1L - Subjects of IL, States

Historical developments 1

The peace of Westphalia (1648)

• principle of cuius regio, eius religio: whose realm, his religion (secular authority)

• 80 years war: NL vs. SP > Treaty of Münster

• 30 years war: catholic vs. protestant > Treaty of Münster, Treaty of Osabrück

Historical developments 2

17th-19th centuries

• feudal and city states > nation States (central authority, loyalty to states)

• imperialism (policy or ideology of extending country’s power) > colonialism (settlements, exerting direct control)

• natural law (moral principle, through reason) > positive law (man-made law, written rules, formally enacted)

• the Congress of Vienna (1815) after Napoleon’s defeat, redrew Europe, monarchies, balance of power

Historical Developments 3

20th century

• WW1, Treaty of Versailles (1919)

• WW2 , UN Conference on IO (San Francisco, 1945)

Subjects of IL

Meaning:

• International legal personality

• Rights and/or obligations

• Under IL: what is and is not subject of IL

• Made effective: recourse to international procedures

States

States possess full and objective legal personality: ability to appear before international tribunals in order to enforce rights under international law; to be subject to obligations under international law; to make binding international agreements; enjoy some or all immunities.

• Primary subjects of IL

• IL structured on the idea of consent, both flaw and basis of the system

• States are equal, no authority over one another

Sovereigty

Determine freely their internal organisation and their international acts, without authority being imposed from above or from another state

• Sovereignty as an attribute of statehood

• Binding character of IL

• States: mutual recognition as equals

Jean Bodin: The Six Books of the Republic

• Internal /external dimensions

  • Internal: claim of authority: a person or body of persons as sovereign over all others within the territory

  • External: denial of higher authority: the state is not subject to an outside, higher authority

Other subjects of IL

International Organisations

• States establish it in a treaty and confer specific competences

Individuals

• Rights: human rights

• Obligations: not to commit international crimes

Peoples: self-determination

• External and internal

• (Ethic) groups within the State

Armed opposition groups: International Humanitarian Law

Multinationals: companies/corporations

• Guiding Principles on Business and Human Rights (Ruggie Principles)

ICJ, Reparation for injuries suffered in the service of the United Nations

“The 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”

“Possession of international legal personality does not grant all rights or obligations, nor does it grant specific rights and obligations”

> international legal personality is flexible, functional, and limited, allowing non-state actors like the UN to have only those rights and obligations necessary to fulfil their role in the international legal order.

States: mutual recognition as equals

Sovereign equality: article 2(1) Charter

Par in parem non habet imperium = an equal does not have power over an equal

Binding decisions: on persons and legal persons, but not on other states (unless agreed in a treaty)

Customary IL: the exceptional legal basis of Article 29 accounts for the novel and indeed unique power granted to the International Tribunal to issue orders to sovereign States (ICTY, Appeals Chamber, Blaskic decision, para. 26)

• Under CIL, States as a matter of principle cannot be ordered either by other States or by international bodies)

Criteria for statehood

Convention on the Rights and Duties of States: Montevideo Convention (1933; 15 parties)

• Qualifications Article 1

  • Permanent population

  • A defined territory

  • Government

  • Capacity to enter into relations with the other states

• Status under IL

Nature of the criteria and scope

• Nature of criteria: what kind of criteria they are

• Scope: how far they apply and how strictly

Statehood

Permanent population: population of inhabitants is indisputable: one cannot rule over a territory without inhabitants over which to exercise control

• Permanence (nomadic, e.g. Touaregs in Mali)

• Size (China, India, Monaco, Tuvalu)

• Nationality

Defined territory: exercises control over a sustained period of time

• States may transfer a title to territory to one another peacefully through cession

• Discovery incomplete title until there is an effective occupation: the actual continuous and peaceful display of state functions is in case of dispute the sound and natural criterion of territorial sovereignty

• Land, not sea

• Defined, Size, Population

Government: people must be sufficiently organised, socially and politically, to be viewed as an entity

• Exercise of governmental authority over territory/population

• Stable and effective control - only if they are able to uphold their international legal duties and obligations both externally and internally

• Form and nature of government(s)

• Not dependent on foreign troops

• Once established, statehood carries with it a presumption of continuity: it will persist even if there is a partial or total collapse in governmental structures

Capacity to enter into IR:

• Legal criterion, not simply a factual one

  • The fact of having relations is not enough

  • Legal capacity is needed

• Dependent on constitution

  • Historically: colonies, protectorates, dominions

  • Federal states within a federation (article 2 Montevideo Convention)

• Independence

  • In essence, such capacity derives from independence

• Declaration of independence

  • Will expressed to be sovereign State

  • Not prohibited by IL

  • Self-determination, remedial secession

  • Starting point of process, not the end

Recognition of States

Constitutive theory

• Recognition is constitutive for statehood

• Theory leads in incoherent results

  • At the same time, as a result of both recognition and of non-recognition

  • Who recognised the first state?

Declaratory theory

• Recognition merely formalises an already extant situation

• Recognition amounts to a declaration that a State accepts an entity as a State and is willing to enter into relations with it, and this implies that the recognising State considers the criteria of article 1 Montevideo Convention to be fulfilled

• Theory is not incoherent

• Legal effects of recognition are limited and that the act of recognition only confirms the pre-existing legal capacity of the State

• Recognition confirmation or evidence of statehood rather than any determinative condition

• Unable to explain the effects of refusal by other states

• Non-recognition

  • There is also a claimed duty not to recognise particular entity when there are strong reservations as to legality of morality of the actions adopted to bring about that entity

  • Collective non-recognition

The dilemma of unresolved statehood

Looks like a state, but legal status contested

Recognition of parent State: consent

• Recognition of Kosovo

Historical consolidation

Admission to IO

• Palestine

  • 2011 admission to UNESCO

  • 2012 GA non-member observer State status

  • Palestine ratifies IHL and human right treaties

  • 2015 ratification Rome Statue ICC

Recognition of governments

Differs from recognition of a State

• Important when there is an unconstitutional change (e.g. coup)

• Recognition confirms that a regime has legitimate authority to govern

Types of recognition:

• De jure recognition: Formal and full; given when a government shows effective control, popular obedience, independence from foreign powers, and prospects of permanence.

• De facto recognition: Provisional; acknowledges control but not full legitimacy

  • Cannot claim state property or immunity in recognising states’ courts

Continuity and extinction of statehood; emergence of new states

The dismemberment of a State into new States can lead to a number of outcomes.

• The first is dissolution: the existing State disappears, and new States succeed to its rights and obligations but not to its personality.

• The concept of ‘continuing State’ invoked by the FRY is important, as a continuing State retains the international personality of the original State: it is the same legal person and need not reapply for membership in international organizations or re-accede to treaties. The continuing State would also, in principle, assume the public debts of the disintegrating State.

• Succession to treaties takes on a number of forms, depending on the scope and subject matter of a treaty. A ‘localized treaty’, which imposes obligations with respect to a specific will continue to attach to that territory even if a new State becomes sovereign. Conversely, a non-localized treaty will not automatically remain in force for a newly independent State

However, there is an exception to the ‘clean slate’ principle with respect to succession to human rights treaties: as the UN Human Rights Committee stated in 1997, ‘once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant’