The state and International Law

Question 1

What treaty gave us the concept of sovereign states?

Answer 1

•Peace of Wesphalia treaty gave us the concept of sovereign states.

Question 2

What is Sovereignty?

Answer 2

term for the ‘totality of international rights and duties recognized by international law as residing in an independent territorial unit-the state”. Sovereignty has limits now.

Question 3

Montevideo Convention: What should a state posses as a person of international law?

Answer 3

• A permanent population
• A defined territory
• Government
• Capacity to enter into relations with the other states

Question 4

Montevideo Convention: 3 things about recognition

Answer 4

• Political existence of the state is independent of recognition by the other states
• Recognition is unconditional and irrevocable
• Recognition of a state may be express or tacit.
  Tacit: Latter results from any act which implies the intention of recognizing the new state.

Question 5

What are two ways states are recognized?

Answer 5

• Declaratory- if a gov. is in power (de facto), the people acquiesce. They declare what already exist
• Constitutive- Must be recognized by already-existing states in order to “constitute” a new state.

Question 6

What is De facto government?

Answer 6

government is in power. It is in control, it is functioning, people have accepted it. (factual situation)

Question 7

What is de jure?

Answer 7

We have recognized legally and formally.

Question 8

Is there a duty to recognize states? Explain.

Answer 8

There is no duty to recognize a state. If you don’t recognize a government you don’t have diplomatic relations and you don’t send an ambassador. Recognition is a factual issue but it has legal consequences

Question 9

Tinoco Arbitration

Answer 9

•Tinoco overthrew the Costa Rica gov, discarded the old constitution, wrote a new constitution and then he left after two years.
• Now gov takes over and says Tinoco actions are void
British Bank wants their money they loaned the Tinoco gov
- Court says1) The Tinoco was a de facto and de jour gov bcuz int. law does recognize how that gov came into being and
2) that the contracts/obligations of the Tinoco gov are not void and do create legal obligation bcuz the Tinoco gov. was a legitimate link in the chain of gov.
3) Great Britain did not recognize Tinoco government.

Rule: Principle is you cannot ignore or avoid the actions taken by a government that was in power.
• Changes in the gov. Or the international policy of a state do not as a rule affect its position in international law.

BUT Britain couldn’t recover bc the loans were personal loans made to Tinoco’s family and the gov. wasn’t responsible for this