statehood Flashcards
doctrine of three elements
permanent population, defined territory and a government
rights and obligations granted by nationality
- right of residence, right of return, right to participate in political decision-making
- tax and military obligations
ius sanguinis
children acquire nationality of their parents
ius soli
children acquire nationality of birthplace
diplomatic protection
A state can protect the interest of its citizens and legal persons against other states.
- exhaustion local remedies
- there was a breach of international law
- continuity of claims
- espousal of claims: the state is not obligated to grant protection
Calvo clauses
Latin American states demanded foreign investors waive the right of diplomatic protection of their home state. A national cannot waive the right for diplomatic protection.
diplomatic protection of legal persons
Based on incorporation or seat, but usually not nationality of owners (Barcelona Traction)
control theory
In exceptional cases, nationality of owners or persons acting as organs determines nationality of a company (eg. economic measures against members of enemy states in armed conflict)
condominium / coimperium
territorial sovereignty is jointly exercised by several states
borders in rivers
center for non-navigable rivers, and navigation route (talweg) for navigable rivers
effects doctrine
states apply their criminal law to acts committed on their domestic territory and also acts committed abroad but with consequences in that state.
active personality principle
state can punish its citizens for crimes they committed abroad
passive personality principle
state can punish particularly serious crimes committed against its citizens by foreigners
protective principle
state can punish certain crimes against particularly important state interests even if the link is otherwise weak (eg. treason, spying, counterfeiting money)
universality principle
states may exercise criminal jurisdiction over foreigners who violated international criminal law (delicta iuris gentium)
principle of vicarious jurisdiction
a state may apply their criminal law to people who committed a crime abroad if the state where it was committed was unable or unwilling to conduct proper proceedings.
protectorate
a state concludes a treaty in which it confers its foreign and defence policy to another state. This was the case with Tunisia / Morocco with France.
mandates and trust territories
mandate: League of Nation entrusted certain Turkish and German territories to victorious states.
trust territory: mandates were turned into trust territories of UN, each administered by another state acting as a trustee.
internationally administrated territories
United Nations Mission in Bosnia and Herzegovina (UNMIBH)
United Nations Interim Administration Mission in Kosovo (UNMIK)
European Union Rule of Law Mission in Kosovo (EULEX)
United Nations Temporary Administration in East Timor (UNTAET)
recognition of new states and state succession
It has a purely declaratory effect if the doctrine of three elements are met. It can have an indicative effect if one of the aspects is disputed. It is conducted mainly through diplomatic notes, or implied recognition through bilateral treaties and establishing diplomatic relations
state succession
- dissolution: a state breaks up to two or more states (Yugoslavia, Czechoslovakia)
- secession: a part of the territory splits off from a continuing state agaisnt the will of the continueing state and forms a new state (South Sudan)
- separation: a part of a territory splits off with the consent of the continuing state and froms a new state (fromer Soviet republics, where Russia as a residual state continued)
merger
two or more states from a new states (eg. Tanganyika and Zanzibar to Tanzania)
legal succession?
Only a few basic customary rules and they are also partly disputed.
Attempted codifications:
- Vienna Convention on the Succession of Treaties (1978, 1996)
- Vienna Convention on Succession of States in respect to State Property, Archives and Debts (1983, not yet)
- treaties automatically transferring is increasingly accepted, but not highly personal (founding treaties of IOs, military alliances)
- territorial treaties automatically (Gabcikovo-Nagymaros)
- clean slate “tabula rasa”, pick and choose theory
- no duty to pay odious debts (incurred to prevent independence)
- assets, archives and debt are divided proportionally
- no succession of state responsibility: highly personal
state immunity
par in parem non habet imperium: courts of one state should not sit in judgement of another state
sovereign acts
acta iure imperii
private acts
acta iure gestionis
Jurisdictional Immunities of the State (Germany v Italy) (2012)
States do not enjoy immunity for torts committed in the forum state (state where case is filed). Whether this exists outside of the forum state for ius cogens violations was denied by ICJ.
enforcement immunity
Enforcement is broader than immunity from jurisidiction because the encroachment on state sovereignty is greater with enforcement than mere juridical decisions. Many states still adopt measures against non-sovereign property, which characterisation depends primarily on purpose for which it is used.
diplomatic immunity
diplomats of the sending state enjoy almost absolute immunity in the receiving state and not subject to its criminal, civil or administrative jurisdiction without home state consent.
objective and subjective elements in state recognition
objective: comparing territory, population, economic performance
subjective: self-assessment of states and recognition of international community
