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International Law I I. What is a Nation-State?
A. The Sovereign State i. Definition - SPLIT a) Every Nation which governs itself, under whatever form, and which does not depend on any other nation. (E. De Vattel, The Law of Nations - pg. 474) b) Sovereignty is the totality of international rights and duties recognized by international law. (pg. 475) ii. General Law: (1) [E]ach Nation should contribute as far as it can to the happiness and advancement of other nations, and (2) [E]ach Nation should be left to the peaceable enjoyment of that liberty which belongs to it by nature. (E. De Vattel, The Law of Nations - pg. 473) iii. Equality of Nations a) Nations are by nature equal and hold from nature the same obligations and the same rights. (pg. 473) b) What is lawful of unlawful for one Nation is equally lawful or unlawful for every other nation. (pg. 474) c) "No principle of general law is more universally acknowledged than the perfect equality of nations." The Antelope, 23 U.S. 66, 122 (1825). d) The organization is based on the principle of the sovereign equality of all its Members. (Article 2, Charter of the United Nations - pg. 961) iv. Marks of Sovereignty: The rights, subject to "the lawes of God and nature" to: a) Make laws b) Name magistrates c) Hear final appeals d) Grant pardons e) Coin money f) Set weights and measures g) Impose taxes h) Wage war i) Exact "liege fealtie and homage" B. Recognition and Succession i. When does a State exist?
a) Constitutive Theory vs. Declaratory Theory - SPLIT
? Declaratory Theory: The political existence of the state is independent of recognition by other states. (Article 3, The Montevideo Convention - pg. 477)
? "The state as a person of international law should possess (a) a permanent population, (b) a defined territory, (c) government, and (d) capacity to enter into relations with the other states." (Article 1, The Montevideo Convention - pg. 477)
?????The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and 1
duties determined by international law. (Article 6, The Montevideo Convention - pg. 477)
?????Constitutive Theory: "[A] new State before its recognition cannot claim any right which a member of the Family of Nations has towards other members. . . . Through recognition only and exclusively a State becomes an International Person and a subject of International Law" (pg. 478) b) TEST re existence of a state (Notes): (1) Identifiable Territory, (2) Effective Control of Government, (3) Regular Population of Human Beings, and (4) Governing Body is conducting or endeavoring to conduct foreign relations. ii. The principle of the continuity of states a) "Changes in the government or the international policy of a state do not as a rule affect its position in international law. . . . [T]hough the government changes, the nation remains with rights and obligations unimpaired. (The Tinoco Arbitration - pg. 484-85) b) "The state is bound by engagements entered into by governments that have ceased to exist; the restored government is generally liable for the acts of the usurper." (The Tinoco Arbitration - pg. 485) c) Applies to:
? De jure governments: Legal government (concerning law)
? De facto governments: (1) Government established itself and (2) maintains a peaceful administration with the acquiescence of the people for a substantial period of time. (See The Tinoco Arbitration - pg. 487) iii. U.S. courts will generally not give effect to acts by states that the U.S. does not recognize. (See Cyprus Case - pg. 497-98) ("[W]ho is the sovereign of a territory is not a judicial question, but one the determination of which by the political departments conclusively binds the courts[.]") a) Restatement (Third) of the Foreign Relations Law of the United States SS
205(1): "[A]n entity not recognized as a state, or a regime not recognized as the government of a state, is ordinarily denied access to courts in the United States[.]" (Supp. I - pg. 1)
? Acts of Recognition (Notes):
? Sending and receiving ambassadors
? Making agreements (e.g. treaties/contracts)
? US POLICY: It is not the policy of the government of the United States to recognize other governments, EXCEPT when it is... b) Restatement (Third) of the Foreign Relations Law of the United States SS
205(2): "[A] regime not recognized as the government of a state is not entitled to property belonging to that state located in the United States[.]" (Supp. I pg. 1) c) BUT, in some instances, courts in the United States can give effect to the acts of nonrecognized but "de facto" regimes if the acts relate to purely logical matters. (Cyprus Case - pg. 497)
?????Restatement (Third) of the Foreign Relations Law of the United States SS
2 205(3): "[C]ourts in the United States ordinarily give effect to acts of a regime representing an entity not recognized as a state, or of a regime not recognized as the government of a state, if those acts apply to territory under the control of that regime and relate to domestic matters only." (pg. 497 n.15/Supp. I - pg. 1)
? Distinction: Two types of de facto governments (Cyprus Case - pg. 499)
? (1) Such as exists after it has expelled the regularly constituted authorities from the seats of power and the public offices, and established its own functionaries in their places, so as to represent in fact the sovereignty of the nation.
? Acts of State generally recognized
? ". . . treated as in most respects possessing rightful authority, . . . [and] its legislation is in general recognized." (pg. 499)
? (2) Such as exists where a portion of the inhabitants of a country have separated themselves from the parent State and established an independent government.
? Whether acts recognized or not recognized depends on its ultimate success as a government
?????"The validity of its acts, both against the parent State and its citizens or subjects, depends entirely upon its ultimate success. . . . If it succeed, and become recognized, its acts from commencement of its existence are upheld as those of an independent nation." (pg. 499) iv. Dismembratio a) In international law, this means "the complete dissolution of the predecessor State and replacement by several successor States." (Republic of Croatia - pg. 509) b) Under customary international law, in the case of "dismembratio," State property is to be distributed according to the international principle of "equity." (The Republic of Croatia - pg. 510)
? The "Vienna Convention on Succession of States in Respect of State Property, Archives and Debt" provides for the passing of movable State property to the successor States in "equitable proportions." (pg. 510)
? According to the "Vienna Convention on Succession of States in Respect of State Property, Archives and Debt," "State Property of the predecessor State" is property and rights which, at the date of the succession of States, were, according to the internal law of the predecessor State, owned by that State. (pg. 508) II. Diplomatic Relations A. Vienna Convention on Diplomatic Relations - Key Provisions i. Preamble (Supp. I - pg. 5) a) "[T]he rules of customary international law should continue to govern 3
questions not expressly regulated by the provisions of the present Convention."
?????NOTE: WHERE a nation is not a signer to the Convention, the argument to make is that the Convention is the best indication of International Law. ii. Article 2 (Supp. I - pg. 6) a) "The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent."
?????There is no obligation under International Law to conduct diplomatic relations. iii. Article 4 (Supp. I - pg. 6) a) "1. The sending State must make certain that the agrement of the receiving State has been given for the person it proposes to accredit as head of the mission to that State." b) "2. The receiving State is not obliged to give reasons to the sending State for a refusal of agrement." iv. Article 9 (Supp. I - pg. 7) a) (1) "The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State." v. Article 22 (Supp. I - pg. 10) a) (1) "The premises of the mission shall be inviolable." b) (2) "The receiving State is under a special duty to take all reasonable steps to protect the premises of the mission against any intrusion of damage and to prevent any disturbance of the peace of the mission or impairment of its dignity."
? BUT, the violation of International Law by the sending State is not an affirmative defense for the receiving State's failure to take appropriate steps to protect the premises of the mission of the sending State. (See The Diplomatic and Consular Staff Case - pg. 325) c) (3) "The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution."
? ALSO, Article 30(1): "The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission" (Supp. I - pg. 12)
?????BUT, the mission is not an extension of the territory of the sending State. vi. Article 26 (Supp. I - pg. 11) a) "Subject to its laws and regulations concerning zones entry into which is prohibited for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory." 4
Article 27 (Supp. I - pg. 11) a) (1) "The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State." b) (2) "The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and it functions." viii. Article 29 (Supp. I - pg. 12) a) "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity." ix. Article 30 (Supp. I - pg. 12) a) (1) "The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission" b) (2) "His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability." x. Article 31 (Supp. I - pg. 12) a) (1) "A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
? (a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
? (b) An action relating to succession in which the diplomatic agent is involved as executor, administrator heir or legatee as a private person and not on behalf of the sending State;
? (c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions."
? BUT, shouldn't be doing this anyhow:
? Article 42 (Supp. I - 17): "A diplomatic agent shall not in the receiving State practice for personal any professional or commercial activity."
? This exception does not apply to the employment of a domestic servant by the diplomat. (See Tabion v. Mufti - Supp. I - pg. 30)
? BUT Certification of diplomatic status by the State Department is retroactive and serves as a defense to lawsuits already commenced at the time of certification. 5
"[O]nce the United States State Department has regularly certified a visitor to this country as having diplomatic status, the courts are bound to accept that determination, and that the diplomatic immunity flowing from that status serves as a defense to suits already commenced." (Abdulaziz - Supp. I - pg. 23)
?????JURIS SPLIT re suing the Diplomat's Insurance Co.
? Majority Rule: There is jurisdiction over insurance co. as Article 31 doesn't mention insurance cos.
? Insurance Co. would be liable if jurisdiction found b) (2) "A diplomatic agent is not obliged to give evidence as a witness." c) (4) "The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State." xi. Article 32 (Supp. I - pg. 13) a) (1) "The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State." b) (2) "Waiver must always be express."
? BUT Waiver of diplomatic immunity, with respect to civil jurisdiction, is a wholly separate act from waiver of immunity from criminal jurisdiction. (See Knab v. Republic of Georgia - Supp. I - pg. 28)
? "[T]he Convention considers immunity from criminal jurisdiction and immunity from civil and administrative jurisdiction to be distinct privileges. Therefore, it is possible that a state may waive one immunity and not waive the other. . . . Such a waiver . . . is . . . a complete waiver of one immunity, which does not necessarily affect the other. . . ." (Knab v. Republic of Georgia - Supp. I - pg. 28)
? AND "Diplomatic immunity can be waived by continuing to assert a claim while at the same time seeking immunity from a counterclaim." (Abdulaziz - Supp. I - pg. 25)
?????ALSO, if you don't move to dismiss after being sued = waiver xii. Article 34 (Supp. I - pp. 13-14) a) "A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:
? (a) Indirect taxes of a kind which are nominally incorporated in the price of goods or services;
? (b) Dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
? (c) Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of article 39;
? (d) Dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;
? (e) Charges levied for specific services rendered; 6
?????(f) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of article 23." xiii. Article 36 (Supp. I - pg. 14) a) (1) "The receiving State shall . . . permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage and similar services, on:
? (a) Articles for the official use of the mission;
?????(b) Articles for the personal use of a diplomatic agent or member of his family forming part of his household, including articles intended for his establishment." xiv. Article 37 (Supp. I - pg. 14) a) (1) "The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36." xv. Article 38 (Supp. I - pg. 15) - Functional BUT NOT total immunity a) "1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his function." b) "2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission." xvi. Article 39 (Supp. I - pg. 28) - RESIDUAL IMMUNITY & Opportunity to leave country at the conclusion of privileges or immunities a) "2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist."
?????This is called "Residual Immunity." (See Knab v. Republic of Georgia Supp. I - pg. 28) ii. Article 40 (Supp. I - 16) - TRANSITORY IMMUNITY a) "1. If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent, or travelling 7
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