3: Sovereignty & Statehood Flashcards
Importance of sovereignty:
No state has the right to interfere with another.
Corfu Channel: sovereignty is an essential foundation of international relations.
Benefits of sovereignty:
State essentially has the right to do as they please.
- rights to mines and airspace
- strategic geographical benefits
- territorial sea, EEZ, CS, sea mining rights
Principles of sovereignty:
Islands of Palmas:
- territory requires sovereignty, if you want to own it - must show that you exercise sovereignty.
- sovereignty means independence and control.
- can then enforce laws, but also means responsibility.
Acquisition of Title: Exercises of Authority
Per Eritra/Yemen:
- intentional display of power/authroity over the territory
- continuous and peaceful basis with no protest.
E.g. discovery & occupation of terra nullius:
- unoccupied land
- once included indigenous (Mabo), but not any longer (Western Sahara)
confers inchoate title.
Prescription: someone else discovered, but another state is exercising more authority.
comparison of effectivities.
Other forms of acquisition:
Cession: transfer of title through treaty.
Accretion: arises by natural causes - geological formations etc.
Conquest: no longer valid, illegal under int. law.
Territory rules:
Maps - may only used with the greatest caution (island of palmas)
Contiguity - proximity is not relevant, only demonstrations of authority (island of palmas)
Critical Date: date at which the dispute crystallised, no evidence after is admissible.
Inter-temporal rule: application of laws that exist at the point in time that the claim was made (island of Palamas)
Uti Possidetis Juris: you must respect territorial boundaries at the moment a colony achieves independence.
Importance of Statehood:
Personality & autonomy under Int law.
- sovereign equality: Charter art 2(1)
- non-intervention: Charter art 2(7)
- immunities
- ability to enter treaties, join organisations
- ability to refuse consent to jurisdiction of courts
Lotus - freedom of action.
Criteria for statehood:
Montevideo Convention on the Rights and Duties of States:
- permanent population
- defined territory
- government
- capacity to enter into relations
Relevance of recognition?
Does it matter? not really; states tend not to recognise other ambiguous states.
Declaratory theory - political existence is independent of recognition.
Constitutive theory - recognition can be relevant (tinnoco arbitration)
Can sometimes result in legal liability if wrongly given (Nicaragua)
Change of government:
state can recognise an authority as government, and express to deal diplomatically with them.
constitutionally legitimate - acceptable.
illegitimate (coup d’etat) - must apply effective control test.
Self-Determination:
Can only have self-determination if geographically, culturally and ethnically separate.
GA Res 1514 = defines limits of self-determination.
- recognised as a legal right
Limitations of self-determination:
Applicable only in ‘trust and non-self-governing territories or all other territories which have not yet gained independence.’
not to permit the partial or total destruction of the national unity/territorual integrity of a country
must be consistent with non-interference principle.
subject to uni possidetis juris
Test for self-determination:
Must be either a ‘trust and non-self-governing territory, or all other territories have not yet gained independence.’
geographically separate
distinct ethnically and/or culturally
Consequences of self-determination:
Establishment of a sovereign and independent State.
free association or integration with and independent State or the emergence into any other political status freely determined by people.
increase in membership to the UN.
decolonisation has now largely concluded.
Legal Personalities
- international organisations
- the UN
- NGOs
- Cooperations
- Individuals (crimes, human rights, regional organisations).
