Assorted Class Hypotheticals CML 3231A (Forcese)

This first hypo tends to more theoretical and speculative than mechanical, and was
intended as a discussion piece:
1. In 1625, the Aristan explorer Slobon the Navigator discovers Terra Nullius Island
while sailing through the mists of the Aristan Sea for the first time. No one from
Gondwanaland had ever before espied Terra Nullius Island. He lands on its western
shores, and claims all of the island whose precise contours he did not actually know
for what was then the Counties of Aristan. Nothing happens for over 100 hundred years.
Neither Aristan or Platia has other than occasional contact with the island, though
sometimes fishers from both countries would occasionally come ashore to gather
supplies. In fact the island isnt terra nullius is any real way there is a small
indigenous population Nullians who live what anthropologists would call a mostly
hunter-gatherer existence and have no common political organization. In 1765, an
expansionist Aristan ruled by Smiegel the Magnificent sends a colonizing expedition to
Terra Nullius Island, establishing a settlement in the fertile eastern shore. This settlement
grows and flourishes over the decades, and Aristan settlers generally push further and
further into the interior of the Island through the 18th and early 19th century, displacing
the indigenous Nullians as they go, sometimes by force
In 1864, the then Duchy of Platia and the by then-Republic of Aristan fight a
disastrous war. Aristan comes out pretty much the looser in the conflict, and is forced, as
a condition of peace, to make reparations to Platia. These reparations take the form of a
transfer of title to Terra Nullius by treaty in 1865. But this treaty purports to guarantee
that the Aristans who remain in Terra Nullius will not be molested by the new Platian
government.
Well call these former Aristan colonials who remained in Terra Nullius ethnic
Aristans. Lets say that Aristan fishers that is, Aristan nationals, actual citizens of
Aristan -- continue to reside in more or less permanent villages on the western coasts of
Terra Nullius island. This occupation is open and public (and not clandestine). It is
peaceable and does not involve hostilities with the Platian authorities. And imagine that
these people have been there since soon after the treaty of cession
Now this western coast on which these settlements are found are remote and
rather distant from the Platian colonial administration. But every few years, a Platian
official aboard a Platian gunboat tours the western coast, putting in from time to time in
the villages. And the political leadership in these villages sometimes make a contribution
pay a tax grudgingly to this official
Question: Who, if anyone, has sovereignty over Terra Nullius?
-- lets assume that its the early 20th century and Aristan claims that it
preserved some level of sovereignty over Terra Nullius Island
-- Platia contests this claim
-- relations are pretty good between the countries at this time
-- both are democracies
-- so the take the matter to arbitration before an arbitrator in
1920

-- how might the arbitrator come out:

-- lets look at Platias claim:
-- its title to Terra Nullius Island was obtained by cession
from Aristan, by valid treaty that came into force upon
signature of the parties
-- its title, ultimately, is secondary to that of Aristan
-- Aristans primary title is obviously predicated, first, upon
an initial claim of discovery
-- discovery, when claimed in 1625, may well have
been a legitimate basis for claiming sovereignty,
based on notions of superiority of Christian states
and notions that land was terra nullius, even though
not completely empty, if not cultivated etc.
-- under the doctrine of inter-temporal law, we may
well be obliged to accept this concept of discovery,
even if in modern law it would not suffice and it is
odious to our modern minds
-- but of course, we could follow the pattern
in the Island of Palmas case: the ultimate
question is whether Aristan had sovereign
title at the material time namely, its
cession to Platia in 1865
-- and which way do Palmas and the Eastern Greenland
Case cut?
-- well, Palmas suggests that we should really have
more than simple discovery Terra Nullius
-- we need to see some sort of effective
occupation by the material date of 1865
-- do we have it?
-- Eastern Greenland suggests that
the indicia of an intent to exercise
sovereignty sufficing to establish that
sovereignty can be quite low:
asserting that the island is yours in
international agreements etc.
-- also, note that in Greenland, the
court did view as relevant that
Norway had more or less conceded
this title in the past
-- in the present case, we
have substantially more
effective occupation than in
either the case of the
Spaniard in Palmas or the
Danes in Greenland

-- we have actual
colonization, over a lengthy
period of time
-- Aristans primary title is probably sound
-- note that as a practical reality of
the times, it seems likely that at this
date 1920 the aboriginal interest
would be ignored
-- query whether the island would
still have been viewed as terra
nullius in light of the Western
Sahara decision
-- query also the issue of conquest of
the island, one that predates modern
international law and UN Charter

-- what about Aristans claim

-- well, really, its claim lies in prescription, if anything,
given the treaty of cession
-- and while its occupation was peaceable and open and
lengthy, it likely is insufficient in light of the effective
occupation by the Platians
-- not least as an indicator of that effective
occupation was the tour by the Platian official in the
gunboat, coupled with acquiescence as to his/her
authority by the Aristan villagers
-- theres this Temple of Preah Vihear case
mentioned the materials it suggests that
acquiescence by one party concerning the
sovereign authority of the other can defeat a
claim
-- in fact, Platia could actually have argued
that this acquiescence estopps Aristan from
claiming sovereignty
-- so on the authority of Palmas and Greenland, Platia being
viewed as having good sovereign title to all of Terra Nullius, is
probably the most likely scenario
-- fast-forward in time
-- the year is now 1960 and the Terra Nullius Island is still a
colony of Platia now populated by four distinct ethnic groups: 1.
Indigenous Nullians, comprising about 35% of the population; 2. A
mixed ethnicity group who call themselves the Islanders and

whose ancestors are a mix of Nullians, Platians and Aristans; 3.

Ethnic Platians; 4. Ethnic Aristans
-- united by a common opposition to Platian control of the Island,
the ethnic groups form the Terra Nullian National Congress and
clamour for independence
-- what, if anything, does international law say about their
claim?
-- Terra Nullius Island is not self-governing it is a
colony
-- and are the groups that comprise the Terra Nullian
National Congress a people?
-- well there may be four ethnic groups, and
so there may not be any common ethnicity
-- but that certainly can be no bar to
self-determination: not many former
colonies are ethnically homogenous
and yet all appear to benefit from selfdetermination
-- and it is pretty clear that the these groups
have an identification with a particular
territory Terra Nullius Island
-- because this looks like a classic case of
colonialism, Terra Nullius would be a strong
candidate for self-determination
-- assume that, fearing a colonial war, Platia hauls down its flag and grants
independence to Terra Nullius Island
-- it is promptly renamed by its self-governing elite Moreland, with its
capital Utopiaville
-- Moreland is a democracy in which each of the four ethnic groups
is guaranteed a representative proportion of legislative seats
-- Is Moreland a state?
-- Yes: it has a permanent population; a defined territory; a
government and now a capacity and independence to enter into
foreign relations
-- Moreland is recognized by the worlds countries and becomes a member
of the UN
-- but the political consensus between the four ethnic groups quickly breaks
down
-- in particular, the ethnic Aristans clustered along the west coast -demand greater autonomy in the new state
-- and they appeal to the international community, clamouring for
their own right to self-determination and their own state on the
western fringes of the island they call it the Atlean Republic
-- should the doctrine of self-determination apply?

-- probably not: these are not a colonial people

-- they give every appearance of being a minority
seeking to dismember an international state,
something that will be treated with great reluctance
This second hypothetical is more mechanical and concrete:
2.
The newly independent Republic of Moreland is a major trading country. Its
nationals operate all over the continent of Gondwanaland, doing business in Platia and
Aristan. Moreland Plastics Incorporated has its headquarters in Utopiville, and is
incorporated under Moreland law. It does business as a plastics manufacture in Platia.
Platia is now a military dictatorship. During the coup leading to this dictatorship, several
things happened as follows:
1.
The Platia for Platians Patriotic Front, a pseudo-political organization that
supported the coup, bombs Moreland Plastics facility in Platia, killing the
companys local manager and the shop foreman
-- this local manager is an Aristan national, living in Platia
-- the shop foreman was born in Moreland, but then moved to Aristan
where he began a citizen
-- he lived in Aristan for three years, and then moved to Platia,
where he has lived for the last 25 years
2.
After Platia refuses to act, an Aristan special forces team, under cover of
night, apprehends the leader of the Patriotic Front in Platia, and wisks him back to
Aristan to stand trial
-- Platia protests vigorously
3.
Under continued international pressure, Platia finally conducts a farcical
investigation of the crime
-- it concludes that the bombing was not in fact conducted by the Patriotic
Front
-- instead, this was the result of a business dispute by a disgruntled
former employee of Moreland Plastics
-- and it arrests this former employee, who is a Moreland citizen
-- this Moreland citizen is confined to a notorious Platian prison
and tortured and convicted via a trial that was clearly merely a set
up
4.
Meanwhile, Platia, as part of its new economic strategy, declares all assets
held by foreigners to be the property of the Platian people and expropriates whats
left of Moreland Plastics assets and facility
-- no compensation is paid
-- what principles of international law are engaged by this scenario?
1. Does Aristan have jurisdiction over the leader of the Patriotic Front?
-- first: there was exercise of enforcement jurisdiction in this case by
Aristan

-- it was clearly an extraterritorial exercise of enforcement

jurisdiction that violates international law
-- second: there is an exercise of prescriptive jurisdiction: as a matter of
international law, can Aristan prosecute the leader of the Patriotic Front?
-- well, first: there may be a passive personality basis for
jurisdiction
-- the local manager was a clear national of Aristan, and
was the victim
-- this would be enough for some countries, which
have a broad concept of passive personality
-- other countries might apply a more rigorous passive
personality principle and require that this be a serious crime
-- the local manager was a victim of a terrorist act,
which may well justify the invocation of passive
personality principles
-- what about the shop foreman he was nominally a
national of Aristan
-- but there might an issue here of whether there is
genuine link between the foreman and Aristan
-- but maybe Aristan could properly assert jurisdiction over the
crime committed against both these people on the basis of
universal jurisdiction
-- certain terrorist crimes may give rise to universal
jurisdiction on the part of all states
2. -- would it matter that the Leader of the Patriotic Front was apprehended?
-- the Aristan court would be acting in keeping with the courts in many
jurisdictions in asserting that that doesnt matter
-- the violation of enforcement jurisdiction principles at
international does not rob the court of its jurisdiction by virtue of
the now actual physical presence of the accused before the court
3. issue of minimum treatment of aliens torture a violation of human rights,
but also a denial of justice violating minimum treatment of aliens standard
4. Clearly this is an issue of expropriation
-- the analysis would focus on whether it was for a public purpose, nondiscriminatory and with compensation
-- here, it is clearly a violation of international law, if only for the
reason that compensation was not paid
-- what, in practice, can Moreland do? We didnt have time to discuss in full in
class, but this question raises the concept of state responsibility drawn from the
ILC Draft
-- first, is there a violation of international law

-- yes, expropriation without compensation

-- second, is state responsibility triggered?
-- conduct not in conformity with an international obligation and
attributable to a state equals an internationally wrongful act
resulting in state responsibility
-- if there is a violation of international law, there is, by
definition conduct not in conformity with an international
obligation
-- can the breach be attributed to Platia?
-- the actions of state organs -- so state
representatives, officials, public servants etc. -- will
be imputed to the state
-- well, the expropriation was an act of state
-- simple: the act is attributable to Platia
-- third, what are the legal consequences:
-- first, rights of the injured state: the injured state has a right to
invoke remedies: here, with the expropriation, the injured state is
clearly Moreland
-- injuries to a states nationals are injuries to the state
-- but before Moreland can espouse the claim:
Moreland Plastics must exhaust local remedies in
Platia
- and Moreland could resort to proportional
countermeasures to induce compliance it must meet the
procedural requirements, giving notice, etc.
-- second, the duties on Platia: to cease and make reparations
-- restitution is the preferred remedy: give Moreland
Plastics back its assets
-- if restitution is not viable: compensation
-- to the extent that restitution and compensation are not
available: satisfaction