Pontificia Universidad Católica de Chile
Facultad de Derecho
Public International Law
Case Concerning the Statehood of
Downland
(Highland v. Downland)
Professor: Álvaro Paúl
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Date: May 18, 2015
Table of Contents
Page
Index of Authorities III
Questions Presented V
Statement of the Facts 1
Pleadings 2
1. Downland is a State
1.1. Montevideo Convention on the Rights and Duties of States 2
1.1.1. General Issues 2
1.1.2. Territory 2
[Link]. Downland’s Territory 2
[Link]. No Need for Defined Boundaries 3
1.1.3. Capacity to Enter into Relations with Other States 4
1.1.4. Recognition 4
2. Downers are Not Internationally Responsible for the Seizure of the Embassy of
Highland 5
2.1. State Responsibility 5
2.1.1. Is it a Wrongful Act 5
2.1.2. Is it Attributable to Downers 6
[Link]. Concerning Article 10 on State Responsibility as Adopted on Second
Reading 2001 by the International Law Commission 7
[Link]. The Obligation of Highland to Prove Downers Attribution 7
II
Index of Authorities
- BROWNLIE, Ian (2008): Principles of Public International Law. (Oxford, Oxford
University Press).
- CRAWFORD, James (2006): The Creation of States in International Law. (Oxford,
Clarendon Press).
- NGUYEN QUOC, Dinh et al (1989) Droit Internacional Public. (Paris, Lextenso Editions,
Second Edition).
- SILVA, Mario (2014): State Legitimacy and Failure in International Law. (Boston,
Martinus Nijhoff Publishers).
- SHAW, Malcolm (2008): International Law. (Cambridge, Cambridge University Press,
Sixth Edition).
- Various Authors (1991): Palestina: Independencia de un Estado. Available at
<[Link]
- Montevideo Convention on the Rights and Duties of States, December 26, 1933.
- General Assembly resolution 56/83, December 12, 2001.
- ICJ: North Sea Continental Shelf Cases, Judgment, 1969.
- ICJ: Case Concerning Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment of
26 february 2007.
- ICJ: Case Concerning Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua V. United States of America) Judgment of 26 November 1984.
- ICJ: Case Concerning Military and Paramilitary Activities In And Against Nicaragua
(Nicaragua V. United States of America) Judgment of 27 June 1986.
- ICJ: Case Concerning United States Diplomatic and Consular Staff in Tehran (United
States of America V. Iran) Order Of 15 December 1979.
III
UNITED NATIONS (2006): International Centre For Settlement of Investment Disputes
Washington, D.C. Decision on Objections to Jurisdiction ICSID: Total S.A. Claimant v.
The Argentine Republic Respondent
Availiable at: <[Link] [date of visit:
april 4]
UNITED NATIONS (1999): International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia: Prosecutor v. Duško Tadic. Availiable
at: <[Link] [date of visit: april 4]
IV
Questions Presented
1. Whether Downland is or not a state
2. Whether the Downers are internationally responsible for the seizure of the Embassy of
Highland
V
Statement of Facts
(1) Two ethnical groups – Uppers and Downers – have coexisted in the Kingdom of
Altogether. Uppers are located mainly in the North, and Downers in the South.
(2) An extremist faction of the Downers called the Independence Revolutionary Group
(from now on, IRG) was created.
(3) IRG’s leader, Leon Napo, directed several acts of violence in order to displace Uppers
from the south of the Kingdom of Altogether. One of these acts was taking over the
Embassy of Highland located in the former capital of the Kingdom, in the south of the
territory.
(4) Once they took control over the Embassy, the IRG proceeded to the expulsion of all the
diplomatic agents in the Embassy to the State of Highland.
(5) Mr. Napo’s and his followers’ actions did not respond to a generalized policy against
diplomatic corps.
(6) Despite the measures taken by the Kingdom of Altogether, they were not able to stop
the factual division that took place.
(7) The Kingdom of Altogether was separated in two: “The North-Altogether territory”
and “Downland”. The capital of the Kingdom of Altogether was moved to the north of
the country, in the “North-Altogether territory”. Hostilities ceased after the division.
(8) Downland’s government was installed in the southern part of the territory, and Mr.
Napo did not have any official post in this government.
(9) Downland has not been recognized as a state neither by Highland, nor the Kingdom of
Altogether.
1
Pleadings
1. Downland is a State
1.1. Montevideo Convention on the Rights and Duties of States
1.1.1. General Issues
The Montevideo Convention identifies the main qualifications of a state. Even if there is no
evidence of Downland subscribing this treaty, many authors have stated, “The Montevideo
Convention on the Rights and Duties of States codified the declarative theory of statehood
as an accepted part of customary international law”1.
This proves that the criteria used to identify statehood numbered in the Convention are a
matter of customary international law, thus they are applicable to this case despite the fact
that the states in question have not signed the treaty.
Article I of the Montevideo Convention on the Rights and Duties of States numbers the
qualifications of a State: “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”2.
The facts of the matter clearly demonstrate that Downland complies with qualifications a)
and c). Letters b) and d) will be treated separately.
1.1.2. Territory
[Link]. Downland’s territory.
James Leonard Brierly defined territory in terms of territorial sovereignty, this is, the
existence of rights over territory 3 . Judge Huber, in the Island of Palmas case, said
“sovereignty in relation to a portion of the surface of the globe is the legal condition
necessary for the inclusion of such portion in the territory of any particular state”.4 These
1
Silva, M. (2014) p. 15
2
Montevideo Convention on the Rights and Duties of States (1933).
3
Brierly, J. (1963), p. 162
4
Island of Palmas case, 2 RIAA, pp. 829, 838 (1928).
2
considerations, when related to the facts exposed in the Statement of the Facts (number 7)5
show that there is no reasonable way for disclaiming that Downland does have sovereignty
over a part of the former Altogether’s territory.
[Link]. No Need for Defined Boundaries.
Another key point on this regard is the distinction between a defined territory and defined
boundaries.
Having a defined territory is, according to article 1 of the Montevideo Convention’s, a sine
qua non qualification for a state to be considered a subject of international law, but the
concept of territory must not be confused with its boundaries. Having defined boundaries is
highly useful and recommended, as it prevents disputes in an international level, but it is
not a criterion for considering something as a state or not.6
The ICJ, on February 20, 1969, in the North Sea continental shelf case, noted that: “The
appurtenance of a given area, considered as an entity, in no way governs the precise
delimitation of its boundaries, any more than uncertainty as to boundaries can affect
territorial rights. There is for instance no rule that the land frontiers of a State must be
fully delimited and defined, and often in various places and for long periods they are not,
as is shown by the case of the entry of Albania into the League of Nations (Monastery of
Saint Naoum, Advisory Opinion, 1924, P.C.I.J., Series B, No. 9, at p. 10).”7
The fact that the boundaries between Downland and the Kingdom of Altogether are not
clearly defined does not mean, under these regards, that there is no defined territory. The
boundaries of these two entities shall be discussed in the future, but not in this arbitration.
5
(7) The Kingdom of Altogether was separated in two: “The North-Altogether territory”
and “Downland”. The capital of the Kingdom of Altogether was moved to the north of the
country, in the “North-Altogether territory”. Hostilities ceased after the division.
6
Nguyen Quoc, P. Daillier, A. Pellet. Droit Internacional Public, 2nd edn, Paris, 1989. p.
358
7
ICJ: North Sea Continental Shelf Cases, Judgment, 1969, ICJ, No. 46, at p. 32
3
1.1.3. Capacity to enter into relations with other states
Since Downland is a newly constituted state, there is no evidence of prior international
relations with other states. However, Article I of the Convention does not establish actual
relations as a requisite, but the capacity of entering into these relations.
“The concern here is not with political pressure by one country over another, but rather
the lack of competence to enter into legal relations. The difference is the presence or
absence of legal capacity, no the degree of influence that may affect decisions” 8.
This is strictly related to the independence and sovereignty of a state. Downland’s
sovereignty is sustained by the fact that Altogether’s capital was moved from Downland’s
territory, having no control over the region; and by the existence of a government that does
have effective control over the territory.
1.1.4. Recognition
The fact that neither Highland, nor the Kingdom of Altogether have recognized Downland
as a state is completely irrelevant and has no consequences on Downland’s statehood.
Article 6 of the Montevideo Convention states: “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” 9.
This means that recognition is not an essential requisite for statehood, but just acceptance
of another state’s personality, but even if it was required, Article 7 of the Convention must
be taken into consideration: “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” 10.
As it was stated before, the fact that Altogether moved its capital to the Northern Territory
demonstrates that the country accepts Downland’s sovereignty over its territory, consisting
an act of tacit recognition.
8 Shaw, M. (2008) pp. 202
9 Montevideo Convention on the Rights and Duties of States (1933).
10 Idem.
4
2. Downers are Not Internationally Responsible for the Seizure of the Embassy of
Highland
2.1. State Responsibility
The articles on State Responsibility as adopted on second reading 2001 by the
International Law Commission state:
“Article l: Responsibility of a State for its internationally wrongful acts.
Every internationally wrongful act of a State entails the international responsibility of that
State.
Article 2: Elements of an internationally wrongful act of a State.
There is an internationally wrongful act of a State when conduct consisting of an action or
omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State”.11
These requirements have been taken in count in cases like Total S.A. v. Argentine
Republic, where the tribunal made express reference to the two positive conditions for
responsibility contained in Article 2. 12
Considering this, we need to establish whether or not the act perpetrated by the IRG is in
fact a wrongful act and if it can be attributed to the Downers, assumption that we strongly
oppose to.
2.1.1. Is it a Wrongful Act
The inviolability of embassies by other States is a well established obligation in
international law, as the Court mentions it in the United States v Iran case: “Whereas there
11
Responsibility of States for Internationally Wrongful Acts, 2001, page 2.
12
Total S.A. v Argentine Republic (ICSID Case No. ARB/04/01), Decision on Objections
to Jurisdiction, 25 August 2006.
5
is no more fundamental prerequisite for the conduct of relations between States than the
inviolability of diplomatic envoys and embassies”13.
Downland recognizes the wrongfulness of the IRG acts, but these acts are not attributable
to the Downers, as shown below.
2.1.2. Is it Attributable to Downers
In the Nicaragua v USA case the ICJ stated: “For this conduct to give rise to legal
responsibility of the United States, it would in principle have to be proved that the state had
effective control over the military or paramilitary operations in the course of which the
alleged violations were committed”14.
In the Tadic case, the Appeal chambers of the International Tribunal for the former
Yugoslavia stated: “The requirement of international law for the attribution to States of
acts performed by private individuals is that the state exercises control over the
individuals.” 15
In the United States Diplomatic and Consular Staff in Teheran (United States v Iran) the
ICJ stated that: “The approval given to these facts by the Ayatollah Khomeini and other
organs of the Iranian State, and the decision to perpetuate them, translated continuing
occupation of the Embassy and detention of the hostages into acts of that State.” 16
If we analyze the criteria used in these cases it becomes evident that it is impossible to
prove that the state of Downland had “effective control” over the IRGs actions. Those
actions occurred prior to the settlement of the new government. Additionally, there is no
proof that the IRG controls the new government or is related in any way to it. There is also
no evidence of support given by the Downers and their new government to the actions of
the IRG after they were committed. So under this perspective, and endorsed by the criteria
13
United States of America v Iran case, ICJ Reports, 1979, paragraph 38.
14
Nicaragua v United States of America case, ICJ Reports, 1986, paragraph 115.
15
Prosecutor v. Duško Tadic, International Tribunal for the Former Yugoslavia, Case IT-
94-1-A (1999), ILM, vol. 38
16
United States Diplomatic and Consular Staff in Teheran (United States v Iran) ICJ
Report, 1980, paragraph 118.
6
used by jurisprudence in the cases shown, the IRG’s actions cannot be attributed to the
Downers.
[Link]. Concerning Article 10 on State Responsibility as adopted on second
reading 2001 by the International Law Commission:
"Article 10: Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement, which becomes the new Government of a
State shall be considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing a
new State in part of the territory of a pre-existing State or in a territory under its
administration shall be considered an act of the new State under international law. 17”
Application of article 10 in international law appears to be exceptional with no judicial
reference to be found.
There is no evidence proving that the IRG became the new government of Downland, nor
that their actions “succeeded in establishing a new State”. It is important to establish that it
is not possible to conclude from the facts that the IRG’s actions were the cause of the
settlement of the new government. The facts of the case merely state the violence provoked
by a specific group during a particularly turbulent time in the history of the Downers. The
IRG is a determined specific faction within the downers, and their conduct took place
without any approval or support from the Downers; nor to their actions, nor to their leader;
who, as a matter of fact, does not even occupy a position in the government.
The actions of the IRG took place before the settlement of the new government but there is
no causal link between them and no relation whatsoever that could enable us to conclude
that the IRG is in any way involved in the government of the downers in present time, nor
that they were in its creation, making Article 10 irrelevant for the present case.
[Link]. The obligation of Highland to prove Downers Attribution
Existing a wrongful act, as it is in this case, the demanding State must prove that that act
is attributable to Downers, especially considering the gravity of the imputations.
17
Responsibility of States for Internationally Wrongful Acts, 2001.
7
This was made clear by the International Court of Justice in the Bosnia v Serbia case: “On
the burden or onus of proof, it is well established in general that the applicant must
establish its case and that a party asserting a fact must establish it”. 18 And in the
Nicaragua v United States of America case judgment of 1984: “Ultimately, however, it is
the litigant seeking to establish a fact who bears the burden of proving it”.19
The Court also states that fully conclusive evidence must be provided for it to determine the
alleged responsibility of a State in grave imputations, as it did in the Bosnia v Serbia case:
“The Court has long recognized that claims against a State involving charges of
exceptional gravity must be proved by evidence that is fully conclusive”.20
We strongly believe that there is no conclusive evidence of Downland´s international
responsibility whatsoever in the wrongful act.
18
Genocide Convention (Bosnia v Serbia) case, ICJ Reports, 2007, paragraph 204.
19
Nicaragua v United States of America case, ICJ Reports, 1984, paragraph 101.
20
Genocide Convention (Bosnia v Serbia) case, ICJ Reports, 2007, paragraph 209.