Exam 2 Other terms Flashcards
Who holds full legal personality in International Law?
nation states
Who enjoys partial legal personality?
Individuals, MNCS, national liberation movements, corporations.
Who enjoys no legal personality?
Ethnic groups indigenous groups terror groups minority groups NSG territories NGOs
Elements of statehood: Objective
Are required to have full legal personality.
They are known as the doctrine of the three elements.
- Territory
- Population
- Government
Elements of statehood: Subjective
Ability to enter into international relations
However, the easiest way to enter this into the objective section is to say that if they are a member of the United Nations they have met this category.
How do you become a member of the United Nations?
Security Council 3/5 in favor (A veto can kill this immediately)
UNSG Endorsement
General Assembly 2/3 majority
Four Dimensions of territory
- Its territory
- The air above it- The exact number of feet above has not been determined.
- All the way down to the core of the earth.
- Part of the ocean or lake if they are a coastal nation. It is now 12 miles.
Legal Extraction of State Resources
- You can take oil from the center of the Earth as long as you are digging into your territory.
- Slant drilling- When you go down and then you go sideways into somebody else’s territory is clearly illegal.
Kuwait Slant Drilling 1990
Hussaine said that Kuwait was slant drilling into Iraq so they deserved to be punished. This, however, does not justify an invasion.
Population
-Permanent
-Non-Transient
-Self-Perpetuating
This is why Antartica does not qualify as a country because those scientists are transient. The one country that is recognized as a nation-state but is not allowed to self-perpetuate is the Vatican.
Basic tests of Government
Internal Authority:
Set national laws
external authority:
conduct foreign policy
Levels of UN Membership
Member-state (The US)
Non-member observer state-slightly elevated (Switzerland was this until 2002)
Observer-cannot vote but can have delegates in the UN. (The Palestinians used to be but now is non-member, the ANC used to be, SWAPO used to be, these are both national liberation movements).
Categories of states: Full states
Full sovereignty and independence which is the vast majority of states.
Categories of states: Unions
Two legal persons acting together as one. An example of these would be confederations, real unions, or federal states.
Categories of States Confederations
Create supranational organs and give it power and authority over them. This is only over the states not over the citizens so these governments still determine the rights of their citizens.
-If they are a member of an international organization then they are treated as one country in international law and get one seat.
Examples of Confederations
Denmark and Iceland in 1918-1944
USA 1778-1787 the 13 colonies originally formed a confederation and even had different currencies.
UAE, United Arab Emirates, the biggest country’s gov represents all of them.
Real Unions
Two nations state signed an agreement to create something above their govs, they also agree to not go to war with each other. They are bound to the same ruler. This one rules all people.
Example of Real Unions
The Austro Hungarian Empire 1867-1918.
The two Yemens: 1990s they formed a union and now there is only one Yemen.
The union of Syria and Egypt 1958-1961.
This was under Nasser and for this time there was only one seat the UAR. They wanted to unite all of the Arab countries under Nasser. The Syrians eventually wanted out.
Federal States
Permanent union of what used to be countries. Government with the authority over former states and citizens.
The former states have no legal personality.
-The difference between a federation and a real union is that a real union is not as permanent and can break apart easily.
Qualified full members: Neutral states
We are not interested in going to war, an individual decision that can be revoked.
Ex. Sweden is the longest standing neutral country because it has been neutral since 1902.
Qualified full members: Neutralized Country
A country that has the status forced on them, or put on them as a condition by other states. Switzerland has been neutral since 1818 and this was imposed on them.
Qualified full members: states admitted under special conditions
special conditions attached when they want to join the world community.
Ex. Montenegro 1878: Racial and religious tolerance.
Poland 1878-Protection of Minorities.
Austria 1955- No Japanese or German designed aircraft.
There are not stipulations on what the conditions case be.
Divided States: Cold War Phenomenon
Almost anywhere where the US and the USSR met in the battlefield to shake hands and say they had defeated an adversary they would keep their bipolar system on each side.
Ex of the Cold War Phenomenon
Germany
South and North Korea
China-between Taiwan and the mainland.
Vietnam-North and south too in Geneva 1962 they were going to have a war to choose but the US did not let it happen because Ho Chi Min would win.
Cyprus-The only one which is not a division of east and west. 1976 might be more of an illegal occupation.
Special subjects
Vatican-A nation state that cannot repopulate. Knights of Malta-they do not have territories Condominiums Associated States Sealand (Specific Place) Micronations National Liberation movements Leased territories.
Order of the Knights of Malta
Founded during the crusades and originally headquartered in Israel, they made their way to Cyprus and eventually into Italy. They have 8,000 members and they do not have any territory. They are referred to as a “landless state” because the nations that work with them want to acknowledge charitable work they do and give them a heightened status. They are currently recognized by 40 countries.
Condominiums
Territory jointly owned by two states.
-The territory has no government, no sovereignty, and no legal personality. The subjects with the legal personality are the two states.
Ex. 1889-1956 Britain and Egypt jointly ruled Sudan.
Isle of Pheasants
A piece of territory that separates the French from the Spanish. What France and Spain decided to do was to jointly own the isle of Pheasants. They take turns every 6 months policing it. The island itself has not legal personality.
Associated States
Delegate foreign and defense policy.
Micronations
Model nations, very small that claim nationhood but are not recognized.
You can find most of them in countries of Australia and New Zealand. They are overwhelmingly farmers that do not want to pay taxes and they argue that they are allowed to do this under the principles of self-determination.
-They are 14 claiming it. They do not the legal personality, if a nation state had recognized them then the chances of it having sovereignty would have gone up dramatically but if its just a group or a family no one cares.
National Liberation Movement
Believe they should be considered the sole and legitimate voice of their people. The elites such as the African National Congress, PLO (Palestine), and SWAPO were the three national liberation movements that were granted partial legal personality.
-These movements are seeking self determination.
Leased Territory
Today it is not common for Royals to give part of their kingdom to their kids and lost territory is most common during the loss of war but your best chance is to rent from them in the form of a lease.
You pay a fee to use it for the period of time.
However, you do not get the title of the area.
However, you do not get the title of the area.
This does not have any affect on sovereignty.
There can be arrangements where jurisdiction lies with the country that is paying the lease if something happens in the country that has to do with the leasing citizen only then the leazing country should have jurisdiction but this has to be agreed upon and all legal personality remains with the owner.
-You can lease out not only surface area but also your coastline.
Ex. Panama canal is a leased area. Hong Kong was a leased territory
Guantanamo Bay is a leased territory from Cuba and it was written that both sides have to agree to end the lease before doing so.
Why IOs have some personality
- HQ agreements
- Immunity of officials (UN officials have immunity)
- It will host dignitaries from other countries.
- Sanctity of property is another reason, no one can enter without permission.
- Functional Matters
Individuals and International Law
- 1900-Nation states were very important and individuals have no real power.
- 1950-Individual power came to increase.
- 2000-Much higher than in the beginning of the century but still not as much as states.
- Organizations almost always have more rights*
Overview of Ireland and Britain
The United Kingdom and the Republic of Ireland
Ireland broke away but the six norther counties did not and remained in the UK.
The Eastern Rising of 1916 paved the way for Ireland to become independent and it was very violent.
The Independence war of 1919 proved successful for the Irish.
Northern Ireland is protestant with a minority of Catholics.
Northern Ireland Preferences:
-unionists-Pro Uk union 36%
-Nationalists want to be part of Ireland and Catholic and it makes up 24%.
-40% don’t want to give their opinion.
The Troubles
Irish Republic Army is in norther Ireland but they are catholic and a terrorist organization.
1960-1998
3,600 Killed in a lot of violence and assasination.
-1972 violence
-IRA bombing in London during Bloody Sunday in a downtown financial district.
Sandy Row: on one side you have the unionists flying the British flag and on the other side you have the Catholics.
Where individuals have legal personality
- The world bank-Affected individuals have legal personality in this organization.
- US-Iran Tribunal-we froze all of the Iranian assets we could get or hands on and we wanted to give them back to the individuals. The tribunal was created for that purpose and you go there and sue the US and that tribunal will rule on compensation.
- UNCC (Kuwait)-A group of legal experts that issue a ruling on whether people from Kuwait can get legal retribution from Iraq and Iraq has to pay.
- PCA-Permanent court of attribution
- NAFTA- If you are bankrupted by the new deal on free trade you can go as an individual and say this yourself.
- European Union-
MNCs
There is a home country but the company has subsidiaries that sell things abroad.
- You only qualify as a multinational if you own the facilities.
- In the 1800s they had no legal personality at all and were viewed as an extension of the country they were based in.
- 1965-Multinational corporations as a matter of practicality were granted partial legal personality.
- EU gave them full legal personality
- The MNCs and the state they are
Objects of International Law: NGOs
Organizations with international membership because the overwhelming majority of NGOs do not have international membership.
-It is made up of individuals (not states).
-No legal personality
-They are objects of international law but do play a supportive role in the development of international law
>The red cross stands out above the others as being a supportive organization, has access to the battlefield and hosts many international conventions on rules of international conflict.
Objects of International Law: Ethnic Groups
Tend to be minorities all over the if the world were divided into them there would be alot more countries.
- There is no personality for ethnic minorities because we cannot define them very efficiently. Also there is a great of fear that giving them a voice will make them seem like a nation state in the making as if they are independent.
- Some nations will go straight to them rather than to the nation.
Ex. of ethnic groups
Aceh, Indonesia-There was a great tsunami and Indonesia was a member of OPEC but it is not anymore because it consumes all of its oil.
>The world said they needed to help them and send aid but the government said that everything should be sent through the capital not to the region because they are afraid they will start to be recognized.
Objects of International Law: Indigenous People
The original and formally recognized people of a place that have been wrongfully spelled or deprived.
- They can be found in about 40 countries with about 200 million people.
- They have no legal personality or representation other than their government which is one that deprived them in the first place.
Objects of International Law: Non self-governing territories
Geographically and culturally distinct from the country that is ruling them and they are in a subordinate position and do not have the same rights as the ones that rule them.
-Our expectations is that it will become an independent country.
Truly non self-governing
US Virgin Islands and the Cayman Islands.
At some point they become internally self-governing
Puerto Rico
At some point they become their own state
Namibia did become its own state.
Objects of International Law: Colonial Enclaves
They are very small and are controlled or administered by a nation state.
-They have no legal personality and they have no expectation of statehood or independence. It is expected to eventually merge with the larger state because they are just too small.
Examples of Territorial Enclaves
- The Falkland islands are considered to be a colonial enclave
- Ceuta is controlled by the Spanish and it is a little island in the tip of Morocco.
Objects of International Law: Terrorist Group
There are two ways of viewing them:
-As instruments of the state-If we look at it as an extension of the country then we hold the country responsible for what they have done but otherwise they have no legal personality.
>If Hesbola acts people often blame Syria because it has influence over it.
-As an independent state
The Centrality of Territory in IL
- The physical anchor of the state
- Locale of the population and government
- Source of power and resources
- Source of conflicts with other states
The complexity of British Territory
- The 4th largest empire in history
- The empire came apart and became a series of nation-states, some of which have become part of the common-wealth while others have declined to be part of it.
- It was also split into overseas non self-governing territories like the Virgin Islands and the Caymans, they are the sovereign domain of the British.
Sovereign Territory
- Territory owned by a state
- Includes land air and water
- Recognized by other states
- No legitimate counter claim
- The fifth largest territorial state is Brazil*
Private Islands
Some is able to buy an entire island for themselves and put a house on it.
- They could be either sovereign territory or terra nulius
- Can be established by terra nulius and nothing existed there before.
- Land and sovereignty purchased from a country.
- The land can be purchased which is the easiest one because you get the protection of that country’s military.
Trust
An international city such as Jerusalem which cannot be claimed as an international domain
What are all the different categories of the territory?
- Sovereign
- Terra nulius
- Trust
- Colonial enclave
- Res communis
- Leased
- Condominium
Acquisition of Territory
The traditional way of acquiring territory is no longer legal these are:
- Discovery-where you would just plant a flag and claim something as your own.
- Conquest-If you use warfare to claim territory it is called territorial aggrandizement. Not legal since 1945.
- *The only exception to the rule of territorial aggrandizement is that you could not fully consume the country before 1945. After 1945 it became illegal.
Can past grievances be remedied?
The answer is no for practical reasons.
Question on the validity of the acquisition of territory
The question is the international law in force at the time of acquisition.
- If France conquered part of Africa in the 1800s then at the end of WW2 they did not have to give it up.
- Iran invaded Kuwait and annexed it as a province in 1990 and it was unanimous that this was an illegal acquisition by force.
Modern Modes of Acquisition
The establishment of effective control
-A response to discovery which is not enough, you must actually have a presence there and you must occupy it, it has to be territory that is not occupied by another country.
-In order to establish it you must meet two elements:
>Demonstration of the intent to act as a sovereign
>Demonstration to exercise authority in the territory.
