Statehood Flashcards
International legal personality: what is it?
Legal personality: domestic vs international
Means that an entity has legal capacity:
- ability to have rights and obligations (can operate in the legal order)
- legal capacity of different degrees (states are set to have full, objective legal personality with full legal capacity)
states = the primary subjects in international law
Subject vs object legal capacity
Subject: do have legal personality and are able to operate and operate within the legal order, they do have rights and are bound by obligation
Object: are the things regulated by the international order
- The traditional perspective is that states are the subjects of international law and individuals are only objects of international law. They are regulated by international law and they experience the effect of international law but they can not make international law or be part of international law on the same level as states. States have the primary legal capacity in international law and are the primary subject of international law. This is why it is so important to acknowledge the states. Having statehood is the key in engaging in the legal order and having legal personality. Before you reach that point. You do not have the legal capacity to enter rights and obligations as a territory entity. It is the key to participate in the legal order.*
Criteria for statehood
➞ Montevideo Convention on the Rights and Duties of States 1933
Article 1
1. A permanent population
2. A defined territory
3. Governed
4. Capacity to enter into relations with the other states
Population (Montevideo)
➞ a permanent population linked to a specific piece of territory
Western Sahara (ICJ): Normandië tribes could still amount to a permanent population
- the population does not have to reside on the same place permanently but there needs to be a connection between the territory and the population (even when you don’t live there year round)
- minimum? ➞ 35,000 is what Monaco has, and they are a state
Territory (Montevideo)
States as territorial entities
- the lack of absolute definition of borders not necessarily determinative
- not affected by occupation by a foreign power
- we don’t know what is sufficient for a minimum territory, but monocoque has 1.95 km squared
Government (Montevideo)
Effective government. There needs to be a connection of control between the government and the territory or entity.
➞ Aland Island case: stable political organization ➞
There are certain exceptions, as there are certain states that didn’t have an effective government when getting established, like Croatia
Capacity to enter into foreign relations (Montevideo)
Objective and subjective elements
- role of recognition (by other states)
Implies a certain degree of independence from other states
- legal vs factual independence
objective: the capacity of the organs of the state to represent the state itself - motivation/organization (not being controlled by another state)
subjective: other states willing to set up relations with the country (role of recognition)
Other criteria to statehood (democracy and human rights)
Badinter Commission Guidelines: their task was to develop guidelines to the rule of statehoods to be applicable to Joegoslavië,. What was necessary for the different entities to be a state. In those guidelines they include a certain degree of democracy as a certain level of rule of law. A minimum protection of human rights and things as such. It is European view of statehood and there is relatively little in the way of clear state practice as the customary definition of statehood. However the guidelines do exist and are often referred to. There is some practice recognizing examples were gross breaches of these criteria and they will not recognize it as a state.
➞ *case of Rhodesia. It is now Zimbabwe in the time of late 1970 is was ruled by an minority of white racist regime and declared independence as such. This was during the period of decolonisation. There regime was
cleared independence as such to avoid the situation of democratic regime. The state of rodisia was generally not recognized as an state. Because the minority racist regime. There are some examples of this. there is a lack of practice it is not that common that we see clear emargencist of new states
Basically it isn’t clear yet what all of this means and if this actually is an additional criteria
Role of recognition of statehood
When we talk about recognition, what is recognition? There are a number of ways to recognize astate as such an entity. We mentioned the use of a diplomate one of the ways to recognize a state is the use of a diplomatic. Also the entering of an international agreement. These are more of explicit recognition of an Member State. We do also have explicit recognition of an state, when they just “say’ it. Think of Palestine. There are a number of states that recognize Palestine.
Recognition of statehood: two theories
1. Declaratory theory
➞ the idea that recognition of states merely takes account of pre-existing legal fact
- a state is a state, whether recognized or not.
- it may have practical effect, but it doesn’t count for the criteria for statehood to exist.
2. Constitutive theory
➞ recognition is necessary for the determination of statehood as a matter of law
- all the other criteria is more of a guideline for states on whether or not they should recognize a state ➞ the recognition is what’s binding
In practice you cannot behave as a state if you are not recognized as one
Statehood: obligation (not) to recognize?
Obligation to recognize: That if an entity meets the criteria there would be an obligation, but there is insufficient evidence for that. So in general there is no obligation to recognise
Obligation not to recognize ➞ Stimson doctrine
- There is an obligation to not recognizea state as state is if there is a breach of human rights etc. examples are Manchukuo and Rhodesia
- Konsovo advisory opinion, the ICJ suggested that the state should not be recognized if the events leading to the state were connected to serious violation of pre-emptering norms. One of the rules that is recognized as use cogens norm is aggression. If a state is becoming a state because of aggression, than there would be an obligation to not recognize the state. And this links to art. 40-41 ARSIWA, this is one of the consequences of peremptory norms. Art 41 provides certain consequences, states have the obligation to not aid the violation. And one is also not recognition of states to see this as a state
Terra nullius (emergence of states)
Terra nullius = empty land
- Terra nullius is no longer applicable
The emergence of a new state = the loss of territorial sovereignty of another state (no free land available)
- with permission of a parent state, it will be easy to separate, but this is unusual
Self determination
= the right of a ‘people’ to freely determine one’s form of government (free themselves from foreign, colonial or racist domination)
Internal and external elements
- internal: how do you want to form your government
- external: where do your borders lie (parameters of the state) ➞ in relation to statehood
Jus cogens: often self determination is talked about as this. Any state can bring a case on bases of the breach of the obligation of honesty
Balance with territorial integrity and self detmination
- widely accepted in situations of decolonization
- more difficult outside the colonial context
Self determination and remedial secession
Canadian Supreme Court in Quebec
- right to self determination when ‘a people is subject to alien subjugation, domination or exploitation outside a colonial context’.
- interpretation of international law by the Canadian court
Loizidou vs Turkey
- right to self determination ‘if their human rights are consistently and flagrantly violated’
- human rights are consistently and flagrantly violated, no representation at all or are massively underrepresented in an UN democratic and discriminatory way
➞ still an important rile for recognition
Independence referenda (new states)
- Declaration of Independence could be a violation of international law as it is contrary to the principle of territorial integrity
One of the questions was in Kosovo Advisory Opinion, whether it was a violation of the principle - no prohibition of independence referenda
- no need in this case to decide on remedial secession
International law is thus ‘neutral’ as regards to independence referenda
