Lecture 3

Question 1

Subject of international law

Answer 1

meaning that the entity has legal personality and is capable of possessing/exercising rights and duties. Subjects of international law are states. Not an absolute concept

Question 2

Other subjects of int law

Answer 2

individual organizations
individuals
insurgents and belligerent groups
The Holy See
ngo's
transnational corporations

Question 3

What can an international legal personality do

Answer 3

make claims before international courts, become party to international treaties, and enjoy immunities from the jurisdiction of other sovereign states.

Question 4

1993 Montevideo convention on the rights and duties of states, Article 1

Answer 4

The state as a person of international law should possess the following qualifications:

a) a permanent population
b) a defined territory
c) a government
d) the capacity to enter into relations with other states

Question 5

A permanent population

Answer 5

population that resides on the states territory more permanently than not. No minimum requirement, connected to the provision of territory as they both establish the basis for the physical existence of a state.

Question 6

A defined territory

Answer 6

Geographical areas delimited by borders which are united under a common domestic legal system. Consistent band of territory which is undeniably controlled by the government of the alleged state. There is no maximum or minimum geographic requirement

Question 7

The establishment of an effective government with effective control over its territory

Answer 7

a government that can act autonomously on the international stage. Does not need to be intricate, simply recognizable. Civil war does not nullifiy an effective government, there is no such thing as a failed state.

Question 8

The capacity to enter into relations with other states

Answer 8

Being recognized as states by other states. If a state’s offer to enter into relations with another state is declined, then the state is denied the opportunity to demonstrate their capacity in practice. This requirement turns on the entity’s capacity to enter into relations, and not the degree of influence it might have in the relationship.

Question 9

Self determination movements

Answer 9

have lowered the standard of effectiveness as stipulated in 1c of the montevideo convention

Question 10

Guinea Bissau

Answer 10

1972, a UN Special Mission was dispatched to the liberated areas of the territpry and concluded that Portugal, the colonial power, had lost effective control of the territory. A year later it claimed to be the Republic of Guinea Bissau, which was later affirmed by most UNGA members save for the western states who said that the government did not have effective control of the territory

Question 11

Extinction of statehood

Answer 11

a state may cease to exist because it merged with, or was annexed by another state (via war)

Question 12

Examples of the extinction of statehood

Answer 12

• East germany merged with west, became extinct
• disintegration of czech, creation of slovakia and czech republic
• dismemberment of the USSR actor the cold war

Question 13

Montevideo Convention: article 8

Answer 13

The right to independence

Question 14

MC Article 4

Answer 14

legal equality of states, irrespective of size and power, states have the same juridicial capacities and functions

Question 15

MC Article 10

Answer 15

the right to peaceful co-existence means mutual respect for other territorial integrity and sovereignty, non-aggression and the condemnation of subversive activies carried out by one state against another

Question 16

Constructive Theory of recognition

Answer 16

Establishes the international personality of the entity in question. New states only become fully fledged subjects of international law when they are formally affirmed by already existing states. While an entity might satisfy the criteria put for in the MC, it does not possess the rights and duties of states until after it is recognized by others

Question 17

Declaratory Theory

Answer 17

the international legal personality of a state does not depend on its recognition as such by other states. If an entity satisfies the criteria of statehood, it is a state with all international rights and duties and states are obligated to treat them as such. Theorists hold that the act of recognition is merely acknowledging the already existing situation that an entity is a state.

Question 18

De Facto

Answer 18

recognition of an government implied that there is some doubt by the recognizing State as to whether the new government will endure, example the armed takeover of the state. When a government loses control of its territory, there is no basis for de facto recognition to carry on.

Question 19

De Jure

Answer 19

recognition of a government implies that the recognized state accepts the government has effective control over the territory and is permanent, ex Trudeau. More difficult to withdraw as it is permanent

Question 20

Ways a state can express recognition of a government

Answer 20

1. Expressed: formal indication or declaration

2. implied: formal establishing of diplomatic relations; permitting the performance of consular functions.

Question 21

Self Determination

Answer 21

the collective right to self determinate and established a new state is enshrined in international law

Question 22

1966 International Covenant on Civil and Political Rights article 1

Answer 22

All people have the right to self determination. By virtue of that rights they freely determine their political status and freely pursue their economic, social and cultural development

Question 23

Internal Self Determination

Answer 23

the right of a people within a state to govern themselves without interference

Question 24

External Self Determination

Answer 24

the right of people to determine their own political status and to form their own independent state. This triggers international law as the new state will have to demonstrate their statehood