Public International Law - Essay Example

Public International Law - Scenario Question Introduction: International law consists of rules and principles which govern the relations and dealings of nations with each other. International Law, which is in most other countries referred to as Public International Law, concerns itself only with questions of rights between several nations or nations and the citizens or subjects of other nations. International Law includes the basic, classic concepts of law in national legal systems - status, property, obligation, and tort (or delict). It also includes substantive law, procedure, process and remedies. International Law is rooted in acceptance by the nation states which constitute the system. Public international law derives its rights from international agreements and may take any form that the contracting parties agree upon. Agreements may be made in respect to any matter except to the extent that the agreement conflicts with the rules of international law incorporating basic standards of international conduct or the obligations of a member state under the 'Charter of the United Nations(" We the Peoples of the United Nations... United for a Better World", UN Charter 1945) In this context, a brief discussion on the Vienna Convention on the law of treaties, 1969 seems to be relevant. The VCLT (Vienna Convention on law of Treaties )was drafted by the International Law Commission (ILC) of the United Nations, which began work on the Convention in 1949 and finished in 1969 with a diplomatic conference held by the UN in Vienna, Austria. The Convention was adopted on May 22, 1969.The Convention entered into force on January 27, 1980. 108 states have ratified the VCLT (May, 2007). The 1969 Vienna Convention defines a treaty as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation". The Vienna Convention 1969 was formed with the following purposes :- To consider the fundamental role of treaties in the history of international relations, To recognize the ever-increasing importance of treaties as a source of international law and as a means of developing peaceful cooperation among nations, whatever their constitutional and social systems, To Note the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized, To affirm that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law, To recall the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained, To have in mind the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and To recognize and respect independence of all States, of non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all, Believing that the codification and progressive development of the law of treaties achieved in the present Convention will promote the purposes of the United Nations set forth in the Charter, namely, the maintenance of international peace and security, the development of friendly relations and the achievement of cooperation among nations, To affirm the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention, Extradition Treaties: Extradition is the official process by which one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal. Between nation states, extradition is regulated by treaties. Between sub-national regions, where extradition is required by law, it is called as 'rendition'. The consensus in international law is that a State does not have any obligation to surrender an alleged criminal to a foreign state, as one principle of sovereignty is that every state has legal authority over the people within its borders. Such absence of international obligation and desire of the right to demand such criminals of other countries has caused a web of extradition treaties or agreements to evolve; most countries in the world have signed bilateral extradition treaties with most other countries. No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with over fifty nations, including the People's Republic of China, Namibia, and North Korea. There are two types of extradition treaties: list and dual criminality treaties. The most common and traditional is the list treaty, which contains a list of crimes for which a suspect will be extradited. Dual criminality treaties, used since the 1980s, generally allow for extradition of a criminal suspect if the punishment is more than one year imprisonment in both countries. Occasionally the amount of the time of the sentence agreed upon between the two countries is varied. Under both types of treaties, if the conduct is not a crime in both countries then it will not be an extraditable offense. Generally, an extradition treaty requires that a country seeking extradition be able to show that: The relevant crime is sufficiently serious. There exists a prima facie case against the individual sought. The event in question qualifies as a crime in both countries. The extradited person can reasonably expect a fair trial in the recipient country. The likely penalty will be proportionate to the crime. Most countries require themselves to deny extradition requests if, in the government's opinion, the suspect is sought for a political crime. Many countries, such as Mexico, Canada and most European nations, will not allow extradition if the death penalty may be imposed on the suspect unless they are assured that the death sentence will not subsequently be passed or carried out. In the case of Soering vSs.United Kingdom, the European Court of Human Rights held that it would violate Article 3 of the European Convention on Human Rights to extradite a person to the United States from the United Kingdom in a capital case. These restrictions are normally clearly spelled out in the extradition treaties that a government has agreed upon. Countries with a rule of law typically make extradition subject to review by that country's courts. These courts may impose certain restrictions on extradition, or prevent it altogether, if for instance they deem the accusations to be based on dubious evidence, or evidence obtained from torture, or if they believe that the defendant will not be granted a fair trial on arrival, or will be subject to cruel, inhumane or degrading treatment if extradited. Some countries, such as France, Russian Federation, Germany, Austria, China and Japan, have laws that forbid extraditing their respective citizens. Others, such as Iraq, prohibit extradition of their own citizens in their constitutions. Some others stipulate such prohibition on extradition agreements rather than their laws. Such restrictions are occasionally controversial in other countries when, for example, a French citizen commits a crime abroad and then returns to their home country, perceived as to avoid prosecution. These countries, however, make their criminal laws applicable to citizens abroad, and they try citizens suspected of crimes committed abroad under their own laws. Such suspects are typically prosecuted as if the crime had occurred within the country's borders. Scenario Questions: Question 1. Operation of Extradition Treaty 1994 and relationship between countries in the context of State B appending reservation to the treaty: (i) State B And State A : In an extradition treaty, each State has right to file an objection for any reservation. In the present case , if State A has not filed any objection within the stipulated period of 12 months from the date of notification ( Vienna Convention 1986), the status quo in the relationship will be maintained . As such, filing of reservation by State B and its implied acceptance by State A conveys that State A has no objection to the reservation. " Unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later ".(Article 20 Vienna Convention 1969) (ii) State B and State C: Any signatory or contracting state has the option of objecting to a reservation, inter alia, if, in its opinion, the reservation is incompatible with the object and purpose of the treaty. The objecting state may further declare that its objection has the effect of precluding the entry into force of the treaty as between objecting and reserving states. [Art.20-23, Vienna Convention on the Law of Treaties 1969] In the present case, State C has filed its objection to reservation after 3 months of its notification. The author of the objection (State C) has a right to oppose the entry into force of the treaty between itself and the reserving State. The intention should be expressed clearly, and the reason for the objection should also be made clear.As such State C has an option to terminate its treaty with State B in the event of withdrawal of reservation by State B. (iii) State B and State D: Any objections to reservation must be filed within 12 months from the date of ratification. In the above case , State D has filed its objections after 13 months from notification. As per Vienna Convention 1986 rules , late objection to reservation outside 12 months is invalid. However, if both states differ in this regard, the matter may be referred to International Court of Justice ( Art 66, Vienna Convention 1969). Further, State D can withdraw its consent to the treaty on the grounds of Material Breach . a) A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. b)A material breach of a multilateral treaty by one of the parties entitles the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State, or (ii) as between all the parties; (c) A party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (d any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.(Art 60, Vienna Convention 1969) (iv) State C and State D: The reservation to the extradition treaty 1994 does not significantly affect the relationship between State C and State D as long as they recognize each other as sovereign states. Thus the relationship of State B with other States vary according to the circumstance and willingness on the part of other States to accept the reservation. Question 2 : Legal Grounds available for State D to terminate its participation to the 1994 extradition treaty: 1. According to Article 62 of Vienna Convention 1969, a state can terminate the extradition treaty on the ground of 'Fundamental change of circumstances. However, a fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. 2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty under paragraph 1.(Art 56) The anarchy in state D and declaration of Molvania as a independent state , change in the government are sufficient causes for State B to withdraw itself from the treaty. 2. Coercion by means of a threat of imposing economic sanctions by state A, B, and C Article 51 - Coercion of a representative of a State The expression of a State's consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect. Article 52 - Coercion of a State by the threat or use of force A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. State D can terminate the treaty and the relationship with other states if it was forced to sign the treaty on the threat of economic sanctions by other states. 3. Material Breach: Article 60 -Termination or suspension of the operation of a treaty as a consequence of its breach 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2. A material breach of a multilateral treaty by one of the parties entitles: (a) The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State; or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3.A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. State D can terminate the treaty on the grounds of material breach ( the reservation changes the basis of treaty - extradition of criminals and power of the state to punish them for their offences) Question 3 : Has Molvania the right to secede from State D Whenever "any Form of Government becomes destructive" of the inalienable rights granted by the Creator, (Thomas Jefferson ,'Declaration of Independence ')it is the Right of the People to alter or abolish it, and to institute new Government." When a "long train of abuses and usurpations" shows "a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government." In 1848, Abraham Lincoln , the then US President endorsed secession - "Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable - a most sacred right - a right, which we hope and believe, is to liberate the world." "Nor," said Lincoln, "is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much of the territory as they inhabit." Although Woodrow Wilson supported self-determination, he was against the break-up of Unified States. Eleanor Roosevelt, the U.S. representative to the UN had said "Does self-determination mean the right of secession... Obviously not." As long as the states are held under the federal thumb, they will never be able to experiment with free markets. National labor, tax, environmental , civil rights, and regulatory codes will not allow it. (Wisconsin). For example, in US , each and every state has to seek Washington's approval to try a very minor welfare reform. "No people and no part of a people shall be held against its will in a political association that it does not want," wrote Ludwig von Mises. Otherwise economic freedom would suffer along with political freedom. ( Llewellyn H. Rockwell, Jr. The Free Market 1992) The case of Quebec within Canada, and the Supreme Court of Canada's case on the legality of secessionist attempts by Quebec, is one example of the tension associated with the relationship between self-determination and a right of secession. (Anne F. Bayefsky , 'Self-determination in International Law: Quebec and Lessons Learned '2000) The UN Human Rights Committee has not recognized self determination because abuse of this right could jeopardize international peace and security. Self-determination, as formulated by the International Court of Justice, requires a free and genuine expression of the will of the peoples concerned. Considering the above, we can conclude, though Molvania has the right to secede from State D, its statehood can be determined only by the Supreme Court of state D. Question 4 : Is Molvania a 'state ' under International Law The Restatement (Third) of Foreign Relations explains: "Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities." This definition is fundamentally consistent with the one contained in the Montevideo Convention on the Rights and Duties of States, which provides that "the State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States".The aforementioned elements are often defined "requirements" or "essential conditions" for an entity to be regarded as a state under international law. A state is a political association with effective dominion over a geographic area. It usually includes the set of institutions that claim the authority to make the rules that govern the people of the society in that territory, though its status as a state often depends in part on being recognized by a number of other states as having internal and external sovereignty over it. In Max Weber's influential definition, it is that organization that has a "monopoly on the legitimate use of physical force within a given territory," which may include the armed forces, civil service or state bureaucracy, courts, and police.(Wikipedia) By modern practice and the law of international relations, a state's sovereignty is conditional upon the diplomatic recognition of the state's claim to statehood. Degrees of recognition and sovereignty may vary. However, any degree of recognition, even recognition by a majority of the states in the international system, is not binding on third-party states. The legal criteria for statehood are not obvious. Often, the laws are surpassed by political circumstances. However, one of the documents often quoted on the matter is the Montevideo Convention from 1933, the first article of which states " the state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states ". If we consider the above , Molvania Government ( Military regime) is recognized by State A, B and State C. It satisfies all conditions except 'capacity to enter into relations with the other states'. As we observe, state D has the capacity to enter into relations with other states. As such , until this condition is fulfilled, Molvania can't be called as State under International Law President Mushroff's Military rule in Pakistan and its recognition by other states and it satisfying the above mentioned conditions, is a recent example of ' state ' under International Law. =====0===== References: Read More

 

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