WEEK 1 - The actors of the legal stage Flashcards
Chapter 7 - Statehood, self-determination and Recognition
What is a long standing problem within IL
On one hand, existence of a society of independent states appears to be a necessary presupposition for the discipline (needing to come before the identification of its members), on the other hand statehood is clearly a product of international law as it follows from the need for clear rules to determine which political communities get to claim sovereignty.
notes
- Desire to be a state not only re-affirm the singularity of the state as primary mode of political organisation but also threatens integrity of already existing state.
what is an international person
every state which belongs to the civilised states
Who makes international law?
states!
However, the category of “subjects of international law” has grown, as there are now also institutions.
- ## increasingly institutionalised.
who can invoke international law?
Who can be held accountable under international law?
how have states become more codependent in IL?
Subject of the law means to have legal personality: what falls under being a legal personality?
- Having Rights and duties (obligations)
- Being able to make international claims
- Being able to incur responsibility for breaches of international law
found under: Reparation for injuries advisory opininon, ICJ 1949
What is the Reparation for injuries advisory opinion, ICJ 1949 about?
The “Reparation for Injuries” Advisory Opinion is a significant case issued by the International Court of Justice (ICJ) in 1949.
The ICJ was asked to provide guidance on the legal principles concerning the reparation for injuries suffered by states as a result of internationally wrongful acts committed by other states. The ICJ’s opinion aimed to clarify the legal framework for assessing and awarding reparations in cases of state responsibility.
The ICJ first addressed the question of whether the principle of reparation for injuries arising from an internationally wrongful act is part of customary international law. The court concluded that the principle of reparation is a recognized principle of customary international law, which means that it is a general rule accepted by states as binding.
The court further elaborated on the types of injuries for which reparations can be claimed. It stated that reparations should cover both material damage, such as destruction of property or economic loss, as well as moral damage, including pain, suffering, and humiliation. The ICJ emphasized that the reparation should aim to restore the injured state to the position it would have been in if the wrongful act had not occurred.
Regarding the forms of reparation, the court recognized that there are various methods available, such as restitution, compensation, and satisfaction. Restitution involves returning the injured state to its pre-injury position, while compensation involves providing monetary payment for the damages suffered. Satisfaction refers to non-monetary remedies, such as an apology or a public acknowledgment of wrongdoing.
The ICJ also discussed the issue of collective reparation, highlighting that states may be jointly responsible for a wrongful act. In such cases, the court stated that the responsibility for reparation should be apportioned among the responsible states based on their degree of involvement and the harm caused.
Additionally, the ICJ clarified that the injured state has the right to choose the specific form of reparation unless an agreement has been reached between the parties involved.
The “Reparation for Injuries” Advisory Opinion of the ICJ in 1949 played a significant role in establishing the principles and guidelines for assessing and awarding reparations in cases of state responsibility. It provided valuable guidance on the legal obligations of states when addressing internationally wrongful acts and the consequences that arise from them.
“The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community” Reparation for Injuries Advisory Opinion, ICJ 1949 INTERPRETATION:
refers to the idea that within a legal system, different entities or individuals can have varying rights and legal standing based on the needs and values of the community.
In the context of the case, this statement recognizes that not all subjects of law are treated equally or have the same legal status.
It acknowledges that the rights and legal nature of individuals or entities can differ, and this differentiation is shaped by the requirements and priorities of the community or society in which the legal system operates.
This principle is essential because legal systems often classify entities based on their legal capacity, rights, and obligations. For example, in international law, states are considered the primary subjects of law with specific rights and responsibilities, while individuals may have different legal standing and protection.
By acknowledging that the nature and extent of rights can vary among subjects of law, the statement recognizes that legal systems are designed to address the specific needs and values of a particular community or society. It emphasizes that the legal framework should be responsive to the unique circumstances and requirements of the community it serves.
Who are the actors on the international legal stage?
Subjects: States and non-state actors
non state actors are:
- International organisations
- People (individuals and groups like indiginous)
- multinational corporations
- holy see
- NGOs
What is the declaratory theory?
- Recognition does not have a bearing on statehood. Once criteria are fulfilled the entity is a state.
What is the constitutive theory
Recognition is a constitutive of statehood – no recognition, no statehood
What are the issues with declaratory theory?
- Recognition can have important legal effects
- This approach doesnt work when state are required to withold recognition (e.g. acquisition of territory through force)
- Unilateral secession of states becomes problematic
