
V.C)
- hesitation of states to ratify VC if DS was in the
VC.

>>>>page 5<<<<

Problem 6
2.) Yugoslavia - disintegrated
Serbia + Montenegro
Bosnia + Hercegovinia
Slovenia
Croatia
FYROM (Macedonia)
- Former Yugoslavia
- due to protest of Greece

Problem:
1. Serbia - Montenegro
- considered itself as the continuing state of
Yugoslavia
2. 4 other states: successor states
- argued that all 6 were successor states
*dispute
-Serbia - Montenegro could not apply
membership to UN + occupy the seat of Yugoslavia in
the UN
- would not have to prove that it was a
peace - loving state - "ethnic -cleansing" taking
place
-could claim assets of Yugoslavia
-Serbs (Bosnian Serbs) - Christian Orthodox
hilling the Muslims (early '90s)
1993
- Srebrenica
-massacre by Bosnian serbs

Difference of former Yugoslavia + former USSR
-agreement of states that Russia will take the
seat of USSR in the Security council
*signed agreement 1992
- capital of Kazakhstan
- no reason for dispute

*Former Yugoslavia - disagreement of successor states

*Blum- supported Serbia & Montenegro
Reasons (Current Developments reading)
1. Case of British India and Pakistan
(had to apply for membership) + Bangladesh
2. Serbia - Montenegro - nearly half of
Yugoslavia's territory + population
Counter - Arguments
-p.244 - Responses


>>>>page 6<<<<

Opinions of the Batinder Arbitration Committee
Opinion 1:
-Sept. 29
-SFRY - dissolution
2. (b) in a federation, the Federal Presidency,
the Federal council etc should meet the criteria of
participation and representatives inherent in a
federal state
- "proper representation of states"
- in a federal state, each of the organ should
have representation from each constituent unit and
must participate
- Presidency of SFRY - rotating
presidency
*Federal Army: criteria of representation +
participation
-the troops should come from the
different units of the Federation
Indicators:
1. Federal authorities were not able to
prevent the armed conflict; unable to stop the
fighting
2. Referendums were organized
- In favor of independence
* Opinion #8 par.3 (c) (4th July,
1992)
- Federal authorities no
longer have control over the territories
- process of dissolution
*SFRY does not exist

Response of Serbia - Montenegro - Opinions
-attitude of Serbia -Montenegro
- opened/rejected the opinions
*strictly speaking the opinions were non-
binding/not legally binding

Assessment of legal Consequences of the Opinions
Analogy with Recognition:
*Theories of Recognition
1. Constitutive Theory of Recognition
- meaning (shaw)
- disadvantages
1. unrecognized states
(may not be) pre-test to non-complaince to the
ruler of international law.
example: Israel
(seat at the UN, Taiwan does not)

>>>>page 7<<<<

2. existence
- recognized
only by others
- "partial -
existence"
state practice
- (to the two theories)
- combine the two
theories
*consecutive theory -
prevail: Circumstances
*situations of
uncertainty or doubt

Consequences of Recognition
-

Q#2 Conditions [p.252 (Shaw)]; 677 Murphy's Serbia
Montenegro
1. independence
1. 2. withdrawal of
2. facilitation

*Conditions on Successor States (Shaw)
- for recognizing the successor states
1.
2. guarantees for the rights
3.
4. commitment to settle the disagreement
5.

Legal Basis: (Opinion #8) par. 4
if Recognition is declaratory,
-recognition is not pre-requisite for the
foundation of a state but it is discretionary; act
that states may choose in a manner of their
choosing (political act, not an obligation
-conditions/requirements should not
violate international law; requirements - EC didn't
constitute int'l law breaches rather
compliance of successor state to int'l law (N charter)

Q#6 Should the Philippines have recognized the Libyan
National (Transnational) Council in June 2011?
Transnational
- Philippines considering recognition of
governments and not of state


>>>>page 8<<<<

*state of recognition - Libya has been
recognition
*Philippines didn't break diplomatic relations
with Libya
-Change of government, even if unconstitutional, state
continues to exist

Why June 2011 (Talinon)
Event in Libya: NTC - government of Libya
*courageous act of the Philippines (June 2011)
- The TNC had not yet become the gov't
of Libya
*August 2011 - NTC gov't of Libya; recognition
before the actual take over

UK: Recognition
Before 1980: distinguish recognition of
government and recognition of state

Philippines
*issue was never brought up again

>>>>page 9<<<<

3.) Problem 7 (Cassese)
Territorial Sea
Territorial Waters

-Subject to sovereignty of territorial state

exception:
-foreign ships may pass on their way to (internal
waters) the open sea/territorial sea of other state
-innocent passage
-no need for the consent of the
territorial state as long as there's no threat, spying, etc.
-compliance to the ruler on the
territorial state

Foreign warships
-submarines must navigate on the surface
*flags

Great powers vs. Coastal State

Jurisdiction over violations/ offenses on-board (Foreign
ships)
- Jurisdiction on the Flag states
- Ships + Aircrafts have nationality

8 miles
- limit of the shore canons (justification)
- great powers - breadth of territorial sea
- from the low water line

Base lines
- lines used to draw the low water mark
*Norway - water line - heavily indented

Method of straight baselines (p.85)
1. must not depart to any appreciable extent
from the general direction of the coast
2. the sea areas lying within the lines must be
sufficiently closely linked to the land domain to be
the subject to the regions of internal waters
3.
4.
>>>>page 10<<<<

Contiguous Zone
- maximum of 12 miles - breadth
- 24 nautical miles from the baseline
- 12 miles - territorial sea, 12 miles contiguous
zone
without contiguous zone, risk ship committed
as infraction could escape to the high seas
-zone of transition to prevent ships who
committed infractions from escaping to the high seas

Exclusive Economic Zone
-max 100 nautical miles
-state rights
-sovereign rights, not sovereignty
-extent of rights: limited
Coastal states: p. 88
-exploring , exploiting, conversing +
managing living and non-living natural resources
-Laws and regulations by the Coastal
States
1. licensing of fishermen, fishing
vessels + equipment + fees
2. determining the species w/c
may be caught + fining quotas to catch
3. regulate seasons+ areas of
fishing (types , sizes + amount of gear)
4. fixing age and size of fish +
other species that maybe caught
*quotas of foreign fisherman

Powers of the State (8 coastal)
- may not prevent other states from exercising
their right of navigation + overflight, aircrafts may fly
over the waters (exclusive economic zone) + right to lay
cables + pipelines

Continental Shelf
-coastal states - sovereign rights
- part of underwater land, covered with shallow
water
- geological formation

>>>>page 11<<<<

Differences (Continental Shelf Vs. EEZ)
<Continental Shelf>
- may extend beyond 200 miles in exceptional
career
Super adjacent waters
Delimitation: problems <200 miles>

Regulations by the Coastal States
- justification of 200 miles

High Seas
- free for energy state (res communis)
- shrunken - existence of Continental Shelf + EEZ

Freedom of States (p.90)
- freedom of navigation + overflight of
laying submarine cables + pipelines, fishing,
scientific research, construction of artificial
island + other installations
<permitted by international ruler>

Article 110 of the 1982 Convention

Right of hot pursuit
- start in the areas of territorial jurisdiction
continues to #5
- must not be interrupted
- seize ship

Developing Countries
- had to compute with the large fishing vessels
of developed countries
- lean with the EEZ

Territory (Shaw)
Means of Acquiring territory
1. Western Sahara (latin term) -
2. Accretion
- new land is formed -
geographical process
- avulsion - violent maybe
shifted
- navigable
3. Cession
- peaceful transfer of territory
from one sovereign to other
- Philippines - Treaty of Paris -
Dec. 10, 1898
- Right of self determination

>>>>page 12<<<<

4. Conquest + use of force
- act of defeating an
opponent/occupying all/part of its territory
- form of annexation - once the
war has ended
- illegal act; prohibition of
thread + use of force

5. effective control/occupation
- validity Palma's case page
840, paragraph 4
o if there is no
conventional line
*if treaty exists, effective
occupation can't overpower it
o if there's a
provision on the
conventional line

Palma's Case Q#1
- "discovery"
- United Stated
- successor state of Spain (case of the
Philippines); p.887 (agreement of US - sovereignty
through discovery + treaty over Palmas)
- Arbitrator on discovery:
p. 844 (paragraph 2)
1580 - 1640 (Spanish + Portuguese)
- "I (Dha) de (or das) Palmeinas"
- the Portuguese name - "Spanish (for)
discovery"
p.845 (1st complete paragraph)
- Spanish only saw the island and did
not land' no contact with the natives
- Willing to grant that discovery max of
Spain (Arbitrator) but...
*value of discovery p. 845 (2nd); last
*evaluation of Law p.845
- the same principle w/c
subjects the act creative if a right to the law in force at
the time the right arises,
demand that the existence of the right, its continued
manifestation, shall follow the
conditions required by the evaluation of law
- Discovery only served as notice to the other
states (Shaw)
*Agent of the State
-

>>>>page 13<<<

Q#2: Claim on the basis of contiguity: The US
- Title: relative rather than absolute (Shaw p191)
o State with better argument
- P838-839
o Customary to examine states claiming
sovereignty possesses a title superior to that
which the other state might possible bring
forward against it

>>>>page 14<<<<

4.) PROBLEM 7
Self determination could only be applied to colonial
situations
- A people ruled by minority, under illegal
occupation; *no right of cession under
international law
- Cannot be the basis to claim territory

Acquiescence and recognition
Combodia + Thailand
o Question of sovereignty over the
Temple of Preah Vihear
o Thai Prince: temple area -> French flag
o Map: temple within Cambodia
o Thailand did not protest or asked for
further copies
o Thailand estopped could not change
its position

Importance/Vital in asserting territorial claims
- if the acquisition is against the will of the foreign
sovereign
Opposition of the new sovereign: former may have
been defeated or expelled from the territory; former:
acquiescence -> strengthen claim of new sovereign

UTI POSSIDETIS page 627
- effect of the freezing the territorial titles existing at
the moment of independence
*YUGOSLAVIA
- Latin America Spanish emire was divided
into units
- Justification for uti possidetis: prevent
instability; without uti possidetis, states might fight
each other due to re-drawing the borders/demand
borderlines to be re-drawn
- ensure stability of borders at the time
of independence

Clear uti possidetis line
- illegal occupation
- Colonial effectivities (colonial control or practices)
could not prevail without uti possideties or without
clear U.P line
- colonial contact will show how the title
- international tribunal observe colonial
authorities

>>>>page 15<<<<

Border treaties/boundary treaties
Not binding only on the parties
Rights on all states
Could be source of titles
Rationale: there is a need for stability of the
boundaries
5.) PROBLEM 8:
France conducting nuclear tests (underground)
South Pacific
- Moruroa + Fangataufa atolls
- atmospheric nuclear tests radioactive
fallouts
- 1960s in the Sahara; France possessed
territories/colonia; **complaints from Algeria

French attitude (South Pacific) nuclear testing
causes no harm to the environment

Rebuttals/Argumentd
For the moment, the radioactive elements had
not yet spread (nothing had happened), but after
500-1000 years, there might be a leakage
Half-life of 10, 000 years debris of pas
explosions
o Radioactivity in plankton found near
Moruroa + plutonium in seawater
o **debris will never disappear (half
would still be left)

Rainbow warrior (British nationality)
Headed to Vanuatu to Moruroa

August -> letter from France to New Zealand on the
incident: inexcusable crime
France- initiated an investigation
Conclusion: Denying French involvement in the
event

Q#1: To establish the responsibility
THREE FACTORS:
1. Existence of international legal obligation
2. Act/omission which violates the obligation
3. Loss or damage has resulted from unlawful act
or omission <failure to act>
a. It was not even clear that the author of
the damage was a state
b. France blamed non0state actors (Short
article by journalist)
First factor: did there exist responsibility or
international obligation to New Zealand
France: obligation to respect territory of New
Zealand
o French agents illegally entered New
Zealand
o Duty to refrain from the use of force
o **ultra vines exceeding power (p. 788
Shaw)
State will still be responsible
(even if orders didnt come)
Condition #2
Exhaustion of domestic remedies by the
individual if he or she has secured a judgment
from the supreme court
o Justification
For the purpose of the rules:
give the state the opportunity
to solve the problem
**the rule does not apply if one state violates the right
of another

CLAIMS ON THE ISSUE
Britain did not take up a claim on Rainbow Warrior
Close ties with France
Like France, Britain has nuclear weapons
Would appear that Britain is endorsing anti-
nuclear campaigns

Portugal photographer killed was Portuguese
Was not Portuguese at the time of his death
Born in Portugal but became Dutch because he
didnt want to fight the colonial wars in Angola
NO Claim on behalf of Fernando Pereira

Denmark claim on behalf of Pereira
Dutch Citizen
Page 210 judgment

New Zealand
Since 1957, NZ and France -> founding
members of the EEC
France demanded the others should support
the; at least not to embarrass France