Chapter 7 - Subjects of International Law

community (or family) of nations

the existence and application of a system of law relating to all civilized states presuppose a system of common values and attitudes

international juridicial personality

certain rights, privileges, and obligations as a member of the community

recognition

• the formal process by which a state is acknowledged as a member of the community

• a state must be recognized by other existing states - this implies an acknowledgement that the entity has the capacity to fulfill its international duties and obligations as a state and that other states will deal with it as a sovereign equal

• each existing state has the right to determine for itself if the set of facts as reflected in each individual situation merits the judgement that a new state exists

failed states

• retain formal recognition as states

• however, they lack effective central government due to coups, interventions, or civil war which has led to a succession of temporary governments

• examples - Somalia and Liberia

de facto in recognition

• when the recognizing government has doubts about the long term survival of the state or government its considering or doubt about its political or moral origins

• but they have found it necessary to deal with its representatives on a formal and ongoing basis

ruling of Underhill v Hernandez

court held that if the party seeking to replace the existing government succeeds, and if the independence of the government it has set up is recognized, then the acts of such government, from the commencement of its existence, can be regarded as legitimately binding

recognition of government

• occurs when a government’s form changes through an unconstitutional or or irregular transfer of authority from one group to another group (coup d’etat, revolution, etc)

• issue is the willingness of foreign states to accept the new government as the official representatives (or rather international agents) of that of the state

• ex after 9/11 - United Arab Emirates and Saudi Arabia withdrew recognition of the Taliban, U.S. eventually invaded and seated a new government until they withdrew their forces from Afghanistan

• identity of the agent does not matter so long as the agent has received recognition

government’s judgement to the existence of another state or government

• does the government of the new entity exercise effective control over its country’s administrative machinery?

• is there any resistance to the government’s authority?

• does the government appear to have the backing of a substantial segment of the people in its country?

recognition as constitutive of international personality

• holds that the putative “state” has no legal existence until recognized

recognition as declaratory of international personality

• the existence of a state is a matter of pure objective fact

• the act of recognition simply marks official notice that the entity meets the basis conditions of fact associated with statehood and registers the intention to treat the entity as a state

Kosovo

• recognition sparked lots of their debate since several countries such as China were wary about the danger of separatist movements taking place after Kosovo declared independence from Serbia

• number of countries who recognize it have changed over the years

Macedonia

• controversy over the name since Greece had a province with the same name

• Greece blocked their accession to NATO, which the ICJ found to be an international law violation

• eventually they came together and named it Republic of North Macedonia - led to Macedonia finally joining NATO

divided states

post world War II many states had divided into two entities - ex North and South Vientma, Republic of China and People’s Republic, conteroversy over Taiwan and Beijing, etc

self determination

• a right of any group of people to choose its own political institutions (including its own government)

The State of the City of the Vatican

• City of the Vatican is a member of the community of nations due to it being its own independent territory after the extinction of the Papal States in 1870

• The Lateran Treaty of 1929 established the city of the Vatican as a sovereign and independent state

• The Vatican is a member of or has official observer status with several international organizations and the UN

• headquarters of Roman Catholic Church

the Knights of Malta

• sovereign Military Order of the Knights of Malta - its headquarters occupy about one large city block in Rome

• maintains diplomatic relations with the State of the City of the Vatican and some other countries have recognized it

associated states

• an entity that has delegated certain governmental functions (primarily foreign affairs and/or defense) to a “principal state” while retaining its own international status

• individuals here have nationality of the principal state for purposes such as travel , but they do not have the rights of citizenship such as voting in principal state of elections

• ex the Cook Islands and Niue are affiliated with New Zealand

Sealand

• motivations behind the establishment of Sealand reflect the romantic desire of many to find an uninhabited island and set up an independent domain free of taxes and regulations

• belonged to Uk during WWII to go against German air raids, later was run by a British citizen Paddy Roy Bates in 1967, but he was later arrested when he shot at the British Navy

• lots of information on its website praising it

• no longer has permanent residents

international organizations (IGOs)

• public IGOs - agencies established for state purposes by states

• some have limited international personality such as concluding binding international agreements or appearing as plaintiffs or defendants before international tribunals

• UN charter gives UN limited international personality by laying out all its responsibilities

• EU - has the status of an international legal person with limited rights granted to it by treaty

nongovernmental organizations (NGOs)

• don’t have international juridicial personality

• can’t make treaties, bring cases to the ICJ, or have formal membership in an IGO

• still have lots of impact on things like human rights however

• example - Amnesty International

status of tribes

while domestic law may give tribes a certain amount of autonomy with a state, they do not constitute independent members of the community of nations

leases of territory

• don’t confer title or create changes in sovereignty

• ex - U.S. lease of Guantanamo Bay from Cuba

• lease treaties only transfers jurisdictional rights (title to the territory remains indisputably with the state granting the lease)

implicit (tacit) recognition

• occurs when a government engages in an act, or establishes a contact or interaction, inconsistent with nonrecognition

• example - During the American Civil War, Great Britain sent many official agents to the confederate states, even though we never recognized them as an independent entity

• controversy over what types of interactions really indicate recognition

nonrecognition

• questions concerning the extent of limitation persist

• most scholars do agree however that nonrecognition of an existing state or government represents a rather ineffective political measure unless it embodies a broad consensus among major states

disadvantages

• the legitimate interests of one’s citizens cannot adequately be protected in the unrecognized entity

• if it persists for a long time, administrative agencies anc oruts will have to face the problem of maintaining necessary contacts and protecting private rights

• can also raise questions about the validity of marriage, travel documents, and contracts executed under laws of the unrecognized entity

• an unrecognized government cannot initiate a suit in the courts of a country that has denied it recognition (can be involved however if gross inequities would have resulted)

belligerent community

• the point in which groups effectively occupy territory extensive enough to move the conflict beyond a purely local uprising

• a formal recognition of belligerency places responsibility for all violations of the laws of war and for treatment of foreign property and citizens on the belligerents and the government opposing them

circumstances that litigation in national courts involving unrecognized regimes may face

1. actions initiated by a party against an unrecognized regime

2. actions initiated by an unrecognized regime

3. actions involving the claims of an unrecognized regime to property located within the court’s jurisdiction

4. private international law disputes that cannot be resolved without reference to the laws or administrative actions of an unrecognized regime

5. the consequences of the withdrawal or loss of recognition

state sucession

• according to the international law commission state succession is “the replacement of one state by another in terms of responsibility for the international relations of territory”

• ex fragmentation of the Soviet Union

devolution agreements

• treaties that normally decide the division of rights and obligations between the predecessor state and the newly independent entity

• sometimes however, domestic legislation of the successor state or pre-merger agreements do this

rights and obligations of a totally extinct state

• when one state is absorbed by another, the question arises as to the extent to which the successor state acquires both the rights and obligations of the extinct state

• he extinct state has no right to appeal under International law against any actions taken by the annexing state because the former state has lots its international personality

• usually results in abrogation of all treaties previously conducted by the extinct entity and other states

effects of treaties

• universal succession - political treaties are abrogated at once - as are treaties of commerce, navigation, and extradition

• partial succession - only political treaties are abrogated (other agreements may be terminated after consultation)