INTERNATIONAL LAW
W.B. Fisch Fall 2008
Assignment #16

Ch. 7) STATES AND INTERNATIONAL LAW

            A) The Sovereign State

1.                  Aside from recognition by other states, what does it take to make a state?  See Vattel, p.424, Montevideo Convention arts. 1 and 4, p. 428, and the variants described in n. 4 pp. 430-3

2.                  should recognition have a constitutive function, such that a state is not a state until officially recognized as such by other states?  if not, why not?  (cf. Montevideo Convention art. 3)

3.                  What role should membership in the UN play in defining statehood?  N. 5 p. 433

 

            B) The Recognition and Succession of States and Governments

 

THE TINOCO ARBITRATION, p. 434 (GB-Costa Rica 1923)

 

1.                  Note the identity of the sole arbitrator!  Why do you suppose he was chosen?

a.                   W.H. Taft, Chief Justice of the U.S. and former president

2.                  What is the dispute to be arbitrated?

a.                   Royal Bank (British corp.) claims payment from CR central bank for bills issued by predecessor government (Tinoco)

b.                  Central Costa Rica Petroleum Co. (British corp.) claims ownership of oil concession rights in CR, by assignment from predecessor government

c.                   Costa Rica defends on the basis of its law annulling all contracts made by predecessor executive with private persons, and annulling the decree of the predecessor government authorizing the issuance of the currency in dispute here, claiming that Tinoco took power illegally and lacked authority to act for the state

3.                  How is the authority of a new government to be determined?

a.                   What is the purpose for which authority is to be determined?

b.                  Did the Tinoco government take power by force?  Is that a relevant fact?

i.                    Under Costa Rican law?

ii.                  Under international law?

c.                   Did it acquire legitimacy by virtue of the subsequent election?  Is that relevant?

d.                  Did it acquire external authority by virtue of exercising internal authority?

e.                   Did it lack authority because leading states in the international community refused to recognize it?

f.                   Did it lack authority for the present purpose merely because Great Britain (the claimant state!) refused to recognize it? (Estoppel!)

AUTOCEPHALOUS GREEK-ORTHODOX CHURCH OF CYPRUS, p. 443 (7th Cir. 1990).

4.                  What is the dispute here, and how does the statehood of Northern Cyprus figure in it?

5.                  who decides whether or not the TFSC is a de facto government?

a.                   does the Court here make an independent determination of the question?

b.                  different result, if Cyprus and the U.S. had submitted the dispute to an international arbitrator for resolution (say, the British Lord Chief Justice)?

c.                   compare Goldberg with National Petrochemical, n. 4 p. 451-2

6.                  How does this situation differ from that of Tinoco, if at all?

7.                  suppose the Goldbergs had purchased the mosaics from the TFSC – would that have changed the result?  Why?

8.                  What is the relevance of the international law and agreements concerning protection of cultural property?

 

KADIC V. KARADZIC, p. 453 (2d Cir. 1995).  Action under Alien Tort Statute (28 USC §1350) for damages for various violations of the laws of war, etc.

 

1.                  What is the relevance of the question whether or not Republika Srbska is a state?

a.                   does it matter which of the various allegations is considered?

b.                  why should torture, as distinguished from other violations of human rights laws and the laws of war, be governed by IL only vis-a-vis state actors?

2.                  How is that question to be decided?

a.                   Is official recognition by the U.S. government required?

b.                  Is official recognition by the U.S. government conclusive?

c.                   Absent recognition, what is required?

3.                  Is Republika Srbska a state?  In deciding this question, should some of the criteria for statehood be given more weight than others?

 

REPUBLIC OF CROATIA V. GIROCREDIT BANK A.G., p. 457 (Austria S.Ct. 1996)

Two former Yugoslav republics – Croatia and Macedonia – sought to close out accounts in an Austrian bank which had been established by National Bank of the (former) SFRY.

 

1)                   were the funds so deposited state property for purposes of the Vienna Convention on Succession of States in Respect of State Property (restating existing customary IL)?

2)                  Is the Federal Republic of Yugoslavia (Serbia and Montenegro, after dissolution) the successor state to the SFRY?  If not, who is?

3)                  On what principle is the property of a “dismembered state” to be distributed among the successor states?

4)                  Who decides what is an equitable distribution?  What happens to the property before that decision is made?