State Ks Statement and the Government of Zerovia - Assignment Example

? International law Article 12 of the Pact provides that the Pact will only come into effect once it has been endorsed by ten states. State K is the tenth state to ratify the pact. The ratification of the pact by state K, therefore, makes the pact enforceable. Notwithstanding the reservations of State L on the ratification of the pact by State K the Pact is deemed enforced unless State L pulls out of the Pact. Article 12of the Pact does not specify whether the pact will come into force upon the full ratification or a partial ratification, similar to that of State K. The interpretation of this Article, therefore, includes both full and partial ratification and, therefore, the Pact is now in force. The effects of State K’s statement in the instrument of ratification imply that, although the State has ratified the Pact, it has reservations on the implementation of articles 2 and 3 of the Pact. In essence, State K is bound by all the other articles in the Pact save for article 2 and 3. It is, therefore, noteworthy that State K will not make racketeering a criminal offence for everyone in the state as stipulated by Article 2 of the Pact. Additionally, State K will not be under any obligation to either prosecute or extradite to a State which requests it, any person found within its territory whom there is reasonable cause to suspect of having committed acts of racketeering under Article 3 of the Pact. State L s letter may not have any significant effect on State Ks ratification of the Pact. This is because treaty ratification is a matter that is solely decided by a State. Another state whether a party to or not to the Pact or treaty cannot compel another State on whether to ratify a Pact or the manner it should ratify such Pact. Consequently, L, s letter requiring withdrawal of the statement contained in State K’s instrument of ratification is only considered the opinion of State L and cannot affect State K, s ratification of the pact unless State L withdraws it ratification. 2) In this regard, two approaches to the recognition of a state oppose each other. There is a believe that the appropriate existence of a state in the international perspective will only become complete when the State is legally recognized by other States. There is also the contrary perspective that disagrees. As a result, there are two theories that focus on the recognition of the state, and they are the constitutive and declaratory theories. The constitutive theory provides that there is no automatic recognition of a body as a state. The theory provides that a state is considered as a state when it is recognized as a state. Accordingly, other states have substantial discretion to recognize or not to recognize a state. Additionally, the new state only exists upon recognition by those other states. In this regard, a state is, and converts to an international being exclusively through recognition. The legal existence of new States gets its recognition from the will of other states already established. According to this theory, it is, therefore, noteworthy that a state cannot be considered as a proper subject in the international perspective unless it is recognized and approved by other states. On the other hand, the declaratory theory looks at the alleged state’s allegation of its sovereignty inside the territory it entirely controls to decide if it can access the international level. The declaratory theory is the opposite of the constitutive theory and holds that recognition is of little importance since states have limited or no discretion in the determination of whether an entity is a state. The status of statehood according to this theory is based on facts and not state discretion. The foreign ministers statement can be interpreted as accurate according to the later theory that does not lay emphasis on recognition. There is the widespread argument that recognition is irrelevant for the existence of a state. In light of this, the attitude that is to be adopted by the British government is one that considers Waterland a sovereign state. 3) The recognition of states in the international community is based on two theories that are the constitutive and the declaratory theories. Whereas the constitutive school argues that a state only becomes a state upon recognition by other states. The declaratory theory asserts that a state is a state because it meets the international criteria of statehood. In regard to the constitutive approach recognition is status creating while according to the declaratory approach recognition is merely the confirmation of status. It is of considerable importance to distinguish between the requirements of statehood and the requirements for recognition. This distinction is significant as it assists other states in entering into relations with each other. While the requirements of statehood are prescribed by international law the requirements of recognition vary from state to state. The requirements for an entity to be considered a state are; a population, on a specified territory and organized in an effective public authority. Effective public authority in this case is twofold and includes both the internal and external sovereignty. Internal sovereignty requires the state to exercise absolute authority of the state including the power to determine the state's constitution. External sovereignty implies that the state must be independent of other states and refers to the legal independence which implies that the state must be subject to only international law. The international community is not likely to recognize the government in exile of the Republic of Fredonia. The reason for this predicament is that the government in exile of the Republic of does not meet the requirements for recognition as a state. Although there is the population, which is the key to recognition as a state the State of Fredonia, the state lacks the other two requirements of a specific territory and effective public authority. Fredonia is annexed to Utopia, therefore, the lack of a specified territory and there is no effective authority in Fredonia since it is under the Utopian law and cannot determine its own constitution, and as such is not sovereign. 4) State A, a party to the Toby Desert pact remains a party to this pact unless it withdraws from the Pact, or the Pact is terminated, or suspended. Despite the creation of the new convention, the previous pact is still in place, and the party members remain bound by the pact. The allegation that State A was coerced into the Pact by other states cannot invalidate its ratification of the pact unless the State officially withdraws from it. State B, which is party to the earlier Pact, and like State A is not part of the later convention is only bound by the earlier pact. The later convention which does not include both State A and State B cannot bind either of these states. The two states are only party to the early Pact and are, therefore, bound by this pact alone and not the later convention. State F, on the other hand, is not party to either of the treaties and is, therefore, not bound by any of them. Despite the fact that State F is granted a sector of the desert the state cannot be bound by any of these agreements unless the State ratifies the agreement. States C and E have ratified both the Toby Desert Pact and the Toby Desert Convention. This implies that these states are bound by the two agreements and can only cease to be bound unless the agreements are suspended or terminated. State D ratified both Toby Desert Pact and the Toby Desert Convention and as such is bound by both the treaties. However, the division of State D into two new States D and M implies that State D ceases to exist. Despite the formation of these new States, the two agreements are still enforceable as ratified by the parent State unless the individual state withdraws from the agreements. 5) International law requires the prosecution of crimes against humanity. It becomes necessary to enforce international criminal law in order to provide justice for the victims. The prosecution of these crimes is a vital component of transitional justice that aims at changing societies into democracies that respect the rights of citizens and addresses prior violations of human rights. The main demand of victims of such criminal acts is the investigation and prosecution of its perpetrators. International criminal law does not prosecute all crimes perpetrated but only prosecutes those crimes that are against internationally recognized human rights. These include crimes against humanity, which is defined as detestable offenses since they result in serious transgression on human dignity, severe humiliation, or a deprivation of human beings. Crimes against humanity are not isolated but rather sporadic and are part of a policy or widespread atrocities overlooked or tolerated by the government. Crimes can only reach the threshold of crimes against humanity against humanity if they are part of a systematic and widespread practice. In this regard, Albert is subject to international criminal law and is required to face charges of crimes against humanity. The definition of crimes against humanity includes acts like torture and killing which was undertaken or overlooked by Albert’s government while he was in power. The international criminal law, therefore, requires that Albert be prosecuted for these crimes. The international criminal law also considers the torture and killing of identifiable groups as crimes against humanity. The killings of monarchist supporters during his tenure are also ingredients for the crime against humanity. In addition to this, the charges of killing of Carlos an anti-monarchist exile, during Albert’s tenure as ambassador in Zenobi and the rape of Marie also constitute crimes that are considered degradation of human dignity and as such Albert will face criminal charges for these crimes. 6) The declaration of war on another country, or entity constitutes war crimes. These crimes are divided into two categories. The first category is crimes against peace. This includes the preparation, planning, or commencement of a war of aggression. The general rule of international law in this regard is that a country cannot wage war against another country. Moreover, a country cannot settle a dispute with another country through war and must negotiate a settlement of the dispute in good faith. The other category of war is the crimes against humanity, which includes crimes against civilians and soldiers. These are abuses of the principles as to the manner and means by which war is to be conducted. These rules include prohibition of indiscriminate bombing, killing of civilians, the use of certain types of weapons, attacks on non-military targets and killing of defenseless soldiers. Nevertheless, where there is engagement in war there are some central principles that guide the conduct of war. These principles are military necessity, distinction, and proportionality. The principle of military necessity requires that an attack or an action of war must be intended to assist the military defeat the enemy. Such attack must be an attack with a military objective and harm caused to the civilian property or the civilians must be proportionate to the direct military advantage expected. Distinction concerning such war implies the discrimination between lawful combatant targets and targets that are noncombatant. Noncombatant targets include civilians, civilian property and soldiers that are out of combat. The approach of this principle is to limit engagement to valid military targets. The other principle is proportionality which requires that the force used in the war should not exceed the needed force to accomplish the desired military objective. It contrasts the military advantage gained to the harm inflicted in the course of gaining such advantage. The declaration of the holy war against Federal states by Ufasia is a crime against peace as the international law on war dictates that a state should not engage in war but settle any differences through negotiations. The attack in a public house, in Liguria, did not take into consideration the principle of distinction as the attack was carried out on civilian property and soldiers who were not in combat. The attack by the federal states, on the other hand, was due to military necessity and was carried out on military targets, and the damage of the attack was proportionate to the desired results. 7) Territorial sea or territorial waters is a belt of coastal waters that extends around 13 miles from the baseline of a sovereign state. Territorial sea is considered a sovereign territory of a state it attaches to and such sovereignty extends to the air above the territorial sea. The sovereignty of the territorial sea is exercised in regard to the rules of international law. The sovereign states that have jurisdiction over the territorial waters are responsible for formulating policies on these territories. Alpha, in this regard, has control over the territorial sea and can formulate policies that govern this territory. Although territorial waters are subject to the sovereigns policies, there is the right of innocent passage that attaches to the territory. Passage in this case refers to navigation across the territorial sea with an objective of traversing the sea without encroaching the internal waters. There is also the requirement that such passage must be expeditious and continuous. This right of innocent passage includes activities that are incidental to ordinary navigation. A passage is also innocent as long as this passage is not prejudicial to the good order, security and the peace of the coastal state. Beta has a right of innocent passage through the territorial waters of Alpha and must comply with the policies set out by Alpha. However, Alpha, which is the coastal state, should not impede the innocent passage of foreign ships over its territorial waters. The position of the international law governing territorial sea requires that a coastal state shall not impose conditions, which have practical effects of impairing or denying foreign ships the rite of passage. Additionally, the coastal state shall not discriminate against ships of any state. The refusal by Alpha to remove the mines in the territory to render the waters passable amounts to discrimination against Betas ships. The concept of transit passage dictates that vessels have the freedom of navigation for the purpose of expeditious and continuous transit of a strait. This concept does not prevent navigation through a strait for the purpose of entering or leaving a state accessible by the strait and is subject to the conditions of the entry state. Vessels from all nations including warships and military vessels enjoy the right of unrestricted transit in these straits. The navigation of the six reflagged Beta vessels, as well as the Gamman warship and the two minesweepers, are all subject to transit passage, and as such enjoy unhindered navigation through the strait. 8) Diplomatic protection is an instrument of international law that is used by individuals whose rights have been unlawfully violated by foreign entities. The traditional approach to diplomatic protection is the right of a state and not that of an individual. However, since an injury to an alien is an indirect injury to the alien’s country the country may take up the individual’s case as a way of asserting the rights of the country. This, therefore, implies that a country in, not under any obligation to take up an individual’s case for diplomatic protection unless the case is of interest to the country. Although Alexandra has sought diplomatic protection from Zerovia, it is not mandatory that Zerovia takes up the case. The right of a state to assert diplomatic protection is discretionary and is based on some requirements. The most fundamental of these requirements is that of nationality which requires a state to extend diplomatic protection only to its citizens. The party seeking diplomatic protection must be a citizen at the time the injury occurs and at the time, the case is lodged. Where the party seeking diplomatic protection has more than one nationality, there is a challenge when the individual is also a citizen of the defendant nation. The other requirement is breach of international law such as denial of justice, discriminatory expropriation and confiscation without compensation. Lastly the party seeking diplomatic protection must have exhausted all other remedies available before seeking diplomatic protection. The government of Zerovia can present a claim of diplomatic protection on behalf of Alexandra. The basis of this claim is that Alexandria is a citizen of Zerovia and despite living in Yahoo was not granted citizenship. The claim for diplomatic protection as well as the act of seizing Alexandra’s property by yahoo occurred after she became a citizen of Zerovia. Moreover, Alexandra has exhausted all other possible channels aimed at disputing the seizure. Alexandra’s caser meets all the requirements set out by international law on diplomatic protection and, therefore, the State of Zerovia should present a claim on her behalf. Read More