State Formation and Self-Determination

Question 1

What are the principal actors, or subjects, of international law?

Question 2

What does it mean if you enjoy full international legal personality?

Answer 2

• Create and be the subject of international legal obligations
• UN and other IO have legal personality independent of members
• The Vatican’s legal personality derived form its religious/ spiritual authority, not from Vatican City’s small territory
• To Find the LEGAL PERSONALITY: look at constitutive document
  
  • UN Charter silent on the matter, BUT implied from Article 104.
• Even if they are not expressly stated in the Charter, powers are conferred upon the Organization as being essential to the discharge of its functions__and the effective working of the Organization requires that states strictly adhere to the principal in Article 2
  
  • Problem 1 of Chapter 3- Reparations for Injuries Suffered in the Service of United Nations
    
    • The UN has the legal personality to bring international claims for damages on its own behalf
    • The UN can bring a claim on behalf of an agent fulfilling his or her duties

Question 3

What are some advantages of being a state?

Question 4

Do a state’s treaties cease to be law when a government changes?

Answer 4

No. Recognized states can enter into treaties with each other, and these treaties will generally be operative even if the government changes. (Krasner, Sovereignty: Organized Hypocrisy).

Question 5

What are the ways states have emerged on the global stage since World War II? Give an example of each.

Answer 5

• Decolonization: Process by which states became independent from self-identified colonial empires (such us UK, France, Spain, Portugal, Belgium, Netherlands, Germany, Ottoman Empire, and US to some extent.)
  
  • Transfer of power or war of independence
  • Secession: One territory breaks off from a nonimperial state to form a new state (either peacefully or armed conflict)
    
    • Ex: Bangladesh seceded from Pakistan, Eritrea from Ethiopia, South Sudan from Sudan, Estonia Latvia and Lithuania from Soviet Union
  • Dissolution: Process by which a larger entity dissolves into two or more states with the forms state ceasing to exist
    
    • Ex: Yugoslavia the USSR and Czechoslovakia
  • Merger: Creation of one state by union of two or more preexisted states
    
    • May create an entirely new entity or on state absorbed into second
    • Ex: North and South Yemen, and Federal Republic of Germany and German Democratic Republic
  • Peace Treaties: States have emerged from peace settlements after war

Question 6

What are the facts of the Crimea case, focusing on Crimea’s status as an independent state?

Answer 6

• Crimea succeeded from Ukraine and was absorbed by Russia
• Crimea is a peninsula connected to Ukraine. 58 % of Crimea’s population identify themselves as Russian , speak Russian.
• In 2014, Russia signed a treaty with Crimea’s leaders and absorbed Crimea into Russia. The UN and the EU imposed economic sanctions. Putin justified Crimea’s separation from Ukraine in terms of self-determination and that this was similar to the unilateral separation of Kosovo rom Serbia. ICJ agreed and stated that “no general prohibition may be inferred from the practice of the Security Council with regards to the declarations of independence.” . After Putin’s speech, the UN General Assembly that that it
  
  1. affirms political independency of Ukraine
  2. Calls upon all States to refrain from actions aimed at disruption of national unity of Ukraine
  3. Referendum held in Autonomous Republic of Crimea cannot form the basis for any alteration of the status of Autonomous Republic of Crimea

Question 7

What are the international law criteria for a new state?

Answer 7

1. Permanent Population
   
   1. no defined population size
   2. Vatican
2. Defined Territory
   
   1. uncertainty does not negate existence
   2. A state need not be established with clearly defined frontiers
   3. No minimum size,
3. Government
   
   1. Internal Control
      
      1. Reference to a government with effective control implies the ability capacity to establish and maintain order
   2. External Control
      
      1. Ability to act at the international level without legal dependence on other states
4. Capacity to Enter into Relations with Other States
   
   1. The political existence of the State is independent of recognition by other states, Even before recognition, the State has the right to organize itself as it sees fit.

Question 8

Is the Anglican Church a state under the Montevideo Criteria? What about the state of California?

Question 9

Is there a magnitude criteria? Does the population or territory have to be a specific size?

Answer 9

• The population requirement has been flexible. States have been recognized that have very small populations like Nauru with a population of 9,500 and San Marino with a population 33,000.
• Territory does not have defined borders includes air and sea space

Question 10

Do you think it is fair that these small states have the same number of votes at the UN and other international bodies as China, India, and US?

Question 11

Do states that are invaded and occupied by other states thereby lose their status as states?

Answer 11

• No, they are considered occupied nations but retain their sovereignty.
• During WWII states did not regard the occupation of most countries in the Western Europe as eliminating their legal status as states; rather regarded as occupied nations
• Same during the Cold War, a lot of Eastern States lost their ability to conduct foreign and defense relation
• No state has claimed that the collapse of central government inSomalia and Afghanistan did not deprive them of statehood.
• So a state may temporarily lack an effective government
• A change in regime alone will not disqualify and entity from statehood

Question 12

What do you think are the purposes of the Montevideo Convention Criteria?

Question 13

What is the declaratory theory of recognition?

Answer 13

• The facts of statehood (defined territory, permanent population, effective government, and capacity for foreign relations) rather than formal recognition define and entity a state.
• An entity that meets the criteria of statehood immediately enjoys all the rights and duties of a state regardless of the views of other states.
• Recognition as a purely political, instead of, legal act.
• Art. 3, Montevideo Convention: “political existence of the state is independent of recognition by other states”.
• Art. 12, OAS Charter (essentially the same as above).
• In practice, most scholars consider the declaratory theory as supported by state practice.

Question 14

What is the constitutive theory of state recognition?

Answer 14

• The “constitutive effect” of recognition argues recognition is an element of statehood.
• A State does not exist at IL until it is recognized by existing states in the community of nations.
• An entity does not exist as a state until it has been recognized by other states
• A claimant to statehood is not itself a state until it has been recognized by others.

Question 15

What is the principle of self-determination?

Question 16

What’s important about Aaland Islands Case?

Question 17

What are the facts and the issue in the Aaland Islands case?

Question 18

Can a people who hold a referendum to secede and get a positive vote then just become an independent state?

Question 19

What did the Commission of Rapporteurs recommend regarding the Aaland Islands and what was the outcome?

Question 20

What is the trusteeship system that was included in the UN Charter?

Question 21

How do you think the 1970 Friendly Relations Declaration might be used in the argument over self-determination of the Crimea?

Question 22

What happened in Yugoslavia in and in the run-up to the 1990s?

Question 23

What was the issue faced by the Commission in Opinion No. 1?

Question 24

What was the decision?

Question 25

What was the issue faced by the Commission in Opinion No. 2?

Question 26

What is the decision?

Question 27

What then happened in Kosovo?

Question 28

What question did the UN General Assembly ask the ICJ?

Question 29

What was the ICJ’s decision?

Question 30

What are some of the lessons about self-determination in the Supreme Court of Canada’s Secession Reference (1998)?

Question 31

What did the James Bay Cree argue in the Supreme Court regarding Quebec Secession?

Question 32

What was the finding of the Canadian Supreme Court as regards Quebec’s claims?

Question 33

Are the arguments similar or different from those of the ICJ in the Kosovo Advisory Opinion? What about the Aaland Islands Case?

Question 34

What is the general rule of state responsibility under IL and where has it been authoritatively articulated? Is it a treaty or customary law? Can we have both rules?

Question 35

hat are the conditions to be fulfilled for state responsibility to be shown?

Question 36

What is the rule of attribution? Would it be straightforward in relation to States/state entities? What if the conduct involves non-state actors that are not part of the State?

Question 37

What did the ICJ find in this regard in the case Nicaragua v. US?

Question 38

What is the test articulated by the Tadic case? How similar or different is it from the ICJ statement in the Nicaragua Case? How, if at all, did the ICJ articulate a different standard in the Bosnia Genocide Case?

Question 39

Do you see a difference between STATE responsibility versus INDIVIDUAL responsibility? Can we have both in some cases?

Question 40

Why is article 40 and 41 of the State responsibility articles important?