Jurisdiction and sovereignty Chapter 6

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

International Law Report

1. Choose a pending case before the ICJ 2. 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

General Principles

1. Jurisdiction means the ability of a court to exercise power in a place or upon a person or on some property.

2. Unless an exception applies, one state cannot exercise jurisdiction over another.

3. However, a state under prescriptive jurisdiction, can make laws beyond their territorial domain.

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?

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.

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)

5 types of jurisdiction Under civil and criminal law

1. Territorial 2. Nationality 3. Universal 4. Protective 5. Passive personality * Concurrent jurisdiction * Double jeopardy

Territorial Jurisdiction Nationality Jurisdiction

UniversalJurisdiction

Protective Jurisdiction Effects Doctrine Jurisdiction

Passive Personality Jurisdiction

Strong Strong Established Established Established Weak

Objective territoriality (main part)

Jurisdiction over its citizens

Jurisdiction against harms against mankind

Can have jurisdiction to prevent harm to the state

Jurisdiction over any matters that produce an effect in their territory (more broad)

Jurisdiction over any crime where the victim was a national

Subjective territoriality (some part)

Can only be enforced when that citizen is in his home state

For example human rights violations, piracy, etc.

Doesn’t matter who or it doesn’t matter where

Again, anti-trust legislation; a foreign company can be liable for heavy penalties in the U.S. for activities taking place outside the U.S.

Where the crime or action occurred does not matter

Extra-territorial (jurisdiction for actions taken abroad; anti-trust)

Sex offenders in Thailand could be punished back in the U.S. or U.K under statutes

Israel v. Eichmann is an example.

Again, Israel v. Eichmann

Fight against terrorism or the fight against ISIS

The point is, any citizen carries the protection of the law of his home state

Japanese journalist unable to leave Korea

U.S. citizens liable for taxes on income earned abroad

Congo v. Belgium (foreign minister claimed immunity)

What about U.S. Invasion of Iraq, the second time?

What about U.S. Invasion of Iraq, the first time?

Not recognized by customary law

Exceptions apply, like Guantanamo Bay, Cuba or immunity for diplomats

Where the event happens does not matter

What about U.S. Invasion of Iraq, the first time?

Jurisdiction over Korean spies that are in China as an example.

Jurisdiction over Korean spies that are in China as an example.

American national raped abroad as an example

U.S. Court Jurisdiction

• State Courts have general jurisdiction • Federal Courts have limited jurisdiction

(Diversity of states and at least 75,000 USD in controversy or Federal law question

• Supreme Court has appellate jurisdiction over any Federal or Constitutional law

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.

5 factors to claim sovereignty

1. Occupation and prescription (Island of Palmas case; U.S. had treaty, Netherlands was actually there)

2. Apparent display of sovereignty means local administration has established a system of law (Manifest Destiny and Reverse Manifest Density in California)

3. Intention to acquire sovereignty (Mens Rea)

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?

U.S. sovereignty gained by treaty, war, discovery,

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 the Philippines, 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?)

Conclusion of the Palmas decision

• Under the Palmas decision, three important rules for resolving island territorial disputes were decided:

• Firstly, title based on contiguity has no standing in international law.

• Secondly, title by discovery is only an inchoate title.• Finally, if another sovereign begins to exercise continuous

and actual sovereignty, (and the arbitrator required that the claim had to be open and public and with good title), and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery.

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 (Jeju Island was created from avulsion)

• Judicial decisions can determine who gets the territory (Island of Palams Case)

• Principle of self-determination p. 171 (Tibet)

Accretion

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

Discovery

• Think of Christopher Columbus’s supposed discovery. He only had an inchoate title to territory under Spanish law

• 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)

Discovery

• 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

• Seemingly, European countries under their laws of discovery divided up the world or attempted to.

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.

Relationship between Discovery, Sovereignty, and Jurisdiction

• Principles of discovery led to European colonization of the Americas (Nothing rarely discovered now)

• After discovery, sovereignty is established (mostly by occupation and the setting up of a local government)

• After sovereignty is established, its courts can exercise jurisdiction

• Isn’t it all slightly similar to the movie Avatar?

Questions to ponder?

• How come China or India did not colonize or discover the world, even though they were the economic powerhouses for most of modern history?

• What allowed European countries to be the ones to establish governments, laws, and systems of living all over the world? Why not other cultures or races?

• IL, common law, civil law, among other systems all stem from Europe. Why not the other way around?

One explanation from Guns, Germs, and Steel

Summary of Guns, Germs, and Steel

• Europeans have geography blessed enough to have large animals.

• Large animals were domesticated for farming, which increased caloric intake.

• Plentiful food led to job specialization. This led to development of steel and weapons.

• Also, being close to animals led to germs. • Weapons and germs are two key factors that

allowed Europeans to colonize native lands.

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.

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

Tips on Report

• Remember the ICJ would not even hear a case unless two countries thought they had a chance of winning.

• So do not make your paper clearly one-sided. • Show that some factors or laws favor one side,

but more factors or laws favor the other side. • Times New Roman and single-space please!