International Legal Personality and Statehood

Question 1

Concept outlined

Answer 1

Not always enlightening - generally circular
A legal person in IL is a thing that can bear rights and obligations. We talk only of the capacity of a person to bear rights and duties under IL
Ss are ILPs, IOs can be, but that doesnt mean they have the same rights and obligaitons
Also, fact that something is CIL doesn’t make a difference. It means all Ss are bound regardless of treaty signatorship, but doesn’t mean all ILPs are equally bound

Question 2

Not presupposing same rights and obligations as other legal persons within system

Answer 2

Reparations for Injuries Suffered in the Service of the United Nations
First case about IOs
Said that all ILPs do not have same rights and obligations

Question 3

Not presupposing capacity to contribute formally to creation of customary international law, to conclude treaties or to bring claims under international law

Answer 3

Fact that something is ILP does not tell us that they have meta-legal capacities
(meaning capacity to contribute formally to CIL, to create treaties, t bring claims under IL)
Different ILPs have different capacities
Only clear that Ss can contribute to CIL, for other pretty clear that they can’t (except one circumstance)

Question 4

States as ILPs

Answer 4

States are ILPs ipso facto
Used to eb the only ILPs
For purpose of IL a State is no more than a juridical construct abstracted from political and factual reality

Question 5

States versus Gvts as ILPs

Answer 5

Governments are in reality the movers of IL for a State
And the Gvt is taken to speak for the S, and its action are the S’s actions
But Gvts change, while S stays the same. S continues to be bound by all treaties, even in spite of radical changes of Gvt

Question 6

Met-legal capacities of States

Answer 6

States enjoying inherent capacity to contribute formally to creation of customary international law, to conclude treaties and to bring international claims

Question 7

International Organisations: What are thoooooose?

Answer 7

Technically intergovernmental organisations. Like UN

They are organisations of states that come together and form a constituent treaty, or constitution of that IO

Question 8

IOs and ILP

Answer 8

Capable of enjoying international legal personality in own right
International legal personality depends on approval of States, does that mean third states and other IOs can say its not an ILP?
No, exists objectively.
But being IO doesn’t make them ILP ipso facto, must be conderred by S
If not done on creation, look at actions of party States afterwards, if they treat as ILP, it becomes one
States often deliberately deny IOs of ILP status

Question 9

Meta-legal powers of ILP IOs

Answer 9

Not necessarily
ILP doesn’t presuppose powers
Depends on intentions of MSs (Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion)
Also, not necessarily enjoying same rights and not necessarily bound by same obligations as states
Re creation of CIL: Not inherent, but where they do have power to contribute to CIL, only re the law of IOs (if at all, some Ss say CIL of IOs is made by Ss only, some say Ss and IOs)

Question 10

Individuals as ILPs

Answer 10

Enjoy some rights under IL (usually HR)
Tiny number of criminal obligations (mostly negative, some positive (eg on General’s to not let troops rape/pillage))
Some rights and obligation, so can call individuals ILPs
But don’t have meta-legal capacities, can’t contribute to CIL, enter treaties, or bring claims (unless empowered by treaty like eg ECHR)

Question 11

Peoples as ILPs

Answer 11

Used to mean States
Now more expansive meaning. Can mean entire population of a State, but can also mean indigenous or colonial peoples
Might not have a S, but do have collective rights (most notably to SD), so are in that sense ILPs
But that’s it, dont have any MLCs
Some peoples have been ceded international powers, such as palestine or the people of the Western Sahara, which are not Ss but do have power to enter Treaties

Question 12

Non-State Armed Groups as ILPs

Answer 12

Rebel groups owe obligations under rules of war, but have no rights
Can’t contribute to CIL or bring claims
Can make treaties when allowed, under certain circumstances

Question 13

Corporations as ILPs

Answer 13

Have at least some procedural rights when given by Ss

Again, clearly have nowhere near some level of rights and obligation or MLCs as Ss

Question 14

Certain anomalous entities as ILPs

Answer 14

Holy See is the Catholic Church, they enter into treaties as the Holy See (distinct from the papal territory of Vatican City). Odd situation where Catholic Church has 2 ILPs.
Knights of Malta also separate from State of Malta
Weird situations, don’t really matter

Question 15

Recognition of Statehood

Answer 15

Pretty much everything we know about what makes a State depends on recognition
So better to look at the evidentiary process before what it is evidence of
When a state emerges, other states may recognise it. This might be unilateral, collective, formal, or informal
Do this w new states,
So recognition is, express or implied, one state recognising statehood of another
And therefore recognises that that other is bearer of rights and obligations under CIL
Can be unilateral or collective (maybe EU recongises entity as state)

Question 16

Legal effect of recognition

Answer 16

Hard to distinguish formal and practical effect
Formally, recognition is merely declaratory of an objective reality. A State is a State regardless. Suppoorted by Conference on Yuhgoslavia, Opinion and Montevideo Convention
Practically, effect of recognition is to certify SH, and in many circumstances is close to being constitutive.

Formally, entity might not be a State, but if it is recognised that cannot be ignored, so we go back and say it must have satisfied the objective SH criteria
Some of the criteria are sliding scale (just need “enough”), so recognition means it was enough.
more sophisticated than making recognition constitutive. Instead base judgment of satisfaction of criteria on recognition

Question 17

Obligation to recognise?

Answer 17

No (see Conference on Yugoslavia, Opinion)
Because there is no obligation to recognise on satsifaction of criteria, other Ss can attach conditions to recognition
E.g. EU and Security COuncil of EUrope said to former States of Yugo, that they will only recognise if they respect minority rights and democracy
This is not a criterion, its only political

Question 18

Unlawful recognition

Answer 18

Can’t recognise secessionist entities before they satisfy criteria for SH, or entities created via serious breach of peremptory norm of IL (ARISWA art41(2))
Premature recognition of secessionist State = interference in State’s internal affairs
Recognising illegal situation breaches general obligaiton of non recognition oof such situations

Question 19

Effect of membership and non-membership of UN

Answer 19

Art4(1) of UN Charter says State, so only Ss would be allowed (although also says peace-loving…)
Ergo, if S is admitted to UN GA, then other UN members cannot deny SH (not same as recognition)
Membership is now effectively certification of SH, dispels any doubt
Non-membership is not evidence of not being a S though. Switzerland long refused to join. Number of Pacific States didn’t have money to join (UN eventually paid for them) - no one doubted they were Ss
Different though if try to gain membership and are refused

Question 20

UN observer state status

Answer 20

Why become an observes state?
To become a member need to go through UNSC where 5 States have a veto
Russia would refuse Kosovo, USA refused Palestine.
To become observer State only need majority in GA
Doesn’t have same force as membership, but has some (still has word State in it!)

Question 21

Statehood: a mixed question of fact and law

Answer 21

We have legal criteria but these have to be brought to bear on facts.
And like all mixed questions of fact and law, require matter of appreciation.
So it is not uncommon to have unclear situations.
But there are still legal standards, as identified in Montevido Convention

Question 22

Montevideo Convention art 1

Answer 22

A State as a person of international law should possess the following qualifications:
(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.

This is only an attempt to define statehood, we point to it as an expression of principle of effectiveness.
So if an organised political community exercises sovereignty over a defined territory it is a state under IL (provided it views itself as such).

Question 23

Population

Answer 23

Something can’t be a state if it doesn’t have permanent population.
Don’t need everyone, or even majority, to be born there (Vatican City, Luxembourg, etc)
But do need people to be there all the time

Question 24

Territory

Answer 24

Monastery of Saint Naoum, (1924)
Can take “defined” out.
As long as there is a core identifiable territory, there is a state
Loads of states argue about borders, this does not deny statehood

There is no minimum territory, Pacific islands and Vatican are tiny
Not clear what happens if S sinks or is drowned by global warming. Might says that territory is still there, just underwater, or that S still counts bc there is still a population

Question 25

Government

Answer 25

Applied very flexibly. Bos & Herz Gvt contained <30% of territory when first recognised. But if recognised, must have enough GVT.
So need a GVT that controls “enough” territory - “enough” determined by recognition (in practice, not formally)
Seemingly applicable at point of emergence of S only, Lebanon and Somalia eg have had GVT’s fall apart and retained SH

Question 26

“Capacity to enter ito relations w other States”

Answer 26

Better expressed as “independence”
Depends on capacity to enter into relations w other Ss independently
De jure and De facto
De jure, Kosovo is province of Serbia. If no other S puports to be Sovereign over that entity, and it considers itself sovereign, it must be a S
But de jure independence isn’t conlcusive
Must be able to exercise sovereignty effectively. Spain considered South American provinces to be theirs for decade afer they declared independnce, but were unable to make a poin of it. So if an entity secedes, only real Q is whether they make good on it.
So need to maintain own independent sovereignty for significant period of time

Question 27

Montevideo criteria no longer end of story

Answer 27

Creation by br serious breach of peremptory norm of General IL = impermissible
Prohibition on aggression eg Turkish Republic of Northern Cyprus
Right of a people to SD eg Rhodesia
Prohibition of systematic racial discrimination eg South African “Bantustans”
There were other reasons why these weren’t Ss, but killer blow was that situations created by JC breach = null and void

Question 28

The Creation of States

Answer 28

Many states were already in existence when modern international system born so those didn’t really need to worry about the criteria (Eng, Fr, Sp etc)
New States have been created through a variety of means since
Sometimes 2 or more have united to form a single State
Sometimes one State split into multiple
Most commonly, former subject territories (under imperial control of other State) have been granted or unilaterally achieved independence - this engages right of people to SD

Question 29

The Right of Peoples to SD

Answer 29

Explosion of States in C20th
Dismantling of Austro-Hugarian, Ottoman, and smaller German Empires
Decolonisation from 40-90s
Post cold-war break up of USSR Yugoslavia Czechoslovakia
As political matter 1st and 3rd engaged SD, but only played legal role in 2nd.

Question 30

UN Charter, arts 1(2) and 55 (‘the self-determination of peoples’)

Answer 30

UN Charter talk about SD of peoples meaning States and freedom from outisde interference, to determine own political social economic cultural destiny. Later developed mroe expansive meaning

Question 31

Different sorts of “peoples”

Answer 31

Colonial and closely related peoples
Populations of UN Trust Territories and Non-Self-Governing Territories
“peoples subject to alien subjugation, domination and exploitation’
Other peoples
Content of SD differs in relation to colonial and equivalent peoples and the all other kinds.

Question 32

Colonial and closely related peoples

Answer 32

Begins in 1960 w General Assembly Resolution 1514 (XV)
“subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights”
“All peoples have the right to self-determination”
Immediate steps to be taken in UNTTs and NSGTs to transfer power to people of those territories

Question 33

Populations of UNTTs and NSGTs

Answer 33

‘People’ in context of UNTTs and NSGTs = population as a whole of each UNTT or, with exceptions, of each NSGT listed as such under UN Charter, chapter XI. No ethnic or language element. Coclonial powers had to register their NSGTs, under Chapter 11

Question 34

GA res 1541 (XV)

Answer 34

Spelled out how UNTTs and NSGTs could achieve SD
Independence - most common
Free Association - stay loosely connected w parent State
Integration - choose to become part of an existing state
May choose to become a new state, like North Cameroonians joining Nigeria, r join an existing independent state, or even their existing administering power
Must be result of the people’s will, duly expressed, through democratic process. Democratic process not always adhered to, which was sometimes okay sometimes not

Question 35

GA res 2625 (XXV)

Answer 35

‘having regard to the freely expressed will of the peoples concerned’
Independence, free association, integration or ‘the emergence into any other political status freely determined by a people’
Emphasis again on freely expressed will of people

Question 36

Western Sahara, Advisory Opinion

Answer 36

‘the principle of self-determination as a right of peoples’
‘the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned’
‘the basic need to take account of the wishes of the people concerned’
‘the need to pay regard to the freely expressed will of peoples’
Re-iterated all the other stuff, SD, freely expressed will, etc
Spanish gave up colonial territory
Then Moroccans took it, not w soldiers, but by forcing 3 million of their people into the territory
Western Sahara is not independent to this day

Question 37

Is SD an EO right?

Answer 37

Western Sahara is good example
Spain Leave and Moroccans come in. But SD is EO, Moroccans can’t say that only bound the Spanish

East Timor (Portugal v Australia), 1995
Indonesians, just as much as the Portuguese before them, had the obligation to grant independence to ET
Also, Australia had to acknowledge ET’s right to SD, bc they recognized Indonesia as in charge of ET’s territory.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion
Right of peoples to self-determination a peremptory norm of general international law (jus cogens)
Cannot be set aside for any reason, Indonesians couldn’t say EY was an emergency situation so can ignore SD, it is non-derogable

Question 38

Process envisaged whereby administering state concedes independence…

Answer 38

But apparent right to unilateral independence in extremis.
Idea was not just that the UNTTs and NSGTs would declare independence, but parent states would grant them independence in orderly way. This frequently didn’t happen
Generally acknowledged that if the parent state deadfast refused to grant independence, then in extreme cases the colony could break away. In the end this didn’t really happen. Almost did bc Portugal dug its heels in. But that was extreme case

Question 39

GA res 1514 (XV), para 6:

Answer 39

6. Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a [colonial] country is incompatible with the Purposes and Principles of the Charter of the United Nations…
   i.e. must grant independence to whole of the colony, not keep bits
   British Indian Ocean Territory, kept an island of Mauritius and shipped off the people to lease out
   Mayotte, French colony of some sialnds which all voted for independence except Mayotte, so france kept it. Strictly speaking, shouldn’t have split it up, but hard to say that you aren’t entitled to that thing you voted for

Question 40

Remaining UNTTs and NSGTs?

Answer 40

No UNTTs left
17 NSGTs left, that chose to stay that way. Prefer to continue being subsidised by their colonial powers.
Most colonial powers want to get rid of them, they’re expensive, and embarrassing when they decide to become tax havens
Many have now integrated, eg Caribbean Netherlands

Question 41

Uti Possedetis

Answer 41

“as you possessed, so may you possess”
If Colonial power has an area of colonies, can’t just let it go and let them figure out their own border. Uti possedetis means Colonies come to independence within the borders they occupied as NSGTs. They can always re-negotiate, but this is the starting point

Frontier Dispute (Burkina Faso/Mali)
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening)

Question 42

‘Peoples subject to alien subjugation, domination and exploitation’ Expression first appears in…

Answer 42

GA res 1514 (XV)
‘colonialism in all its forms and manifestations’ (preamble)
‘The subjection of peoples to alien subjugation, domination and exploitation …’ (para 1)
‘Immediate steps shall be taken, in … all other territories which have not yet gained independence, to transfer all powers to the peoples of those territories … in accordance with their freely expressed will and desire … in order to enable them to enjoy complete independence and freedom’ (para 5)
Subjection of peoples to xyz is clearly just a fancy way of talking about colonial peoples
In resolution 2625, goes on to say

Question 43

GA res 2625 (XXV)

re ‘peoples subject to alien subjugation, domination and exploitation’

Answer 43

“[S]ubjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle [of equal rights and self-determination of peoples], as well as a denial of fundamental human rights, and is contrary to the Charter.”

In other words this is just colourful way of saying colonialism

Question 44

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion,
re ‘peoples subject to alien subjugation, domination and exploitation’

Answer 44

Seemed to refer to people subject to XYZ as separate from people of colonial territory.
Seems to suggest that if a group claims to be a people and subject to xyz they can be made independent. No. If they are not UNTTs are NSGTs, they can only fall under the category of all other peoples who have not yet achieved independence.
But this phrase is really just an allusion to specific anomalous situations of frustrated declonisation.

Question 45

“Peoples subject to alien subjugation, domination and exploitation” as own category besides UNTTs, NSGTs, or “all other territories which have not yet gained independence?

Answer 45

Unilateral Declaration of Independence in Respect of Kosovo
Did not find right of remedial secession, but Kosovans were found to be entitled to minority right, includin choice of nationality

See also Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, 115 ILR 536, 586, para 133 (SC Canada 1998)
Did not find right of remedial secession for Quebecois, but did suggest this was possible for distinct minority groups that are oppressed and unrepresented in their State

Question 46

“Other peoples”

Answer 46

Indigenous peoples
Who counts? No a priori criteria. Will be subject to 2 criteria: Do they self-identify as a people, and have they been acknowledged as such (first and foremost by the S they form part of, and failing that, by other Ss)?

Question 47

Right of “other peoples” to self-determination ≠ right to independence

Answer 47

Abundant SP
UN Dec on the Rights of Indigenous Peoples, Art 46(1): Nothing in this Declaration may be … construed as encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States’. So right to SD doesn’t entail independence
Conference on Yugoslavia
Reference concerning the secession of Quebec from Canada

Question 48

Obligation on States to concede independence to “other peoples”?

Answer 48

No, it’s a sovereign matter for each state whether freely conceding independence to people/group/region
If so, uti possedetis applicable (Conference on Yugoslavia Arbitration Commission)

Question 49

What does the right to self-determination entail for “other peoples”?

Answer 49

Right to political participation and to political autonomy (devolution). UN Declaration on the Rights of Indigenous Peoples, arts 4 and 18

Minority rights (cultural and language rights), Report of International Committee of Jurists on the Aaland Islands, Conference on Yugoslavia, UN Declaration on the Rights of Indigenous Peoples arts 11–14

Might also have right to choice of nationality
Conference on Yugoslavia
UK-Ireland Agreement on Northern Ireland (State Practice)

Question 50

Remedial right to independence of peoples other than colonial and closely related peoples?

Answer 50

Left open:
Unilateral Declaration of Independence in Respect of Kosovo
Reference concerning the secession of Quebec from Canada, 587, para 135

Support for:
Katangese Peoples’ Congress v Zaire,
Loizidou v Turkey. sep op Wildhaber (joined by Ryssdal))

Rejection of:
Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, vol. II, 141

Almost certainly not such a right in SP
The remedy to denial of internal right to SD, is to be given that right through the usual international or HR courts.

Question 51

Bangladesh

Answer 51

Contrary to misconception, response to secession of Bangladesh in 1971 does not support claim for remedial secession.
Bangladesh was at that point East Pakistan. Something clsoe to genocide happened at hands of West Pakistan. They declared independence, but wasn’t recognised until West Pakistan granted it. Reason for this is that West Pakistan no longer had it, so it was a state now. Only 3 states recognised straight away. India (who went on to invade, Nepal and Bhutan (both’s votes are under control of India))

Question 52

Kosovo

re right to remedial secession

Answer 52

Response to secession of Kosovo in 2008 provides very little support for claim

Question 53

GA res 2625 (XXV)

re right to remedial secession

Answer 53

Nothing in foregoing paragraphs [on SD] shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principles of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

Not interpreted by states as endorsing remedial secession
Implicit reference almost certainly to apartheid South Africa and Rhodesia

Question 54

Unilateral secession

Answer 54

Unilateral secession not prohibited by customary international law (Unilateral Declaration of Independence in respect of Kosovo)
If secessionist entity fulfilling legal criteria of statehood, other states permitted to recognise as state
eg Recognition of Bangladesh
But premature recognition an unlawful interference in affairs of state from which entity seeking to secede
e.g. recognition of Kosovo