Flashcards in International Legal Personality and Statehood Deck (54)
Not always enlightening - generally circular
A legal person in IL is a thing that can bear rights and obligations. We talk only of the capacity of a person to bear rights and duties under IL
Ss are ILPs, IOs can be, but that doesnt mean they have the same rights and obligaitons
Also, fact that something is CIL doesn't make a difference. It means all Ss are bound regardless of treaty signatorship, but doesn't mean all ILPs are equally bound
Not presupposing same rights and obligations as other legal persons within system
Reparations for Injuries Suffered in the Service of the United Nations
First case about IOs
Said that all ILPs do not have same rights and obligations
Not presupposing capacity to contribute formally to creation of customary international law, to conclude treaties or to bring claims under international law
Fact that something is ILP does not tell us that they have meta-legal capacities
(meaning capacity to contribute formally to CIL, to create treaties, t bring claims under IL)
Different ILPs have different capacities
Only clear that Ss can contribute to CIL, for other pretty clear that they can't (except one circumstance)
States as ILPs
States are ILPs ipso facto
Used to eb the only ILPs
For purpose of IL a State is no more than a juridical construct abstracted from political and factual reality
States versus Gvts as ILPs
Governments are in reality the movers of IL for a State
And the Gvt is taken to speak for the S, and its action are the S's actions
But Gvts change, while S stays the same. S continues to be bound by all treaties, even in spite of radical changes of Gvt
Met-legal capacities of States
States enjoying inherent capacity to contribute formally to creation of customary international law, to conclude treaties and to bring international claims
International Organisations: What are thoooooose?
Technically intergovernmental organisations. Like UN
They are organisations of states that come together and form a constituent treaty, or constitution of that IO
IOs and ILP
Capable of enjoying international legal personality in own right
International legal personality depends on approval of States, does that mean third states and other IOs can say its not an ILP?
No, exists objectively.
But being IO doesn't make them ILP ipso facto, must be conderred by S
If not done on creation, look at actions of party States afterwards, if they treat as ILP, it becomes one
States often deliberately deny IOs of ILP status
Meta-legal powers of ILP IOs
ILP doesn't presuppose powers
Depends on intentions of MSs (Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion)
Also, not necessarily enjoying same rights and not necessarily bound by same obligations as states
Re creation of CIL: Not inherent, but where they do have power to contribute to CIL, only re the law of IOs (if at all, some Ss say CIL of IOs is made by Ss only, some say Ss and IOs)
Individuals as ILPs
Enjoy some rights under IL (usually HR)
Tiny number of criminal obligations (mostly negative, some positive (eg on General's to not let troops rape/pillage))
Some rights and obligation, so can call individuals ILPs
But don't have meta-legal capacities, can't contribute to CIL, enter treaties, or bring claims (unless empowered by treaty like eg ECHR)
Peoples as ILPs
Used to mean States
Now more expansive meaning. Can mean entire population of a State, but can also mean indigenous or colonial peoples
Might not have a S, but do have collective rights (most notably to SD), so are in that sense ILPs
But that's it, dont have any MLCs
Some peoples have been ceded international powers, such as palestine or the people of the Western Sahara, which are not Ss but do have power to enter Treaties
Non-State Armed Groups as ILPs
Rebel groups owe obligations under rules of war, but have no rights
Can't contribute to CIL or bring claims
Can make treaties when allowed, under certain circumstances
Corporations as ILPs
Have at least some procedural rights when given by Ss
Again, clearly have nowhere near some level of rights and obligation or MLCs as Ss
Certain anomalous entities as ILPs
Holy See is the Catholic Church, they enter into treaties as the Holy See (distinct from the papal territory of Vatican City). Odd situation where Catholic Church has 2 ILPs.
Knights of Malta also separate from State of Malta
Weird situations, don't really matter
Recognition of Statehood
Pretty much everything we know about what makes a State depends on recognition
So better to look at the evidentiary process before what it is evidence of
When a state emerges, other states may recognise it. This might be unilateral, collective, formal, or informal
Do this w new states,
So recognition is, express or implied, one state recognising statehood of another
And therefore recognises that that other is bearer of rights and obligations under CIL
Can be unilateral or collective (maybe EU recongises entity as state)
Legal effect of recognition
Hard to distinguish formal and practical effect
Formally, recognition is merely declaratory of an objective reality. A State is a State regardless. Suppoorted by Conference on Yuhgoslavia, Opinion and Montevideo Convention
Practically, effect of recognition is to certify SH, and in many circumstances is close to being constitutive.
Formally, entity might not be a State, but if it is recognised that cannot be ignored, so we go back and say it must have satisfied the objective SH criteria
Some of the criteria are sliding scale (just need "enough"), so recognition means it was enough.
more sophisticated than making recognition constitutive. Instead base judgment of satisfaction of criteria on recognition
Obligation to recognise?
No (see Conference on Yugoslavia, Opinion)
Because there is no obligation to recognise on satsifaction of criteria, other Ss can attach conditions to recognition
E.g. EU and Security COuncil of EUrope said to former States of Yugo, that they will only recognise if they respect minority rights and democracy
This is not a criterion, its only political
Can't recognise secessionist entities before they satisfy criteria for SH, or entities created via serious breach of peremptory norm of IL (ARISWA art41(2))
Premature recognition of secessionist State = interference in State's internal affairs
Recognising illegal situation breaches general obligaiton of non recognition oof such situations
Effect of membership and non-membership of UN
Art4(1) of UN Charter says State, so only Ss would be allowed (although also says peace-loving...)
Ergo, if S is admitted to UN GA, then other UN members cannot deny SH (not same as recognition)
Membership is now effectively certification of SH, dispels any doubt
Non-membership is not evidence of not being a S though. Switzerland long refused to join. Number of Pacific States didn't have money to join (UN eventually paid for them) - no one doubted they were Ss
Different though if try to gain membership and are refused
UN observer state status
Why become an observes state?
To become a member need to go through UNSC where 5 States have a veto
Russia would refuse Kosovo, USA refused Palestine.
To become observer State only need majority in GA
Doesn't have same force as membership, but has some (still has word State in it!)
Statehood: a mixed question of fact and law
We have legal criteria but these have to be brought to bear on facts.
And like all mixed questions of fact and law, require matter of appreciation.
So it is not uncommon to have unclear situations.
But there are still legal standards, as identified in Montevido Convention
Montevideo Convention art 1
A State as a person of international law should possess the following qualifications:
(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.
This is only an attempt to define statehood, we point to it as an expression of principle of effectiveness.
So if an organised political community exercises sovereignty over a defined territory it is a state under IL (provided it views itself as such).
Something can’t be a state if it doesn’t have permanent population.
Don’t need everyone, or even majority, to be born there (Vatican City, Luxembourg, etc)
But do need people to be there all the time
Monastery of Saint Naoum, (1924)
Can take "defined" out.
As long as there is a core identifiable territory, there is a state
Loads of states argue about borders, this does not deny statehood
There is no minimum territory, Pacific islands and Vatican are tiny
Not clear what happens if S sinks or is drowned by global warming. Might says that territory is still there, just underwater, or that S still counts bc there is still a population
Applied very flexibly. Bos & Herz Gvt contained <30% of territory when first recognised. But if recognised, must have enough GVT.
So need a GVT that controls "enough" territory - "enough" determined by recognition (in practice, not formally)
Seemingly applicable at point of emergence of S only, Lebanon and Somalia eg have had GVT's fall apart and retained SH
"Capacity to enter ito relations w other States"
Better expressed as "independence"
Depends on capacity to enter into relations w other Ss independently
De jure and De facto
De jure, Kosovo is province of Serbia. If no other S puports to be Sovereign over that entity, and it considers itself sovereign, it must be a S
But de jure independence isn't conlcusive
Must be able to exercise sovereignty effectively. Spain considered South American provinces to be theirs for decade afer they declared independnce, but were unable to make a poin of it. So if an entity secedes, only real Q is whether they make good on it.
So need to maintain own independent sovereignty for significant period of time
Montevideo criteria no longer end of story
Creation by br serious breach of peremptory norm of General IL = impermissible
Prohibition on aggression eg Turkish Republic of Northern Cyprus
Right of a people to SD eg Rhodesia
Prohibition of systematic racial discrimination eg South African "Bantustans"
There were other reasons why these weren't Ss, but killer blow was that situations created by JC breach = null and void
The Creation of States
Many states were already in existence when modern international system born so those didn’t really need to worry about the criteria (Eng, Fr, Sp etc)
New States have been created through a variety of means since
Sometimes 2 or more have united to form a single State
Sometimes one State split into multiple
Most commonly, former subject territories (under imperial control of other State) have been granted or unilaterally achieved independence - this engages right of people to SD
The Right of Peoples to SD
Explosion of States in C20th
Dismantling of Austro-Hugarian, Ottoman, and smaller German Empires
Decolonisation from 40-90s
Post cold-war break up of USSR Yugoslavia Czechoslovakia
As political matter 1st and 3rd engaged SD, but only played legal role in 2nd.