PIL // Subjects of International Law // Self Determination

What do Cantab Marc Weller's Lecture notes say on France's announcement of a 'final' series of eight nuclear weapons test in the South Pacific when advising a French polynesian islander and Greenpeace on a legal strategy they may adopt

it must be considered
1. Does the islander have legal rights, and if so, what kinds of rights are they?
2. How would the islander see to enforce their rights
3. Whose interests does Greenpeace purport to represent
4. Even if it had been established that testing violate international law, how can this finding be enforced?

What is an international legal person according to Abass

someone who can apply international law and against whom international law can be applied

List the relevant considerations when deciding that something possesses an international legal personality

1) extent to which the entity enjoys rights/ has duties under international law
2) extent to which these rights and duties can be enforced by/ against entity on the international plane
3) Extent to which the entity can act in the international plane (can it enter into international relations)

What does Friedman say about states?

States are the repositories of legitimated authority over peoples and territories. It is only in terms of state:
1) powers
2) perogatives
3) jurisdictional limits
4) law-making capabilities
that
1) territorial limits
2) jurisdiction
3) responsibility for official actions

and a host of other questions of co-existence between nations can be determined

Austro- German Customs Union Case

Independence here is meant in the sense of not being subject to the authority of another state

What does Abass say about the government of a state?

it need not operate from within it's own state, as in some instances one may need to operate from exile like the Kuwaiti government who operated in exile in Saudi Arabia in 1990

Art 1 Montevideo Convention on Rights and Duties of States (1933)

1) a permanent population
2) Define territory
3) Effective government
4) Independent capacity to enter into legal relations with other states

Permanent population

1. No minimum levels (10,000 inhabitants in Nauru)
2. Nomadic populations can satisfy this criterion (Western Sahara Advisory Opinion)

What was held in the Western Sahara Advisory Opinion

1. the CJEU held that the fisheries agreement between Morocco and the EU was invalid because it was a violation of self determination, since it applied to Western Sahara's territory and waters

2. Court reached a different conclusion but upheld the principle of self determination in its interpretation of the scope of application of the two relevant treaties

Western Sahara Advisory Opinion Case Facts

1. CJEU held that the EU-Morocco Association Agreement is to be interpreted, in accordance with rules of international la that are binding on the European Union, meaning that the agreement is not applicable of Western Sahara
2. The Fisheries Partnership Agreement was stated to apply to "the waters under Moroccan Jurisdiction". This was defined in Agreements as "the water falling within the sovereignty or jurisdiction of the Kingdom of Morocco

Defined territory

1. No minimum size
2. Boarders do not need to be completely settled/ undisputed (eg. Israel)

Government

1. 'stable political organisation' in control of the territory
2. Considered 'failed states' such as Libya and Somalia

Capacity to enter relations with other states

1. The decisive criterion of statehood (Crawford)
2. Relevant evidence (eg. treaties, exchange of diplomats etc.)
3. Closely linked to recognition by other states

Crawford on the additional contemporary requirements of a state

1) In accordance with the Article 2(4) of the UN charter independence should be achieved without the use of force
a) In accordance with the principles of self-determination
b) Not in pursuance of racist policies

2) In accordance with Art 4 of the UN Charter (this is not constitutive, but creates a presumption that an entity is a state

Para. 2 of the GA Resolution 1514

"All People's have the right to self determination by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development"

Para 6 of the GA Resolution 1514

"Any attempt aimed at the partial or total disruption of the national unity or territorial integrity of a country is incompatible with the purposes and principles of the charter of the UN

Chagos Islands Advisory Opinion Case Facts

1. Dispute between Mauritius and the UK
2. Questions related to whether Mauritius' decolonization was legally completed when it gained independence following the separation of the Chagos Archipelago from Mauritus and what are the consequences in international law of the UK's continued administration of the Chagos Archipelago

What was found in the Chagos Island case in respect to the right of self determination

1 . the right of self determination was a customary norm at the time of the Chagos separation
2. The right of self determination is an erga omnes obligation. All states therefore have an obligation to coorperate with the UN to complete Mauritius' decolonization

What was was held in the Chagos island case?

Since Mauritus' decolonization was concluded in a manner inconsistent with the right of peoples to self determination, the UK's continued administration of the Chagos Archipelago is a wrongful act entailing the international responsibility of the UK

The UK initially refused to comply stating that the court's ruling, emphasizing that it was not binding, and refused resettlement preferring to provide millions of pounds in a support package

East Timor Case Facts

1. Former Portuguese colony. Agreement reached between Portugal and Indonesia for territory to be joined to Indonesia once Portugal relinquished it
2. Opposition to this solution and independence movement declared its independence in Dec 1975
3. Indonesia responded by invading and occupying East Timor

What was held in the East Timor case

In 1999 UN supervised referendum held which favoured independence. In 2002, new state of Timor Leste was internationally recognised

Palestine Liberation Organisation

1. National Liberation Movement
2. Granted observe mission status in 1974
3. Began participating in security council debates relevant to Palestine since 1988

Palestine Liberation Organisation since 2012

1. 2012 UNGA voted to grant Palestine the status of non-member observer state, although it's statehood remains a contentious and politically sensitive matter
2. 2024 UNGA granted the delegation certain new rights in a resolution (but it still excluded from being able to vote or be a member of the security council)
3. 79th General Assembly this year, the Palestinian can submit proposals and amendments and sit among member states

2024 Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel (Facts)

1. Examined matter such as prolonged occupation, settlement policy, de facto and de jure acts of annexation and the disparate treatment of Israelis and Palestinians

2024 Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel ( para 245)

Israel has adopted certain policies and practices which are not in conformity with the legal régime governing occupation. Moreover, ... Israel's policies and practices, including its continued expansion of settlements, are designed to establish facts on the ground that are irreversible, which entrench the annexation of large parts of the Occupied Palestinian Territory and impede the exercise of the right to self-determination by the Palestinian people

2024 Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel (para 261 (1))

1. The Court considers the violations by Israel of the prohibition of the acquisition of territory by force and of the Palestinian people's right to self-determination have a direct impact on the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory

2024 Advisory Opinion of the Legal Consequences arising from the Policies and Practices of Israel (para 261 (2))

. The sustained abuse by Israel of its position as an occupying Power, through annexation and an assertion of permanent control over the Occupied Palestinian Territory and continued frustration of the right of the Palestinian people to self-determination, violates fundamental principles of international law and renders Israel's presence in the Occupied Palestinian Territory unlawful

Re succession of Quebec

1. the right to self determination generates a right to external self-determination only in the following situations:

1. former colonies
2. a people is oppressed
3. a definable group is denied meaningful access to government to pursue their economic, social and cultural development

Collapse of the USSR

1. The collapse of communism resulted in many Eastern European countries claiming their right to self-determination by breaking away from the USSR (secession).
2. Challenges created by the claims of different minority groups within these 'new' states etc.
§Kosovo

Kosovo Case Facts

1 .Human rights violations by the Federal Republic of Yugoslavia , particularly against Albanian Kosovars. NATO intervention in 1999 followed by a UNSC endorsed international civil and military presence.
2. 7 Feb 2008 Kosovo's Parliament unilaterally declared its independence from Serbia.

Kosovo Advisory Opinion 2010 Case Facts

1. 2008 - Provisional Institutions of Self-Government of Kosovo unilaterally declared independence
2. They were formally recognized by some states
3. Other states thought the declaration was illegal and illegitimate

Kosovo Advisory Opinion 2010 Main Issue

Is the unilateral declaration of independence by the Provisional Institutions of Self Government of Kosovo in accordance with International Law

Ahtissar's Proposal Main Points

1. Defined Kosovo's internal setllement
2. Minority Protection Mechanisms
3. Independence under international supervision (an international military presence as well as an international civil presence)

How did the ICJ interpret the request of the UNGA in Kosovo

1. Narrowly
2. Only answered whether the declaration of independence violated general international law or the lex specialis created by SC Resolution 1244
3. Debates regarding the extent of the self determination and the existence of any right of "remedial succession" were beyond the scope of the question asked

What did the ICJ conclude in Kosovo?

1. General International law contains no applicable prohibition on declarations of independence
2. The adoption of that declaration did not violate any applicable rule of international law

What did the ICJ conclude in Kosovo re the principle of territorial integrity?

1. No prohibition on declarations of independence in international law
2. the legal obligation to respect territorial integrity is is only imposed on states not non-state actors

What are the 4 questions not addressed by the court in the Kosovo advisory opinion

1. Did the people of Kosovo have a right to self determination in 1988 and if so, on what basis
2. What is Kosovo's legal status now?
3. Was the recognition of the independence declaration by other states lawful, given their obligations to Serbia as far as it's territorial integrity is concerned
4. What is now the precedent

Constitutional Framework for Provisional Self Government

1. Kosovo is a special case arising from Yugoslavia's non- consensual break-up and is not a precedent for any other situation
2. Stops short of directly referring to Kosovo's claim to self-determinations
3. It implies to represent the collective decision of Kosovo's population as a whole because it speaks to "the will of the people"
4. Defines Kosovo as a unitary structure that cannot partitioned or united with any other country

Lauterpacht on Recognition

There is probably no other subject in the field of international relations in which law and politics appear to be more closely interwoven

Kaczorowska-Ireland on recognition

A discretionary function exercised, usually unilaterally, by the government of a State acknowledging the existence of another State or government

Describe the general aspects of recognition (6)

1. Recognition of a state v.s recognition of the government
2. Is important as within the domestic plane only recognized entities have rights and duties under the law (eg. immunity from jurisdiction of domestic court)
3. No uniform form
4. Can be express or implied
5. Non- recognition may be based on non-legal considerations
6. Operates retroactively

2 Principal theories of recognition of states

1. Declaratory theory
2. Constitutive theory
3. Kaczorowska- Ireland: In state practice both are present

Declaratory Theory

recognition does not bring into legal existence a state which did not exist before

Constitutive theory

only through recognition does a state become an international person and subject of international law

ILA Resolution 3/2018

the Constitutive/ Declaratory dichotomy is of limited usefulness is analyzing the role of recognition

Duty of Recognition under international law according to the U.S State Department

In the view of the United States, international law does not require a state to recognise another entity as a state; it is a matter for the judgement of each state whether an entity merits recognition as a state

Badinter Arbitral Commission

Former Socialist Republic of Yugoslavia
Badinter Arbitral Commission considered the UN Charter, fundamental human rights, democracy and guarantee of minority rights

Recognition of government

1. Distinct from the recognition of states
2. Where there is a recognition of the state but the government, it may mean that other states may find the government ineffective
3. Only arises in the context of revolutionary regimes
4. Constitutionally elected governments do no raise issues of recognition

Test for Recognition of Government set out in the Republic of Somalia v Woodhouse South Africa

Factors to examine in the abscence of an Executive certificate 'Hobhouse guidelines/ principles':

1. Whether the government in question is the constitutional government of the state
2. the degree, nature and stability of its administrative
3. Whether the executive has had any dealings with the purported governments and the nature of those dealings
4. In marginal cases only, the attitude of other states towards the purported government

Current state practice in relation to the recognition of governments.

1. Not to explicitly recognise governments
2. Decisive consideration is whether a given entity has 'effective control' of all or most of the territory in question

Recognition of states and national courts

recognition of states and/or governments can affect, inter alia, who can sue and be sued in a given case or influence determinations as to access to assets

Recognition of states and national courts British Practice

an executive certificate from the FCO is conclusive for the UK courts re recognition of an entity of a state

British Arab Commercial Bank v National Transnational Council of Libya

the UK government provided an Executive certificate indicating that the National Transitional Council ('TNC') (and not the Qaddafi regime) was the legitimate government of Libya. Based on this certificate, the NTC was able to access English bank accounts in Libya's name (that would have previously been controlled by the Qaddafi regime).

Factors bringing about the change in the subjects of international law

1) Growth of international organisation
2) decolonisation and the break- up of states such as the USSR, Yugoslavia leading to a great increase in the number of states
3) Idea of collective human rights
4) Increasing tendency of corporations to act on the international plane through international commercial disputes
5) Importance of non state actors in many feilds (multinational corporations, NGOs etc.)

International Organisations

1. Most important non-state actors
2. Make a significant contribution to international life and the development of international law
3. Extent of international legal personality enjoyed determined by functions and powers needed to excersize at the international level (functional level)

Individuals/ multinational corporations

1. Also participate in the international system
2. Participation and contribution much more limited

Advisory Opinion on the Reparation for Injuries Suffered in the service of the United Nations main issue

(One of the UN staff members was killed while on duty in Israel)

Does the UN as an organisation have the capacity to bring an international claim against the responsible government for reparations for damage caused to the UN and to the victim or persons entitled through him?

Advisory Opinion on the Reparation for the Injuries Suffered in the service of the United Nations // what was held?

1. Subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights and their nature depends upon the needs of the community (functional approach)

2. Under international law, the Organisation must be deemed to have those powers, which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties

UN Articles that pointed to the need for the UN to have legal personality

1. Art 2(5)
2. Art 25
3. Art 10
4. Art 104

Art 2(5) of the UN Charter

requirement for member states to assist the UN

Art 25 of the UN Charter

obligation to abide by and enforce Security Council decisions by member states

Art 10 of the UN Charter

General Assembly's power to make recommendations to member states

Art 104 of the UN Charter

Grant of Legal Capacity, Priviliges and immunities to the UN in the territory of its members

Advisory Opinion on the Reparation for the Injuries Suffered in the service of the United Nations // what was found about the UN's status as an international person

The organization is an international person. That is not the same thing as saying it is a state, which it certainly is not, or that its legal personality and rights and duties are the same as those of a state.. (however it still able to excersize certain rights and duties such as bringing a claim)

Advisory Opinion on the Reparation for the Injuries Suffered in the service of the United Nations // what was found about what the UN could claim as damages

1. The United Nations could recover reparations for damage caused on it's own behalf as well as on behalf of the victim or by persons entitled through him

2. The UN's personality operated even in respect of non-members i.e it was opposable to third parties ('objective international personalities)

Individuals at international criminal law

In terms of international criminal law, the Nuremburg Tribunal (World War II) made it clear that individuals could be held responsible for international crimes. Following the Nuremburg trials, one has also seen the various ad hoc international criminal tribunals (for the former Yugoslavia and Rwanda) as well as the International Criminal Court confirming this position. In the area of international human rights through various human rights instruments such as the Universal Declaration of Human Rights 1948 and the International Covenant on Civil and Political Rights 1966 States undertake to protect their citizens' rights. Some of these instruments go to the extent of permitting individuals to bring international claims for violations of their human rights. e.g. claims brought in Boyce et al v The State of Barbados before the Inter-American Court of Human Rights.