Week 1 Actors on the Legal Stage Flashcards
Defining Statehood: What are/makes States?
Montevideo Convention (only applies to countries in the Americas that ratified it) but defines statehood
- Criteria for statehood, Article 1:
▪ 1) (Permanent) population - can also be a state with a very small, e.g.Micronesia or Tuvalu, or with a percentage of the population being nomadic,
e.g. between Kenya and Tanzania
▪ 2) (Defined) territory - can also be a state if borders are not 100% defined or if a state is fragmented, e.g. Palestine
▪ 3) Government - but the lack of a government through a war/turmoil does not necessarily take away state hood, e.g. Somalia
▪ 4) Capacity to enter/maintain relations with other states
-> Legal independence; have to be able to do that in an independent manner; capable of domestic implementation
-> Is not to be equated with recognition by other states, e.g. Taiwan not being recognized by China
What makes Donetsk and Luhansk States?
- Pro State Argument:
Report by Committee on
Admission: GA Resolution 67/19 on Status of Palestine
- Against State Argument:
They are trying to achieve statehood through violence
“The Prohibition against Aggression and Territorial
Acquisition by Force”
(see GA Res 2625, GA Res 3314, ARSIWA)
▪ GA Res 2625, Annex: “The duty to refrain from any forcible action which deprives people’s right to self-determination, freedom and independence.” […] “The territory of a state shall not be the object of military occupation resulting from the use of force. The territory of a state shall not be the object of acquisition by another state resulting from the threat or use of force. No territorial acquisition resulting from that threat or use of force should be recognized as legal.
▪ GA Res 3314 on Aggression, para. 5: Condemns acquisition of territory through violent means
▪ ARSIWA, Art. 41(2): states are under the legal obligation not to recognize developments that happen in contravention with (jus cogens) norms of IL (…and the prohibition on the use of force can be seen as a jus cogens norm)
State Recognition Doctrines (3)
- Objective approach: states recognize governments as a matter of fact (because they see that the government is governing the state)
- Subjective approach: states recognize governments to endorse its policies and to express approval of that government
▪ These two aspects can be manipulated for political gain – many countries are against this because they perceive it as an interference with internal affairs of states, no matter who is in power
*Estrada Doctrine: the change in government is an internal affair of states (doesn’t matter to other states who is in power and how they gained that power); rejects the idea that there is a need for recognizing governments because that is mainly a political move
▪ What is required is that the government shows that it is in charge (that it has effective control); and that other states don’t need to do anything and just accept the fact that there is a government in place
▪ It doesn’t matter whether it is a de jure government (approved and legally recognized) or a de facto government (reality of who is ruling, regardless of whether it is recognized by law or not)
The Recognition of States: Declaratory Theory
- Declaratory theory: to become a state you don’t need the recognition of other states, as long as the Montevideo criteria for statehood is fulfilled (is the current in vogue approach)
▪ Problems:
* It reduces recognition of states to an empty formality without any meaning; ignoring the fact that recognition of states can have important legal effects
* It doesn’t matter how that state is created, which can clash with IL principle of prohibition against aggression if the state was created through force
o According to the declaratory approach, LPR and DPR are states despite forceful acquisition. The principle says entities should not be recognized as states if acquired under forceful means
The Recognition of States: Constitutive Theory
-
Constitutive theory: assumes that in order to become a state you have to be
accepted as such by other states/the international community
▪ Problems:
* How many states do you actually need to recognize an entity in order for it to be a state?
* New states don’t have any rights or obligations in the legal context, until they are formally recognized
* Can become a political tool for other states (e.g. China not recognizing Taiwan)
In practice, states usually combine declaratory and constitutive theories when deciding whether to recognize another state
Collective non-recognition
Collective non-recognition : if a large number of states decides to not recognize entities as
states
o E.g. Rhodesia & South Africa, Turkish Republic of Non-Cyprus; Bantustans – a black
state in South Africa
Collective non-recognition in the case of the annexation of Crimea→GA Res 68/262
▪ On the territorial integrity of the Ukraine
▪ Resolution called upon all states and IOs to not recognize any alteration of the status of the Autonomous Republic of Crimea (adopted by 100 states)
Collective non-recognition in the case of DPR & LPR→GA Res. A/ES-11/1.1
▪ Resolution on the aggression against Ukraine (was adopted by 141 states)
▪ Para. 6: Demands that the Russian Federation immediately and unconditionally reverse the decision related to the status of certain areas of the Donetsk and Luhansk regions of Ukraine
* Demands Russia to reverse the recognition of these areas
Collective recognition
Collective recognition: happens through membership in the UN as it requires statehood, meaning that any country receiving membership is seen as a state by the UN member countries
→Art. 4 UN Charter criteria
▪ Have to be a state
▪ Have to be peace-loving
▪ Have to be able to carry out obligations that states to the UN have to fulfill
▪ The article also gives a role to the security council: the security should recommend acceptance of a state and for the General Assembly to then accept/adopt that →Means that the veto members of the security council all have to agree with the membership in order for it to happen
▪ In the case of LPR and DPR membership won’t happen due to veto right of US, UK and France
o Can also be achieved by becoming party to international conventions (ICCPR e.g.)
▪ Because only states are allowed to ratify international treaties
▪ Palestine ratified multiple UN treaties, which was accepted by the secretary general; …Palestine therefore a state?
* Palestine went for this tactic because it couldn’t achieve UN membership (because US veto blocked the security council recommendation)
o Or by becoming party to other organizations (e.g. Palestine joining the ICC)
Effects of recognition
In Into. law
* Effects are mainly political
* There is no direct effect on the status of the entity claiming to be a state (recognition has no impact on statehood as according to the declaratory theory) - but recognition can be seen as evidence of acceptance of the facts
In internal law (national level)
o Efffects are dependent on the internal law, e.g. the capacity to sue or to be sued before a domestic court, immunities
Practical effects of confirmation of statehood
* Sovereign equality and territorial integrity
* Immunities/principles of use of force/non-internvention in affairs of states/acceptance of treaties/becoming a party to a dispute of the ICJ/ICC
* A state has rights and duties and capacity to bring claims
* A state means being an international legal personality (Reparations for Injuries case)
External self-determination
External self-determination: the right to break free from a country and separate to form
another one (e.g. Quebec case, 1998)
o The right to self-determination is recognized by various legal instruments:
▪ Art. 1(2) (right to self-determination), Art. 55 and Chapter 11 (on non-self- governing territories), UN Charter
▪ GA Res. 1514 (1960) (self-determination of colonized peoples)
▪ Art. 1 of ICCPR and Art. 1 of ICESCR, adoped by UN in 1966
▪ GA. Res. 2625 (1970)
▪ →all only allow for internal self-determination but not external self-determination (nothing may be done to existing boundaries), unless it is a colonial or alien-domination situation
External self-determination and the concept of Uti possidetis
▪ Means that creating a new state will happen based on existing demarcation lines/borders/boundaries and values
-> Problematic since many borders were drawn by colonial powers in a very arbitrary manner
▪ This concept led to the creation of certain states after decolonization that were not based on ethnicities and nations. The borders did not respect the ethnic divisions
▪ Concept was acknowledged for Former Yugoslavia by the Badinter Commission, that used previous maps to decide how the new territories are separated/located
Quebec Case - External self-determination
The Quebec case clarified that external self-determination is the creation of a separate state, but only under specific circumstances:
▪ It is mainly applicable to colonial peoples (barely exists anymore, to peoples living in non-self-governing territories, or to peoples being subjected to alien domination/military occupation (e.g. Palestine)
Cases that reaffirmed and applied right to external self-determination
Western Sahara case (ICJ); East Timor case (right erga omnes); Wall Opinion
▪ In the recent Chagos case: Advisory Opinion by ICJ (about whether they received proper right to self-determination after decolonialization by the British; they did not because the UK forced Mauritius to grant them possession of the Chagos islands and to displace their peoples, so that the UK could lease those islands to the USA to build a military base there)
▪ ICJ concluded that it didn’t happen in a proper manner in the 1960s; ICJ also controversially concluded that the right to self-determination in the period from 1965 to 1968 existed as a right under customary international law
- Was disputed by the UK and others, because even though the Res. 1514 of 1960 already mentioned the right to self-determination, it only became more important & specific in subsequent Res. 2625 of 1970 (and self-determination was thus not customary international law until 1970)
Internal Self-Determination
o The right to participate in public life of the state concerned and to enjoy social/cultural/linguistic or other group rights (minorities v people)
o Is about how a group in an existing country can rule for themselves if does not identify with the existing country; being heard as an (ethnic, linguistic, religious)
group
o Minsk II Agreement 2015 with regard to DPR and LPR = made a call for giving more
independence to DPR and LPR
o ICCPR and ICESCR→only support internal self-determination, not external one o You should give as much internal self-determination as possible within the state, such that the people should then be satisfied and feel no need for external self-
determination
o Who enjoys the right to self-determination? What is peoples? There is no consensus in IL on what that is; nowadays often referred to as right to self-termination of “minorities”
Self-determination of indigenous peoples
▪ UN Declaration on Rights of Indigenous Peoples (UNDRIP) 2007 (A/RES/61/295)
- Art. 3 = indigenous peoples have the right to self-determination… BUT
- Art. 46(1) = “nothing in this declaration may be interpreted as implying for any state/group any right to engage in activity which would dismember or impair the territorial integrity or political unity of sovereign and independent states”
Territorial integrity vs. secession
▪ When can people then actually secede?
▪ Secession of Quebec case = made clear that forcefully dismembering a state to grant right of self-determination is not possible
* Only when there is a high degree of violation of human rights can people be allowed to break free (but doesn’t happen much, e.g. detaining people in Catalonia at protests is not severe enough)
▪ Seccession usually has to happen with the consent of the country from which it wants to break free; permission has to be given in most cases
▪ Kosovo case: can the creation of an independent state be based on the right to self-determination?
* ICJ advisory opinion on Kosovo (July 2010): no answer, is unsettled
- Declarations of independence are not illegal, but they also don’t settle the matter
▪ Catalonia, Scotland, Crimea, etc.? - Role of state consent→see ICJ Chagos AO para. 160 = consent is necessary because you otherwise violate the integrity of the state
