Tutorial 2

Question 1

Statehood question

Answer 1

Montevideo criteria
1. Permanent population?: Western Sahara case (sufficient link to the criteria)
2. Territory: unclear, but look at Monaco
3. Effective government: public functions ➞ stable political organization (Island case) - able to exercise control
4. Capacity to enter into relations with other states: two aspects:
a. objective: the capacity of the organs of the state to represent the state itself
B. subjective: other states willing to set up relations?
other criteria?: human rights and democracy (this isn’t clear and it’s arguable)

Recognition - two different approaches:
1. Declaratory theory: declaring a pre-existing fact (statehood regardless of the Montevideo criteria)
2. Constitutive theory: you NEED recognition in order to be a state

Lawfully separated?
When is it lawful?: quebec case ➞ self determination
- constant violation of human rights could lead to lawful self determination: Turkey v Loizidue
➞ or if you get permission from mother state

Prohibition of recognition? ➞ obligation NOT to recognize?
= mass human rights violations - just cogens
- breach of a BIG norm? (Slavery, genocide, etc)

Question 2

International organization question

Answer 2

A. Membership (made up of states)
B. Governed by international law (that the organization itself is set up and that the powers are created by a legal instrument)
C. International legal personality (has to have a decision-making body (as an organization))

Question 3

Ultra vires

Answer 3

= acting outside of its powers
➞ you have to interpret the treaty (focus on specific wording)
Is the decision necessary

Question 4

Review of a case

Answer 4

Kadi case

Question 5

Montevideo criteria

Answer 5

= it provides a framework for understanding statehood. The importance of recognition, however, it can’t be overstated
➞ it isn’t the only criteria in my opinion, but probably the most important one

Also discuss the two theories of state recognition and how that impacts the Montevideo criteria

• some of the Montevideo criteria isn’t always clear ➞ objective (there is no minimum and its not always clear when there are exceptions)
• you can meet the criteria, but without recognition what can you do?