Stefan A. G. Talmon

Recognition of governments in international law : with particular reference to governments in exile

I. THE MEANINGS OF RECOGNITION OF GOVERNMENTS IN INTERNATIONAL LAW 1. Meanings of Recognition 2. Recognition and its Variants II. THE LEGAL STATUS OF RECOGNIZED GOVERNMENTS IN EXILE 3. International Representation 4. Jurisdiction 5. Privileges and Immunities Concluding Observations APPENDICES I. Questionnaire on the Recognition of Governments and Answers Received II. List of Treaties Concluded by Recognized Governments in Exile

THE RESPONSIBILITY OF OUTSIDE POWERS FOR ACTS OF SECESSIONIST ENTITIES

In August 2008, Georgia instituted proceedings against the Russian Federation before the International Court of Justice (ICJ) to establish its international responsibility for alleged acts of racial discrimination against the ethnic Georgian population in South Ossetia and Abkhazia by ‘the de facto South Ossetian and Abkhaz separatist authorities […] supported by the Russian Federation’. In order to establish the international responsibility of an outside power for the internationally wrongful conduct of a secessionist entity, it must be shown, inter alia, that the acts or omissions of the secessionist entity are attributable to the outside power. International tribunals usually determine the question of attribution on the basis of whether the authorities of the secessionist entity were ‘ controlled ’ by the outside power when performing the internationally wrongful conduct. Attribution thus becomes a question of how one defines ‘ control ’. The test of control of authorities and military forces of secessionist entities has become perhaps the most cited example of the fragmentation of international law. The ICJ, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, and the European Court of Human Rights have all developed and applied their own tests in order to establish whether a secessionist entity has been ‘controlled’ by an outside power. There is a lot of confusion about the various tests, usually referred to as the ‘effective control’, ‘overall control’ and ‘effective overall control’ tests. This article sets out the various control tests, their requirements and areas of application, and asks which test or tests should be applied to attribute the internationally wrongful conduct of a secessionist entity to an outside power.

The Chagos Marine Protected area arbitration: expansion of the jurisdiction of unclos part XV courts and tribunals.

This article shows that the Tribunal in the Chagos Marine Protected Area Arbitration between Mauritius and the United Kingdom has contributed considerably to the creeping expansion of compulsory jurisdiction of courts and tribunals established under Part XV of the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal has employed three techniques to do so. First, it has read down the jurisdictional precondition to exchange views in Article 283(1) of the UNCLOS; second, it has expanded the limited scope of compulsory subject-matter jurisdiction under section 2 of Part XV by broadening the meaning of the phrase ‘any dispute concerning the interpretation or application of this Convention’ to include incidental, related—and through the backdoor of a balancing exercise—even extraneous disputes; and, third, it has restricted the limitations and exceptions to compulsory jurisdiction in Articles 297 and 298 of the UNCLOS. Few would have predicted in 1982 that a Part XV court or tribunal would—within the context of such a balancing exercise—ever find that a colonial era undertaking created binding legal obligations under international law and that the United Kingdom was obliged to return the Chagos Archipelago to Mauritius when no longer needed for defence purposes. The Tribunals expansive reading of the jurisdictional provisions in Part XV opens up the possibility of future rulings, albeit incidentally, on issues that have little to do with the law of the sea.

Luftverkehr mit nicht anerkannten Staaten: Der Fall Nordzypern

Ungeachtet zahlloser internationaler Appelle stimmten die griechischen Zyprer im Gegensatz zu ihren turkischzypriotischen Landsleuten am 24. April 2004 gegen die Wiedervereinigung und damit gegen den gemeinsamen Beitritt der beiden Gemeinschaften zur Europaischen Union (EU). Wahrend sich die Zypernturken gegen den erklarten Willen ihres Fuhrers Rauf Denkta§ in dem Referendum mit einem Stimmenanteil von 64,91 Prozent fur den von UNGeneralsekretar Kofi Annan vorgelegten Plan zur Uberwindung der seit 30 Jahren bestehenden Teilung der Insel aussprachen, stimmten 75,83 Prozent der Zyperngriechen gegen den AnnanPlan. Sowohl die Vereinten Nationen als auch die EU zeigten sich zutiefst enttauscht uber dieses Ergebnis und vor allem uber das Verhalten der griechisch-zyprischen Fuhrung, die offen zur Ablehnung des Plans aufgerufen hatte. Die Zypernturken ernteten dagegen allenthalben Lob fur ihr Ja.1 Die Zypernturken hatten am 15. November 1983 in dem seit Juli 1974 von turkischen Truppen besetzten Norden Zyperns die Unabhangigkeit erklart und ihren eigenen Staat gegrundet die Turkische Republik NordZypern (TRNZ). Die Turkei hatte den neuen Staat noch am selben Tag anerkannt und hatte wenig spater diplomatische Beziehungen zu ihm aufgenommen. Die internationale Gemeinschaft dagegen verweigert der TRNZ aufgrund ihrer volkerrechtswidrigen Entstehung bislang die Anerkennung als Staat und erkennt statt dessen weiterhin die derzeit nur aus Zyperngriechen bestestehende Regierung der Republik Zypern als Regierung von ganz Zypern an, obwohl sich deren Herrschaftsbereich faktisch auf den Suden der Insel beschrankt. Der UN-Sicherheitsrat hat in Resolu-

The Obligation to Investigate and to Cooperate with Investigations of Unlawful Cross-Border Killings under Article 2 of the European Convention on Human Rights

Article 2 of the European Convention of Human Rights requires High Contracting Parties to take appropriate steps to safeguard the lives of those within their jurisdiction, and to conduct investigations into unlawful killings. Each year, hundreds of suspects of unlawful killings flee the country of their crime. This raises the question of whether in such cross-border situations both the High Contracting Party where the killing occurred and the High Contracting Party where a suspect or evidence of the crime is present are under an obligation under Article 2 to investigate the killing and to cooperate with each other’s investigation, and whether the High Contracting Party to which a suspect has fled is under an obligation to extradite the suspect. In Guzelyurtlu v. Cyprus and Turkey the European Court of Human Rights (Third Section) held that both respondents were under an obligation to investigate a murder and to cooperate with each other’s murder investigation where there are cross-border elements to an incident of unlawful violence leading to loss of life. This paper shows that the findings of the Court were mistaken and that in the absence of any special features only the High Contracting Party where the unlawful killing occurred is under an obligation under Article 2 to investigate and to cooperate with the investigations of foreign police and judicial authorities. The paper also establishes that the obligation to cooperate under Article 2 must be determined by reference to the High Contracting Parties’ existing international legal rights and obligations in the area of mutual assistance in criminal matters and that Article 2 does not give rise to any new independent substantive obligation, in particular, an obligation to extradite.

Law Of The Sea

The term international law of the sea covers the rules of public international law governing the legal status and relations of and on the sea, the seabed and subsoil, and the airspace above it. The four Geneva Conventions on the Law of the Sea to a large extent codified existing customary international law. The negotiations at Third United Nations Conference on the Law of the Sea (UNCLOS III) were strongly influenced by two procedural principles: the formulation of package deals and the consensus principle. The United Nations Conference on Environment and Development (UNCED) , which met in Rio de Janeiro from 3 to 14 June 1992 called in its Agenda 21 for an intergovernmental conference under United Nations auspices with a view to promoting the effective implementation of the provisions of the LOSC on straddling fish stocks and highly migratory fish stocks, a call which was endorsed by the General Assembly. Keywords: Geneva Convention; international law of the sea; UN General Assembly; UNCED; UNCLOS III; United Nations Conference

ITLOS – International Tribunal For The Law Of The Sea

The International Tribunal for the Law of the Sea (ITLOS) was established by the United Nations Convention on the Law of the Sea of 10 December 1982 (LOSC) (Law of the Sea) to create a special procedure for the peaceful settlement of seabed disputes. ITLOS is the second permanent international court with universal jurisdiction besides the International Court of Justice (ICJ). It is also not an organ of the International Seabed Authority. ITLOS is counted as a member of the UN family. ITLOS is composed of 21 independent members (judges) elected by the states parties to the LOSC for a period of nine years; re-election is possible. The negotiations at UNCLOS III were strongly influenced by two procedural principles: the formulation of package deals and the consensus principle. Keywords: International Court of Justice (ICJ); International Seabed Authority; ITLOS; Law of the Sea; UN General Assembly; UNCLOS III

Membership And Representation Of States

High on the list of priorities of every new state is to become a member of the United Nations. The basic rules governing membership and representation in the United Nations are laid down in Article 3-6 of the Charter of the UN, as well as in the Rules of Procedure of the General Assembly and the Security Council. As the process of de-colonization has almost been completed, the latest major increase of the membership resulted from the break-up of the USSR, Yugoslavia and Czechoslovakia in the early 1990s. Indonesia withdrew from the United Nations in 1965 (only to rejoin in 1966), so far being the only state ever to have done so. In the organs of the United Nations every member is represented by accredited representatives who must present credentials issued by their states government, i.e. by the head of state or government or by the Minister of Foreign Affairs. Keywords: member states government; Russian Federation; UN Charter; UN membership; UN Security Council; United Nations representation; Yugoslavia