Public International Law Week 4 | Quizlet

Two types of obligations by a state when it comes to human rights

Negative

Hands off approach (costs nothing)

- Obligation to respect

Positive

Hands on approach (resource intensive)

- Obligation to protect and fulfil human rights

Limits to human rights?

- Reservations to HR treaties

- Withdrawal from HR treaties

- Derogations in times of national emergencies (art. 4 ICCPR)

- Broad use of legitimate limitation clauses in specific HRs provisions

According to article 4 ICCPR, derogations must be:

Meant to be exceptional and temporary.

You assess necessity and proportionality

No entire suspension or temporary circumvention

Are all rights derogable?

NO

Where do Human Rights obligations apply?

- Acts inside own territory

- Acts in areas outside national jurisdiction (detention of individuals in the high seas)

- Acts of States within territory of other States

Legal acts of consular and diplomatic officers

Incidental acts: arrests, abductions, killings

Occupation

Acts carried out with consent of another State

ICJ Wall Opinion para. 109

Question: Does "and" in article 2(1) ICCPR mean "and" or "or"?

Israel argued that the ICCPR should not apply because the requirements in 2(1) are cumulative not alternative, and thus they don't fulfil the articles.

These are to be regarded as alternative criteria as well, not only cumulative

Al Skeini v. UK (130-150)

The court expanded the principle of extraterritorial application of the convention to situations where a state exercises (government) power and control through its agents in foreign territory.

The court also said that jurisdiction may also entail control over an area

Article 6 ICCPR -> right to life is non derogable : what does this right prohibit + entail?

- Prohibition of arbitrary deprivation of life

- Prohibition of summary executions

- Positive and negative obligations (e.a. Investigating adequately a murder)

Are targeted killings of alleged terrorists illegal?

NO

How do we look at this circumstance?

- Looked through international humanitarian law under Lex Specialis

Requirements to lawfully kill a terrorist?

1. You require defence against imminent unlawful violence

2. The killing also needed to be necessary (no subsidiary means)

3. Proportional

4. You must investigate the case

Lecture 2: Sources of International Law of the Sea

- UN Conferences on the Law of the Sea - 1958

(4 conventions: territorial sea, contiguous sea, continental shelf, high seas)*

UNCLOS - 1982

(168 parties including the EU, but only with respect to articles which fall within the content of EU)

Peaceful dispute settlement chosen by parties (arbitration, ICJ, ITLOS)

*This meant that international law was shattered since a state could join only 1 of the 4 or so.

How do you claim sovereignty over a land? 7 ways

Discovery

Historically (inchoate/incomplete title) -> Island Palmas Case

Occupation

Terra nullius

Prescription

Abandonment (not really a thing anymore)

Conquest

Armed force

Cession

Transfer of territory by agreement (not including renting)

Avulsion / Accretion

Rivers changing course

Seasteading?

Sovereignty over artificial islands?

- You can do this but it will not change your maritime lines. In order to avoid abuse.

Baselines (incl articles)

5-10 UNCLOS

- Use of low water tide line

- Some states use straight lines because of their unusual land

Territorial sea

2-4 UNCLOS

- Up to 12 nautical miles

- Right of innocent passage (continuous)

A state cannot refuse to allow this if it does not have a reason (art. 16-26 UNCLOS)

For warships: guns down. For submarines: on the surface

- There are some limitations on the exercise of jurisdiction (art. 27-28 UNCLOS)

Contiguous zone

33 UNCLOS

- Up to 12 nautical miles

- Functional jurisdiction (for certain purposes only)

- Coastal state may exercise control to prevent and punish infringements within its territory or territorial sea of:

a) Customs, laws and regulations

b) Fiscal laws and regulations

c) Immigration laws and regulations

d) Sanitary laws and regulations

Exclusive economic zone (EEZ)

55-57 UNCLOS

- 200 nautical miles, starting from the end of territorial sea

- Functional jurisdiction on the body of water + the sea bed + the subsoil

- You need to make an official declaration. You need to claim it

Continental shelf

- Up to 200 nautical miles, potentially extended to 350, starting from the end of territorial sea

- This exists by extension of the fact that you are a state. You do not need to claim it

- Functional jurisdiction over exploration and exploitation of the Seabed + subsoil

High seas

86-89 UNCLOS

- Outside of all other waters (EEZ, contiguous zone etc)

- Jurisdiction only of flag state (art. 92 UNCLOS)

- Right off visit by foreign coast guards in case of reasonable suspicion of (art. 99-110 UNCLOS):

a) Piracy

b) Slave trade

c) Unauthorized broadcasting (you usually need a permit for this)

d) Ships without nationality

e) Ships not flying a flag or a foreign flag, but being of the same nationality

- Right of hot pursuit (Art. 111 UNCLOS)

a) Good reasons to believe a foreign ship has violated laws of the coastal state

b) Visual or auditory signal are given by pursuing ship

c) Pursuit must not be interrupted

d) Pursuit can start in any waters; including territorial sea

e) Pursuit ends if foreign ship enters the territorial sea of a foreign State

The area

133, 136, 137, 140 UNCLOS

- Seabed beyond continental shelves

- No one controls this. Common heritage of mankind

- Whatever you exploit, the Authority gets part of it and redistribute it

Where do you draw the line in archipelagic states?

In archipelagic states, you draw a line around the island, not around each island individually

When is a state considered archipelagic?

- During UNCLOS there were negotiations and it was established that there must be no land attached to a continent in order for a state to be considered archipelagic

What is an island?

Art. 121 UNCLOS

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

Where are straits covered?

International straits are covered by articles 37-44 UNCLOS

What is transit passage similar to and what can submarines do here?

very similar to innocent passage

BUT submarines can go underwater

Three stages to establish delimitation: case

Maritime Delimitation in the Black Sea (Romania v. Ukraine)

Three stages to establish delimitation: case as per (Romania v. Ukraine)

Delimitation is the process of establishing maritime boundaries between neighbouring states to allocate jurisdiction over overlapping maritime zones

1. Draw a provisional equidistance line from the chosen base points

2. Adjust this provisional line in light of the relevant circumstances and

3. Ensure that this adjusted line is equitable and/or not disproportionate

What is piracy according to UNCLOS?

- 2 ships

- A ship attacking another

- On the high seas

- For private ends (not only money, political and ideological reasons)

Piracy article?

Article 101 UNCLOS