Introduction + the State in IL Flashcards
What are some of the fundamental characteristics of International Law?
- It applies to states (just like domestic law applies to individuals)
- Circularity: It is a law made by the states for the states; there is indeed circularity between subjects making the rules and subjects subject to the rules
- Principle of equality of states: all states are legally equal under international law
NB: States are the main subject of international law, but NOT the only one;
Also International Organizations are a subject of International Law
What is the main difference between classical international law (16th-17th century) and contemporary international law (from 1945)?
while classical IL was a rudimental legal system that mostly concerned navigation issues and diplomacy, contemporary IL is a complete legal system, having developed a whole system of rules concerning international economy, human rights, the environment, war and not only.
+ Also classical IL was very West-centered, being a “law of colonizer”, as a matter of fact most developing states were not considered states but “terra nullis”
What are the three main elements of a State?
- TERRITORY: there needs to be a defined portion of the surface of the earth to define a state (artificial structures are not enough)
- POPULATION: for a State to be such there needs to be a real social connection among its population
- GOVERNMENT ruling over territory and population
NB: These requirements are not enough to define a State and the definition of State is still a debated issue in IL; there is still no universally accepted theory of statehood
What are the three main theories/doctrines defining the concept of “state” in IL?
- Recognition-related theory –> a state is such if it is recognized as a state by other states (≠ government recognition)
- Factual perspective –> If a certain territorial entity meets the factual criteria of effectiveness and independence of government, then it automatically becomes a state, even if no one recognizes it
- Statehood depends on rules of international law –> statehood depends on whether a state (or a self-proclaimed state) forms (tr: si forma/si è formato) in accordance or not with the rules of international law which govern the formation of a state
What does the Principle of territorial integrity say? Does it encourage or discourage the formation of new States?
The Principle of territorial integrity says that in cases of failed states, insurgences, and those cases of violations of international law, the (failed) State has the right to continue to exist within its borders without territorial changes, meaning therefore prohibitions for other states to conquer portion of that specific (failed) state; this is a way to protect already existing states, but, at the same time, discourages the formation of new States.
What are the cases in which the right to external self-determination can be claimed?
- Peoples under colonial rule
- Population subject to military occupation from another country
- Peoples subject to grave breaches of fundamental rights
What is a definition of International Organization?
International Organizations (IOs) are societies of States, created by States through TREATIES
What are the features common to ALL International Organizations?
The common feature to any IOs is that they are all legal personalities in IL, meaning they are all SUBJECTS OF IL.
This means that IOs:
- can conclude treaties
- are bound to respect international obligations
What does Article 104 of the UN Charter says?
Article 104 of the UN Charter says that the UN enjoys a legal capacity within the MEMBER STATES (e.g: within the Italian law), in their territories.
Does Article 104 of the UN Charter give the UN an objective legal personality?
NO, Article 104 of the UN Charter does not give to the UN an objective legal personality since it only says that the organization has legal personality WITHIN ITS MEMBER STATES.
Does the UN have an objective legal personality?
Yes/No, why?
Yes, as determined by the ICJ in the Reparation for Injuries Advisory Opinion, the UN has an objective legal personality.
The reasons for this conclusion are the following:
1. The UN has its own organs
2. The UN has its own purposes which may different from the ones of the states
3. Many organs of the UN can adopt binding acts; This is a demonstration that the UN has its own will
Which of the following statements is FALSE?
a) The General Assembly provisions are recommendations, therefore NOT BINDING
b) The UN Security Council has binding powers
c) The UN Security Council is composed of 15 states, 5 of which are permanent members and have veto power, the other 10 are selected every 2 years by the General Assembly
d) The UN Secretariat is the main administrative body of the UN and is composed of State’s representatives
d: The UN Secretariat is the main administrative body of the UN, but, just like the ICJ, is composed of INDEPENDENT INDIVIDUALS, not State’s representatives
Which of the following is NOT a purpose of the UN expressed in Article 1 of the UN Charter?
a) The maintenance of international peace
b) The development of friendly relations among nations based on the principle of equal rights and self-determination of peoples
c) the prevent of genocide and respect of other jus cognes norms
d) international cooperation and respects for human rights
e) be a centre for harmonizing the actions of nations in the attainment of these common ends
c
What does the Recognition-related theory on statehood say and what are possible criticism to this theory?
According to the Recognition-related theory, a state is such if it is recognized as a state by other states.
Criticism of this theory arise in two areas: legal personalities and reciprocal recognition.
Legal personality is an objective status, it doesn’t require recognition: meaning if you are a state, you are a state to every state whether you are recognized or not
Reciprocal recognition, instead, regards situations in which states choose whether you are worthy of being considered a state (like 17th century in which European States refused to recognized African countries)
What does the Factual perspective theory and statehood say?
According to the Factual perspective theory, a certain territorial entity is a state if it possesses these two criteria: effectiveness and independence of government; it doesn’t matter if it is recognized as such by other states or not.
