Week 2 - Statehood

Question 1

What does ‘Reparations for Injuries’ tell us about the nature of legal personality? (2)

Answer 1

1) the ‘requirements of international life’ defines who is a subject of IL
2) These requirements may change over time

Question 2

What are 2 Schools of Thought about the nature of legal personality?

Answer 2

1) Binary: you are only a subject of IL if you have full capacity under IL (rights/obligations)
2) Spectrum: one can have partial personality despite not fully capable under IL (incl. individuals and corporations)

Question 3

What are the consequences of statehood? (4)

Answer 3

1) Standing before international tribunals to enforce IL rights
2) being subject of IL obligations
3) ability to make binding international agreements
4) a degree of immunity

Question 4

What are the 4 Montevideo Convention criteria?

Answer 4

1) a permanent population
2) a defined territory
3) a government
4) capacity to enter into relations with other States

Question 5

Where can the 4 statehood prerequisites be found?

Answer 5

Art 1 of Montevideo Convention on the Rights and Duties of States

Question 6

Must a State have constant population? (2)

Answer 6

1) No, nomadic populations seasonally leaving the territory suffice as long as connected to the territory
2) Western Sahara AO

Question 7

What criteria must a State’s borders satisfy? (2)

Answer 7

1) Consistent nucleus but borders do not have to be fully defined
2) Deutsche Continental Gas-Gesellschaft

Question 8

What is ‘uti possidetis’?

Answer 8

A principle protecting existing borders

Question 9

What are 3 modes of Acquiring/Disposing of Territory?

Answer 9

1) Cession: peaceful transfer (Alaska Purchase 1867)
2) Discovery (of terra nullius) (Island of Palmas Arbitration)
3) Annexation (by military conquest) (Iraq invade KUW 1990)

Question 10

What does ‘effective government’ require? (2)

Answer 10

1) Internally: organization of the population and monopoly on the use of force without foreign assistance (Åland Islands)
2) Externally: capability to respect international duties and obligations (Island of Palmas)

Question 11

What does Franck argue? (2)

Answer 11

1) ‘Democratic governance’ argument

2) Effective governance requires respect for democratic principles and HR

Question 12

What is an example of the effective government criterion being irrelevant?

Answer 12

BOS-HER and CRO admitted to UN despite lacking effective govt

Question 13

What 2 aspects does ‘capacity’ consist of according to Hernández?

Answer 13

1) Objective aspect: the formal structures to be capable

2) Substantive aspect: state recognition (simply a means of evidence)

Question 14

What does Crawford propose instead of capacity? (3)

Answer 14

1) Formal Independence: whether officially subordinated
2) Actual independence: control free from higher authority of another State.
3) More of one can compensate for less of other

Question 15

What is PAL’s statehood status? (5)

Answer 15

1) 2-State solution (a govt+parl in both West Bank and Gaza strip)
2) ISR is in belligerent occupation of various territories since 1967 (Wall AO)
3) UN application rejected (2011) but non-member observer status in UNGA (2012)
4) recognized by 136 States (2018) but not UK, USA, or FRA
5) PAL is member of UNESCO, ICC and more than 70 multilateral treaties

Question 16

What is the statehood status of the Turkish Republic of Northern Cyprus? (2)

Answer 16

1) Only recognized by TUR

2) UNSC has declared TRNC’s declaration of independence invalid

Question 17

What is the statehood status of KOS? (5)

Answer 17

1) declared independence despite lackign effective control over Northern areas (2008)
2) recognized by 117 States (2018)
3) Was permitted to give views to ICJ in Kosovo AO
4) Joined IMF and WB
5) still not UN member

Question 18

States admitted to the UN despite concerns of democracy, RoL and HR? (3)

Answer 18

1) Timor-Leste (2002)
2) MON (2006)
3) S.SUD (2011)

Question 19

What is the relationship between the different rights to SDet (3)

Answer 19

1) Reference Re Secession of Quebec (CANSC)
2) if a definable group is denied meaningful ability to define their own political, economic, social and cultural future a right to external self-determination arises
3) external rights to SDet also exist for former colonies and territories repressed by foreign forces

Question 20

In which resolution is the right to SDet found and what does it tell us? (3)

Answer 20

1) Friendly Relations Declaration
2) All peoples have the right to self-determination
3) Nothing in the resolution authorizes actions threatening the territorial integrity of states IN COMPLIANCE WITH the principle of SDet (so authorizes external SDet?)

Question 21

Which treaty provisions contain the right to SDet? (3)

Answer 21

1) UN Charter Art 1(2)
2) ICCPR Art 1(1)
3) ICESCR Art 1(1)

Question 22

Can breaches of IL prevent statehood?

Answer 22

1) Kosovo AO
2) illegality of declarations “connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character”

Question 23

What are examples of failed declarations of statehood? (3)

Answer 23

1) Southern Rhodesia (condemned by UNSC since white minority govt imposing apartheid)
2) Republika Srpska (UNSC condemnation, violent civil war and ethnic cleansing)
3) Biafra (gave up independence from NIG after 5 years of non-recognition)

Question 24

What are the 2 theories on recognition?

Answer 24

1) Declaratory Theory: recognition confirms pre-existing statehood (Deutsche Continental Gas-Gesellschaft)
2) Costitutive thoery: recognition is required for statehood

Question 25

What are problems with Declaratory Recognition Theory? (2)

Answer 25

1) Fails to explain practical reality of states without recognition
2) Pretends satisfaction of Montevideo criteria is objectively assessable (Dugard)

Question 26

What are problems with Constitutive theory? (2)

Answer 26

1) creates a relativist approach to statehood (states only exist as between each other)
2) how can a politicla act (recognition) cause legal effect?

Question 27

Is there a duty to recognise? (2)

Answer 27

1) No, prevalent view is that recognition is discretionary (Opinion 10 of Badinter Commission)
2) Lauterpacht: argued for duty to recognise entities fulfilling Montevideo criteria

Question 28

Is there a duty not to recognise? (2)

Answer 28

1) Friendly Relations Declaration: no territorial acquisition from use or threat of force is lawful
2) Kosovo AO: states should nto recognise states created through egregious IL violations.

Question 29

What are the 2 ways to recognise a foreign government?

Answer 29

1) De jure

2) De facto

Question 30

When is a de jure recognition given of a government?

Answer 30

When the new govt seems to enjoy “with reasonable prospect of permanence, the obedience of the mass of the population” and “effective control of much of the greater part of the territory” (Morrison Statement, by Under-SoS of foreign Affairs UK 1970)

Question 31

When is de facto recognition of a govt given? (2)

Answer 31

1) when the govt exercises effective control but there are doubts as to its legitimacy
2) a mere de facto recognized govt cannot claim state property or invoke state immunity in the de facto-recognizing state’s courts.

Question 32

In what 3 ways can States go extinct?

Answer 32

1) Political Union (combine with another to form new state)
2) Incorporation (one state is incorporated into another)
3) Annexation (often unilateral act of seizure of territory, later legitimized by state recognition)

Question 33

What are 2 possible consequences of state dismemberment?

Answer 33

1) Dissolution (existing state disappears and new states succeed to its rights and obligations but not personality) (CZECHO –> CZE and SLOVK)
2) Continuing States (one of the parts of the State retains personality of the original state - does not need to re-accede to treaties and retains debt) (USSR –> RUS)

Question 34

How do treaties apply to new states formed by dismemberment? (2)

Answer 34

1) Localized treaties (obligations regarding specific territory): continues to attach to territory
2) Non-localized treaties (new state can claim tabula rasa but has right to succeed if it wishes) (however for HR treaties no tabula rasa is possible (UNHRC))

Question 35

What principles govern states? (8)

Answer 35

1) Sovereign equality
2) Consent
3) Reciprocity (if other states breach so can you)
4) Non-intervention
5) Territoriality
6) Equality of voting power in IOs (often)
7) Immunity of officials
8) Immunity from jurisdiction in foreign courts

Question 36

What is a ‘people’? (2)

Answer 36

1) UNESCO: common culture, ethnicity, language, religion, cultural heritage (objective factors)?
2) a subjective sense of belonging?

Question 37

How to distinguish secession from dissolution? (4)

Answer 37

1) Opinion 1 Badinter Commission
2) all Republics forming SFRY expressed desire for independence in referenda
3) the compositions and workings of SFRY’s essential organs fell short of ‘participation and representativeness’ in a federal state
4) armed conflict broken out between different elements of SFRY, and authorities unable to enforce ceasefire

–> dissolution (no need for consent)

Question 38

Is there a right to secession of territories not former colonies? (2)

Answer 38

1) Yes? (Friendly Relations Declaration; Reference re Secession of Quebec)
2) No (Opinion 2 Badinter Commission)

Question 39

What happens to borders upon State dissolution? (2)

Answer 39

1) Opinion 3 Badinter Commission

2) former internal borders become external boundaries unless new States agree otherwise

Question 40

What does Kosovo AO tell us? (4)

Answer 40

1) No PIL prohibition on declarations of independence
2) declaration not contrary to UNSCres 1244 (since only provide mechanism for dialogue rather than prescribe certain result)
3) principle of territorial integrity is “confined to sphere of relations between States”
4) court said it had not been asked about the existence of right of secession

Question 41

What does Wilde argue? (2)

Answer 41

1) Self-determination, secession, and dispute settlement after the Kosovo AO
2) since territorial integrity only applies between states the right to SDet is irrelevant
3) seceding territories should simply focus on getting state recognition

Question 42

What does the Chagos Archipelago AO tell us? (5)

Answer 42

1) a detachment of a non-self-governing territory must be based on free and genuine will of the people of the territory - otherwise violate right to SDet
2) When the ceding territory is under authority of the receiving state there is heightened scrutiny of consent
3) UK’s separation of chagos was a wrongful act that must be brought to an end asap
4) right to SDet is an obligation erga omnes –> all States must cooperate in protecting
5) THIS was confined to decolonization context

Question 43

What are the modalities of implementing external SDet?

Answer 43

1) UNGAres 1541
2) As sovereign independent state
3) free association with an independent state
4) integration into an existing independent state