GOVT 326 Midterm Subject of International Law

Subjects

Legal persons (entities to which IL applies)

Capacity to: Possess rights/duties by bringing int'l claims, maintain rights by bringing in'l claims, be held responsible for breaches in IL.

Who are subjects? States (territorially organized subjects) International organizations (functionally organized), Others(limited personality) (includes idividuals, specialized groups/minorites, NGOs, firms

Full vs limited personality

Limited: Bearer of rights/duties only

Full: also creator of rights/duties

Ex: States (absolute personality), IOs (in their functional field of competence only)

Statehood (Legal criteria)

Defonition of a state (1933 Montevideo Convention)

Art 1: The state as a person of IL should possess the following qualifications:

* Permanent population, a defined territory, (an effective) governement, capacity to enter into relations with other states (independence)

Statehood (Recognition)

* Recognition of statehood does not equal government

How? Messy v. political

* Only formal way: establishing diplomatic relations

* De jure (legality) vs. de facto (existence)

* Unilateral (state) vs. collective (UN membership)

* partial recoginition: A state for some, not for others.

Theories of Recognition of Statehood

* Declarative (meets criteria only- recognition unneccessary)

Constitutive (recognition matters: a political act

Territorrial sovereignity

* States excersise authority over all acts on their territory (jurisdiction)

* Determining title- who is sovereign over territory

Soverign territory- owned by a state

* Land and internal waters+ territorial sea + nat'l airspace

* Territorial integrity ("inviolable")

Other categories- not owned bt state

* Trust territory- administered (temporarily) by a state/IO (e.g. Mandate system)

* Terra nullius: not (currently) under soverign control but could be owned by other states

* Res communis: cannot be owned by any states. Ex: Common heritage of humanity- high seas, int'l airspace, moon/outer space, Antarctica

Determining title

Sovereign authority over territory

Legality (today): requires consent (disputing parties, states, int'l community

Modes of acquistion

Discovery (terra nullius, today not enough to determine title) (e.g. Island of Palmas case: Dutch continous, peaceful authority, Spain discoverer no right to cede to the US).

Effective occupation (Key rule today: Continuous display of sovereignity) (Authroity excersised over extended period without objections)

Prescription: Life effective occupation but w/ a displacement of title. Rival claims, but excersise of sovereignty over an extended period without objections. (Ex: Island of Palmas, Eastern Greenland case

Cession: Transfer of territory by treaty (not coerced) (Ex: Louisiana Purchase

Conquest by use of force: Today unlawful but historically common

Inter-temporal law

valid title can be superseded over time in light of later conditions

Secession

* Succesor state: "new" state= new personality (not equal to old state)

* Continuing state: state continues legal personality of old state.

Ex: South Sudan

Decolonization

The collapse of colonial empires. Between 1947 and 1962, practically all former colonies in Asia and Africa gained independence.

Ghana (1957) former UK colony (succesor state)

Unification/merger/annexation

FRG+GDR led to Germany (FRG) (1990)

* FRG: continuing state

* Common during Cold War

Dissolution

the breaking up into parts; termination of a legal bond or contract

Czechslovakia (1993): 2 new states (Czechia/Slovakia) (Both successors neither continuing) extinction of old state

USSR (1992)- only Russia continuing

Do treaties apply to successor states?

Generally, no. Unless they consent to it

Non-transmissibility rule

* clean slate doctrine

* 1978 Vienna Convention on the Succession of States in resepct of Treaties

2 Expectatons amongst new states and why

1. Border treaties:

New state keep previous int't border

Even if not formally party to treaty

2. uti possidetis juris: When new int'l border created, new state inherits as external border from the former state's internal administrative borders

* After decolonization, seccssion, dissolution

(19th century Latin America, Africa, Burkina-Faso v. Mali)

Why? Maintain stability in IR (territorial integrity. but can negotiate border changes later)

Right to self-determination

Certain peoples* conferred a positive entitlement to become independent and form new states

Who? Non-self governing territories and people subject to subjugation, domination, and exploitation.

Right to unilaterally declare independence (single use right)

UN charter: self determination of peoples

Implications of Self Determination

Groups (vs states) understood as bearers of certain rights under IL (legal personality)

A limit of sovereignity over territor

Right to unilateral secession

No express right beyond colonial/subjugated peoples (e..g Quebec case, S.C/ Canada 1998 not applicable)

Yet secession not prohibited under IL (vs. domestic law)

Even if IL protects territorial integrity

Otherwise Prohibiting secession= freezing history forever (no new states ever)

But secession should conform to IL (illegal if resulting from a breach of IL

* Use of force, war crimes

* Laws cannot arise from unjust acts (ex injuris jus no oritur)

IOs

Authority derived from functions delegated by member states

* Functional rather than territroal basis

E.g. UN/IMF (treaties w/states/IOs to fulfill their mission

Limited personality

Other entities with limited personality

Individuals (rights: HRs) (duties: criminal responsibility, e.g. war crimes)

NGOs

Belligerents (poles in WWII)

Indigenous peoples

IOs as subjects of IL: Reparation for Injuries Case

IOs: legally distinct personality from member states

* IO bears responsibiiltiy for own conduct

* Can conclude treaties (w/states, other IOs)

* Can participate in legal system

Reparation for Injuris Suffered in the Service in the UN

* Does the UN have an int'l legal personality? Can it bring an int'l claim?

Yes, even if not explicitly in UN charter (implied powers)

If so can it bring a claim agaisnt a non-member state (e.g. Israel(

Yes- UN's legal personality exsits not only in relationship with UN members

UN's personality does not depend on consent of third states (it's an objective regime)

Subjects w/in legal system may differ in nature

IOs vs. states (both subject, but different sets of rights/duties, capacities)

Modern IL: no longer just for/about states

* Not equal for Law of Nations (where only states are subjects) transformed into "international law:

* Other entities may be bearers of rights/duties under IL

IOs and others- individuals, firms, NGOs, etc

Not longer just objects of IL

IL and Time

May evolve over time and reflect political conditions (the needs of the int'l community)