International Law | Sovereign State | Extradition

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Table of Cases.

Bankovic v Belgium et al (2001) 11 B.H.R.C 435……………………………7 Ford v United States 47 Sup. Ct. 531…………………………………………8 Haile Selassie v Cable and Wireless Ltd (No.2) 1939……………………….6 US v Gonzalez 776 F.2d 931 (1985)…………………………………………..8

Table of Treaties and Conventions.
 Vienna Convention on Consular Relations, Vienna 1963……………….9  Vienna Convention on Succession of States in Respect of Treaties……2  Vienna Convention on The Law of Treaties, Vienna 1969……………….9

List of Abbreviations. FRY UN USSR EU ECHR ICJ Federal Republic of Yugoslavia United Nations Union of Soviet Socialist Republics European Union European Court of Human Rights International Court of Justice

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Introduction

In International Law, the “‘succession of states’ means the replacement of one State by another in the responsibility for the International relations of the territory”1 It is important to highlight from the onset that ‘Sovereign states, and not their individual governments, are the primary subjects of International law’.2 State succession can only be said to occur when there has been a transfer of sovereignty over a particular territory and a resultant discontinuity in statehood and its affiliated responsibilities. Thus if the president of Utopia fled after a coup, but there was no attempt to break-up the state then this would merely be a change in government, albeit undemocratic. This essay is concerned with advising Alicanto on the issues of state succession, its objections to Ravisia’s claim to be the continuation of Utopia and the status of the UN membership of the two states, the issue of Jurisdiction by a critical discussion of International law provisions.

1 Vienna Convention on Succession of States in Respect of Treaties 17 I.L.M. 1488 2 Vokovitsch. M.J. Righting Wrongs: Towards a New Theory of State Succesion to Responsibility for International Delicts. Columbia Law Review, Vol. 92, No.8 (Dec 1992), p 2165 < http://www.jstor.org/stable/1123019?seq=4 > accessed 27 Dec 2008

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Genesis.

The starting point in discussing the status of Alicanto and Ravisia is to ask, ‘does the state concerned claim to be a new state or does it claim to be a continuation of a previously existing state and second, how far have its claims been accepted by other states?’3 As Prof. Crawford says: there is a fundamental difference between state continuity and state succession: that is to say, between cases where the ‘same’ state can be said to exist despite changes in territory or population, and cases where one state can be said to have replaced another with respect to certain territory.4

3 Malanczuk P, 1997, Akehurst”s Modern Introduction to International Law, 7th ed, Routledge, p161 4 James Crawford. The Creation of States in International Law. Oxford University Press, 2nd edition, 2006. P 400.

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a) State succession

Utopia was a federalist Republic and ‘the basic feature of federal states is that authority over internal affairs is divided by the constitution between the federal authorities and the member states of the federation, while foreign affairs are usually conducted by the federal authorities’.5 State practice has been anything but consistent with the disintegration of federal unions as was evidenced by the breakup of the former USSR and the former FRY. “The rarity of such events, which occur in different political contexts, accounts for the existence both of different and mutually exclusive theories and, even more so, of contradictory practice.” 6 This has led to pundits describing to the status of International law on state succession as ‘chaotic’7 There’s consensus that the former USSR ended with the establishment of the commonwealth of Independent States, which declared they would support ‘Russia’s continuance of the membership of the USSR in the UN, including permanent membership of the Security Council and other International organs.’8 A corresponding statement on the latter point was transmitted by Russia to the UN secretary General on 24 Dec 1991. There was no objection by any country to Russia taking the seat of the USSR at the UN and this is an important difference between Russia and the Ravisia declaration that was objected by Alicanto and
5 Malanczuk (n 1) 81 6 The continuity and succession of states, by reference to the former USSR and Yugoslavia I.C.L.Q. 1993,42(3),473-493 http://login.westlaw.co.uk/app/document? docguid=I06321CB0618E11DC98689326503A8F7B accessed on Saturday, 20 December, 2008 at 15:20 GMT 7 S. Oeter, German Unification and State Succession, ZaorRV 51 (1991), 352 8 Malanczuk (n 1) 166

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the former president of Utopia. Indeed it can properly be construed as being the missing link that Ravisia needed in order to successfully claim to continuity of the former Utopia. In 1995, the EU made it one of the conditions for the recognition of the breakaway states of the former FRY, was that all successor states to former Yugoslavia had recognised each other. This State practice is good precedent that can be applied in this case in refuting Ravisia’s claim to continuity. In the Yugoslavian case, in 1992, the EU expressed its willingness to recognize Macedonia as an independent state and soon thereafter, Slovenia, BosniaHerzgovina and Croatia were admitted as members of the UN. The Security Council however, denied the claim of the FRY to automatically succeed to the membership of former Yugoslavia that had ceased to exist. Similarly, Ravisia will have to make fresh application to membership of the UN since the General Assembly rejected its admission. This has important ramifications, firstly it clearly illustrates that member states do not take Ravisia to be the continuation of Utopia since they wanted to see a referendum taken in Ravisia approving the move to Independence, this is a requirement akin to that imposed on former states of the FRY that were viewed as new states. A parallel can be drawn between this and the fact that: Since no state objected to Russia’s continuance of the Soviet Union, it was not obliged to apply for membership of these organizations while other former Soviet Republics considered to be successor states, had to go through the usual procedure of application for membership.9 Objective and Subjective factors may be taken into account such as the fact that Ravisia does not encompass a majority of the land mass or population of Utopia
9 R. Mullerson; The Continuity and Succession of States, by reference to the former USSR and Yugoslavia, [1993] International & Comparative Law Quarterly 473 <http://login.westlaw.co.uk/app/document? &src=rl&srguid=ia744c00c0000011eae9bbbe07c26fe4e&docguid=I06321CB0618E11DC9868932 6503A8F7B&hitguid=I06321CB0618E11DC98689326503A8F7B&spos=1&epos=1&td=15&crumb -action=append&context=3> accessed on 27 Dec 2008.

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unlike ‘Russia, which even after dissolution of the USSR remains much bigger geographically and demographically than the other states of the former Soviet Union.’10 But as Prof. Crowford observes, “where there are substantial changes in the entity concerned, continuity may depend upon recognition (as was the case of India after 1947)”11 The recognition of a government in exile is something of an anomaly in International Law.’12 The effect of the Utopian president’s denouncement of the attempted break-up of Utopia nevertheless begs some attention. In Haile Selassie v Cable and Wireless Ltd13 the Plaintiff, Emperor Selassie was in exile after the invasion of his country by Italy. Britain recognised the Italian administration as the de facto government in the territory but also continued to acknowledge the Emperor as the de jure sovereign. The trial judge interpreted several decisions as indicating that a British court could not give effect to the acts of a recognised de jure government which related to an area actually controlled by a rival authority which Britain recognised as the de facto government. General state practice indicates that States recognize States and not governments hence a change in government even though undemocratic does not affect the statehood of that Republic, here however, there has been a recognised succession and the admission of Alicanto into the UN seems to compound to the fact that the president of Utopia is no longer recognised as the Sovereign as Utopia has ceased to exist.

10 ibid 11 J. Crawford (n. 4) p 400 12 Hott D., Public International Law in the Modern World, 1987, Pitman Publishing p 101. 13 (No.2) 1939

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b) State Jurisdiction. Jurisdiction is an aspect of sovereignty and refers to judicial, legislative and administrative competence.14 There are five general principals on which criminal jurisdiction, may be based: the territorial principal, the nationality principal, passive nationality principle, protective principle and the universality principle. The duty of non intervention in the area of exclusive jurisdiction of other states is a principal corollary of the sovereignty and equality of states. No outside authority can annul or prevent the internally valid act of state power but since states do not exist in vacuum, international law provides for parallel jurisdiction claims. In Bankovic v Belgium et al15, the ECHR characterized state jurisdiction as ‘primarily territorial’ and any other bases of jurisdiction are defined and limited by the sovereign territorial rights of other relevant states. ‘The territorial principal arises from the view that a state has absolute and exclusive authority over people, things and events within its own territory and therefore may exercise jurisdiction over them in all cases unless there is immunity.’16 This principal has a lot of practical advantages in this instance including the convenience of the forum, the ease of calling witnesses, Alicanto security agents are also in a better position to collect evidence that will assist the prosecution, it is more cost effective to conduct the trial in Alicanto than having to transport witnesses and evidence to either Ravisia or Malin. The assumption of jurisdiction is justified if the entire conspiracy or the formation of it took place in Alicanto. ‘Nationality as a mark of allegiance and an aspect of sovereignty is also generally recognised as a basis for jurisdiction over extra-territorial acts.’17 This principal
14 Brownlie I, Principles of Public International Law, 7th ed, Oxford University Press, Oxford, 2008, p 299 15 (2001) 11 B.H.R.C 435 16 Hott D., Public International Law in the Modern World, 1987, Pitman Publishing p 136 17 (n14) p 303

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may also be extended by reliance on residence as a connection of allegiance owed by aliens. Malin’s claim to jurisdiction over Donovan is therefore grounded primarily on the nationality principal although by extension Alicanto can also claim this principal on the basis of the fact that Donovan was a resident. However as discussed hitherto, the best claim Alicanto has is that of Territorial jurisdiction as it has universal recognition. Ravisia may also base its jurisdiction claim over the co-conspirators on this principal since they are nationals of Ravisia. State practice has shown that the principle is mostly confined to the most serious of offences. Ravisia’s claim may thus be more meritorious than Malin’s since it can base its claim on nationality and the protective principal. Malin’s claim may be refuted since the nationality principal is restricted by the master principal of non-intervention with legitimate affairs of states. The protective or security principal is claimed by most states and ‘generally ranked as the basis of an auxiliary competence.’18 The United States has asserted jurisdiction over foreigners on the high seas on the basis of the protective principal as in US v Gonzalez
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this rationale is clearly linked to the

protection of vital state interests20 Ravisia can thus base its claim to jurisdiction on this principle as it is the most applicable to it. In Ford v United States21 it was held that the prisoners had done acts outside the US the results of which took effect in the US22. It can be distinguished by virtue of the fact that here, the conspirators were arrested before they had carried out their plan.

18 Harris DJ, Cases and Materials on International Law, sixth Edition, Sweet & Maxwell, London, 2004,p 267 19 776 F.2d 931 (1985) 20 Evans M.D International Law, second edition, Oxford University Press, Oxford, 2006, p348 21 47 Sup. Ct. 531 22 L.H ,International Law : Extraterritorial Criminal Jurisdiction, Michigan Law Review, Vol. 26, No. 4 (Feb., 1928) p 432<http://www.jstor.org/stable/1279724? seq=4&Search=yes&term=conspiracy&term=criminal&term=state&term=jurisdictio n&list=hide&searchUri=/action/doBasicSearch%3FQuery%3Dstate%2Bjurisdiction %2Bin%2Bcriminal%2Bconspiracy%26x%3D0%26y%3D0%26wc %3Don&item=19&ttl=6101&returnArticleService=showArticle&resultsServiceName= doBasicResultsFromArticle > accessed on 5th January 2009

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It is clear that ‘Jurisdiction is not based upon a principal of exclusiveness: the same acts may be within the lawful ambit in one or more jurisdictions.’23 It is significant that although Alicanto has refused extradition, it has shown itself willing to try the case and has even commenced criminal proceedings. Still, ancillary issues abound. First, with the exception of crimes under International Law (war crimes, genocide and crimes against humanity), and in the absence of treaty, surrender of an alleged criminal cannot be demanded as of right. International Law gives no general right to either Ravisia or Malin to demand the extradition of the conspirators. A leading general principal of law is that of double criminality, that the act charged must be criminal under the laws of both the state of refuge and the requesting state. It is worth pointing out once again that Alicanto is not the ‘state of refuge’ since it has brought proceedings against the conspirators hence arguments for extradition may not persuasive since Alicanto is not abusing its sovereign power. Another principle is that of specialty, according to which the person surrendered shall be tried and punished for offences for which extradition had been requested and granted. On the issue of denying Donovan consular assistance, the Vienna Convention is instructive, it holds that: ‘The establishment of consular relations between states takes place by mutual consent’24 and Alicanto is not party to this convention hence is not bound by the convention except to the extent to which it accepted. Another convention that reflects customary International law is that, ‘A treaty does not create either obligations or rights for a third state without its consent.’25

Extradition can be refused if Malin is not expected to observe reasonable procedural standards. Alicanto can argue that it would pervade justice if Donovan was extradited back to his country since once there, neither Alicanto nor Ravisia can force the state to bring criminal proceedings against him.
23 (n 14) p 312 24 Vienna Convention on Consular Relations, Vienna 1963, Article 2, s.1 (1) 25 Vienna Convention on The Law of Treaties, Vienna 1969, Article 34

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Closing Remarks.

In conclusion, it has been discussed that Alicanto is a new state for the purpose of International law as is Ravisia, neither is the continuation of Utopia which has consequently disintegrated. The fact that the General Assembly rejected its membership of the UN confirms this and also shows that it is regarded as a new state. As it has been pointed out jurisdiction is primarily territorial so Alicanto can be said to have ‘better title’ than the base of jurisdiction claimed by Ravisia and Malin and neither has the legal mandate to force her to extradite the conspirators. Alicanto cannot also be faulted for denying Donovan consular assistance as has been shown but it would nevertheless be advisable for Alicanto to use the UN General Assembly as a forum to settle the dispute or initiate diplomatic negotiations and arbitrations instead of waiting for Ravisia and Malin to take the matter to the ICJ. Ravisia and Malin may choose to refer the matter but they also recognize that Alicanto has locus standi in trying the matter and that that territorial jurisdiction is as outlined, paramount.

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Bibliography. Primary texts.
➢ Brownlie I, Principles of Public International Law, seventh edition,

Oxford University Press, Oxford, 2008. ➢ Evans M.D International Law, second edition, Oxford University Press, Oxford, 2006
➢ Harris DJ, Cases and Materials on International Law, sixth Edition,

Sweet & Maxwell, London, 2004.
➢ Hott D., Public International Law in the Modern World, 1987, Pitman

Publishing.
➢ James Crawford. The Creation of States in International Law.

Oxford: Oxford University Press, 2nd edition, 2006.
➢ Malanczuk P, 1997, Akehurst”s Modern Introduction to International Law,

7th ed, Routledge.

Articles and Journals.
➢ L.H ,International Law : Extraterritorial Criminal Jurisdiction, Michigan Law

Review,

Vol.

26,

No.

4

(Feb.,

1928)

p

432<http://www.jstor.org/stable/1279724? seq=4&Search=yes&term=conspiracy&term=criminal&term=state&term=ju risdiction&list=hide&searchUri=/action/doBasicSearch%3FQuery%3Dstate %2Bjurisdiction%2Bin%2Bcriminal%2Bconspiracy%26x%3D0%26y %3D0%26wc %3Don&item=19&ttl=6101&returnArticleService=showArticle&resultsServi ceName=doBasicResultsFromArticle > accessed on 5th January 2009.

12 ➢ R. Mullerson; The Continuity and Succession of States, by reference to

the former USSR and Yugoslavia, [1993] International & Comparative Law Quarterly473<http://login.westlaw.co.uk/app/document? &src=rl&srguid=ia744c00c0000011eae9bbbe07c26fe4e&docguid=I06321 CB0618E11DC98689326503A8F7B&hitguid=I06321CB0618E11DC98689 326503A8F7B&spos=1&epos=1&td=15&crumbaction=append&context=3> accesed on 27 Dec 2008.
➢ S. Oeter, German Unification and State Succession, ZaorRV 51 (1991), in

Malanczuk P, 1997, in Akehurst”s Modern Introduction to International Law, 7th ed, Routledge.
➢ The continuity and succession of states, by reference to the former USSR

and Yugoslavia I.C.L.Q.1993,42(3),473-493. <http://login.westlaw.co.uk/app/document? docguid=I06321CB0618E11DC98689326503A8F7B> Saturday, 20 December, 2008.
➢ Vokovitsch. M.J. Righting Wrongs: Towards a New Theory of State

accessed

on

Succesion to Responsibility for International Delicts. Columbia Law Review, Vol. 92, No.8 (Dec 1992). http://www.jstor.org/stable/1123019?seq=4 > accessed 27 Dec 2008. <

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