POL 435: Week 1-6 Material

International Law - Week 2 to 4 so far...

What is a state?

an organized political community living under a single system of government within a defined territory

countries are referred to as ‘states’

What are the 4 requirements of statehood?

1. Defined territory

2. A permanent population

3. An effective government

4. The capacity to enter into relations with other states

What is does permanent population mean?

A stable population that the government can identify/control through things like passports and censuses

What does an “effective government” mean?

A government that effectively controls and governs its territory, including having a monopoly on force

What does “capacity to enter into relations with other states” mean?

Ability to independently conduct international relations with other states

4 ways new states can form?

1. Fragmentation

2. Seceding

3. Two states merging

4. decolonization/independence

What is declatory theory of statehood?

if an entity MEETS the requirements of statehood, it is a state; recognition only acknowledges an existing reality

What is constitutive theory of statehood?

entity becomes state THROUGH recognition by existing states

(educate myself on the process of how)

Declaratory vs constitutive theory — easiest distinction?

Declaratory = meet the requirements → state

Constitutive = recognition → state

Is UN membership required for statehood?

No. An entity can be a state w/o being a UN member

Why does recognition matter even if it’s not necessarily a requirement?

it gives an entity greater intl legitimacy and ability to participate in intl relations

What is quasi-state? — Examples?

Entity that has some characteristics of state but lacks full statehood/recognition or has uncertain intl. status

• Vatican City: Exists as a thing but refuses to exist as an entity

What is a failed state?

A recognized state whose government is unable to effectively govern or control its territory

Quasi-state vs failed state?

Quasi-state: questionable/limited statehood or recognition

Failed state: Recognized as a state but lacks effective governance

State vs. Nation?

State = political entity with territory/government

Nation = group of people sharing an identity but doesn’t need its onw state

Why is Taiwan a useful statehood example?

It has many characteristics of a state but las limited diplomatic recognition and intl participation because of the One-China policy

Why is somali-land a useful statehood example?

exercises significant control over its territory and declared independence, BUT lacks broad international recognition

Why is sealand not automatically a state just because it has passports, currency, etc.

Having state-like symbols is not enough.

• must satisfy the actual requirement of statehood

What happens after an entity meets the requirements and declares independence?

seeks recognition from other states, which involves both intl law and intl politics

basic process for joining UN?

1. Security Council recommends admission

2. General Assembly Approves

3. Entity becomes a UN member

What's the BIG distinction to remember about statehood?

Statehood, recognition, and UN membership are NOT the same thing. An entity can have characteristics of a state without broad recognition or UN membership.

What is difference between an IGO and an NGO?

IGO (International Governmental Organization): created by and amde up of states

NGO (Non-governmental information): non-state organization created by individuals/groups

What is a charter of an intl organization? What does it establish?

Basicially like a treaty that establishes the organizations goals, structure, and goals

• also includes an exit clause if a state wants to leave

Why are IO charters considered “living documents” ?

They can change and adapt over time rather than remaining static.

Difference between wide & narrow membership?

• Wide = open to many states (example: UN)

• Narrow = Open to less states; u gotta meet certain requirements/interests (ex: NATO, EU)

• Within these orgs you can have a scope be global, regional, bilateral, narrow focused (focused on a specific goal)

What is an organization’s mandate?

The specific purpose or issues the organization is designed and authorized to deal with

• (what it is designed to deal with)

What is legal personality?

The ability of an entity to have legal rights/responsibilities, such as making treaties or being sued

• A state without legal personality means it cannot hold rights, duties, or sue and be sued under the law, though in practice, every recognized sovereign nation inherently possesses this capacity. [1, 2]

What does legal responsibility mean for an IO?

An IO can potentially be held responsible when it commits an internationally wrongful act.

• (instead of suffering no consequences)

What are three primary parts of an IO’s structure?

1. Plenary body

2. Secretariat (handles day to day stuff of org)

3. Specialized/subsidiary groups (Sub-group (that meets on a more regular basis)

Do all IO’s have the same priviledges and immunities?

• No , privileges and immunities depend on particular org and agreements

What is NGO?

typically regarded as groups of persons or societies, voluntarily created, that act independent of governments on a non profit basis.

What is a treaty under the VCLT?

An intl agreement between states, in written form, governed by intl law, regardless of what is it called.

Does the name of an agreement determine whether it’s a treaty?

No. If language shows intent to create a legally binding agreement, it can be a treaty regardless of its label.

What happens during treaty negotiation?

Does adoption of a treaty make it legally binding?

NO! Adoption means negotiations are finished, it does not itseld create binding obligations

What is authentication?

Certification of the definitive/final treaty text, including its translations

Difference between signature and ratification?

Signature → commitment to pursue ratification; doesn’t necessairly mean the state must ratify

Ratification → formal consent to be bound, often after required domestic approval

What is entry into force?

The point when the treaty becomes legally binding according to its terms

How do bilateral and multilateral treaties commonly differ in entry into force?

Bilateral: usually after both states consent

Multilateral: often after a specified number of states ratify

What is treaty reservation?

When can a state NOT make a reservation?

a unilateral statement by a state that excludes or modifies the legal effect of certain treaty provisions for that state

• A unilateral statement is an independent declaration made by a single party without requiring the agreement, consent, or reciprocation of others

What is a declaration about a treaty?

A Statement expressing the state’s position or opinion on matters relating the treaty, such as whether to accept an optional form of binding dispute resolution

reservation vs. understanding

Reservation = changes/excludes a lega obligation

Understanding = clarifies interpretation without altering the obligation

Once a treaty enters into force, how must states perform it?

Must perform their treaty obligations in good faith

What can make a treaty invalid?

Fraud

Corruption/coercion of a representative

threats/use of force

Conflict with jus cogens

What is jus cogens? What is Opinio Juris?

Jus Cogens: A CATEGORY of norms that govern customary intl law

• for a norm to be considered a jus cogens norm, its mandatory effect must be universally accepted by the international community. (it is not contracted out via treaties or persistent objection… it is a norm)

Opinio Juris: Is the second element necessary to establish a legally binding custom - the belief that the actions are required by law. 

• states follow a practice because they believe they have a legal right or obligation to do so

What is customary law?

Comes from the unwritten traditions, habits, and long-standing practices of a specific local community or culture, and community elders or local leaders usually enforce it

Why is opinio juris necessary?

distinguishes customary intl law from habits or courtesy

What is persistent objector rule?

A state that consistently objects to an emerging customary rule may not be bound by it

How can treaties and customary intl law interact?

They can exist side by side, treaties can codify existing customs, while treaty rules also contribute to the development of new customary law.

Distinctions to know

• Adoption

• Signature

• Ratification

• Entry Into Force

• Adoption = negotiations finished

• Signature = commitment/intention

• Ratification = consent to be bound

• Entry Into Force = treaty becomes legally operative

State Practices does NOT equal customary law by itself

so… What makes customary law?

Practice + Opinio Juris = Customary Intl Law

Reservation does NOT equal understanding

• what do each actually mean/do?

Reservation changes/excludes a legal obligation

Understanding clarifies what the state thinks the provision means

How does Jus Cogens play a role in legal cases like (Michael Dominguis v. United States)?

Self executing treaty vs. Non-Self Executing?

• Self executing treaty: can be passed automatically - don’t really need any additional laws 

• Non-self executing: may need more things before it is passed — requires extra stuff for the guidelines of that treaty to be met.