Advocacy in International Law: SPRING 2016 INTERSESSION PROBLEMS & PRINT CASES Day 2: January

Advocacy in International Law: SPRING 2016 INTERSESSION
PROBLEMS & PRINT CASES
Day 2: January 5, 2016 (Tuesday)

Problem #1.C: It is not long after September 11, 2001. Four US aircraft have been hijacked by nineteen hijackers, mostly Saudi-Arabians. Two of the planes flew into and brought down the New York City World Trade Center’s twin towers. As a result, nearly three thousand individuals from eighty-two countries died. You work for the Department of State in one of the countries whose citizens have been killed. Your superior asks you to either discuss with herwhat sources should be consulted to determine whether this event violates International Law. You need not cite any specific document. The objective is to analyze where to find an answer, but not necessarily what the answer will be. (Decision-makers constantly deal with murky research problems, given the ebb and flow of what constitutes Int’l Law.)

Problem #2A:This Problem addresses the related question of Palestinian statehood. The Palestine Liberation Organization (PLO) was created in 1964 to “liberate” Palestine from Israeli control. Its members include people who are citizens of various Arab States. Their ancestors inhabited that territory since ancient times, long before the Western nation-State model was incorporated into International Law in 1648. Materials about the PLO are available on the Palestinian National Authority Web site at < and in the §6.2.A.1(b) Palestinian Wall case.

In 1919, the Palestinian people were provisionally recognized as a State by the League of Nations, as indicated in the 1922 Mandate for Palestine addressed to Great Britain. The UN’s 1947 partition plan (UN Gen. Ass. Res. 181(II)) would have created a Palestinian State, but for the outbreak of war between Arab States and the new State of Israel. The drive for a Palestinian State gained momentum in the 1970s. The creation of the State of Palestine has international support only insofar as it would occupy the additional territories conquered by Israel in various Middle East wars in the 1960s and 1970s, but not that portion of “Palestine” that became the independent State of Israel in 1948. The PLO historically denied Israel’s right to exist in what it considered to be “Palestine,” dating from biblical times. Palestinians have routinely characterized the UN partition plan of 1947 as a criminal act that denied them rights they believed were guaranteed by the 1919 recognition of Palestine and 1922 League Mandate to Great Britain.

Led by Yasir Arafat, the PLO initially insisted that a Palestinian State should replace Israel because the Jewish state had no right to exist in its current location. The PLO later softened its position. In the 1993 agreements brokered by President Clinton, the PLO thereby recognized Israel’s right to exist although the comparatively militant members of “Hamas” disagree. The Palestinian National Authority has claimed that it should be given territory taken by Israel during various Middle East conflicts. The 1998 peace negotiations included Israel’s demand that the PLO revoke the provision in its 1964 Covenant calling for Israel’s destruction. Israel’s borders have not been fixed by international agreement with its neighbors. The PLO argues that Palestine’s borders are not yet established.

In 1974, the PLO was invited to participate in the UN General Assembly’s debate on the Palestine question and in an effort to secure peace in the Middle East. (See G.A. Res. 3210, 29 UN GAOR Supp. [No. 108] at 3, UN Doc. A/RES/3210[XXIX] [1974], and G.A. Res. 3375, 30 UN GAOR Supp. [No. 27] at 3, UN Doc. A/ RES/3375[XXX] [1975].) The PLO was then officially recognized by Austria, India, and the Soviet Union. In July 1974, the PLO was also accorded a unique, nonvoting “observer” status in the UN General Assembly. The PLO can now raise issues, cosponsor draft resolutions, and make speeches in the General Assembly. Participation in the UN was previously limited to traditional States and non-controversial nongovernmental organizations such as the International Red Cross.

In 1987, the US Congress enacted legislation entitled the Anti-Terrorism Act. It was designed to close the PLO’s UN observer mission in New York City. The basis for the desired closure was that the PLO’s alleged terrorist activities could flow into the US through the PLO’s observer mission at the UN. The US government subsequently filed a lawsuit in a US court, under that US antiterrorist law, seeking to close the mission. The PLO responded from Algiers by proclaiming the existence of the new and independent “State of Palestine.” This 1988 declaration includes the assertions that “the people of Palestine fashioned its national identity” and “the Palestinian people have not ceased its valiant defence of its homeland … [of Palestine, which] was subjected to a new kind of foreign occupation” when Israel took over. See Palestine National Council Political Communiqué and Declaration of Independence, reprinted in 27 Int’l Legal Mat’ls 1660, 1668 (1988). It contains much of the history surrounding this conflict. This Palestinian declaration of statehood was immediately recognized by the Soviet Union. As of 1988, then, the PLO claimed that the State of Palestine finally achieved de facto, if not de jure, existence as a State.

In 1989, the ICJ ruled against the US on its unilateral attempt to close the PLO mission at the UN headquarters in New York City. The Reagan administration unsuccessfully argued that the antiterrorist legislation required closure “irrespective of any international legal obligations that the United States may have. …” The US noted that since the PLO was not a State, the space for its observer mission had been provided only as a mere courtesy, and that the US could do so because it was the host government for the United Nations’ New York facilities. One basis for countering the US position materialized in mid-1988. Jordan’s King Hussein severed all forms of legal and administrative ties between Jordan and the West Bank. Israel introduced Jewish settlers into that area which the PLO claims as its own territory.

The 1988 UN General Assembly Resolution 43/177 accorded observer-State status to the PLO, thus augmenting the mere observer status the PLO had already achieved. Two years later, 114 States had recognized the newly proclaimed State of Palestine—some twenty States more than the ninety-three that recognized Israel.

The 1993 accords established a program resulting in a partial turnover of autonomy over Gaza and the West Bank to the Palestinian National Authority—although this so-called “land for peace” process became subsequently bogged down. In 1998, PLO Chairman Arafat announced that he would proclaim the de jure statehood of Palestine within two years, regardless of Israel’s negotiating posture.

In March 1999, the EU began to consider its potential collective recognition of a “Palestinian State.” The EU reaffirmed the Palestinians’ right to self-determination, but did not actually recognize “Palestine” as a State. Since then, attacks and counterattacks in the Middle East have confirmed that when there’s a peace agreement in the air, there are usually bodies on the ground. In 2002, UN Security Council Resolution 1397 became the first to refer to “a vision of a region where two States, Israel and Palestine, live side-by-side within secure and recognized borders. …”

In March 2005, a US federal court affirmed a default judgment against the PLO and the Palestinian Authority. Relatives of a husband, wife, and infant son filed this wrongful death claim after they were murdered at a wedding in Israel. The defendants claimed that political recognition was not a prerequisite for a finding of statehood. After applying the usual elements of statehood, the court found that the Palestinian Authority had not yet exercised sufficient government control over Palestine to satisfy the test for statehood. As concluded by the court: “We recognize that the status of the Palestinian territories is in many ways sui generis. Here, however, the defendants have not carried their burden of showing that Palestine satisfied the requirements for statehood under the applicable principles of international law at any point in time. In view of the unmistakable legislative command that sovereign immunity shall only be accorded to states … the defendants’ sovereign immunity defense must fail.”

In April 2008, former US President Jimmy Carter met with top Hamas leaders in Syria. He reported that Hamas is prepared to accept the right of the Jewish state to “live as a neighbor next door in peace.” Carter relayed this message in a speech in Jerusalem, after Hamas leaders said that they would accept a Palestinian state on the 1967 borders and would accept the right of Israel to live as a neighbor next door in peace. The borders Carter referred to were the frontiers that existed before Israel captured large swaths of Arab lands in the 1967 Mideast war—including the West Bank, east Jerusalem and Gaza.

In September 2008, departing Prime Minister Ehud Olmert said that Israel must withdraw from nearly all of the West Bank and East Jerusalem. An undivided Jerusalem would bring 270,000 Palestinians within Israel’s security barrier. In June 2009, Israel’s Prime Minister Benjamin Netanyahu officially endorsed a two-State solution. This concession was premised upon various conditions, including a Palestinian State that would be demilitarized and cede control of its airspace to Israel. In September 2009, the Palestinian Prime Minister announced the intent to pursue and achieve de facto statehood by 2011. The Sept 2011

2015 UN flag raise

Assume that “Palestine” is now applying to the UN for full State membership in the UN General Assembly of States. Had Palestine already satisfied any or all of the four traditional elements of statehood before 1993? Did the 1994 Palestinian autonomy agreements do that? Is there now a State of Palestine, after the autonomy agreements? What is its nature; for example, is it a State within the international community of nations? Seegenerally Israel-Palestine Liberation Organization, Agreement on the Gaza Strip and the Jericho Area, 33 Int’l Legal Mat’ls 622 (1994); H. Hillel, Countdown to Statehood: Palestinian State Formation in the West Bank and Gaza (Albany, NY: State Univ. of NY Press, 1998); and M. Qafisheh, The International Law Foundations of Palestinian Nationality: A Legal Examination of Nationality in Palestine Under Britain’s Rule (Leiden, Neth: MartinusNijhoff, 2008).

Radwan v. Radwan

Family Division of London, England

3 All England Reports 967 (1972)

AUTHOR’S NOTE: Mr. Radwan was an Egyptian national who entered into a polygamous marriage with an English woman in the Egyptian consulate in Paris.

Mr. Radwan subsequently moved to London. He entered the Egyptian consulate there, for the purpose of divorcing his English (second) wife. He thus employed the “talaq” procedure. In her absence, he orally decreed, three times, that they were divorced. This talaq procedure constituted a valid divorce under the laws of Egypt—but not under English law.

Several years later, his English wife filed her own divorce suit in the English courts, anticipating a more favorable divorce decree under English law than under Egyptian law. Her English lawyer argued that the talaq “divorce,” while performed within the Egyptian consulate in London, was not entitled to recognition under English law. It should not be recognized as a divorce performed “outside of ” England. Mr. Radwan, hoping to avoid a comparatively unfavorable English divorce decree, responded to this “wife’s” suit on the basis that he had already obtained a valid divorce. Thus, he argued, his prior talaq divorce was effective, because it was legally performed on “Egyptian territory” (i.e., in Egypt’s consulate in London).

The court’s footnotes are omitted.

COURT’S OPINION:

I have read the relevant subparagraph of the petition whereby the talaq divorce is pleaded. The husband put in evidence the affidavit of Mustapha Kamil Abdul Fata, Deputy Consul General of the Consulate General of the United Arab Republic of Egypt in Kensington Palace Gardens in London. In it he swore [in his capacity as an expert on Egyptian law] as follows:

(1) The Egyptian Consulate in London is regarded as being Egyptian territory on Egyptian soil.

(2) The divorce … registered in Cairo … is valid and recognised by Egyptian law. …

I also received the affidavit of JamilNasir, a person qualified in Egyptian law. In that affidavit he says that … under Egyptian law the Consulate General of the United Arab Republic in London is regarded as Egyptian territory. He does not give any reasons for that opinion, but I note that it corresponds with the [above quoted] statement of the deputy consul of the Consulate General in London. …

The facts are as follows. The husband was born in Cairo. He is and at all material times was a Mohammedan. He was and remains a subject of the United Arab Republic. … On 1st [of ] April 1970 he entered the Egyptian Consulate in London; the procedure stated in the affidavit of the deputy consul of the Consulate General was followed. The husband three times declared the prescribed [talaq] form of divorce in the presence of two witnesses. All the steps were carried out in accordance with Egyptian law. After the prescribed 90 days the divorce was finalised in accordance with Egyptian law, and in accordance with that law it was no impediment to the efficacy of the proceedings that the wife knew nothing about it at all.

The question for my decision is whether by English law the Consulate General of the United Arab Republic is part of a country outside the British Isles within the meaning of the Recognition of Divorces and Legal Separations Act of 1971. By that Act the relevant sections providing for recognition will have effect in respect of overseas divorces if they have been obtained by means of judicial or other proceedings in any country outside the British Isles, and it is necessary for the efficacy of the talaq divorce that it should have been obtained outside the British Isles by reason of the fact that at the material time the husband had acquired English domicile [emphasis supplied by author].

Curiously, the question has not arisen for decision in England before, that is, the question whether the premises of an embassy or consulate are part of the territory of the sending state as compared to the territory of the receiving state.

I quote and adopt the observations of [legal commentator] Mr J E S Fawcett:

There are two popular myths about diplomats and their immunities which we must clear away: one is that an embassy is foreign territory, and the other is that a diplomat can incur no legal liabilities in the country in which he is serving. The first is a confusion between territory or property and jurisdiction over it, and it is important to clarify it for it has sometimes arisen over ships and aircraft. The building occupied by a foreign embassy and the land on which it stands are part of the territory of what we call the receiving state: it is therefore under the jurisdiction of that state. But the members of the mission and their activities in the embassy are primarily under the control and jurisdiction of the sending state. International law avoids conflict between these jurisdictions by laying down rules to cover the whole field of diplomatic relations. These rules have been embodied in the Vienna Convention [on Diplomatic Relations of ] 1961, which may be taken as reflecting existing law and practice. This Convention, and that on Consular Relations drawn up in 1963, are among the first steps … in the successful codification of international law. The premises of a mission are inviolable, and the local authorities may enter them only with the consent of the head of the mission. But this does not make the premises foreign territory or take them out of the reach of the local law for many purposes: for example, a commercial transaction in an embassy may be governed by the local law, particularly tax law; marriages may be celebrated there only if conditions laid down by the local law are met; and a child born in it [the diplomatic premises] will, unless his father has diplomatic status, acquire the local nationality.

Judge Cummins then considered similar cases involving this issue arising in other countries. This is a useful illustration of how a decision maker resorts to customary State practice as a basis for ascertaining the content of International Law.

FRANCE: Nikitschenkofcase: The court was dealing with murderous assaults on the first secretary of the Russian embassy in the Russian embassy in Paris, and an argument was submitted that the place of the crime being the premises of the Russian embassy was a place situated outside the territory of France and not governed by French law. The decision was a decision under art. 3 of the Code of Napoleon. The court said:

[that] all those who live in the territory [France] are subject to [French] police and security laws; Whereas, admitting as exceptions to this rule of public law the immunity which, in certain cases, international law accords to the person of foreign diplomatic agents and the legal fiction in virtue of which the premises they occupy are deemed to be situated outside the territory of the sovereign to whom they are accredited; Whereas, nevertheless, this legal fiction cannot be extended but constitutes an exception to the rule of territorial jurisdiction … and is strictly limited to the ambassador or minister whose independence it is designed to protect and to those of his subordinates who are clothed with the same public character; Whereas the accused is not attached in any sense to the Russian Embassy but, as a foreigner residing for the time in France, was subject to French law; and Whereas the place where the crime which he is charged with committing cannot, in so far as he is concerned, be regarded as outside the limits of [French] territory … the jurisdiction of the French judiciary [is] clearly established.