International Personality Flashcards
What is personality?
Capacity to bear rights and duties under international law
Who are the only ones to posses full personality?
States
Who or what has personality?
StatesInternational organisationsLegal/ natural persons
When have individuals been seen to have international personality?
Nuremberg trials 1945
When do individuals have rights they can assert on an international plane
ECHR 1950
The degree of personality depends on the constituent treaty of the organisation
Reparations opinion 1949
Indications of personality
Capacity to make treatiesCapacity to bring claimsImmunities under municipal lawScope of objectives and functions A
What are the two theories of creation of states?
Declarative theory Constitutive theory
Article 1 of the Montevideo treaty
Permanent populationDefined territory GovernmentCapacity to enter into relations with other stares
Criticisms about the Montevideo treaty
It is the best of a bad batchIt is accepted by custom but it is far from comprehensive
What is China’s population
1.3bn
What is the Vatican’s territory
1m2
What is the government factor about?
Basically about effective controlAbout who is responsible and accountable
What is an exception to the government factor?
Congo 1960
What is an example of government not failing if you have a civil war?
Somalia
You need independence in law from the authority of any other states
Austo- German customs union case
States that were not independent states but become member so the UN
Ukrain Palestine
What are other criteria for states?
Entities cannot be created by force- Kuwait or Iraq
What is an exception to states cannot be created by force?
Bangladesh- they argued self determination
What about racist entities?
Cannot create a stateSouth Africa was a state before the apartite
What is the background to self determination?
USA 1776French Rev 1789Russian Rev 1917
What president in what plan said yes to self determination?
Woodrow Wilson Treaty of Versailles
Where did self determination become part of the charter?
Art 1 and 55 of the UN CharterBut no definition
What is uti posseditis?
You create states where your colonial entities used to exist
What recognised self determination as custom?
The East Timor case
What recognises self determination as erga omnes
Wall opinion (binds everyone)
What narrowly addresses self determination?
Kosovo opinion
What are examples of PIL not currently giving the right to break up existing states?
Chechnga - Russia
Entities who decline to be states
Taiwan
Entities who want to be states
Palestine
Succession/ state extinction
Russia
Which theory is the Montevideo treaty?
Declarative
What is the constitutive theory?
Since the community of states is basically a political community, membership is dependent on acceptance by the existing members
Which theory do lawyers prefer and why?
The declarative theory But the constitutive is stronger in practice It’s naive to think that recognition would be purely a legal act, there is obviously some politics
What about acceptance to the UN?
Largely seen as symbolic
Where did the ICJ find that unilateral declarations of independence are not unlawful under international law?
Sudan and Kosovo
What are the 4 ways statehood can change
A new state through succession- parent state exists but with less territoryDecolonisationStates may mergeStates may dissolve- total break up, no states continue the old
What treaties would new states be subject to?
A number of ones they never actually technically agreed to
What is the leading theory of international organisations?
Functionalism
What is functionalism?
The idea that organisations are created to do with functions
What says that the UN has international personality?
Reparations opinion 1949
What says that all people have the right to self determination?
General Assembly declaration 1960
Opinion 1 of the banditer commission
The existence or disappearance of the states is a question of fact; the effects of recognition by other states are purely declaratory
Opinion no 2 of the banditer commission
Do they have the right to self determination? We should let people choose their nationality
Opinion no 3
There is criticism of this opinion Relied on uti posseditis
Opinion no 10
Decided to recognise Serbia and Montenegro as states- they are both part of the UN
ICJ advisory opinion on kosovo’s Declaration of Independence
By a vote of 10- 4 the declaration did not violate international law because there is no prohibition on declarations of independence. Did not violate SC resolution 1244
Where was the right to self determination found to be jus cogens?
East Timor case
What is the definition of self determination?
The process by which a country determines its own statehood and forms its own government
What is the Connolly clause?
?
Uti posseditis
Uti possidetis (Latin for “as you possess”) is a principle in international law that territory and other property remains with its possessor at the end of a conflict, unless otherwise provided for by treaty
