Riassunto esame International law, Prof. Michaelsen Christopher, libro consigliato International Law 2nd Edition , Jan Klabbers

The Case of Kosovo

Kosovo was part of the Socialist Federal Republic of Yugoslavia, and, after the latter's breakup, of Serbia. Its population was, however, largely of different ethnicities, which meant the regular occurrence of discrimination and gross human rights violations.

Kosovo was administered for a while by the UN Mission in Kosovo, and declared independence in 2008. In July 2011, Kosovo was recognized by 76 states, but China and Russia were missing, as well as Serbia. Indeed, Serbia and Montenegro turned to the ICJ. The question put to the Court was whether the unilateral declaration of independence by Kosovo was in accordance with international law.

The Court found that "the declaration of independence of 17 Feb 2008 did not violate general international law". Moreover, the Court did not deal with the question of whether Kosovo met the criteria of statehood because this was not part of the question asked to it. Now, 114 of 193 UN member states recognize.

The independence of Kosovo (incl. Italy).

HOW DO STATES ACQUIRE THEIR TERRITORY?

Territory is an important element of statehood. "Territory is neither an object nor a substance; it is a framework within which the public power is exercised (...) territory as such must not be considered, it must be regarded as the external, ostensible sign of the sphere within which the public power of the state is exercised" Nationality Decree in Tunis and Morocco advisory opinion, PCIJ 1923

A State's territory consists of its land mass, contiguous seas and some of its air and outer space. States also exercise certain rights over the high seas. States exercise absolute control over their territories except where part of the territory is subject to temporary control by the international community (e.g., 'No-fly-zone' in Libya).

The Extent of Territorial Sovereignty

Territorial Sea the general law of the sea used to be governed by customary international law. In 1982 it was

foreignvessel is authorized to enter inland waters, it is subject to the laws of the coastal state, with one exception: the crew of the ship is subject to the law of the flag State. This extends to labour conditions as well as to crimes committed on board the ship, even if docked at a port. Moreover, the flag State shall bear international responsibility for any loss or damage to the coastal State.

Territorial sea may be accompanied by a contiguous zone, that may not extend more than 24 miles off the coast. Hence, if a state's territorial sea measures 12 miles, it can proclaim an additional 12 miles as continuous zone, which, unlike the territorial sea, must be claimed.

Territorial sea may also be accompanied by an Exclusive economic zone (EEZ), which comprises a band of water up to 200 miles. The EEZ was created after the emergence of a practice in which some coastal States claimed exclusive fishing rights in areas adjacent to the territorial sea. In the EEZ the coastal state has sovereign

Rights of exploitation and exploration related to the natural resources present there. Indeed, there is no freedom of fisheries in the EEZ (landlocked and geographically disadvantaged states have a right to fish within the limits of the "total allowable catch" determined by the coastal state). Still, the other states can enjoy freedom of navigation and overflight and of laying submarine cables and pipelines. The EEZ must be claimed with a specific act of will.

The coastal state has also sovereign rights over its continental shelf, which is to be considered as an extension of the state's territory (it is the edge of a continent that lies under the ocean). The continental shelf extends for 200 miles from the coast and need not be claimed. Where geologically the shelf extends further than 200 miles, states may claim a shelf up to 350 miles. The coastal State has sovereign rights to explore and exploit the natural resources found on the continental shelf. These rights are exclusive.

automatic and functional, meaning that they can be exercised only to the extent strictly necessary to control and exploit the resources of the continental shelf. Third States have, however, the right to lay cables and conduct on the continental shelf, but the coastal State retains powers to take measures for the prevention, reduction and control of pollution by pipelines.

Finally, beyond the territorial sea there are the high seas, and these cannot be claimed: they are deemed to be res communis. They are free for ships of all nations (freedom to navigate, to overflight, to lay submarine pipelines and cables, etc.). While the result of all this freedom could be veritable anarchy, nonetheless the high seas are a regulated area: all vessels must be registered and thereby have a nationality, and on the high seas the flag state has, in principle, exclusive jurisdiction over things happening on board. Certain activities, such as the transport of slaves, illicit traffic in narcotics, etc., are

prohibited on the high seas.Exceptions to the exclusive jurisdiction of the flag State for private ships piracy (any State can capture a pirate ship in the international sea) and the right of "hot pursuit" (the coastal State has the right to chase and capture in the international sea foreign ships that have violated its laws in areas subject to its jurisdiction; the chase must start in the waters under the jurisdiction of the coastal State and it must be continuous).

Article 2 - Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil

The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.

This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

The sovereignty over the territorial sea is exercised subject to this

state subjacent at the moment a crime is committed. The Convention deals also with air safety. Thus, it specifies that pilots must be licensed, and that aircraft may only take off when in possession of a certificate of airworthiness. The liability of air carriers is regulated by the 1999 Montreal Convention. Moreover, there are other conventions which aim to safeguard aircrafts from terrorist purposes.

Since states enjoy sovereignty over their airspace, it follows that they need not tolerate intrusions of that airspace. Indeed, civil aircraft found to be trespassing may be escorted and ordered to land (but they may not be shot down however, shooting down trespassing military aircraft may be considered justifiable).

Article 1 – Sovereignty: The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.

Article 2 – Territory: For the purposes of this Convention the territory of a State shall be deemed to be the

land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.

Boundary between airspace and outer space has yet to be defined, probably the lowest perigee of an orbiting satellite (50-60 miles).

Outer Space it is occupied by satellites, spacecrafts, planets, and celestial bodies. There is no agreement yet on the altitude where airspace ends and outer space begins but this is not considered problematic since the lowest altitude at which spacecrafts move is still far higher than the highest aircraft can reach (the boundary will move upward as time and technology progress). Outer space is not subject to territorial sovereignty. Space law was codified in the 1967 Outer Space Treaty.

Article 2 – Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means;

the exploration and use of outer space shall be carried out for the benefit and in the

interests of all countries and shall be the province of all mankind;

outer space shall be free for exploration and use by all States;

States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner;

the Moon and other celestial bodies shall be used exclusively for peaceful purposes;

astronauts shall be regarded as the envoys of mankind;

States shall be responsible for national space activities whether carried out by governmental or non-governmental activities;

States shall be liable for damage caused by their space objects (regardless of whether the damage was the result of an internationally wrongful act, or whether the launching state was at fault); and

States shall avoid harmful contamination of space and celestial bodies.

107 States have ratified, and an additional 23 have signed the Outer Space Treaty.

While there is no specific international organization devoted to