Part of law says you can’t do anything to him because he’s head of state, others might say he’s a prisoner of war
Saudi Arabia v. Nelson (USSC, 1993), p. 393
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- Antares Aircraft v. Nigeria (2d Cir 1993), p. 397
Saudi Arabia v. Nelson (USSC, 1993), p. 393
Antares Aircraft v. Nigeria (2d Cir 1993), p. 397Book: Problem p. 383- Nigerian Airport Authority (NAA) is a copr wholly owned and operated by Nigeria- responsible for operation of airports in Nigerai. Delaware company leases plane to a Gambian company who defaults on lease and don’t pay pilots. Pilots sue in Nigerian court, court ataches the plane in Nigeria and refuse to release it until Gambian company pays some fees owew. Gambian company makes payments that were wired from their NY bank account to Nigeria. Gambian company then sues NAA in US District Court in NY to recover damages from detention and alleged conversion of the plane in Nigeria. NAA move to dismiss the complaint on the grounds that the court lacked subject matter jx by virtue of the defs sovereign immunity.
Alejandre v. Republic of Cuba (SD Fla 1997, handout)
Law of the Sea (645-717) National Limits -Internal waters -Territorial sea -Exclusive economic zone see handouts Law of the Sea p. 645 Traditional Rule: a country’s territory extended 3 nautical miles from shore (as far as cannon would shoot) - beyond 3 miles is high seas, which have long not been controlled as a legal matter. What does it mean that it was territory of another country- exclusivity, relatively unhindered ability to exercise jx although int’l law now imposes limits just as it does within land. However, water not the same as land. Right of refuge- right of a vessel to come ashore in an emergency Exclusive fishing within this territory 3 mile limit is largely anachronism (relic) now, although it still matters because US state controls 3 miles out but US federal gov’t extends up to 12 miles out. - bays are internal, rivers are internal, etc- these are internal waters
So, many straits which were before international waters became national waters. This has been a problem. Beyond territorial sea is high sea Idea of exclusive economic zone (EEZ)- this extends up to 200 miles from the land mass. - legally the band from 12-200 miles is international waters. Any ship may cross may cross in this area but in the band the coastal state has the exclusive right to fish. - Atik thinks this is good- if only one country can fish there, they have more of an interest in protecting the aree, ecologically for example. Otherwise if everyone can come in, no one has an interest because they will all ruin it. In the 50’s US starts developing technology for drilling petroleum offshores. 1st place this takes place is in the Gulf of Mexico. Once this happens, countries all around the world rush to drill in the gulf of mexico. US looks at the situation and changes the existing notion of territory to adopt the theory of “continental shelf” - say the real contours of the US are on the continental shelf which extends out much further. So, they say the coastal countries have the exclusive right to the resources. US calls Mexico and tells them about the Continental shelf idea and agree to split it between them - they claim this against the rest of the world, very successful for both countries. So- straights were choked off when the seas went from 3 to 12 miles. As a result there is a push to keep straits open even if they fall under territorial waters. Book: p. 345- law of the sea is very old but as technology develops, states start making new claims. - much of traditional law was dominated by states and state interests, with private economic interests such as fishing and shipping also playing a significant role. - in last quart of 20th century NGO’s concerned with environmental degradation that gov’ts were slow to recognize, start to participate in the legal process 0-12 miles- territorial sea 0-200 miles- EEZ beyond EEZ- high seas. Seafloor- continental shelf and sea floor beyond the continental shelf. 1982 UN Convention on the Law of the Sea (UNCLOS)- codified much of the law of the sea after1973-1982 UN Conference on the law of the sea- many different issues (p646) and competing interests such as naval sates, coastal states, shipping states, fishing states, land-locked states, nuclear weapons states, poor states and rich states. - final package involves a lot of seemingly unrelated trade offs
****concept from chapter 1- dédoublement fonctionnel- concept that states have accepted that the consequences for under cutting the regime would inure to their detriment, as other states would respond to violations in ways that would hurt the original violators. Territorial Waters (p. 648) Book: issue- whether UNCLOS treated all states in accordance with the UN Charter’s basic principle of “sovereign equality”- do some states interests matter more than others, what features of UNCLOS will lead to lots of compliance. Book: Problem- In years after WWI, concept of MAD, need to use sea for nuclear submarines and navy, need to traverse see and typlically need to travel close to land for fuel- need to cross international straits unencumbered by the coastal states. Coastal states don’t necessarily share the political goals or philosophies of one or both of the superpowers- some belong to East or West Bloc, most in developing world have poitical nonalignment. Law of the Sea Convention (1982)- p. 650 - this is a great multilateral treaty, fairly comprehensive. In human rights discussion we saw many treaties- here the idea is to have a single text to embody the law of the sea, important project for UN during the 70’s and 80’s - largely restates customary international law. In some areas it creates new law such as the exclusive economic zone. p. 650- see relevant provisions with respect to territorial waters. Art 2- coastal state sovereignty extends to an adjacent belt of sea which is the territorial sea. This is also the airspace over the territorial sea. So US can impede aircraft and ships which come within 12 miles. Art. 17- there is a right of innocent passage though the territorial sea Art 18: passage means navigation through territorial sea for purpose of traversing, going to or fro internal waters, shall be continuous and expeditious, but includes stopping and anchoring but only in so far as they are incidental to ordinary navigation or are rendered necessary by force majeure or distress or to render assistance to persons, ships or air craft in danger or distress. What is innocent passage: this was a great conflict, there is a mutual interest of the US and Soviet Union to be able to have their nuclear submarines pass through territorial waters of other states. This was not something that was supported by many non nuclear possessing coastal states (New Zealand especially for example) Art. 19- (1)Innocent Passage: passage is innocent so long as it is not prejudicial to the peace, good order, or security of the coastal state. (2) passage of a foreign ship shall be considered prejudicial to peace, etc of the coastal sea if it involves any of the following (a) threator use of force against any sovereigny, territorial integrity or political independence of the coastal state (b) exercise or practice of weapons of any kind (c) any act aimed at collecting info to the prejudice of the defense or security of the coastal state (d) any act of propaganda aimed at affecting the defense or security of coastal state (e) launching, landing or taking on board of any aircraft (h) any act of wiful and serious pollution contrary to this convenion (i) any fishing activity (j) the carrying out of research or survey activities Can’t use any threat or use of force (can’t steam your navy into the territorial sea of another nation for intimidation) - can’t do naval exercises, saber rattling - innocent passage doesn’t permit fishing.
Submarine rule- must navigate on surface and show their flag in territorial waters. - we know this didn’t happen in the Cold war- both countries would often survail in territorial waters.
Corfu channel- see map on p. 655- corfu is an island off of Greece, to the right is Albania- this zone is an international straight because its between 2 different countries. Case arises out of British show of force against Albanians - british send war ships up and down the channel, one of which collides with mines that the Albanians had placed there. - UK brings case against Albania based on albania’s mining of an international straight. Albanians argue that the British right of passage did not include the right of british war ships to pass through for the purposes of threatening and making a political statement. - there is a distinction between territorial waters and international straits. International straits are territorial waters but they have different rules than coastal waters. Both country x and country y that border the strait will have territorial waters. There are special rules for circumstances where the two countries have territorial waters that effectively but- this is an international straight.
Does the right to pass through an international straight depend on the motive of the country involved/whether its innocent passage?- here the British intended to get the Albanians attention, intimidation, demonstrating the possibility of potential British intervention- UK admits that it was intended to have a political effect. Innocent passage is just going though, passing through to get to another location. Court does not look to motive really, they look to actual behavior- presence of the British political motive doesn’t seem to matter or defeat the character of what went on. Court looks at whether the guns were pointed to the shore, etc. Court takes the UK position- that it is an international straight (to be an international straight we need it to have a history/practice of navigating in this area, can’t just find a narrow and declare it an international straight) - here UK shows that throughout the centuries this passage has been used as an international shipping route. A ship could easily go around the island of Corfu, wouldn’t really be an inconvenience but this doesn’t mean that its not an international straight.
- don’t know whether this decision would come out the same today. International straight is not high seas- there is a right of passage but its still the territory of Albanian. - if Albanina puts mines out on a recognized international straight- they have violated international law. Is this an act of war? Mines are passive but they constitute the use of force- analytically we would say that Albania has unlawfully attacked the UK. But UK doesn’t have the right to sweep the mines. Book: p. 658-659- details after Corfu case, leading up to UNCLOS First there was Customary international law, then UNCLOS codifies this and we get a definition of what an international straight is and Art 38- a definition of a right of transit passage. Articles 37-44 apply to international straights. (p. 660) What’s the difference between the right of transit passage through an international straight and the passage through coastal waters: there are 2 important distinctions - compare provisions of UNCLOS- p. 661 and the provisions on general territorial water of 662. (1) aircraft: for territorial sea—Art 2 declares that sovereignty extends to airspace over the sea. Right of passage in art 17 refers only to ships- so we infer that there is no right of innocent passage over territorial waters for aircraft. - art 3 says that ships and aircraft enjoy the right of transitory passage ex: US planes were in UK, france and spain and moracco would not grant over flight. US wants to bomb tripoly- so they flew through the straights of gibralter. They could not stop the aircraft from flying through the international straight, although sp and fr could keep them from flying over territorial. (2) submarines: coastal territorial waters- art 20 p. 651- subs must navigate on the surface and show their flag. International straights- nothing in the rules directly refers to subs- no requirement that a sub surface when it passes through a straight. Just says that ship proceed without delay, refrain from activities other than those incident to their normal modes of continuous and expeditious transit…(everyone understands that this means that transit is subsurface- this is a way to make the coastal countries feel better because effectively they are losing- not able to stop subs from going through. Irony- in coldwar, this was a position that the US and Russia both held- they both had subs.
This was the turbo war- passions got very high (professor was in Spain at the time). - evolution of law from CIL, through ICJ into new laws. ICJ dispute- under the old rules territorial limits were more restrictive. Iceland extends their territorial waters from 4 to 12 miles- this was before the construction of the new idea of an EEZ. At the time it was either your territory or the high seas. Issue is whether this extension is lawful and if so are there rights that other countries have acquired through traditional fishing in zones that are now within the new international territory. ICJ develops idea of a fishery zone which is not quite the same as what will eventually be an EEZ. Recognizes that idea is gaining currency since 1974- recognizing that there may be a third kind of regime that is neither territorial nor …- its an intermediary zone where countries have some rights but its not exclusive. Coastal state (Iceland) has preferential rights but there are also rights that accrue for countries that have historically been fishing in the same area. Court is aware of overfishing- is more ecological to recognize rights of coastal states as opposed to the international regime who will just want to catch as many fish as they can. Court upholds rigts of both Iceland and the UK. - there may be a limited number of states that jointly have rights here- admonish the countries to engage each other and work it out. (weird because if negotiations were fruitfull wouldn’t be in the court in the first place) - this is a low point for ICJ because Iceland ignores the court completely and joins the rush to declare a 200 mile zone which was more than they claimed originally - significant breakdown in relations between Iceland and UK. Creates idea of exclusive economic zone- this is a triumph for the coastal states.
Art 61- coastal state can set the allowable catch and the obligation through conservation management to make sure that living resources are not over exploited. Art 62- optimal utilization of the living resources- to catch as many fish as you can without harming the overall health of the stock. In situations of surplus, there seems to be an obligation to fish. So it would be wrong for the country to exclude others and then not use the resources for itself. - this is not a particularly green provision, not clear whether 62 would be enforced now. In the Turbot story- war between spain and Canada- Spanish ships are just outside canada’s EEZ. Canada says they were fishing fish that would go in and out of the EEZ (called straddling stock). Whether Canada is right or not, it doesn’t have a right to arrest a ship outside of its EEZ. - problem of arresting ships on the high seas is that it is a very exceptional remedy. Within EEZ you have a right to enforce but outside no. - p. 673- there is overfishing of the straddling stock just outside of the EEZ- at Earth Summit, gov’ts and NGOs accept the need for a special agreement- 1995- see p. 673 for agreement Last year- the US arrested a ship on the high seas that was traveling from N korea to Yemen that was thought to contain missile components. It was shocking that N korea was in this business but there was no right to arrest- it will be interesting too see whether in the post 9/11 international order whether the arrest on the high seas rule will hold up and continue to be stringent. Interesting whether US will start searching ships when they have intelligence that there might be a security interest. Precautionary principle in Art. 6 (found in agreement on straddling stock on p.674) - precautionary approach calls on states to be cautious in the presence of inadequate scientific information. This is a difficult problem with fish stocks- scientists don’t have a good handle on how much fishing can be done without damaging the stock long term. So law says that we should err on the side of caution- underfish rather than overfish. Yüklə 0,72 Mb. Dostları ilə paylaş:
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