English for Lawyers (ENGSEMJ) Topics in Intl Law and Human Rights - - PowerPoint PPT Presentation

Richard Hustad, Norwegian Centre for Human Rights, r.t.hustad@nchr.uio.no

English for Lawyers (ENGSEMJ) Topics in Int’l Law and Human Rights

Topic #1: What is a State?

The subject of international law

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

This Module within ENGSEMJ

• Instructor: Richard Hustad

– Research Fellow, Norwegian Centre for Human Rights – Contact Info: r.t.hustad@nchr.uio.no, 22 84 20 58, 924 38 215 – Research Interests: Poverty & HR; Economic, Social & Cultural Rights – Background: Civil rights lawyer in USA (criminal defense, civil Sec. 1983…)

• Six weeks:

– 16, 23, 30 January & 6, 13, 20 February – 16:15-18:00 (break from 17:00-17:15) – Attendance is taken each week

• Class structure

– Reading material prior to class (ca. five pages each week) – Review questions from previous week to be turned in for comments (optional) – Start each class with some introductory material from instructor – (Preparation time) – Participatory exercises

• Objective

– Learn terminology within a selection of ’hot topics’ within IL & HR – Practice legal advocacy and discussion in English (gain confidence) – ’Advertising’ for HR courses (and careers)

• http://www.uio.no/studier/emner/jus/humanrights/in-english.xml
• Examination responsibility

– At least one question from this section of course

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

Who are You?

• Name
• Year in law school
• Any English experience (beyond videregående skole)
• Legal interests

(Examples—with biased guidance)

Human Rights Law Contract Law Int’l Trade Law (boring) (evil) (super heros)

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

Which one of these is ’the state’?

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

What is a State?

Distinguished from:

• Nation

– Definition: a homogeneous group of people (sharing similar customs, language & history) – Examples: Scotland, Sioux Nation (American Indian Tribe), Sami

• Country

– Definition: a geographic, physical area – Examples: United Kingdom (Great Britain), United States, Norway

Question:

• Is a state more than a ’nation’ or a ’country’?

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

The Legal Definition of State Montevideo Convention (1933)

Who, after having exhibited their Full Powers, which were found to be in good and due order, have agreed upon the following: ARTICLE 1: 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

• ther states.

ARTICLE 2: The federal state shall constitute a sole person in the eyes of international law. ARTICLE 3: The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of

• ther states according to international law.

ARTICLE 4: States are juridicallyequal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law. ARTICLE 5: The fundamental rights of states are not susceptible of being affected in any manner whatsoever.

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

Montevideo Convention (cont’d)

ARTICLE 6: The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable. ARTICLE 7: The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognizing the new state. ARTICLE 8: No state has the right to intervene in the internal or external affairs of another. ARTICLE 9: The jurisdiction of states within the limits of national territory applies to all the inhabitants. Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights

• ther or more extensive than those of the nationals.

ARTICLE 10: The primary interest of states is the conservation of peace. Differences of any nature which arise between them should be settled by recognized pacific methods. ARTICLE 11: The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

The Legal Definition of a State The United Nations Charter, Art. 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. (1) The Organization is based on the principle of the sovereign equality of all its Members. (2) All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. (3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. (4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. (5) All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. (6) The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. (7) Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

So…the Legal Definition of a State ’Declaratory Theory’ of a State

• Permanent population

– But how big? Consider *** – What about nomadic peoples? Which state are they a part?

• Defined territory

– What is territory? – Must it be natural? Consider The Netherlands – Must it be a certain size? Consider Vatican City

• Government

– Must the government have control? Consider China/Taiwan or WWII

• Capacity to enter into relations with

the other states

• Recognition by other states doesn’t

matter

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

Historical Definition of State

• From the Latin word status

– Latin meaning: ’condition’ or ’status’ – stato in Italian, etat in French, Staat in German – Referred to specific social groups within the institutional structure (the king, nobility, clergy, commoners, etc.)

The Athenian City-State

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

• Kofi Annan report: popular sovereignty…

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

Other Definitions

• Franz Oppenheimer (Idolatry of the State, 1927):

”the vehicle of capitalism” and ”the bastard offspring

• f slavery and freedom.”
• Max Weber (The Profession and Vocation of Politics,

1994): the organization that has a ”monopoly on legitimate violence.”

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

Is the ’What’ Question Really a ’Who’ Question: Who is the State?

• The people?

– ’popular sovereignty’

• The leader?

– ”I am the state”

• A group

– (oligarchy)

• God?

– (divine right)

• Government?

– Cuius regio, eius religio

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

Examples for Discussion:

• Tibet
• Palestine
• Quebec

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

Two Doctrines that may be of Use in the Exercise

• Comity—sometimes states do things not because

they consider it to be a legal obligation to do so, but simply to achieve a desired result

• Attributability—all international acts are attributable

to a state.

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

Exercise A: Sealand Is this a state?

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

Sealand’s Location

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

The Trappings of Statehood

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

How Sealand was ’Made’

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)

Exercise B: The Republic of Somaliland Is this a state?

Richard Hustad, Norwegian Centre for Human Rights, English for Lawyers (ENGSEMJ)