Dragonia v Transvania: Border Delimitation Dispute - Case Study Example

Case study - Dragonia v Transvania: Border Delimitation Dispute The two neighbouring states, Dragonia and Transvania have since the wake of 2008 locked horns over a disputed historic castle that lies along the border. The contentious issue that heightened disputes between the states is the question: on whose territorial jurisdiction does the castle lie? Dragonia prefers the International Court of Justice to settle the dispute while Transvania claims that the ICJ no legal jurisdiction over the matter. We set out to advice Dragonia on the legal status of the matter. Case scenario Seeing as both states are privy to the Treaty of Friendship of 1940, they are thereby bound by Article 2 of the pact that requires them to submit (via mutual consent) any form of dispute between them to the Permanent Court of International Justice (present-day ICJ). Likewise, both states are members of the UN and they have made optional declarations under Article 36 (2) of the International Court of Justice. Article 36(2) confers, on the ICJ, the mandate to arbitrate Dragonia and Transvania’s border delimitation dispute by virtue of their optional declarations. However, there are limitation clauses attached to the optimal declarations as well as to ICJ’s laws. Correspondingly, ICJ gains mandate to arbitrate the dispute contingent upon the consideration that Transvania withholds ICJ’s jurisdiction in matters that the Transvania government deems domestic. Under the auspices of the declarations made PCIJ’s statutes, Article 36(5) issues the court mandate over disputes while Article 37 shifts such authority under any ‘compromissory clause’ in a pact from which the PCIJ drew jurisdiction. In light of the preceding legal analysis, Dragonia would have no profound legal grounds to compel her neighbouring state to submit to ICJ’s authority. The decision based on the optional declarations made by Transvania depends wholly on Transvania’s consent, which would in turn sanction the court’s mandate to arbitrate the Dragonia – Transvania border delimitation dispute. The agreement made under Article 2 of the1940 Treaty of Friendship provides as well that both parties agree to seek the PCIJ’s jurisdiction over their disputes. Even without the consent of Transvania, the court may still have jurisdiction over the dispute given that Dragonia is willing to pursue a contingency course of action. Following the ICJ ruling and the outcome of the Corfu Channel Case – UK v Albania, 1949, a judicial precedent was introduced that may be used as a reference for similar cases. Under the auspices of the UK v Albania judicial precedent, the ICIJ may legitimately acquire implied but not expressed jurisdiction over the Dragonia – Transvania border delimitation dispute. Albania had written a letter to the ICJ declaring her intention to submit to the authority of the court. The court subsequently held that the letter would suffice in granting the ICJ jurisdiction (UK v Alabama, 1949). Similarly, Dragonia would write to the ICJ submitting their intention to seek the court’s authority over the disputed castle. This in turn grants the ICJ jurisdiction by virtue of tacit consent by Dragonia. Alternatively, Dragonia may plead on the merits. Work cited Great Britain v Albania [1949] ICJ Rep 1, 244) International Court of Justice principle of reciprocity, Great Britain v Albania - Court, Jurisdiction, Albania, Advisory, Parties, Authority, International, and State, online at; The Treaty (2005) The Vienna Convention on the Law of Treaties defines a treaty as “an international agreement concluded between states in written form and governed by international law.” (The Vienna Convention on the Law of Treaties 12) Most member and non member states recognize the VCLT as the superlative ‘Treaty of Treaties.’ The extent to which the Convention gains jurisdiction to govern treaties entered into by its member states is stipulated in Article 4 of the VCLT. Article 4 states that the VCLT applies merely to those agreements concluded by nations after the present Convention gained force in those states. The Treaty (2005) gained force the same year to facilitate engagements amongst States A, B and C regarding establishing a Space Station. Since A, B and C are members of the VCLT, Article 4 grants the Convention jurisdiction over The Treaty. The desire of C’s Foreign Affairs Minister to pull out from The Treaty (2005) stems from the unreliability of their intelligence, through which C’s ultimate interest to access technology that would aid nuclear proliferation hit an impasse. In bid to pull out from the treaty, the provision of The Treaty (2005) provides viable options. Article 1 (b) of the treaty states in unequivocal terms that each party to The Treaty agree to give yearly contributions to facilitate the development and aid the operation of the Space Stations. However, State A has failed to submit their annual contribution as required under Article 1 (a). State A’s subsequent failure to adhere to the provision amounts of breach of contract. As such, C may write to the Convention expressing their intention not to be bound by The Treaty citing A’s breach of contract. Much in the same way, the VCLT codifies a statute under international law that provides that in the event that a party materially breaches the terms or violates her treaty obligations, the other parties may invoke this as grounds to provisionally suspend their pact obligations. Such a material violation may also serve as grounds for abandoning a treaty altogether. Finally yet importantly, C may invoke the treaties doctrine: ultra vires to revoke the validity of The Treaty (2005). The principle of ultra vires states that a treaty is invalid once the consent is made by an agent who has no authority vested on him by the country’s domestic laws to issue such consent. Likewise, a treaty is virtually invalid given that the consenting party ignored any restrictions subject to such consent. To this end, C may write to the VCLT formally requesting investigations into the legitimacy of A’s ratification of The Treaty. Once the Convention commences investigations, it will be evident that A’s representative thwarted his state’s entry into the treaty by failing to follow the designated constitutional procedure of garnering such approval from A’s parliament. Once it is established (under the Convention’s reasonable estimation) that A’s entry into The Treaty was indeed circumvented, State C gains legal grounds of pulling out from the treaty. Work cited “Vienna Convention on the Law of Treaties” Encyclopedia Britannica 2010 Encyclopedia Britannica Online 29 Jul. 2010 Online at; Retrieved on July 29, 2010 Diplomatic Protection Under the aegis of international law, once a country causes an alien to apprehend immediate harm, this translates into harming the integrity of their home country. As such, international law avails restitution by allowing the alien country to file for diplomatic espousal subject to two requirements – continuous nationality and exhaustion of other viable remedies. In the years preceding 2002, an Australian citizen would lose their citizenship once they gained another country’s citizenship. In the present day though, the government of Australia recognizes dual citizenship if an Australian citizen gains another citizenship via naturalization. Since Col Mustard acquired Batelsan’s citizenship by naturalization in 2006, the Australian laws still recognizes him as a citizen. Similarly, Keen Company is an Australian multinational company with a foreign affiliate in Batelsan. International law sanctions the provision of diplomatic espousal in the event that a host nation fails to issue remedy to an alien following their (the alien) request. When the Batelsan Insurrectional (BI) seized power in March 2008, they issued a stern limitation clause in form of a disclaimer. The disclaimer categorically stated that the government had no intention to compensate any damage that occurred in the events leading to March 2008, including the expropriated foreign property. Therefore, Col Mustard ought to follow the designated procedures as stipulated by international law before Australia can file for his diplomatic espousal. The viable option at Col Mustard’s disposal is to file a suit through Batelsan’s legal framework in an effort to pursue claims against the Batelsan Government. If the Batelsan Government denies Col Mustard remedy under its domestic laws, Col Mustard may proceed at will to request his home country, Australia to seek diplomatic protection on his behalf. It is prudent to note that the Australian government is only mandated to seek diplomatic espousal for Col Mustard after his legal suit hits a deadlock. Equally, international law that governs diplomatic espousal extends to cover all persons (natural and legal persons). Col Mustard is natural person whereas Keen Company is a legal person. For legal persons, the same designated procedure applies since Batelsan inflicted harm on Keen Company (by expropriating all foreign property) just as it caused Col Mustard to suffer from post-traumatic stress. International law mandates a home country to seek diplomatic espousal on its legal persons subject to the requirement that the ICJ can establish an authentic link between the legal person and the state diplomatic protection. The ICJ introduced this requirement following the court’s decision in the Nottebohm Case of 1955 (Liechtenstein v. Guatemala) where it upheld what is now known as the Nottebohm principle of effective nationality (Liechtenstein v. Guatemala) The Nottebohm principle of effective nationality equally applies to natural persons. As such, the Australian Government may at its will file for diplomatic espousal for both Col Mustard and Keen Company on the aforementioned grounds. Once Australia invokes the Nottebohm principle, the action for diplomatic protection will be admissible under the auspices of international law. Work cited The Nottebohm Case (Liechtenstein v. Guatemala) International Court of Justice April 6, 1955 (1955 I.C.J. 4) online at; Retrieved on July 29, 2010. Read More