English for Lawyers (ENGSEMJ) - · PDF fileRichard Hustad, Norwegian Centre for Human Rights,...

Richard Hustad, Norwegian Centre for Human Rights, [email protected]

English for Lawyers (ENGSEMJ)

Topics in Int’l Law and Human Rights

Chapter #1:

The Subjects of International Law

”State”

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

This Module within ENGSEMJ• Instructor: Richard Hustad

– Research Fellow, Norwegian Centre for Human Rights

– Contact Info: [email protected], 22 84 20 58, 924 38 215

– Research Interests: Poverty & HR; Economic, Social & Cultural Rights

– Background: Civil rights lawyer in USA (criminal defense, civil rights, Sec. 1983…)

• Six weeks: – 13, 20, 27 January & 3, 10, 17 February

– 16:15-18:00 (break from 17:00-17:15)

– Attendance is taken each week

• Class structure– Reading – assignment each week (ca. five pages)

– Terminology – lecture/seminar introducing topic and terms (and discussion)

– Group Discussion – discuss exercises in small groups

– Oral Presentation – present points of law in ’formal’ setting

– Written Review – reinforce terminology and practice written expression (optional)

• Objective– Knowledge – legal terminology within a selection of ’hot topics’ in IL & HR

– Language – oral and written expression of legal topics

– Confidence – opportunity to publicly present a legal issue– ’Advertising’ for HR courses (and careers): http://www.uio.no/studier/emner/jus/humanrights/in-english.xml

• Examination responsibility– Usually a question from this section of course on either written or oral exams

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




Who are You?

• Name

• Year in law school

• Any English experience (beyond videregående skole)

• Legal interests(Examples—with biased guidance)

Human Rights LawContract Law Int’l Trade Law

(boring) (evil) (super heros)


What is a State?

Distinguished from:

• Nation– Definition: a homogeneous group of people (sharing similar

customs, language & history)

– Examples: Scotland, Sioux Nation (American Indian Tribe), Sami

• Country– Definition: a geographic, physical area

– Examples: United Kingdom (Great Britain), United States, Norway

Question:

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


’State’

Teachings of the Highly Qualified

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

”the vehicle of capitalism” and ”the bastard offspring

of slavery and freedom.”

• Max Weber (The Profession and Vocation of Politics,

1994): the organization that has a ”monopoly on

legitimate violence.”


Which one of these is ’the state’?


Etymology of ’State’

The History of the Word

• From the Latin word status– In English: ’condition’ or ’status’

– stato in Italian, etat in French, Staat in German

– Referred to specific social groups within the institutional structure

(the king, nobility, clergy, commoners, etc.)

The Athenian City-State


Historical Definition of a State

• The people?– ’popular sovereignty’



• God?– (divine right)



• The leader?– ”I am the state”



• Gvt. Institution?– Cuius regio,

eius religio



• A group– (oligarchy)


The Legal Definition of State

Montevideo Convention (1933)

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

ARTICLE 1: The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.

ARTICLE 2: The federal state shall constitute a sole person in the eyes of international law.

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

ARTICLE 4: States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.

ARTICLE 5: The fundamental rights of states are not susceptible of being affected in any manner whatsoever.


The Legal Definition of a State

Montevideo Convention (cont’d)ARTICLE 6: The recognition of a state merely signifies that the state which

recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.

ARTICLE 7: The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognizing the new state.

ARTICLE 8: No state has the right to intervene in the internal or external affairs of another.

ARTICLE 9: The jurisdiction of states within the limits of national territory applies to all the inhabitants. Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.

ARTICLE 10: The primary interest of states is the conservation of peace. Differences of any nature which arise between them should be settled by recognized pacific methods.

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


The Legal Definition of a State

The United Nations Charter, Art. 2The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with

the following Principles.

(1) The Organization is based on the principle of the sovereign equality of all its Members.

(2) All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

(3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

(5) All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

(6) The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

(7) Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.


So…the Legal Definition of a State

’Declaratory Theory’ of a State• Permanent population

– But how big?• Consider The Vatican

– What about nomadic peoples?• Must they settle down to have

a state?

• Defined territory

– What is territory?

– Must it be natural?• Consider The Netherlands

– Must it be a certain size?• Consider Gibralter

• Government

– Must the government have control?

• Consider China/Taiwan

• Capacity to enter into relations with the other states

• Recognition by other states doesn’t matter

– But what about Kosovo?

http://upload.wikimedia.org/wikipedia/commons/5/52/Kosovo_stamp_annulled_by_Serbia.jpg


So…the Legal Definition of a State

’Declaratory Theory’ of a State• Permanent population

– But how big?• Consider The Vatican

– What about nomadic peoples?• Must they settle down to have

a state?

• Defined territory

– What is territory?

– Must it be natural?• Consider The Netherlands

– Must it be a certain size?• Consider Gibralter

• Government

– Must the government have control?

• Consider China/Taiwan

• Capacity to enter into relations with the other states

• Recognition by other states doesn’t matter

– But what about Kosovo?

A New Island is ’Born’

Can I make this my state?


Discussion Example 1:

Scotland



Mashantucket Pequot Indian Nation



Palestine / פלשתינה فلسطين /


Discussion Exercises17:05 – 17:20: Break (or informally continue group discussions)

17:20 – 17:40: Discussion within groups

17:40 – 17:50: Exercise A (5-minute intro for each group)

17:50 – 18:00: Exercise B (5-minute intro for each group)

• Exercise A: Consider Sealand.

– Team 1: As an international lawyer representing Sealand, argue that Sealand is a State.

– Team 2: As an international lawyer representing the United Kingdom, argue that Sealand is not a State.

• Exercise B: Consider Samaliland.

– Team 3: As an international lawyer representing Somaliland, argue that Somaliland is a State.

– Team 4: As an international lawyer assisting a judge of the International Court of Justice, argue that Somaliland is not a State.

* Each team should choose a lead counsel for presentations and rebuttals (while any other team members may also speak during hearings)

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