Personality, statehood and recognition Flashcards
where is original legal personality seen?
this is seen in states
what is an example of derived legal personality?
derived legal personality would be a legal person. This would be see in states recognising other bodies as legal subjects of international law such as individuals.
what criteria must be met to become a state?
article of the montevideo convention?
Article 1 of the Montevideo Convention
An elected government
A permanent population -Nauru 10000
Enter into relations with other countries
defined territory
order in which you should establish if a state has legal personality. which legislation?
firstly the Montevideo convention article 1 states the 4 criteria.
self determination
recognition- declarative and constitutive theories
talk about the implications of recognition on states such as Taiwan
Declaratory theory
the existence of states does not depend on recognition but rather if international law classifies that body as a state.
the case of Costa Rica v Great Britain showed that Costa Rica was still a country even though Great britain did not recognise them as such.
article 3 of the montevideo convention states that it is independent of recognition by other states. if it fulfils the requirements of statehood then it cannot be limited by the views or requirements of 3rd states.
article 6 states that recognition merely signifies that it accepts the personality of another. in addition, once recognised, you cannot un recognise the state.
the constitutive theory
Even if a state passes all of the requirements of the Montevideo Convention, it still must be recognised by other states to become a state itself.
Does a state need to be part of the UN to become a state?
NO BUT it could be good evidence to show that they are a state.
UN has legal personality
reparations case
official was killed could the UN take action? yes it could
can assert its rights and duties as a person.
Individuals having legal personality?
Yes they have rights and obligations.
ECHR
European charter of human rights
geneva convention
Fundamental human rights are more supreme than states, therefore states cannot withdraw from their obligations.
most of human rights have customary international law therefore cannot escape from it.
piracy is one of the ancient obligations on individuals of international law
international criminal law- based on people
Is taiwan its own state?
Has a population of 26 million
has its own government
has trade relations with other countries.
but is it a sovereign state?
Do corporations MNC’s have
can destroy environment, control economy, employ thousands.
Barcelona tractions case recognised multi national companies as having personality
if a company is based in England then it has english nationality. moreover they may take legal action against the host state if it is not treating the company well and not respecting its rights. they have standing.
they have rights but do they have obligations? they are not governments so have no obligations for human rights.
case of a company getting kicked out of the country?
texaco v libia
where libia used their own legislation to kick them out however texaco took legal action
there was a term in the contract of arbitration and challenged them. ruled Libyan behaviour was not acceptable. private individual has international copacaties.
yes we apply Libyan law but at the sam time we apply international.
