topic 3
Nationality Principle
A state has jurisdiction over crimes committed by its nationals abroad.
Used to prosecute citizens for acts committed in other countries.
"Nationality, as a mark of allegiance and an aspect of sovereignty, is also recognized as a basis for jurisdiction over extraterritorial acts." (p. 443)
Passive Personality Principle
A state has jurisdiction over crimes committed against its nationals abroad.
Historically controversial but accepted in terrorism-related cases.
"Aliens may be punished for acts abroad harmful to nationals of the forum." (p. 444)
Protective (Security) Principle
A state has jurisdiction over acts threatening its security or key interests, even if committed abroad.
Includes espionage, counterfeiting, and terrorism.
Nearly all states assume jurisdiction over aliens for acts done abroad which affect the internal or external security or other key interests of the state. (p. 446)
Effects Doctrine
A state claims jurisdiction if an act committed abroad has significant effects within its territory.
Applied mainly in antitrust (competition) law.
"Any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders which has consequences within its borders." (p. 447)
Universal Jurisdiction
A state can prosecute certain crimes of universal concern (e.g., piracy, war crimes, genocide).
No connection to territory or nationality is required.
Supported by treaties like the Geneva Conventions.
"Universal jurisdiction can be defined as prescriptive jurisdiction over offences committed abroad by persons who, at the time of the commission, are non-resident aliens." (p. 451)
Enforcement Jurisdiction (Executive Jurisdiction)
Refers to a state's power to enforce its laws, including investigations, arrests, and prosecution.
"The governing principle of enforcement jurisdiction is that a state cannot take measures on the territory of another state by way of enforcement of its laws without the consent of the latter." (p. 462)
Enforcement is generally limited to a state's own territory.
A state cannot enforce its laws in another state without consent (e.g., through extradition treaties).
Examples:
Extradition treaties allow states to request the transfer of criminals.
Schengen Convention permits police from one state to conduct surveillance in another.
Adjudicative Jurisdiction (Judicial Jurisdiction)
Refers to a state's power to hear and decide cases in its courts.
"On the other, is the power to take executive or judicial action in pursuance of or consequent on the making of decisions or rules (respectively enforcement or adjudicative jurisdiction)." (p. 440)
Criminal Cases
Courts have jurisdiction if the crime falls under prescriptive jurisdiction.
Civil Cases
Different legal traditions apply different rules to determine jurisdiction.
Key Differences in Legal Traditions:
Common Law Countries (e.g., UK, US): Courts assert jurisdiction if the defendant is served within the country.
Civil Law Countries (e.g., France, Germany): Courts exercise jurisdiction based on the defendant’s domicile.
"In the US, ‘minimum [territorial] contacts’ have in the past sufficed for the purpose of finding jurisdiction over the defendant." (p. 457)
Special Cases of Jurisdiction
Ships and Aircraft Flag State Jurisdiction:
A ship or aircraft is subject to the jurisdiction of the country where it is registered.
Exceptions exist when a vessel enters another state’s port or airspace.
"The flag state has regulatory responsibility for and jurisdiction over the ship." (p. 448)
Universal Jurisdiction Cases
Piracy, genocide, war crimes, and crimes against humanity.
Example: Eichmann Case – Israel claimed universal jurisdiction over a Nazi war criminal.
"The original crime to which universal jurisdiction attached was that of piracy jure gentium, which was in turn followed by slavery." (p. 452)
Extraordinary Rendition
Some states kidnap suspects from foreign territories without legal process.
Illegal under international law unless the other state consents.
"If, however, there is no extradition of any kind—informal or otherwise—but the suspect is simply seized by the agents of the receiving state in the absence of any legal process, then there is clearly a breach of international law." (p. 466)
Basic Rights and Duties of States
RIGHTS
Independence (Sovereignty):
"Perhaps the outstanding characteristic of a state is its independence, or sovereignty."
Independence is defined as the capacity of a state to provide for its own well-being and development free from the domination of other states, providing it does not impair or violate their legitimate rights.
This is a legal concept and does not include other nations' political or economic actions on a state.
Independence is a foundation upon which the rest of these principles operate.
The right to exercise jurisdiction over its territory and permanent population.
The right to engage in self-defense in certain situations.
There are no restrictions upon the independence of states that should be presumed.
International law permits the freedom of action for states unless there is a rule constraining this.
Equality:
States, irrespective of size or power, have the same juridical capacities and functions.
Equality of legal personality and capacity.
Entitlement to one vote in the UN General Assembly.
Sovereign equality includes:
States are juridically equal.
Each state enjoys the rights inherent in full sovereignty.
The territorial integrity and political independence of the state are inviolable.
Each state has the right freely to choose and develop its political, social, economic and cultural systems.
DUTIES
Non-Intervention
Duty not to intervene in the internal affairs of other sovereign states.
No state or group of states has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other state.
Prohibition against armed intervention and all other forms of interference.
Prohibition against assistance or aid to subversive elements aiming at the violent overthrow of the government of a state.
Using force to deprive peoples of their national identity is a violation.
Respect for Territorial Sovereignty
A state cannot enforce its laws in the territory of another state without consent.
The presence of foreign troops requires the consent of the host state.
Respect for the Personality of Other States
States are duty bound to respect the personality of other states.
Compliance with International Obligations
Each state has the duty to comply fully and in good faith with its international obligations and to live in peace with other states.
Peaceful Co-Existence
* Mutual respect for each other’s territorial integrity and sovereignty.
* Mutual non-aggression.
* Non-interference in each other’s affairs.
* The principle of equality.
Immunities of a State and State Officials
James R. Crawford, Brownlie's Principles of Public International Law: State immunity is a rule of international law that facilitates the performance of public functions by the state and its representatives by preventing them from being sued or prosecuted in foreign courts.
Essentially, it precludes the courts of the forum state from exercising adjudicative and enforcement jurisdiction in certain classes of case in which a foreign state is a party.
It is a procedural bar (not a substantive defence) based on the status and functions of the state or official in question.
Previously described as a privilege conferred at the behest of the executive, the grant of immunity is now understood as an obligation under customary international law.
But although the existence of this obligation is supported by ample authority, no general statement of principle appeared at the international level until 2004: the law developed primarily through domestic case law and limited treaty practice,
supplemented from the 1970s by comprehensive legislation in certain states.
Immunity exists as a rule of international law, but its application depends substantially on the law and procedural rules of the forum.
Increasingly, however, these issues are being elevated to an international level, including through international litigation.
Two Main Justifications for State Immunity:
(A) Immunity Ratione Materiae (Subject-Matter Immunity)
This type of immunity protects official acts of the state, meaning that foreign courts cannot exercise jurisdiction over acts carried out by a state in its sovereign capacity.
"Immunity ratione materiae, is a direct inference from the equality and independence of states."
However, this immunity does not apply to commercial or private transactions undertaken by a state.
This distinction led to the restrictive theory of immunity, which limits immunity to acts jure imperii (sovereign acts) and excludes jure gestionis (commercial acts).
(B) Immunity Ratione Personae (Personal Immunity)
Immunity ratione personae covers all acts by the agent during the period of office, whether performed in a private or official capacity.
Once the period of office ends, immunity ratione personae will expire; however, immunity ratione materiae continues if the acts concerned are such that state immunity attaches.
Evolution of State Immunity
State immunity was originally absolute but has shifted to the restrictive theory, recognizing exceptions in commercial activities and private law disputes.
The UN Convention on Jurisdictional Immunities of States and Their Property (2004) formally adopted the restrictive theory.
The Convention closely follows the ILC Draft Articles… Like them, it conclusively adopts the restrictive theory of immunity.
Although the Convention is not yet in force, courts in multiple states recognize it as representing international consensus.
The Supreme Court of Japan cited the UN Convention to support its adoption of the restrictive theory of immunity.
Exceptions to State Immunity
Although the general rule is that states are immune, several exceptions apply: ### (A) Commercial Transactions
The ‘most significant’ exception to the rule of immunity from jurisdiction concerns ‘commercial transactions’ or ‘commercial activity’.
For example, if a foreign government enters into a contract with a private company, it can be sued in a foreign court.
### (B) Employment ContractsThere is no basis in customary international law for the application of state immunity in an employment context to acts of a private law character.
### (C) Personal Injury and Damage to PropertyIf a foreign state causes harm to a person or property within the forum state's territory, it may not claim immunity.
Given that jurisdiction for tort claims is founded on the fact of injury caused locally, the traditional acta jure gestionis/acta jure imperii dichotomy has no place.
However, war damage claims are still immune, as confirmed in Germany v. Italy.
The International Court concluded that customary international law continues to require that a state is accorded immunity in proceedings for torts allegedly committed on the territory of another state by its armed forces.
### (D) Waiver of ImmunityA foreign state will be deemed to have waived its immunity from jurisdiction in one of four ways:
(1) by submission to the jurisdiction after the dispute has arisen;
(2) by prior written agreement;
(3) by the institution of proceedings; and
(4) by intervening or taking a step in the proceedings.
International Legal Personality of Nations and Peoples
Source: 2. Международное право: Учебник / Под ред. В. графа фон Витцтума, А. Прельсса. 2-е изд. М., 2015. (Библиотека НИУ ВШЭ), p. 233-235
Peoples
Despite the fact that, in particular, the criminal punishability of crimes against humanity and genocide could be the basis for granting peoples subjective rights, they, as a rule, do not possess international legal personality.
The right of peoples to self-determination was included in the UN Charter after World War II.
It was mentioned in the Human Rights Covenants of December 19, 1966, and recognized in resolutions of the General Assembly.
In the literature on international law, it remains a controversial question to what extent the right to self-determination should be understood as a political principle due to its insufficiently concrete formulation, only partially amenable to legal verification, or, at least partially, as an international legal requirement, for example, demands for autonomy or secession, which peoples can make to states and, under certain conditions, realize in a established order.
However, it does not follow from this that peoples automatically possess their own international legal capacity.
Due to many arguments, from the point of view of German terminology, the right to self-determination should be considered as a legal status from which subjective rights do not follow (Rechtsstellung ohne subjektive Rechte).
According to UN practice, under certain conditions, the right of organizations acting as liberation movements is recognized to exercise rights within the General Assembly and in UN bodies, as well as the right to participate in negotiations for the conclusion of international treaties, for example, in the Geneva negotiations in 1977 on the further development of humanitarian law applicable to armed conflicts, before acquiring independence.
Nations
National Minorities – тема так называется у Витцтума
Due to the fact that the right to self-determination belongs only to peoples, it soon became necessary to grant rights to individual groups who, due to their small numbers, did not possess the right to self-determination.
However, this did not lead to national minorities acquiring international legal personality.
According to the prevailing opinion in Europe, the concept of a national minority implies that it concerns citizens of the respective state.
Due to the vague wording of Article 27 of the International Covenant on Civil and Political Rights (hereinafter referred to as the ICCPR), in intergovernmental practice, foreigners are not subject to protection as representatives of national minorities (see below paragraph 328 et seq.).
The UN Human Rights Committee adheres to a different position and requires that the rights of national minorities be granted to all minorities residing in the territory of the respective state, regardless of citizenship.
The European Framework Convention for the Protection of National Minorities of February 1, 1995, enshrines rights and obligations for their protection, for example, the right of persons belonging to an ethnic, religious or linguistic minority to develop their own culture, profess their religion and perform its rites, as well as use their native language.
The concept of national minority remains undefined. The Convention, taking into account the different positions of the participating states, does not contain a definition.
Therefore, many participating states have established through their declarations to which groups, from their point of view, the Convention applies.
In its declaration, the Federal Government of Germany recognized Danes and Lusatian Sorbs with German citizenship as national minorities. Frisians, Sinti and Roma with German citizenship are not recognized as national minorities, however, according to the German declaration, the Convention applies to them.
Migrants united by ethnic or religious characteristics and who have acquired citizenship are generally not recognized as national minorities in the context of the Convention. Special integration requirements are usually applied to them. Therefore, recognizing the status of a national minority is considered counterproductive.
Thus, from the point of view of international law, only "indigenous" minorities are recognized as national minorities.
State-like Entities as Subjects of International Law
Source: Statehood and the State-Like in International Law, Rowan Nicholson, chapter 5, Other state-like entities in a world of states, p. 193-211.
While international law is primarily built around states (in the full, technical legal sense), it acknowledges that other state-like entities can also be subjects of international law, albeit with often limited and specific personality.
Volitional Personality:
Personality acquired primarily through the exercise of power, particularly the power of consent. This is analogous to the recognition norm for states.
Typically involves treaties or unilateral declarations.
A state (or states) voluntarily grants rights or imposes duties on a non-state entity through these instruments.
Examples:
Sub-entities of States: Hong Kong, Quebec, regions of Belgium. They can gain treaty-making capacity (and thus personality) through agreements with states, often with the consent of the 'parent' state.
Entities with Contested Status: Taiwan, Palestine. Treaties can be made with these entities even without full state recognition, allowing them to participate in certain aspects of international law (e.g., WTO for Taiwan).
Protectorates/Associated States: Marshall Islands, Micronesia. They may cede aspects of their sovereignty (e.g., defense) to another state through treaties, resulting in a modified form of international personality.
Volitional personality is dependent on the will of states. It's a granted personality, not inherent.
Automatic Personality:
Personality acquired automatically through customary international law, without primarily relying on the consent or voluntary acts of states in each specific instance.
Analogous to the effectiveness norm for statehood.
Customary norms emerge that directly confer rights or duties on specific types or even individual non-state entities.
Examples (More Tentative & Less Clear-Cut):
Non-State Armed Groups: Common Article 3 of the Geneva Conventions imposes humanitarian obligations on them, potentially suggesting automatic personality in a limited scope.
"Peoples" in Free Association: Entities like Niue and Cook Islands, in free association with states, might possess certain rights (e.g., self-determination related to their status) derived from custom, although this is debated.
The Holy See: Presented as a potential example. Its long-standing international presence and certain rights (like sovereign immunity) might be argued as deriving from custom, independent of state consent or Vatican City's statehood. However, this is uncertain.
Automatic personality for non-state entities is less clearly established and more debated than volitional personality
Source: Tolstykh, p. 283, 311, 321: The Vatican (Status Civitatis Vaticanse) is a state-like entity designed to facilitate the Holy See in carrying out its mission. The Vatican is located in Rome, and its area is 0.44 sq. km. Until the 19th century, there was an independent state, the Papal States, which was occupied by Italy in 1870.
The state-like entities may participate in the activities of international organizations as observers, like other international organizations.
Some authors consider norm-creating capacity, i.e., the ability to create international obligations, as a mandatory attribute of international legal personality. States, international intergovernmental organizations, state-like entities, and nations fighting for self-determination possess this quality.
Accordingly, only they are considered subjects of international law
International Organizations: Definition, International Legal Personality
Source: Tolstykh, p. 316-329
International Organizations are entities established by international treaties or other instruments governed by international law.
They possess their own international legal personality, distinct from their member states.
They have membership that can include states and other entities.
Characterized by:
A treaty basis for creation and operation (their charter/statute).
Permanent organs.
A corporate nature (membership).
Subordination to international law.
International Legal Personality of International Organizations
The legal personality of international organizations originates from Member States.
It is derived from the legal personality of its member states.
It's not inherent, like state sovereignty.
The agreement of states (primarily through the constituent treaty/charter) is the fundamental basis for IO personality. This agreement transfers a portion of state competence to the organization.
Volitional Element:
Their personality arises from the expressed will of states in their founding documents or subsequent agreements. Some authors, like E.P. Shibaeva mentioned in the text, strongly emphasize this volitional aspect, arguing that IOs only become subjects of international law if states specifically grant them legal personality.
Nuance - Not Purely Volitional:
However, the text also acknowledges the "objective" perspective and ultimately leans toward a combined approach. While state will is essential for establishing personality, the extent and nature of that personality are also shaped by the organization's institutional structure and functions.
IO personality is functional
Meaning it's limited to the scope of the organization's purposes and functions as defined in its charter and developed in practice.
IOs do not possess the "totality" of international rights and duties that states do.
Implied Powers Doctrine:
To ensure effective functioning, IOs can possess "implied powers". These are powers not explicitly stated in the charter but are considered necessary to achieve the organization's stated goals.
The Bernadotte case is a key example of this, where the ICJ recognized the UN's implied power to bring claims for injuries to its staff, even though the charter didn't explicitly grant this right.
Dynamic Interpretation (Effet Utile):
The scope of IO activities and powers can evolve through the "dynamic interpretation" of the charter ("effet utile"). This means interpreting the charter in a way that makes it effective and allows the organization to adapt to changing circumstances, potentially expanding its implied powers.
The organization acts as a single legal entity in the international legal order, not as a collection of its members. While derived from states, the IO is independent in its functioning. It can enter into relationships with both member and non-member states and acts with its own will, separate from the individual wills of its members, once established.
IO personality is exercised through its organs (assembly, executive body, secretariat, etc.). These organs act on behalf of the organization.
There is the distinction between an IO's international legal personality (in the international legal order) and its domestic legal personality (within the legal systems of states). An IO's legal capacity within a state’s territory is determined by international agreements (like Headquarters Agreements) or by domestic law of that state. Article 104 of the UN Charter is an example of an international treaty provision granting domestic legal capacity.
In essence, according to Tolstykh, International Organizations are subjects of international law with a personality that is deliberately created by states, functionally limited to their agreed purposes, and exercised independently through their organs, while still remaining fundamentally rooted in the will of states.
Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion (Bernadotte case in ICJ, 1949):
Background:
The UN General Assembly requested an Advisory Opinion from the International Court of Justice (ICJ) following a series of tragic events where UN agents were injured or killed while performing their duties.
The core issue was whether the United Nations, as an organization, had the capacity to bring an international claim against a state responsible for these injuries, both for damage to the UN itself and damage to the victim or their dependents.
Key Questions Posed to the ICJ:
* Capacity to Bring a Claim (Question I):
* If a UN agent suffers injury in circumstances involving state responsibility, does the UN have the capacity to bring an international claim against the responsible government to obtain reparation for:
* (a) Damage caused to the United Nations itself?
* (b) Damage caused to the victim or their dependents?
* Reconciliation with National State Rights (Question II):
* If the answer to question 1(b) is affirmative, how is the UN's action reconciled with the rights of the victim's national state?
ICJ's Key Findings and Reasoning:
* Question I (a) & (b) - Capacity to Bring a Claim (Affirmative Answer):
* The ICJ firmly established that the UN does possess international legal personality. This was a crucial finding.
* The Court stated: "In order to answer this question, the Court must first enquire whether the Charter has given the Organization such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect. In other words, does the Organization possess international personality? This is no doubt a doctrinal expression... But it will be used here to mean that if the Organization is recognized as having that personality, it is an entity capable of availing itself of obligations incumbent upon its Members."
* Implied Powers and Functional Necessity:
* The Court reasoned that while the UN Charter doesn't explicitly grant the UN the power to bring such claims, this capacity is a necessary implication arising from the Charter and the UN's functions. It's essential for the UN to effectively carry out its mission.
* "Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication, as being essential to the performance of its duties."
* The ICJ introduced the concept of "functional protection". The UN's claim is not based on nationality (like diplomatic protection by a state for its citizens) but on the agent's status as a UN agent and the need to protect the UN's operations.
* "Upon examination of the character of the functions entrusted to the Organization and of the nature of the missions of its agents, it becomes clear that the capacity of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter."
* Scope of Reparation:
* The UN's capacity extends to claiming reparation for both:
* Damage to the UN itself: Administrative costs, property damage, etc.
* Damage to the victim or dependents: Compensation for injury or death.
* Claim Against Member and Non-Member States:
* The ICJ concluded that the UN's capacity to bring a claim exists whether the responsible state is a member of the UN or not. This highlighted the objective nature of the UN's international personality, not just personality recognized by its members:
* "On this point, the Court's opinion is that fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims."
* Question II - Reconciliation with National State Rights (General Guidance):
* The ICJ stated that there's no fixed rule in international law that automatically prioritizes either the UN's claim or the national state's right to diplomatic protection.
* The Court suggested that solutions should be found through "goodwill and common sense" and cooperation between the UN and member states. The ICJ assured that the responsible state wouldn't be forced to pay double reparations.
* Basis of UN Claim - Breach of Obligation to UN:
* The key to reconciliation is that the UN's claim is based on a breach of obligations owed to the UN itself (to protect its agents), not on representing the agent as a national state would.
* "When the United Nations as an Organization is bringing a claim for reparation of damage caused to its agent, it can only do so by basing its claim upon a breach of obligations due to itself; respect for this rule will usually prevent a conflict between the action of the United Nations and such rights as the agent's national State may possess, and thus bring about a reconciliation between their claims..."
International Legal Personality of Individuals, International Non-Governmental Organizations and Transnational Corporations
Source: Tolstykh, p. 331-337.
Individuals
Do individuals possess international legal personality?
Tolstykh argues for a very limited form, primarily procedural in human rights and material in international criminal law, but largely no general material international legal personality.
International Rights and Obligations for Individuals:
Argument (FOR): International law can establish rights and obligations for individuals (PCIJ in Danzig Railway Officials case; ICJ in LaGrand case – Art. 36 VCCR).
Counterargument (AGAINST – Tolstykh’s stance): Indirect Effect: International law usually doesn't directly create rights/duties for individuals. It's primarily states that are addressed by these norms, obligating them to ensure individual rights.
Transformation: International norms usually require transformation into domestic law to be directly effective for individuals. Rights/duties arise from domestic law, not directly from international law.
Even if wording suggests direct effect, international law addresses the state as a whole, not specific domestic organs responsible for implementation.
Individual Access to International Jurisdictional Bodies (Human Rights Courts):
Argument (FOR): Individuals can petition international human rights courts (e.g., ECHR). This suggests procedural personality.
Counterargument (AGAINST – Tolstykh’s stance): Procedural, Not Material: This right is procedural personality only – the ability to initiate proceedings. It doesn't equate to material personality as a primary subject of international obligations in the underlying inter-state relationship.
Inter-State Obligations: Human rights courts address inter-state relations concerning state obligations on human rights. Violation triggers state responsibility under international law (Draft Articles on State Responsibility).
Enforcement via Domestic Law: Decisions of international human rights courts are generally not directly enforceable. They require domestic procedures for implementation (e.g., review of judgments, domestic acts of transformation). Domestic law ultimately provides direct effect.
Limited Direct Effect, No Direct Sanctions on Individuals: International court decisions primarily bind states, not directly individuals. Sanctions against states are international; individual remedies are implemented domestically.
Individual Criminal Responsibility for International Crimes:
Argument (FOR): Individuals are held directly responsible for international crimes (war crimes, genocide, crimes against humanity) under international law (ICTY Furundzija case).
International Criminal Courts (ICC, ICTY, ICTR) directly prosecute individuals. This is recognized as a basis for limited international legal personality. Individuals become subjects of international criminal law.
Direct Effect: Decisions of international criminal courts have direct effect; no domestic transformation is needed for their legal force and binding nature on the individual.
Status as International Civil Servants:
Argument (FOR - Rejected by Tolstykh): International civil servants are subject to international organizational law.
Counterargument (AGAINST - Tolstykh’s Stance): Internal Organizational Law: Labor relations of international civil servants are governed by internal corporate norms of the organization (distinct from international law between states).
Not "International Relations": These are employment relationships within an organization, not international relations in the traditional sense.
International Non-Governmental organizations
Tolstykh, p. 338-340.
Definition & Characteristics:
NGOs are public organizations formed under domestic law (not international treaties). They are created by private initiative, independent of government influence, and do not perform governmental functions. They have non-commercial goals; profits are reinvested, not distributed to members. They do not use or promote violence; no overt links to crime. Formal existence with statutes, democratic/representative structure, usually (but not always) legal personality under domestic law. They operate across borders, engaging with governments and international organizations.
NGOs enhance the legitimacy of international law (Lindblom).
Examples of Prominent International NGOs:
Médecins Sans Frontières (Doctors Without Borders)
Amnesty International
International Olympic Committee
Greenpeace
World Wide Fund for Nature (WWF)
Rotary International
Human Rights Watch
International Legal Personality of NGOs? (Largely NO, but with Procedural Personality):
General Material Personality - NO: Tolstykh argues NGOs do not possess general material international legal personality. They are not primary subjects of international law in the same way as states or IOs.
Limited Procedural Personality (Within Specific Frameworks):
NGOs have limited procedural international legal personality in specific contexts, primarily within the UN system:
Article 71 UN Charter: Basis for ECOSOC consultations with NGOs. This article is the foundation for NGO procedural personality within the UN.
ECOSOC Consultative Status
ECOSOC Resolution 1996/31: Details consultative relationships between ECOSOC and NGOs.
General Consultative Status: Allows broad engagement with ECOSOC.
Special Consultative Status: For NGOs with specific expertise in certain ECOSOC areas.
Roster: Organizations listed for occasional contributions.
Consultative Rights: NGOs with consultative status can:
Submit agenda items (General Status).
Have observer status at ECOSOC meetings (General & Special Status).
Submit written statements (General & Special Status).
Make oral statements (General Status, sometimes Special Status).
Participate in ECOSOC subsidiary bodies and UN conferences.
Purpose: To enable NGOs to share opinions and expertise with the UN, enhancing its work.
European Convention on Recognition of Legal Personality of INGOs (1986)
Council of Europe Convention: Aims for mutual recognition of NGO legal personality across member states.
Focuses on domestic legal personality recognition, not international.
Limited Ratification: Not widely ratified, resulting in a limited impact on international legal personality.
Rainbow Warrior Case (France v. Greenpeace)
France's Compensation to Greenpeace: France paid compensation to Greenpeace for sinking its ship.
Cited as suggesting some international standing for NGOs in specific situations but is not conclusive proof of general personality.
ICRC (International Committee of the Red Cross)
Sui Generis Case: ICRC has a unique, specifically recognized international legal personality under the Geneva Conventions and IHL.
Observer status at UN GA.
Considered an exception, not the rule.
Transnational Corporations and International Legal Personality
Tolstykh's Argument: Corporations predominantly do NOT possess international legal personality, similar to individuals.
Limited procedural personality in specific contexts but no general material international legal personality.
Access to International Jurisdictional Bodies
Argument FOR: Corporations can access certain international jurisdictional bodies (human rights courts, ICSID).
Counterargument (Tolstykh): Access is primarily for procedural personality (right to bring a case) and doesn't confer general material international legal personality.
Inter-State Obligations (Human Rights Courts): Human rights courts address state obligations, and corporate access relates to state breaches.
Domestic Law Basis (ICSID): ICSID jurisdiction is based on domestic law (investment treaties). It doesn't create general international legal personality.
International Legal Frameworks for Corporations (Regional Economic Organizations, CIS Examples)
Argument (Potential FOR): Regional economic organizations (EU, CIS) create common legal forms for corporations (European Economic Interest Grouping, European Company, CIS Transnational Associations).
Counterargument (Tolstykh): This primarily unifies domestic law regarding corporate forms.
Domestic law remains primary, governing their core legal personality; international instruments provide a framework.
No direct international legal personality conferred.
UN Efforts to Regulate Transnational Corporations (TNCs) - New International Economic Order (NIEO)
Argument (Potential FOR): UNGA resolutions (NIEO Declarations, Charter of Economic Rights and Duties of States) aimed to regulate TNCs, implying some recognition.
Counterargument (Tolstykh): These affirm state sovereignty and domestic jurisdiction to regulate TNCs.
Reinforces that corporation-state relations remain within the domestic legal order.
"Contracts without Law" (Lex Mercatoria, Principles of Law)
Argument (Potential FOR): "Contracts without law" in corporate agreements might suggest a separate international legal order with corporations as subjects.
Counterargument (Tolstykh): Enforcement of these contracts ultimately occurs within domestic legal systems.
Lex Mercatoria is often seen as incorporated into domestic legal systems rather than a fully independent international legal order.
International Public Corporations (Multinational Public Enterprises)
Argument (Potential FOR): International public corporations (EUROFIMA, MIR TV) created by states under domestic law but governed by international treaties might represent a hybrid form.
Ambiguous Stance of Tolstykh: These are created and controlled by states, operating primarily within domestic legal orders. Mentions that the CIS Economic Court recognized MIR TV as an international legal entity.
Even these entities are largely governed by domestic law and state agreements.
Suggesting limited or derivative international legal personality at best.
Definition of International Legal Recognition
Definition: A unilateral act by a state, expressing acknowledgment of a fact, legal situation, or right within international law.
Specifically, a state's acknowledgment of a newly formed entity as a state.
Communicated through formal documents or conclusive actions (e.g., establishing diplomatic relations or treaties).
Legal Consequences of International Legal Recognition
Multifaceted Legal Consequences: Depend on theoretical framework (constitutive vs. declaratory theory).
Establishment of International Relations
Foundation for Bilateral Relations: Recognition establishes international relations between recognizing state and recognized entity.
Confirmation of Statehood: Recognition confirms that the recognizing state considers the entity to possess the attributes of statehood.
Practical Consequences of Recognition (Even under Declaratory Theory)
Access to International Organizations: Facilitates access to international bodies, including the UN.
Access to International Courts and Tribunals: Enhances ability to appear before international courts.
Recognition of Domestic Laws and Acts: Recognizing states are more likely to recognize the laws, judicial decisions, and administrative acts of the recognized state.
Granting of Immunities and Privileges: Officials representing recognized states are entitled to diplomatic immunities.
Capacity to Create International Law: Acknowledges the capacity to participate in creating international law.
Consequences of Non-Recognition
Limited Participation in International Affairs: Barriers to joining international organizations and treaties.
Legal Uncertainty for Citizens and Entities: Legal disadvantages regarding travel documents, property rights, and legal standing.
Restricted Access to International Legal Mechanisms: Exclusion from accessing international courts.
Conditions and Political Dimensions of Recognition
Effectiveness as Primary Condition: Government must exercise control over territory and population and be capable of fulfilling international obligations.
Legality of Formation: Recognition can be withheld if a state is formed in violation of jus cogens norms (e.g., prohibition of aggression).
Examples: Southern Rhodesia, Turkish Republic of Northern Cyprus.
Political Considerations: Influenced by political interests, geopolitical alignments, and values.
Examples: Hallstein Doctrine, China/Taiwan issue, Macedonia/Greece naming dispute.
EU Criteria for Recognition (Post-Yugoslavia): Broader political and normative considerations (democracy, human rights, minority rights).
German Federal Constitutional Court Example
Held that East Germany (GDR) was a state under international law regardless of recognition by West Germany (FRG).
Definition of Recognition
Declaration or expression of will by a state acknowledging a fact, legal situation, or right.
Unilateral act by the recognizing state.
Recognition can be:
Explicit: Through formal document or declaration.
Implicit (Tacit Recognition): Through actions like establishing diplomatic relations or concluding treaties.
Changing Practice of Recognition - Post-Yugoslavia and the EU Criteria
Yugoslav Succession Crisis: Marked a shift in recognition practice.
EU Conditions for Recognition (December 16, 1991): Conditions for recognizing new states from Yugoslavia and the former USSR.
EU Recognition Directives: Made recognition conditional on:
Adherence to UN Charter, Helsinki Final Act, and Paris Charter.
Respect for human rights and principles of democracy and the rule of law.
Respect for the inviolability of borders.
Commitment to settle succession issues peacefully.
Debate on Nature of EU Criteria
Debated whether these were true criteria for recognition or political preconditions for diplomatic relations.
Were very broad and politically motivated.
Arbitration Commission (Badinter Commission)
Established to assess if new entities met the EU criteria.
Slovenia: Quickly recognized.
Croatia: Initial hesitation, recognized after assurances on minority protection.
Bosnia and Herzegovina: Recognized despite conflict and initial doubts.
Macedonia (North Macedonia): Initially not recognized, admitted as "the former Yugoslav Republic of Macedonia" after amendments.
Kosovo Example
Kosovo's Declaration of Independence (February 17, 2008) led to international controversy:
Recognition by many Western states.
Opposition from China, Indonesia, and Vietnam.
Condemnation by Serbia and Russia.
Remains a complex and contested issue.
Theories of Recognition
Constitutive Theory (Historically Significant, Now Largely Rejected)
Recognition as a condition for statehood.
Statehood created through recognition.
Seen as "admission to international society."
Anzilotti viewed recognition as a foundational "agreement" forming the basis of international legal relations.
Oppenheim highlighted that recognition is a discretionary and quasi-judicial act.
Limitations: Contradicts sovereign equality and struggles to explain obligations before recognition.
Declaratory Theory (Prevailing View)
Statehood as a matter of fact, based on territory, population, government, and capacity to enter international relations.
Recognition acknowledges pre-existing statehood.
Legal consequences flow from factual statehood.
Recognition remains practically significant for participation in the international community.
Forms and Types of Recognition
Distinguish Between
De jure: Full and definitive recognition.
De facto: Provisional and revocable recognition. May be more political than legally significant.
Recognition of Governments
Acknowledging the legitimate and effective government of an existing state.
Modern practice increasingly avoids separate government recognition, focusing on state recognition.
Premature and Delayed Recognition
Premature Recognition: Granted before firmly established statehood, seen as an intervention.
Delayed Recognition: Withheld for political reasons, generally permissible but may be criticized politically.
Forms of Recognition
Recognition de jure:
Full and definitive recognition.
Implies complete and formal acceptance into the international community.
Considered permanent and legally binding.
Recognition de facto:
Provisional and preliminary recognition.
Often granted when there is uncertainty.
Can be withdrawn if circumstances change.
Recognition of States and Recognition of Governments
Recognition of a state generally implies recognizing its effective government.
Recognition of Governments (Anglo-American Doctrine)
Formal confirmation of a regime as the effective government.
Implies recognition of the entity the government represents as a state.
Not obligatory to recognize a government, especially if power was gained illegally.
Distinct from establishing diplomatic relations.
Content and Definition of Succession
State succession means the replacement of one state by another in the responsibility for the international relations of a territory.
Triggered by changes in territorial sovereignty.
Situations Giving Rise to State Succession
Merger of States
Egypt and Syria merging into the United Arab Republic (1958, later dissolved).
Tanganyika and Zanzibar merging into Tanzania (1964).
North Yemen and South Yemen merging into Yemen (1990).
GDR and FRG uniting into Germany (1990).
Dissolution/Break-up of States
Dissolution of the USSR (1991).
Dissolution of Yugoslavia (1991).
Dissolution of Czechoslovakia (1992).
Secession/Separation
Bangladesh seceding from Pakistan (1971).
Eritrea separating from Ethiopia (1993).
Montenegro separating from the state union of Serbia and Montenegro (2006).
Formation of New Independent States
Content of State Succession - What is Inherited?
Modern doctrine rejects "universal succession."
Rejection of Universal Succession (Concept of Universal Legal Personality Transfer)
Older theories suggested the successor state fully replaced the predecessor in all rights and obligations.
Modern doctrine rejects this "universal succession".
Sovereignty is tied to territory, not a transferable "personality."
Rejection of Tabula Rasa (Complete Wipe Slate Clean)
Modern doctrine rejects tabula rasa as overly simplistic.
Modern Doctrine - Selective Succession
Some rights and obligations are transferred based on international law and specific circumstances.
Modern Approach - Selective and Context-Dependent Succession
"Rupture" but Not Complete Break
Territorial Basis of Some Obligations.
Focus on "Fair" and "Adapted" Succession.
Succession in Respect of Treaties
Successor states generally not automatically bound by predecessors' treaties.
New state emerging after succession is generally considered a third state concerning treaties.
General principle of non-succession
Special Regime for New Independent States (Art. 28)
New independent states receive broader archive transfers, including archives of the dependent territory itself and those relating to its period of dependency. This acknowledges their need to establish a comprehensive historical record and assert their cultural and political identity.
Post-USSR Agreement on Archives (1992)
Prioritized the territorial principle for archives, but with a principle of "indivisibility" for archives of the former Russian Empire and USSR held in Russian archives. This resulted in complex negotiations over ownership and access.
Each successor state gained control over archives located on its territory, reflecting the principle of territorial sovereignty. However, Russia retained central archives deemed crucial to its historical narrative and national interests.
Agreements allowed for access and return of specific fonds created within a successor state's territory that ended up outside. This facilitated historical research and cultural preservation within the newly independent states.
Alternative View - Archives as State Property
An alternative view treats archives simply as state property, subject to the general rules of property succession (territorial allocation). This is a more pragmatic approach that emphasizes efficiency and avoids complex historical or cultural arguments.
This is arguably reflected in the post-USSR approach, where practical considerations often outweighed strict adherence to legal principles.
Summary
State succession regarding property and archives is complex, with no single, universally applied rule. The interplay of legal principles, historical claims, and political realities makes each case unique.
The territorial principle is a dominant factor, especially for immovable property and archives. This is based on the idea that control over territory implies control over the assets located within it.
The Vienna Convention (1983) and state practice also acknowledge the importance of functional considerations, equitable distribution, and special regimes for newly independent states. These factors aim to ensure fairness and promote stability in the aftermath of state succession.
Agreements between successor states remain the primary mechanism for resolving these issues in practice, as illustrated by the post-USSR example. These agreements reflect the specific circumstances of each case and allow for tailored solutions.
Succession in Respect of State Debts (Tolstykh, p. 378-404)
The Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts of 1983 defines state debt broadly as:
“Any financial obligation of a predecessor State towards another State, an international organization, or any other subject of international law arising in conformity with international law.” This broad definition encompasses a wide range of financial liabilities.
Succession of state debt is primarily governed by agreements explicitly established between the predecessor and successor states involved. These agreements allow for customized solutions that reflect the specific economic and political realities of the succession.
In the absence of such agreements, international law defaults to a principle of equitable distribution. This principle aims to ensure fairness and prevent any successor state from being unfairly burdened with debt.
State debt should be divided in fair proportions amongst the successor states, taking into careful consideration the assets, rights, and interests that are transferred to each successor state in connection with the specific debt in question. This requires a comprehensive assessment of the economic impact of the succession on each state.
Determining these “equitable shares” necessitates negotiation and conclusion of agreements between the states involved in the succession. This highlights the importance of diplomacy and cooperation in resolving debt-related issues.
The Vienna Convention recognizes the unique circumstances of newly independent states, offering them special protections that acknowledge their developmental needs. These protections aim to prevent newly independent states from being overwhelmed by debt.
Article 38 stipulates that no state debt of the predecessor state automatically passes to a new independent state. This provision provides crucial breathing room for nascent states.
Debt transfer to a newly independent state only occurs if an agreement is reached between them. This ensures that the new state has a say in the debt burden it assumes.
Such agreements must carefully consider the link between the predecessor state’s debt and its activities within the territory now belonging to the new state, alongside the assets, rights, and interests being transferred. This ensures that the debt is related to tangible benefits received by the new state.
Agreements are constrained by two fundamental principles:
They must not infringe upon the inherent sovereignty of each nation over its wealth and natural resources. This protects the new state's right to control its own economy.
Their implementation must not undermine the essential economic stability of the newly independent state. This prevents debt from crippling the new state's development.
This provision aims to safeguard nascent states from being burdened with debt in a way that impedes their development.
Customary international law governing debt succession is considerably less defined. This creates uncertainty and can lead to disputes between states.
Some legal experts argue that in cases of state joining or division (where the predecessor state ceases to exist entirely), unlike secession (where the predecessor state continues), successor states are obligated to assume the debts of the dissolved state. This view is based on the principle of continuity of obligations.
However, state practice, particularly within domestic courts, reveals a different picture. This highlights the gap between theory and reality.
National courts often recognize the obligations of a predecessor state only if the successor state explicitly acknowledges and accepts these obligations. This reflects a more cautious approach to debt succession.
This highlights a gap between theoretical pronouncements and actual state behavior.
Practical Example: Dissolution of the USSR
The 1991 Treaty on Succession Regarding External State Debt and Assets of the USSR aimed to divide the Soviet Union's external debt among its successor states based on agreed-upon proportions. This treaty was a crucial step in managing the economic consequences of the USSR's collapse.
This division was intrinsically linked to the distribution of USSR assets, including foreign properties, gold reserves, overseas investments, and financial claims. The allocation of assets was intended to offset the burden of debt.
The treaty established percentage shares for each successor state, with Russia assuming the largest portion (), followed by Ukraine (), and others. This reflected the relative economic strength and historical ties of each state.
Between 1992 and 1994, Russia entered into bilateral agreements with numerous CIS member states. These agreements were essential for implementing the treaty and resolving specific issues.
Russia undertook to service the external debt portions allocated to these states. This was a significant financial commitment that helped stabilize the region.
In return, Russia received these states' claims to a share of the former USSR's assets. This arrangement allowed Russia to consolidate its economic power.
Separate agreements were also established to address the complexities of the internal debt of the former USSR, demonstrating the multifaceted nature of debt succession in practice. This highlighted the need for tailored solutions to address different types of debt.
Legal Framework for State Succession and Debt
Shaped by both treaty law, as exemplified by the Vienna Convention, and less clearly defined customary international law. This creates a complex legal landscape with both clear rules and areas of ambiguity.
The practical application, as seen in the USSR’s case, often involves complex negotiations and bilateral agreements. These negotiations reflect the unique circumstances of each state succession and the need for pragmatic solutions.
The interplay between principles of equitable distribution, the protection of new states' economic viability, and the pragmatic realities of international finance shapes how state debts are managed in the context of state succession. This interplay highlights the political and economic considerations that influence debt management.
Succession in Respect of Nationality (Tolstykh, p. 378-404)
The legal framework governing state succession in relation to citizenship is deeply rooted in international law principles that prioritize human rights and aim to prevent the occurrence of statelessness. This reflects the fundamental importance of ensuring that individuals have a recognized nationality.
The European Convention on Nationality of 1997 stands as a cornerstone, establishing fundamental guiding principles for addressing citizenship issues arising from state succession.
Article 18 underscores the paramount importance of upholding the rule of law, respecting established human rights norms, and adhering to general principles of citizenship law. This ensures that citizenship decisions are made in a fair and transparent manner.
When states are faced with decisions concerning the granting or retention of citizenship in succession scenarios, they are directed to consider a range of key factors:
The demonstrable genuine link an individual possesses with the state. This considers factors such as language, culture, and family ties.
The individual's habitual residence at the critical moment of succession. This recognizes the importance of long-term residency.
The explicitly expressed will of the person regarding their citizenship preferences. This respects individual autonomy and choice.
Their territorial origin, reflecting their ties to the land in question. This acknowledges historical connections to the territory.
The Convention on the Reduction of Statelessness of 1961 directly confronts the risk of statelessness in the context of territorial transfers. This highlights the international community's commitment to preventing statelessness.
Article 10 places a clear obligation on states involved in transferring territory to incorporate provisions within their treaties that unequivocally guarantee that no individual will be rendered stateless as a direct consequence of the territorial change. This is a crucial safeguard against statelessness.
Should such explicit safeguards be absent from the treaty, the convention mandates that the state acquiring the territory bears the responsibility of granting its citizenship to those individuals who would otherwise find themselves stateless due to the territorial acquisition. This ensures that no one falls through the cracks.
International Law Commission (ILC) Draft Articles on Nationality of Natural Persons in Relation to the Succession of States (1999)
Endorsed by the UN General Assembly through Resolution 55/153 in 2000, offer granular guidelines for navigating citizenship issues during state succession. These guidelines provide a comprehensive framework for addressing citizenship issues.
Among the core provisions:
Affirmation of a right to citizenship: any person holding citizenship of the predecessor state on the date of succession is entitled to acquire citizenship in at least one of the successor states. This ensures that individuals retain a nationality.
Emphasis on the prevention of statelessness as a primary objective, requiring states to take all necessary measures to avoid this outcome for individuals who were citizens of the predecessor state at the time of succession. This reflects the paramount importance of preventing statelessness.
Presumption of successor state citizenship for individuals habitually residing in the territory affected by succession. This simplifies the process of acquiring citizenship for long-term residents.
Importance of considering the will of the affected individuals, particularly in situations where they might qualify for citizenship in multiple successor states, allowing for a degree of individual agency in determining their nationality. This respects individual autonomy and choice.
Stipulation that the successor state should grant citizenship to habitual residents of the transferred territory, while the predecessor state is expected to withdraw its citizenship, unless the individuals exercise a right of option to retain it. This clarifies the responsibilities of both the predecessor and successor states.
National Level: Russian Federation's Federal Law
This law outlines the criteria and procedures under which long-term residents can obtain citizenship, ensuring their needs and voices are represented in the process. Additionally, it emphasizes the importance of transparent communication throughout the citizenship process, facilitating a sense of trust between individuals and the state.