1

I.

Question One: Afreeka, Discovery of Flame Island

[Territory / Criminal Jurisdiction]
In the heart of Afreeka, the three states of Conger, Moray and Snake completely enclose
the Giant Speckled Lake. This lake is perfectly circular, with a diameter of 200 miles. The
three states have divided the lake between them by drawing equidistant lines from their
shores to its centre.

Legend has it that a small island, called Flame Island, is located at the exact centre of the
lake. It is rumoured that the island is inhabited by indigenous people who remain hidden
by the impenetrable mist always found in the area. The mighty Yoru, a famous explorer
from Conger, is reputed to have claimed this mysterious island on behalf of his Queen in
1480, when he sailed past it in the mist. But this was hotly disputed by Captain Zorn of
the Moray navy, who later landed an expedition and raised his state’s flag on Flame
Island. Unfortunately, there are no witnesses, since Captain Zorn’s 1745 expedition was
ambushed and all of his crew were killed by Flame warriors.

These legendary feats become noteworthy again in the year 2000 when a giant plume of
fire and smoke spurts from the centre of Giant Speckled Lake. The mist that has always
obscured the area is dispersed in the harsh winds and rain that follow. A few days later,
dignitaries from Conger, Moray and Snake sail to the centre of the lake and find three
islands. Two islands are still smouldering from the volcanic activity, but one is covered
with ancient trees and wildlife. Each state claims ownership over all of the three islands.
The dignitaries all land exploratory parties on the older, inhabitable, Flame Island. Flame
Island is closest to Snake, and the two volcanic islands, Smoke and Ash Islands, are
closer to Conger and Moray, respectively. The three exploratory parties are greeted by
soot-covered local inhabitants.

Evil Captain Ochre of the State of Snake decides to solidify his country’s claim to the
islands. He invites the two other expeditions to view "a pool of molten gold" on Ash
Island. When they arrive, his crew members callously murder them all and throw their
corpses into the boiling metal. Captain Ochre then invites the Chief of the Flame people
to come to a ‘celebration feast,’ during which he secretly plans to poison all of the Flame
people. Upon arriving at the feast the Chief signs a special ‘welcome card.’ In fine print at
the bottom of the ‘card’ is wording making the document into a treaty ceding Flame Island
to the State of Snake.

Just before the feast begins the Conger Navy swoops down upon the ceremonies and
Captain Ochre and his men are arrested. They are charged with murder and conspiracy
to commit genocide. The states of Moray and Snake also claim jurisdiction over these
crimes. All three states are parties to the 1948 Genocide Convention, which covers
genocide and conspiracy to commit genocide (Art. III). The Convention requires these
crimes to be tried by a "tribunal of the State in the territory of which the act was
committed" (Art. VI).

Critically examine the above in order to decide which state should exert enforcement
jurisdiction over the crimes, as well as which state has title to the three islands .

A.
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Title to Territory

The part of the question related to title to territory should be answered

first, since the criminal jurisdiction part requires knowledge of which state
owns the territory.

The first key point about international law related to acquisition of title to
territory is that it is subject to the doctrine of inter-temporal law:

"[A] juridical [i.e., legal] fact must be appreciated in the light of the law
contemporary with it, and not the law in force at the time when a dispute in
regard to it arises or falls to be settled." (Island of Palmas Case).

This means that any historical acts must be analysed in accordance with
the law in force at the time the actions were done.

The second factor to take into consideration is the critical date, or in other
words, the date at which the dispute crystallised (i.e., the date the parties
became aware that a dispute existed between them regarding the territory).
The critical date in our fact pattern is 2000, the date all parties become
aware that the Flame Island is not imaginary and wish to possess it. Any
actions done after that date must be discounted in terms of analysing
claims to title over the island(s). Hence Evil Captain Ochre’s murders of
the dignitaries of Conger and Moray would not give Snake any better title
to the islands.

Conquest

If Captain Ochre had been successful in wiping out the Flame

people this would have extinguished any claim on the part of the
Flame people. This could have amounted to the rare form of
complete conquest, called debellatio, which in earlier times could
devolve sovereignty directly to the conqueror (i.e., making it an
original form of title): D.P. O’Connell, p. 441.

However, since conquest has been illegal under international law

since 1945 at the latest (art. 2(4) UN Charter, 1970 Declaration on
Principles of International Law, Nicaragua Case, 1990 Security
Council Resolution on the Iraqi Invasion of Kuwait), or 1928 at the
earliest (1928 Briand-Kellog Pact), Snake would not be allowed to
maintain such a basis for title. The Stimpson Doctrine of non-
recognition would mean that no other state would recognise the
illegally acquired title.

1.

Discovery
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There are two potential claims to discovery, one by the mighty Yoru in 1480 and the other
by Captain Zorn in 1745. A third ‘discovery’ might arise when the dignitaries from the
three states explore the island in 2000. But this third ‘discovery’ would not be of any help
in deciding which state has title, since all three states arrive simultaneously.

We have analysed the law relating to discovery as having developed in three phases:

 Phase One—up to and including 1492-93—controversial as to whether this even

existed—satisfied with mere visual apprehension, perhaps supported by Papal
authority, such as the bull Inter Caetera
 Phase Two—1400-1800—discovery plus symbolic acts
 Phase Three—1750-Present—effective occupation

Note that these three phases overlap and that the dates are only rough indications of the
time periods.

a.

First Phase (Yoru)

The mighty Yoru sailed past Flame Island in 1480, which

would put him in the first phase, merely requiring visual
apprehension (doctrine of inter-temporal law). Both the
requirements of factum (physical exertion of sovereignty),
and animus (intention to possess as a sovereign), are
satisfied. At this time the factum merely amounted to visual
apprehension, and the animus is satisfied by the fact that he
claimed the island on behalf of his Queen.

Occupation of a territory by indigenous peoples at this time

would not change its status from being terra nullius.

If the first phase is good law, then Conger may claim valid
title. However, the Island of Palmas Case generally seems
to support the need for stronger assertions of title, at least
after 1750. Thus, one reading of the Island of Palmas Case
is that discovery alone gives inchoate title, with effective
occupation being required to complete the title. This arises
from Huber’s distinction between creation of title and
continuance of title… At most we may say that Conger had
inchoate title that needed completion…

If Conger achieved title at this point, even inchoate title,

then it would need to be abandoned for any other state to
‘discover’ the island. Abandonment requires both the
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factum and animus (action and intention) to abandon:

Clipperton Island Case. No such intention is shown here.

a.

Second or Third Phase (Zorn)

Captain Zorn lands an expedition and raises his state’s flag

in 1745. This date falls within either phase two or phase
three. Phase two required discovery plus symbolic acts.
Examples include the Clipperton Island Case and the
passage I reproduced describing the adventures of Sir
Humphrey Gilbert. Raising a flag on behalf of one’s state
may count as a symbolic act. The Clipperton Island Case
allowed very little in the way of actual assertion of
sovereignty because of the geographical nature of the
Clipperton Island. See also, the Eastern Greenland Case.

However because "the middle of the 18th Century" is the

date Judge Huber argues to be the start of the effective
occupation phase, this requirement may have existed in
1745. If Captain Zorn tries to assert effective occupation
this claim will fail. There is no continuous assertion of
sovereignty on behalf of Moray and no enactment of laws
or regulations, etc. In fact the Moray Navy appears to have
been routed by the local inhabitants. [Note: no conquest
could be made out here on the part of Zorn, as they were
killed by the Flame people.]

If phase two is the applicable one, then Moray would

appear to have an equally valid claim to that of Conger.
However, since there have been no subsequent actions by
Moray its claims, like those of Conger, are weak,
amounting to at most a form of inchoate title needing
completion.

a.

Effect of Earlier Discovery: By Prescription?

Again, notice that Moray cannot ‘discover’ an island that

has already been discovered by another state: discovery is
an original form of title. If Conger’s discovery is valid, then
the most Moray can be asserting is title by prescription (a
derivative form of title). This would require evidence of
factum and animus, as well as continuous, peaceful,
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exclusive and public displays of sovereign authority: Island

of Palmas Case, Minquiers and Ecrehos Case. This test
cannot be satisfied on the facts.

The presence of indigenous inhabitants during these

periods would not change the legal status of the territory:
terra nullius.

a.

Third Discovery (All Three States)

Discovery by all three states in the year 2000—this would not help us decide which state
had title. If the territory remained terra nullius (land juridically vacant), it would be open
to discovery. But three states simultaneously arriving upon the shores of Flame Island
would give each an identical claim, and as seen below, indigenous peoples might have a
better claim to title today.

1.

Arising Within Pre-existing Borders

a.

Law of the Sea Rules Inapplicable

A key mistake several of you made here was to apply the

law of the sea rules to the Giant Speckled Lake. This is a
lake, completely surrounded by land. The law of the sea
rules have no application. The three states can own the
entire lake and anything that falls within its waters.

The law of the sea ‘status’ of the islands is also irrelevant.

A rock in the middle of your lake can still be part of your
territory, regardless of whether it can sustain human
habitation.

a.

Claims Not Directly Helped by Laws Related to Accretion

or Avulsion

The two new islands, Smoke and Ash Islands, are formed
by volcanic activity. This appears to be a sudden, natural
process, giving rise to the possibility of title by avulsion—
since the islands lie on the borders of all three states.
Accretion and avulsion are two processes by which new,
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naturally formed territory may become part of an existing

state. The question arises when a riverbed forms the
borderline between neighbouring territories. The rule,
roughly stated, is that territory that falls within your borders
as a result of a gradual process will remain yours
(accretion), but territory that suddenly forms will likely
remain with the original state (avulsion—the border
remains the same). The key case here is the Chamizal
Arbitration between Mexico and the US.

However it is hard to see how this rule can help us in the

present fact pattern. We do not know exactly where the
borders of the three states fall in relation to the three
islands. Even if we did, since we do not have firm title over
Flame Island by any state, the new territory is not being
‘added’ to any existing, immediately adjacent, territory.

Also, the borderlines between the three states are drawn on

equidistant principles, not following any geographical
feature. Thus the lines would go straight from the shores to
the centre of the lake, over whatever happens to lie in their
paths.

a.

Territory Already Within States

Since equidistant lines have been drawn to the centre of the lake, technically all three of
the territories (islands) that are ‘discovered’ already exist within the three states’ borders.
In other words, the entire lake has already been divided up between the three states. There
are lines creating borders over the waters and we simply have to figure out which island
falls within the territorial boundaries of which state. We know that:

 Smoke Island is closer to Conger

 Ash Island is closer to Moray and
 Flame Island is closer to Snake.

Thus, if the equidistant lines drawn between the three states divides up the lake equally
then each island may fall within a respective state’s ‘zone.’

Possible Map
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If an island exists within a state’s territory it will belong to that state. If territory is newly
formed within the borders of a single state, that territory also belongs to the state. We
know this from the example given in the lectures of the undersea volcano that erupted
within the territorial sea of Japan in 1986 and formed a new island. This island
automatically became part of Japanese territory because it lay within Japanese territorial
boundaries. [E.g., Shaw, International Law, p. 284]

1.

Contiguity

The doctrine of contiguity is severely criticised in the Island of

Palmas Case by Judge Huber. It would not likely help resolve this
dispute either, since the territorial borders of all three states so
closely converge in the centre of the lake. It will be hard to say that
one island is ‘contiguous’ to any greater degree to an existing state.
Each island either falls within a state’s borders, or is split across
two states’ borders.

In the latter case the doctrine of contiguity may be taken into

consideration, but is not dispositive (i.e., equity might require
awarding an island to the territory within whose borders 90% of
the island falls).

1.

Self-Determination (Flame People)

Since this fact pattern occurs in modern times, and Flame Island is
inhabited by the Flame people, a claim to self-determination could
arise under international law: Western Sahara Case. The Flame
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people appear to have some level of political organisation, as seen

in the person of their Chief.

Notice that one possible product of exercise of a right to self-

determination is independent statehood. However the claimant
entity must nonetheless fulfil the requirements of the Montevideo
Convention and be recognised by other states. This means that for
practical purposes, the Flame people will not be able to obtain
immediate statehood status.

1.

Cession from Flame People

If the Flame people have sovereignty over the Islands then the ‘card’ signed at the
‘celebration feast’ could be seen as an act of cession from the Flame people to the State of
Snake. However this treaty would not likely satisfy the requirements of the Vienna
Convention on the Law of Treaties (e.g., being fraudulent or the result of a mistake), and
no international tribunal would uphold it.

No direct coercion is indicated in the facts and hence articles 51 and 52 of the Vienna
Convention are irrelevant. However, some of you suggested that the cession was forced
upon the Chief in a last bid to avoid the genocide, so I did not take marks off for use of
articles 51-52.

Also, the Flame people would have to have international legal personality to own the
territory in the first place (cession is a derivative form of title), and this has not yet been
established. If they had no title, they could not cede title: nemo dat quod non habet. See
also the Island of Palmas Case (Spain’s attempted cession to the US).

Answer: depending upon where the equidistant lines are drawn, each island may fall
within the boundaries of the state closest to it. But since the general move is towards self-
determination (but cf. East Timor Case and Kosovo), it may be best to allow the Flame
people to determine their own destiny, including attainment of sovereignty over Flame
Island, if so desired. We may award the other two islands to the Flame people as well, or
alternatively, award Smoke Island to Conger and Ash Island to Moray (as falling within
their territory or on the basis of contiguity). So the two likely scenarios then are:

Scenario Sovereign Flame Island Smoke Island Ash Island

One Flame X X X
peoples
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Two Flame X
peoples

Conger X

Moray X

Since the crimes take place in Snake (conspiracy agreement), or on Ash Island (murder)
or Flame Island (feast and actions related to conspiracy), this has implications for Snake,
Moray or the Flame peoples in relation to assertion of international criminal jurisdiction.

A.

Criminal Jurisdiction

States may exert prescriptive and enforcement jurisdiction under

international law. Enforcement jurisdiction must be asserted in a state’s
own territory unless permitted by other rules of international law or with
the consent of another state. Enforcement jurisdiction also requires
possession of the accused.

The key to this part of the problem was to separate each category of crime:
murder and conspiracy to commit genocide are subject to different
prescriptive bases of jurisdiction.

1.

Murder of Expeditions (Ash Island)

Evil Captain Ochre and his crew can be prosecuted for their
murders of the members of the other expeditions under the
following bases of international criminal jurisdiction:

a.

Territorial

There are two aspects to the territorial principle:

 subjective territorial principle—

applies to situations where the crime commences in your state but is finished or
consummated elsewhere, and
 objective territorial principle—
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applies to situations where the crime starts abroad but is completed in your
territory.
1.

Subjective: Flame people

Interestingly, even if they only have sovereignty

over Flame Island, they may have jurisdiction over
a crime of conspiracy to commit murder since it
most likely started or continued in their territory,
even if it was completed on Ash Island. This charge
was not alleged, however.

1.

Subjective or Simply ‘Territorial’: Flame people or

Moray

If the Flame peoples have sovereignty over all three islands then they will be allowed to
try the murderers on the basis of full territorial sovereignty. If the State of Moray has
sovereignty over Ash Island, it will be able to try them on the basis of the territorial
principle. If no state possesses Ash Island then the territorial principle is inapplicable.

a.

Nationality

The State of Snake can assert jurisdiction over the

criminals on the basis that they are its nationals: cf. Joyce v.
DPP. If the crimes take place in an area considered res
communis or res nullius (communal or non-sovereign
territory), then the nationality principle may be the most
helpful.

a.

Passive Personality

The States of Conger and Moray could each assert criminal

jurisdiction over the crew members and Captain Ochre for
killing their respective nationals. This is a weak basis for
jurisdiction, as seen in the Lotus Case and Cutting Incident.
However it is used today as a basis for jurisdiction over
crimes such as terrorism and hijacking: Yunis Case.

a.
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Universality

This principle is not likely to be applicable for the crime of

murder. Murder on such a small scale, although heinous,
would not amount to a universal crime, which requires the
crime to be against the international order, or at least to
affect the interests of nations of the world as a whole (e.g.,
piracy).

If the persons killed were diplomats, however, this might

give rise to a kind of universal jurisdiction… An example
of universal jurisdiction is the case of AG Israel v.
Eichmann; universality was also suggested as a basis for
jurisdiction in the Yunis Case.

a.

Protective

If the murdered persons were diplomats or agents acting on behalf of the states concerned
(i.e., as "dignitaries"), then Moray and Conger could assert jurisdiction over their
murderers on the basis that the actions amount to a threat against the states themselves:
e.g., Joyce v. DPP, US v. Pizzarusso.

1.

Conspiracy to Commit Genocide (Attempted Poisoning of Flame

People)
a.

Territorial: Genocide Convention—Trial in Territory Where

Committed

This is where it gets more interesting. Since conspiracy to commit genocide must be tried
within the territory in which the act was committed, the criminals must be tried by the
sovereign of either:

 Snake or Flame Island (in either of which the conspiracy agreement may have
been formed), or
 Flame Island or Ash Island (if the feast is held on either of these islands, and one
accepts the DPP v Doot or Liangsiriprasert Cases as allowing a continuance of
the crime of conspiracy). DPP v Doot allowed UK courts to prosecute
conspiracies that although complete as crimes, continue through actions taken
pursuit to the conspiratorial agreement in the UK. Liangsiriprasert v US allowed
prosecution even if no actions associated with the conspiracy occur in the
domestic jurisdiction.
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This would mean that under the Convention, either the Flame peoples or states of Moray
or Snake must try the conspiracy to commit genocide.

Note that since the Flame people are not party to the Genocide Convention they are not
bound by it and need not apply it. Moray, Snake and Conger are bound by it, however.
This means that Conger cannot try the crime of conspiracy to commit genocide because it
did not take place in its territory. But cf. the Eichmann Case (where Israel tried genocide
even though it did not exist as a state at the time the crime was committed).

a.

Not Part of Sovereign Territory?

Interestingly, if the territory in which the conspiracy occurs (Flame or Ash Islands), is not
yet part of any sovereign "State," then the Genocide Convention does not apply (at least
the sections reproduced on the exam). In such a case, the same bases for jurisdiction
related to the murders could be asserted, with special attention being paid to the
universality principle (see above).

1.

Enforcement Jurisdiction: Conger Possesses the Accused

Since the Conger Navy has arrested Captain Ochre and his men Conger will be most
likely to prosecute them if it can establish a basis under which to do so (i.e., passive
personality, universality or protective). However it could only prosecute the crimes of
murder, not conspiracy to commit genocide (which is governed by the Genocide
Convention). The only way that Conger could prosecute the crime of conspiracy to
commit genocide is if the Convention is inapplicable.

Since Conger is holding the accused, any of the other international actors would have to
request the criminals on the basis of extradition treaties or extradition arrangements.

If the Conger Navy has arrested these men in another state’s territory, then it will have
breached that state’s sovereignty. This would violate the international rules regarding
non-intervention and sovereign equality and could give rise to a claim under international
law by the injured state.

Answer: under the Genocide Convention, conspiracy to commit genocide can only be
tried in the state in which the act occurred. This could be either of the States of Moray or
Snake, depending upon where the conspiracy agreement was formed or where actions
related to it took place. The Flame peoples may have jurisdiction on the basis of the
universality principle (not the Convention, of which they are not a party), if the
conspiracy could be said to have taken place in their territory and they have the
international personality to try the accused. If the crime took place in terra nullius
(unlikely since the lake is completely divided between the three states and the Flame
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peoples have a good claim to it), then Conger could try them as the sections of the
Genocide Convention in the exam question would be inapplicable. If it took place in an
area in the process of self-determining (i.e., Flame Island) it may be under an
international protectorate and the Convention would be inapplicable here as well.

Captain Ochre and his crew could be tried for murder by all of the states involved in the
fact pattern under the prescriptive bases set out above.

I.

Question Two: Amercorp and the Indie People

[State Responsibility / Immunity]
Amercorp operates a lucrative gold mining operation in the State of Guy, along the banks
of the Oran River. Tensions develop when cyanide spills kill fish and wildlife in and along
the Oran River. Several indigenous persons from the Indie Tribe that live along the Oran
also die from mysterious illnesses. After their complaints remain unanswered, the Indie
people resort to drastic tactics in an attempt to shut down the plant. They ambush and kill
Amercorp officials, as well as destroy company property.

The Guy government sends special police forces to protect the Amercorp personnel but
the killing continues. It is rumoured that some of the police are sympathetic to the Indie
cause. Things come to a head when five Amercorp engineers are brutally beheaded. The
two police officers assigned to protect them, Constables Smyle and Gryn, emerge
unscathed. The constables are sharply reprimanded by their commanding officer and
penalised one day’s pay.

The State of Jaem, the place of incorporation of Amercorp and the location of its
registered head office, sends a team of diplomatic staff from the Jaem Embassy to the
Amercorp plant. The Jaem Ambassador questions Constables Smyle and Gryn.
Unsatisfied with their responses, the Ambassador requests the assistance of a Jaem
Diplomat and the Embassy’s Chief Gardener to further question the two constables in a
small dark room. After several hours of questioning Constables Smyle and Gryn emerge
bloodied and battered. They recant their earlier testimony. They now say that their
commanding officer, Police Captain Nyce, ordered them to take the engineers to a
specific location and leave them unattended.

The Ambassador and his retinue return to the Jaem Embassy. The Embassy is almost
immediately surrounded by an angry crowd of Guy citizens, who accuse the Ambassador
of torture. The mob throws stones into the Embassy compound. No Guy police are
anywhere to be seen. The Guy government announces on the evening news that the
Jaem Ambassador is no longer welcome in Guy and must leave the country immediately.
Another mob gathers outside the Amercorp plant. Guy police surround the plant and
evacuate all of the employees. Guy government workers take over its operations "until
the current crisis is over." All profits from Amercorp operations are thereafter placed in a
special trust fund. Operational costs are deducted from these profits, as is a 50%
management tax.

Six months later the Jaem Ambassador and staff remain trapped in the Embassy
compound. Guy authorities were unable to guarantee the safety of the Ambassador for
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earlier evacuation, and now refuse him any protection. According to the Guy government,
the Ambassador is persona non grata, has outstayed his welcome, and as a result has no
immunities.

The relations of the States of Jaem and Guy are tense. Jaem demands release and safe
passage for all of its Embassy personnel, as well as compensation for the illegal
confiscation of its company. Guy claims the right to try the Ambassador, Diplomat and
Chief Gardener under its criminal law, and refuses to pay any compensation.

Explain the international legal issues raised by the above and resolve this dispute.

A.

Amercorp Civil Liability

The toxic spills and their effects upon the Indie people will be subject to
Guy civil and criminal laws. Amercorp itself will be liable under Guy law
for any pollution. No prosecution has been alleged in the fact pattern,
however, so local legislation may not exist. Jaem will not be vicariously
liable for the actions of its nationals in other states. There is no evidence
that Amercorp is an organ of the Jaem State.

Note: Law of the Sea rules regarding pollution are inapplicable to rivers.

A.

Guy’s State Responsibility Regarding Amercorp

The State of Guy may be responsible for not protecting the Amercorp
officials from the Indie attacks. The State of Jaem will be responsible for
the actions of its diplomats (who will be immune under the laws of Guy).

The basic test for state responsibility is set out in the Mavrommatis
Palestine Concessions Case:

"[A] State is entitled to protect its subjects, when injured by acts contrary to
international law committed by another State, from whom they have been unable
to obtain satisfaction through ordinary channels."

Guy can protect its police and Jaem its nationals, both of whom are injured
by acts contrary to international law (torture and murder, respectively),
likely committed by another state, from whom they may be unable to
obtain satisfaction through ordinary channels.

I will deal with the harms caused by the State of Guy first, then by the
diplomats later.

1.
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Actions of Police Officers/Indie Terrorists Attributable to the

State of Guy?

If the evidence about Captain Nyce ordering Constables Smyle and Gryn to take the
engineers to a specific location and leave them unattended is true, then the State of Guy
may be directly implicated in the killings. Actions of agents of the state, if done under the
colour of authority, even if ultra vires or as the result of a mistake, will nonetheless be
attributable to the state: Union Bridge Co. Claim, Youmans Claim, Zafiro Claim, and
Caire Claim. Notice that the State of Guy may also be seen to be adopting the actions of
the Indie terrorists, if the police ‘toleration’ of their activities is condoned higher up the
hierarchy. This adoption occurred in the Diplomatic and Consular Staff in Tehran Case,
although it will be harder to prove here.

Art. 8 of the ILC Draft Articles on State Responsibility tells us that persons or groups can
do actions imputable to states if it can be established that:

a. they were in fact acting on behalf of the state, or

b. they were exercising elements of governmental authority in the absence of official
authorities, in circumstances justifying this authority.

Art. 10 of the Draft Articles covers the situation of ultra vires acts—i.e., actions outside
of the legal competence of a state official. It creates a strict rule for states, telling them
that as long as the conduct was of an "organ of the state, of a territorial governmental
entity or of an entity empowered to exercise elements of governmental authority," and
that it was acting in such capacity, then regardless of whether the organ has exceeded its
competence or contravened instructions, the state will nonetheless be responsible.
[Paraphrasing of Art. 10]

Answer: If it is true that Police Captain Nyce actively ordered the constables to bring the
engineers to the place where they would be killed, as part of their official duty, then those
actions will be directly attributable to Guy. Guy will be responsible for these actions.

1.

Failure of Guy to Uphold the Minimum Standard of Treatment

for Foreign Nationals?
a.

Minimum Standard

Even if the police were not actively involved in the

murders, they were clearly inept at protecting the Amercorp
personnel. This brings us to the other basis for state
responsibility for harm to foreigners, namely, the
minimum standard of treatment. The Neer Claim sets out
 16

the international minimum standard for treatment of aliens

by a foreign state:

"(first) that the propriety of governmental acts should be put to

the test of international standards, and (second) that the
treatment of an alien, in order to constitute an international
delinquency, should amount to an outrage, to bad faith, to wilful
neglect of duty, or to an insufficiency of governmental action so
far short of international standards that every reasonable and
impartial man would readily recognise its insufficiency."
[Emphasis added]

The fact that Constables Smyle and Gryn emerge from the
situation unscathed may indicate that they did not do their
utmost to protect the engineers. Plus, when they are merely
given a slap on the wrist this may show that the State of
Guy is not taking seriously its obligations to protect foreign
nationals. Does this amount to "insufficiency of
governmental action so far short of international standards
that every reasonable and impartial man would readily
recognise [this]"? The two cases to compare here are those
of the Janes Claim and the Noyes Claim. The former
involved incredible negligence by the police; the latter
some police trying their best to deal with a situation.

a.

Lack of Due Diligence

Another relevant case is the Asian Agricultural Products Ltd. v. Sri

Lanka, which would seem to establish that mere lack of due
diligence is enough, without the need to establish malice or
negligence, in order to find a state responsible.

Upon the basis of the limited evidence in our fact pattern it may be
hard to prove this kind of lack of due diligence or failure to uphold
the minimum standard. Nonetheless, if further evidence becomes
available, the State of Jaem may have a claim on behalf of its
murdered nationals.

2.

Responsibility for Expropriating Amercorp Plant?

The State of Guy’s dealings with the Amercorp plant may give rise
to a claim of expropriation. Jaem can protect Amercorp because it
is their national, being incorporated and having its registered head
 17

office in Jaem. See the Barcelona Traction, Light and Power Co.
Case.

The Amoco International Finance Corp. v. Iran Case defines

expropriation as: "a compulsory transfer of property rights, [which]
may extend to any right which can be the object of a commercial
transaction, i.e., freely sold and bought, and thus has a monetary
value."

a.

Constructive/Creeping Expropriation

Since there has not been any transfer of property rights or

ownership, the fact pattern could only fit within the
category of constructive expropriation. Starrett Housing
Corp. v. Iran describes constructive expropriation as
follows:

"[I]t is recognised in international law that measures taken by a

State can interfere with property rights to such an extent that
these rights are rendered so useless that they must be deemed
to have been expropriated, even though the State does not
purport to have expropriated them and the legal title to the
property formally remains with the original owner."

Here the Amercorp plant is taken over by the Guy

government and the latter continues its operations. Are
Amercorps rights in it "rendered so useless that they must
be deemed to have been expropriated"?

Answer: On balance we could find constructive

expropriation. All profits are subject to deductions related
to operational costs (this is acceptable), but they are also
subject to a 50% management tax. The latter would likely
amount to a form of constructive or creeping form of
expropriation, making the operation unprofitable to the
point of bankruptcy over time.

a.

Lawful/Unlawful Expropriation

The test for lawful expropriation, as explained in the case of Amoco International
Finance Corp. v. Iran, is that it must not be:

1. discriminatory,
 18

2. without a public purpose,

3. in breach of a treaty, or
4. compensated below the lawful level.

1.

Discriminatory

No other plant appears to have been taken over by

the government, so its actions with respect to
Amercorp could be discriminatory.

However this may be hard to prove if Amercorp is

the only operation of its kind in Guy (i.e., compare
the Amoco Case and the BP Case).

2.

Public purpose

No public purpose is given by the State of Guy and

thus it could be unlawful.

However if Guy had left the plant in the hands of

the Indie terrorists, or the mobs that appeared, then
it would have been destroyed. In that case Guy
would have been responsible as well. So an indirect
public purpose could be asserted: to uphold public
order and protect the Amercorp facilities.

1.

Breach of Treaty

This does not arise on the fact pattern.

1.

Compensation Below Lawful Level

This is interesting because Guy will allege that it is not expropriating, and thus does not
have to pay compensation.

Even if it admits that it is expropriating the plant, it can delay payment until a later date,
as long as interest is included.
 19

Answer: either lawful or unlawful expropriation could be found on the basis of the facts
available. However, the lack of bona fides in the way it is being expropriated (a sneaky
management tax), may be argued to push it into the unlawful category (as not having a
valid public purpose).

a.

Compensation Due

Unlawful expropriation requires higher compensation than lawful expropriation, although

there is some disagreement over what level of compensation is required in the lawful
category. The chart set out below gives a rough overview of the compensation levels,
with the 1962 General Assembly Resolution 1803 setting out the current customary
standard for lawful compensation:

Lawful Unlawful

Traditional (Hull 1962 GA Res. 1803 1974 Charter

Formulation)

Public utility

Prompt "Appropriate" (National + International) "Appropriate"

(National)
Adequate

Effective

"Fair compensation" Restitution in kind

"Just price" Or

Market value Monetary equivalent

--Going concern value (corporeal, contractual --Value at time (going concern value—
intangibles)—can equal depreciated corporeal, contractual, intangibles)
replacement value
+
+
--Profits until date of judgement (lost
--Legitimate expectations profits)—future prospects (very limited)

(No punitive damages allowed)

Answer: if the expropriation is unlawful, the State of Guy must provide restitution in kind
or the monetary equivalent. This would mean restoring the management tax and interest
as well. If it is lawful, then Guy must pay appropriate compensation, usually indicated by
 20

the fair market value of the business as a going concern, including legitimate
expectations.

1.

Responsibility of Guy for Failing to Uphold State and Diplomatic

Immunities?
a.

Inviolability of Embassy: Art. 22

The mob throws stones into the Embassy compound and

Guy police are nowhere to be seen. This is a failure on the
part of Guy to protect the inviolability of diplomatic
premises, as required by Art. 22 of the Vienna Convention
on Diplomatic Relations (hereafter Vienna Convention).
This is a strict duty on the part of Guy, as seen in the
various cases where inviolability of the mission was raised:
US Diplomatic and Consular Staff in Tehran Case, Sun Yat
Sen Incident and Libyan People’s Bureau Incident.

a.

Duties Related to Persona Non Grata: Art. 9

The State of Guy is perfectly entitled to ask the Jaem

Ambassador to leave, as a persona non grata: Art. 9,
Vienna Convention. However the host country has to afford
the diplomat the chance to leave the country, and he will
retain immunities until he can do so. If the diplomat is
given the opportunity to leave the country and does not do
so his immunity will expire: Art. 9. However his
immunities will remain for actions done in his official
capacity: Art. 39.

The Ambassador has been given no opportunity to leave.

Guy will thus be failing its duties related to freedom of
movement of diplomats and cannot claim the right to try
the Ambassador for having overstayed his welcome.
Although he would lose some of his immunities (see
below) if he stayed voluntarily, forcibly keeping him there
would not allow Guy to unilaterally revoke these
immunities.

a.
 21

Violation of Freedom of Movement: Art. 26

By trapping the Ambassador and his staff within their Embassy for
six months the State of Guy has unlawfully violated their freedom
of movement: Art. 26 Vienna Convention.

However Guy also has a duty to protect diplomatic personnel

under Art. 29 of the Convention, which requires the host state to
"take all appropriate steps to prevent any attack on [the] person,
freedom of dignity" of diplomatic agents. Thus situations could be
imagined where they might be required to stay within protected
areas.

But on balance, the refusal of Guy authorities to guarantee the

safety of the Ambassador for evacuation for such an extensive
period of time would seem to be an unreasonable interpretation of
Art. 29. This is supported by the fact that the Guy authorities "now
refuse him any protection."

Answer: Guy will be responsible for these violations.

2.

Exhaustion of Local Remedies

Jaem may be required to exhaust local remedies with respect to the following:

 Police/Indie killings or failure to uphold minimum standard of treatment for

foreign nationals—relatives of the deceased and Amercorp may have to use the
Guy court system to try to obtain compensation and protection, respectively;
 Expropriation—Amercorp may have to file a claim for compensation.

Note that exhaustion of local remedies need not be complied with where no remedies
exist or the task would be futile. See the Ambatielos Arbitration.

A.

State Responsibility of Jaem for Actions of Personnel

The Jaem diplomatic personnel all violated Guy laws, which they are
required to respect. Article 41 of the Vienna Convention specifically
requires all persons enjoying these diplomatic privileges and immunities
to respect local laws and regulations, and requires them not to interfere in
the internal affairs of the host state.
 22

They acted as agents of their state in the course of their duties (even if
ultra vires), and broke Guy laws. As a result, Jaem will be responsible for
their actions, even if they are immune from Guy jurisdiction.

1.

Exhaustion of Local Remedies

The only remedy Guy would possess would be to ask the State of Jaem to
waive immunities so that these persons could be locally prosecuted.
Otherwise, this claim must go to the international level.

B.

Diplomatic Immunity of Jaem Personnel

The Jaem Ambassador, Diplomat and Chief Gardener torture the two Guy
police constables. The question is whether they will be immune for these
actions under Guy law. Assuming Guy is a party to the Vienna Convention
(or that the relevant provisions are now part of customary international
law), and that it has domestic legislation similar to the UK (which we have
studied), then we can answer this question as follows.

1.

Immunities of the Ambassador and Diplomat: Arts. 29, 31, 39(2)

The Ambassador is the head of the mission. As such he is given the highest level of
immunities. However the immunities raised in this fact pattern are identical to those of a
normal diplomat. Thus the Ambassador and Jaem Diplomat both have the following
immunities under the Vienna Convention:

 Art. 29

—the person of the diplomatic agent is inviolable, meaning that she or he is

immune from arrest or detention, must be treated with due respect, and protected
from attacks on her or his person, freedom or dignity;
 Art. 31

—this immunity covers criminal jurisdiction as well as all civil and administrative
jurisdiction, including execution of judgements, except in cases regarding: (a) real
estate held in a private capacity; (b) legal actions related to inheritance and
succession; and (c) professional or commercial activities outside of the diplomat’s
official functions;
 Art. 39(2)
 23

—diplomats remain immune in perpetuity for all actions performed in an official

capacity.

Note that this immunity does not extend to the laws of the diplomatic state [Art. 31(4)],
and thus they could be prosecuted in Jaem. Jaem could also waive their immunity. Both
of these options are unlikely on the facts.

The ‘wild card’ in this fact pattern is the fact that the crime that the Ambassador and
Diplomat have committed is torture. I expected some of you to get sidelined on this and
to examine the Pinochet Case. However the law in Pinochet is inapplicable, because all
of the courts in the UK held that if Pinochet (in our case substitute "the Diplomat") was a
current head of state (current diplomat), then he would be completely immune from the
criminal jurisdiction of the UK. As a result, it does not matter whether an act is done in an
official capacity for a serving diplomat: complete immunity from criminal jurisdiction is
allowed.

1.

Immunity of Chief Gardener: Art. 37(3)

The Chief Gardener is not as lucky. He would be defined as being a member of the
mission’s "service staff." Art. 1 of the Vienna Convention defines service staff as those in
the "domestic service of the mission." These persons have been held to include
chauffeurs, porters, kitchen staff, etc. The immunities of service staff are much more
limited:

 Art. 37(3)

—service staff are only immune for actions performed in the course of their
duties, and from taxes on their wages.

The question may then arise as to whether torture is within the course of the Gardener’s
duties. Following our similar tutorial question in this area, one could argue that he had
been instantly assigned this duty by his Ambassador, and thus remains immune.

However, this is where the Pinochet Case comes in handy. In that case the House of
Lords (on their third try), held that torture was not an action within the ‘official capacity’
of a former head of state and that immunity for such actions ceased in the UK when it
became a party to the Torture Convention. Thus, in our fact pattern, if Jaem and Guy are
parties to the Torture Convention then the Gardener will not be able to torture someone
within his ‘official capacity’ and will not be immune, regardless of the nature of the
Ambassador’s orders. Even if they are not parties to the Convention, it can be argued that
this is now a matter of customary international law, removing immunity in any event.

I.
 24

Question Three: The Albacore and the Death of the

First Mate [Law of the Sea / Nationality]
The Albacore, a merchant vessel of the State of Uka, is sailing to the main port of the
archipelagic State of Oll. The crew of The Albacore are all Oll nationals, with the
exception of the Cook, who is a dual national of the States of Err and Oll. The Cook was
born and raised in Oll of Oll parents but now manages all of his financial affairs, lives
permanently, and has a family in Err. The Albacore is owned and managed by a company
in the State of Err.

When The Albacore is sailing just over 200 nautical miles from the shore of Oll, the Cook
and the First Mate become involved in a fist fight about whether the previous night’s
supper could be served again. During the argument the left-over stew spills overboard
and floats in an oily slick towards Oll. A passing school of tuna fish feasts happily on the
stew but die shortly thereafter in Oll waters.

Both the First Mate and Cook are handcuffed to the main mast by the Captain as
punishment for their misbehaviour. Roughly 12 nautical miles from one of Oll’s baselines
the Cook and First Mate start fighting again. The First Mate is killed in a freak accident.
While trying to elude the Cook his arm is entangled in the rigging and the First Mate’s
body is ripped asunder when the wind changes. The Captain of The Albacore shrieks
with rage. He tells the Cook that after they leave Oll that he personally will execute him
for his evil crime.

Some passing tourists witness these bloody events and hear the threat. They radio the
Oll authorities who arrest the Captain for conspiracy to commit murder once he steps on
shore. The Oll Coast Guard also boards the ship and arrests the Cook for manslaughter
and toxic pollution of Oll’s EEZ. The Coast Guard also notices that The Albacore’s
certificate of registration as an Uka flag ship expired earlier that morning. The Oll
authorities seize the ship and incarcerate the crew without charging them.

The States of Uka and Err protest these actions by Oll authorities. Err wishes to exert
diplomatic protection over its national, the Cook. Uka demands immediate release of the
Captain, crew and ship. In exchange, Uka promises to punish any crimes that have been
committed on its flag vessel. The Oll authorities refuse to comply with any requests. They
claim that The Albacore is a ship without nationality and that all of the persons involved
are Oll nationals. In the alternative, the Oll authorities claim that all of the crimes took
place in its jurisdiction and that The Albacore has no genuine link to Uka which would
entitle it to protection.

Critically examine all of the above issues and decide this dispute.

A.

Nationality
1.

Cook

The Cook is a dual national of the States of Err and Oll. He was
born and raised in Oll (jus soli) of Oll parents (jus sanguinis). He
 25

now has nationality of Err (voluntary naturalisation) and manages

his financial affairs, lives permanently and has a family in Err.

Nationality is determined by the laws of the each state: Nationality

Decrees in Tunis and Morocco Case, Arts. 1 and 2 of the 1930
Hague Convention on Certain Questions Relating to the Conflict
of Nationality Laws. But whether another state must recognise a
person’s nationality is dependent upon satisfaction of the
international legal requirements for nationality: Art. 1, Hague
Convention, Nottebohm Case.

A state may offer diplomatic protection by bringing a claim on

behalf of its national: Mavrommatis Palestine Concessions Case:

"[A] State is entitled to protect its subjects, when injured by acts contrary
to international law committed by another State, from whom they have
been unable to obtain satisfaction through ordinary channels."

If the Cook is a national of Err, then his arrest by Oll can be the
subject of diplomatic protection by Err. However there are rules
regarding claims by states of dual nationality regarding a ‘shared’
national.

Note: "diplomatic protection" simply means to bring a claim on

behalf of a person through diplomatic channels (which is how
these claims are advanced). It has nothing to do with the laws
regarding immunities of diplomats.

a.

Genuine Link?

Two questions arise. Firstly, does the Cook have a genuine

link to Err that would enable that state to bring a claim on
his behalf. The test, as set out in the Nottebohm Case is to
weigh such factors as the person’s habitual residence,
centre of interests, family ties, participation in public life,
attachment to the country, etc. Some of these factors tie the
Cook to Err and so he would seem to satisfy the genuine
link requirement.

a.

Dual National Claim?

Next, even if he has this link, can Err bring a claim against another state of which he has
nationality? There are two positions here:
 26

 Claim allowed

—if Err is his state of effective, or dominant, nationality it may bring a claim.
Cases supporting such a position include the Nottebohm Case, Flegenheimer
Claim, Canevaro Case, Mergé Claim and the case of Iran v. US (No. A/18). The
latter case also emphasises that the Nottebohm Case sets out the right approach
for determining effective nationality.
 Claim barred

: there are two sub-possibilities here

1. Lesser nationality—if Err is not his state of dominant nationality, it may not bring
a claim—above cases
2. Hague rule—Art. 4 of the Hague Convention, which says that two states cannot
claim against one other on behalf of a shared (i.e., dual) national. See also the
Salem Case (1932), which supports this the Art. 4 rule and even suggests that the
existence of any ‘effective nationality rule’ under international law is doubtful.

Answer: The Art. 4 rule would prevent this claim completely, but the law seems to be
moving towards the effective nationality position. Hence the claim could probably go
ahead on the basis of law. However, the application of the effective nationality test could
go either way for Err. Under this test we would need to know more about the Cook’s
attachments to Err before being able to really say where his dominant nationality lay.

1.

The Albacore

The Albacore is a merchant vessel "of the State of Uka," meaning

that it is a flag ship of Uka. However, its crew is made up of Oll
nationals and it is owned and managed by a company of the State
of Err. The questions raised in our fact pattern are whether (1) it
has the requisite genuine link with Uka, or (2) the expiry of its
registration deprives it of nationality.

a.

Genuine Link: Art. 91

Art. 91 of the 1982 UNCLOS requires a genuine link

between the state and the ship, which The Albacore does
not seem to possess in connection with Uka. As a result, is
it not entitled to Uka nationality? A straightforward reading
of the article would seem to suggest an affirmative answer.

However, the Saiga Case interpreted this genuine link

requirement in a unique way. Remember that the Saiga was
 27

a flag ship of Saint Vincent and the Grenadines, but was

owned by a Cypriot company, managed by a Scottish
company, and chartered to a Swiss company. Also, the
Saiga master and the crew were all Ukrainian and there
were three Senegalese painters on board. No obvious
connections here to Saint Vincent and the Grenadines. But
the Saiga tribunal held that the genuine link requirement
was put in the UNCLOS to allow states to better enforce
their regulatory laws on flag ships, not to allow foreign
states to challenge nationality [para. 83]. In the alternative,
the Law of the Sea Tribunal simply stated that Guinea has
not proved the lack of genuine link. For similar reasons this
argument would seem to fail with respect to The Albacore.

a.

Registration

The expiry of The Albacore’s certificate of registration would also seem to make it a ship
without nationality.

However, in the Saiga Case that ship’s provisional registration had expired when Guinea
asserted jurisdiction (even though Saint Vincent and the Grenadines later allowed it
permanent registration). So Guinea argued before the ITLOS that the Saiga was a ship
without nationality. The Tribunal held that nationality is determined by the laws of the
flag State and such questions were questions of fact. Saint Vincent and the Grenadines
had behaved as a flag State and Guinea had not satisfied the burden of proving otherwise.
The same would likely apply here.

Answer: The Albacore remains a flag ship of the State of Uka.

A.

Law of the Sea: Zones in Which Acts Occur

Notice that Oll is an archipelagic state. Archipelagos are interesting

because they allow the state to draw longer baselines and to create
archipelagic waters and archipelagic sea lanes. Most of this is irrelevant to
the fact pattern since the key events are said to take place certain distances
from the "baselines" rather than the shore. The only measurement that
would be affected by special archipelagic baselines (which may lie far
from the shores), is the alleged toxic spill.

1.

First Fight: EEZ or High Seas

 28

The Cook and First Mate begin their fight "just over 200 nautical
miles from the shore of Oll." Depending upon how close "just
over" refers to, this could be in the high seas or Oll’s EEZ. Since
archipelagic baselines can extend some distance and cut off huge
chunks of water, this would make it more likely that Oll’s EEZ
would extend more than 200 miles from its shore. Thus, this fight
would likely take place in Oll’s EEZ: Art. 57.

If it takes place in the high seas, then the flag State has jurisdiction
over the vessel and the Captain would be the authority to punish
the offenders. On the high seas states may also take jurisdiction
under the nationality principle of international criminal law.
However the laws of the sea would likely take precedence over
general international law, making flag State jurisdiction preferable.

As far as criminal jurisdiction over this crime is concerned,

however, the situation remains the same: Oll cannot exert criminal
jurisdiction over this type of crime in either the high seas or EEZ.
But see below….

1.

Stew Spill: EEZ or High Seas (also Continental Shelf)

The stew is spilled in either the high seas or EEZ but drifts into the
EEZ, killing some fish. States are not supposed to pollute the high
seas. Again, the main authority to exert jurisdiction would be the
flag State.

If an element occurs in Oll’s EEZ, it would be subject to its

regulations, including pollution, for which The Albacore will likely
be liable. I will come back to this later.

Interestingly, even if it is outside the high seas, the spill might

affect an underlying continental shelf regime, which can extend
beyond the 200 mile limit, up to 350 miles or 100 miles from the
2,500 metre isobath: Art. 76. The coastal state has exclusive rights
to explore and exploit the natural resources of the continental shelf,
including mineral and non-living, as well as sedentary living ones:
Art. 77. However the rights of the continental shelf do not affect
the rights of ships with respect to the waters above it: Art. 78.
Thus, unless pollution directly affected the sedentary living
organisms at the bottom of the sea, the continental shelf would not
change the EEZ or high seas nature of the waters, and Oll’s rights
regarding enforcement in those areas…
 29

1.

Second Fight (Death): Contiguous Zone or Territorial Sea

The second fight occurs "roughly 12 nautical miles" from Oll’s baseline.
This could be within its contiguous zone or territorial sea. The territorial
sea can extend up to 12 miles from the coastal state’s baselines (Art. 3),
and the contiguous zone up to 24 miles from the same baselines (Art.
33(2)).

B.

Law of the Sea: Jurisdiction

The State of Oll is alerted to the events taking place on The Albacore by
some passing tourists, who witness the death of the First Mate and hear the
Captain’s threat.

1.

Captain: Conspiracy to Commit Murder

The coastal state can only exert criminal jurisdiction over crimes
taking place in its territorial sea or internal waters. If the threat was
made in Oll’s contiguous zone, Oll will not normally be able to
take jurisdiction.

a.

Contiguous Zone

The relevant part of Art. 33 states:

1. In a zone contiguous to its territorial sea, described as the

contiguous zone, the coastal State may exercise the control
necessary to:

(a) prevent infringement of its customs, fiscal, immigration or

sanitary laws and regulations within its territory or territorial sea;

(b) punish infringement of the above laws and regulations

committed within its territory or territorial sea.

None of the above infringements are related to the crime of

conspiracy to commit murder, so prima facie the Captain
would not be subject to Oll’s jurisdiction if the threat was
made in the contiguous zone. Also, Art. 33 allows
 30

protection and punishment of things happening "within [the

coastal state’s] territory or territorial sea" (emphasis
added), not within the contiguous zone itself.

However the crime of conspiracy may extend beyond the

conclusion of the conspiratorial agreement and thus the
conspiracy will have continued up to the point the Captain
is arrested (see below). Therefore even if the agreement is
concluded in the contiguous zone, the conspiracy may
continue into the territorial sea and territory of Oll.

a.

Territorial Sea

If it is in the territorial sea, then art. 2(3) tells us that states

have sovereignty over their territorial sea subject to the
UNCLOS. Ships are allowed to exercise rights of innocent
passage in the territorial sea (Art. 17), and the manner of
passage is crucial to determining its character (Corfu
Channel Case).

Coastal states are generally forbidden from exercising

criminal jurisdiction over merchant ships in their territorial
seas (Art. 27). There are only four exceptions allowing
such jurisdiction:

"(a) if the consequences of the crime extend to the coastal state;

"(b) if the crime is of the kind to disturb the peace of the country
or the good order of the territorial sea;

"(c) if the assistance of the local authorities has been requested

by the master of the ship or by a diplomatic agent or consular
officer of the flag State; or

"(d) if such measures are necessary for the suppression of illicit

traffic in narcotic drugs or psychotropic substances."

1.

Consequences Extend to State

Interestingly, because this is a conspiracy charge,

following the logic of DPP v. Doot and
Liangsiriprasert (see answer to Question One,
above), the crime of conspiracy may continue even
after the agreement was formed, either through
 31

actions pursuant to the conspiracy (Doot), or

without such overt acts (Liangsiriprasert). Thus, the
consequences of the crime could be said to extend
to the coastal state, since the Captain was arrested
"once he steps on shore."

1.

Disturb Peace of Country

This basis of jurisdiction could also be used by Oll since a conspiracy to commit murder
would likely disturb the peace of the country. Examples of cases dealing with crimes felt
to have this effect are:

 R. v. Anderson

—murder in French river. British authorities asserted jurisdiction because France

had a practice of allowing the flag State to take jurisdiction, even though France
could assert authority (within internal waters);
 Wildenhus’s

Case—opposite result. Here a Belgian crew member is killed on a Belgian ship by

another Belgian while docked in a US port. The US courts exerted jurisdiction
over the crime, stating that flag State jurisdiction is allowed as a matter of comity
(not law—but note, this took place in a US port—i.e., internal waters), and that
the coastal state may take jurisdiction over crimes which awaken the public
interest. Namely, grave ones, "of a character which every civilised nation
considers itself bound to provide a severe punishment for.…" Homicide is one of
these and I suspect conspiracy to commit murder would be another.

Note that both of these cases govern internal waters, which are part of the sovereign
territory of the state. Since the territorial sea is subject to the UNCLOS, I suspect that the
flag State rule would have stronger appeal in the territorial sea. Nonetheless, if the crime
clearly can be said to disturb the peace of the country then Oll may take jurisdiction.

1.

Assistance of Local Authorities Requested

This exception would seem attractive except that the persons requesting assistance are
merely tourists, not one of the specified categories of persons listed in Art. 27.

Answer: Oll will have a good case for jurisdiction over the Captain.

1.
 32

Cook: Manslaughter
a.

Oll

The Cook is arrested for crimes that took place either in the
high seas or Oll’s EEZ. Oll cannot assert jurisdiction over
these crimes under law of the sea rules and it will be up to
the flag State to assert jurisdiction: Art. 92. The only
exceptions are for things like piracy, slave trading, drug
trafficking and unauthorised broadcasting (latter two
having very weak enforcement jurisdiction).

Answer: Oll must release the Cook to Uka to face

manslaughter charges. The technicalities of the release will
depend upon the extradition arrangements in force between
the two states.

a.

Err

Can Err require that the Cook be handed over to it rather than to
Uka? If Err was asserting criminal jurisdiction on the basis of
nationality, then Oll would be able to choose either state. Oll could
also assert this form of jurisdiction. So all three states would have
a basis for international criminal jurisdiction. The existence or non-
existence of extradition arrangements between Oll and Uka might
be important at this point.

But I think that the better answer is that since the events happen on
the seas, the law of the sea should govern criminal jurisdiction, and
Uka should be entitled to try him. This could be open to argument
(see below)…

2.

Cook and Ship: Toxic Pollution of EEZ

A state can claim up to 200 miles as its EEZ, under both Art. 57 and customary
international law (i.e., Continental Shelf (Tunisia v. Libya) Case, Continental Shelf (Libya
v. Malta) Case, "La Bretagne" Arbitration).

A state has sovereign rights to explore and exploit resources within the EEZ as well as to
protect and preserve the marine environment [Art. 56]. To protect these rights, under Art.
73 the coastal state is given powers to board, inspect, arrest, and take judicial proceedings
 33

against a ship that violates its EEZ regulations. These powers apply to both the ship and
its crew, except that enforcement against the latter cannot include corporal punishment or
imprisonment, and both ships and crew are to be promptly released upon the posting of
an appropriate bond. The key is the latter. EEZ regulations can be civil or non-corporal
criminal, and thus are usually enforced by fines. Oll may have a right to take judicial
proceedings against The Albacore, but it should release the ship and crew upon posting of
a bond by Uka, the flag State of the ship. See e.g., the Saiga Case.

The exception would be if The Albacore was a ship without nationality, in which case Oll
could take jurisdiction over it. This is not the case (see above), and thus the Oll
authorities have illegally exerted jurisdiction over the ship.

Answer: Oll cannot seize The Albacore or incarcerate the crew for EEZ related crimes.
They must release them to Uka, which has promised to punish these crimes under the flag
State principle. Oll can require a substantial bond from Uka to cover the likely fines for
pollution of its EEZ.

A.

Conflicting Bases of State Criminal Jurisdiction

Uka has the best case for assertion of jurisdiction over most of the above events under the
law of the sea rules. However, Oll is the state of nationality of all of the persons,
including the Cook. It is also the state able to exert territorial jurisdiction over some
crimes (conspiracy). What happens when there is a clash between law of the sea rules
regarding jurisdiction and normal international criminal rules?

There is no satisfactory answer to this question; arguments could be made either way. But
my personal choice is for the law of the sea rules, especially if the states concerned are
parties to the 1982 UNCLOS. This treaty would bind them in their relations and hence
supersede customary rules.

Nonetheless, Oll has possession. But remember that possession is only lawful if in
accordance with the permissive rules of international law…

I.

Question Four: Essay—Individuals and Protection

of Nationals [State Responsibility / Nationality]
"The law of state responsibility starkly reveals the powerlessness of individuals in the international
arena. Proving that a state is responsible for harming an individual is difficult enough. But even if
this requirement is satisfied, the individual’s own state of nationality may refuse to bring a claim.
As a result persons should be advised to obtain multiple nationality in order to have more states
to appeal to for help."
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Critically discuss the above statement.

This is very general essay question asking you to discuss a few basic things. The key is to
touch upon each of the four main points:

 State responsibility and powerlessness of the individual;

 Problems in proving a state responsible for the individual’s harm;
 National state’s refusal to bring a claim on your behalf; and
 The advisability of getting multiple nationalities.

A.

State Responsibility: Overview and Powerlessness of

Individual

To answer this question it would be good to start with a basic introduction

to the elements of the law of state responsibility. It is easiest to start with
test set out in the Mavrommatis Palestine Concessions Case (so as not to
forget anything):

"[A] State is entitled to protect its subjects, when injured by acts contrary to
international law committed by another State, from whom they have been unable
to obtain satisfaction through ordinary channels."

These four elements can be further explained.

1.

Nationality

Only the state of nationality may bring a claim on behalf of an

individual: Mavrommatis Palestine Concessions Case, Panevezys-
Saldutiskis Case. This would have clear implications for an
individual without nationality (i.e., a stateless person): Stoeck v.
Public Trustee and Dickson Car Wheel Company Case. Also a
person without a genuine link or genuine connection to a state
would be left without effective remedy: Nottebohm Case.

1.

Act Contrary to International Law

A brief discussion of delicts and international crimes, etc., might

be helpful.

1.
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Proving Injury by State

There will be difficulties involved in proving that a state caused the harm. States may
injure a foreign national, either

 Directly

—through its organs (i.e., Kuwait Airways Corpn v. Iraqi Airways Co.—Iraqi state
sent military to seize aircraft, then ordered pilots to fly them back to Iraq),
 Attribution

—directly, but less obviously, through its organs, agents or citizens (e.g., Caire
Claim, Yeager v. Iran, Youmans Claim, Diplomatic and Consular Staff in Tehran
Case), or
 Failure to uphold minimum standard/lack of due diligence

—indirectly, by not protecting foreigners or foreign property within its territory

(e.g., Janes Claim, Asian Agricultural Products Ltd. v. Sri Lanka—but these cases
could be contrasted with Noyes Claim, Home Missionary Society Claim).
1.

Exhaustion of Local Remedies

This poses additional challenges for the individual, who must exhaust all available
remedies and even the procedures available within those remedies: Ambatielos
Arbitration. If one does not exhaust remedies then your state of nationality may not bring
a claim on your behalf, and you may be left without remedy at both international law and
domestic law: Ambatielos Arbitration.

A.

Nationality and the Powerlessness of Individuals

Aside from the general rules regarding state responsibility, the subset dealing with
nationality may cause further difficulties for the individual. Thus,

 Any injury suffered is an injury to the state, not the national: Administrative
Decision No. V.
 The state of nationality has no obligation to bring a claim: Administrative
Decision No. V, Barcelona Traction Case.
 Since the state is claiming for its own injury, or to enforce international law, it
may accept any form of reparation and can withdraw the claim at any point:
Barcelona Traction.
 Any compensation the state gains need not be shared with the national as a matter
of international law (Administrative Decision No. V), and the national law of some
states such as the UK (Rustomjee v. The Queen).
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A.

Multiple Nationality Option

The "advice" given in the question is unsound under the current rules of international law.
Although international law has moved some way to recognise dual or multiple
nationalities, the individual will still need to prove a genuine link as well as most likely
have the state of dominant nationality bring the claim. If the individual merely has one
nationality, then the genuine link test is the only one that need be satisfied. Worse, having
attachments to several states may decrease the individual’s chance of proving either the
genuine link (with any state), or effective nationality (if all ties are weak).

This part of the question could be answered with a general review of the rules regarding
genuine link and bringing claims on behalf of dual nationals (against another dual
national state and against a third party). E.g. (intentionally incomplete chart),

Single Nationality Dual Nationality Third State

National Rules International Dominant/ Claims Barred Non- Dominant/

Rules (Genuine Effective Opposability Effective
Art. 2 Link) Nationality Art. 4 Nationality

Art. 1 Art. 5

Flegenheimer Nottebohm Canevaro Salem Salem Nottebohm

Nottebohm Flegenheimer

Mergé

The key lies in the non-opposability doctrine. If this rule applies then an individual
having several nationalities will be in a better position than one that doesn’t—as that
person can ‘state shop’ to find a state to bring her or his claim.

However, on balance, spreading your nationalities around the world may lessen your
connections with the states who wish to bring a claim on your behalf.

Answer: the statement in the question has some truth with respect to the difficulties faced
by individuals at international law in the areas of state responsibility and nationality.
However the advice of obtaining dual or multiple nationality is unsound because of the
rules that may prevent claims by non-dominant states or regarding dual nationality
situations.

Pil200an.doc
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