Constitutionalism and Statehood (Notes on pages 1-5)

Flashcards covering core concepts from Constitutionalism and Statehood across pages 1–5, formatted as Question and Answer.

What event marks the origin of the modern state system and sovereignty, according to the notes?

The Peace of Westphalia in 1648.

According to Crawford (MPEPIL) and Peters, to whom does international law primarily apply and who are the additional actors?

Primarily to States, but also to individuals, private organizations, and international organizations (Non-State Actors).

List the five core characteristics of States as outlined in the notes.

1) Sovereignty/plenary competence; 2) Exclusive competence over internal affairs; 3) No compulsory international jurisdiction; 4) Equality of States; 5) Presumption against derogation (Lotus presumption).

What does the statement 'Statehood is a form of standing, not a set of substantive rights' mean?

Statehood is a status enabling participation in the international legal system, not a bundle of substantive rights.

What does 'sovereignty / plenary competence' entail?

States can act and make treaties in international affairs.

What does 'exclusive competence over internal affairs' entail?

States control domestic matters, though international law can impose some constraints.

What is meant by 'no compulsory international jurisdiction'?

States are not subject to external legal enforcement without their consent.

What does 'equality of States' mean in international law?

Legal equality under Article 2(1) UN Charter, but not equal influence or voting power internationally.

What is the 'presumption against derogation' (Lotus presumption)?

International courts generally favor freedom of action for States unless explicitly limited.

What is the relationship between statehood and standing versus rights, as noted in the text?

Statehood is about standing (the capacity to be a subject of international law), not about substantive rights.

What are the Montevideo Convention criteria for statehood?

Permanent population; Defined territory; Effective government; Capacity to enter relations with other States; Independence (formal and actual).

What does 'permanent population' require according to Montevideo?

There is a population, with nationality dependent on statehood; no fixed minimum size is required.

What does 'defined territory' require according to Montevideo?

A defined territory with no minimum size or contiguity requirement, but the state must be effectively governed.

What does 'effective government' mean in Montevideo’s criteria?

Central criterion; includes both internal and external authority.

What does 'capacity to enter relations with other States' mean in Montevideo’s criteria?

Independently represents the state in international relations.

What does 'independence' entail in Montevideo’s criteria?

Formal independence (legal authority in its own institutions) and actual independence (real governmental power).

Is recognition required for statehood?

No; recognition confirms statehood but does not create it.

Can a rudimentary or incomplete legal order prevent statehood?

No; rudimentary or incomplete legal systems do not prevent statehood.

What is the relationship between self-determination, human rights, and statehood?

Violation of fundamental rights does not nullify statehood; illegal use of force can cast doubt; humanitarian interventions may support self-determination but do not determine statehood.

What are the Minimal and Rich senses of constitutionalism as described by Waluchov & Kyritsis?

Minimal sense: Constitution is a set of rules that creates and organizes government power (three branches). Rich sense: Constitution limits government power and protects rights (scope limits, procedural limits, civil rights).

What is the difference between sovereignty and government?

Sovereignty is the ultimate, supreme authority; government are the institutions that exercise that authority. The distinction allows checks and accountability and acknowledges the people’s ultimate authority.

Which philosopher argued that sovereign and government were one entity, and what does that imply?

Hobbes; he believed absolute authority is needed, uniting sovereign and government.

What is entrenchment in constitutionalism?

Mechanisms that protect constitutional limits from easy alteration (e.g., supermajorities, referenda, constitutional assemblies).

Can entrenchment bind the sovereign people?

No; the sovereign people retain ultimate authority to change the constitution.

What is the difference between written and unwritten constitutions, with UK as an example?

Not all constitutions are fully written; the UK is largely unwritten, based on conventions, traditions, and historical documents (e.g., Magna Carta, Petition of Right, Bill of Rights). Written rules are not the only binding force; unwritten rules can be equally binding if respected.

Is strict separation of powers essential for constitutionalism?

Not strictly; powers can be combined, but checks and accountability are needed. Example: New Zealand’s legislature interprets its own constitutional limits.

What is the distinction between constitutional law and constitutional conventions?

Constitutional law comprises legally enforceable rules; constitutional conventions are political/social practices that limit government and are not enforceable in courts.

Provide an example of a constitutional convention in the United States and in the United Kingdom.

US: Electoral College members vote according to the state popular vote; UK: Monarch must give Royal Assent to bills.

What are the key takeaways from Constitutionalism as summarized in the notes?

Constitutionalism limits and structures government; sovereignty lies with the people; entrenchment stabilizes but cannot override popular sovereignty; both written and unwritten rules can constrain government; separation of powers is flexible; law and conventions together shape governance.