Learning Unit 2: Flashcards
(33 cards)
Multiple Choice: Which of the following is an example of a jus cogens norm? A) Right to self-determination B) Right to contract C) Right to property D) Right to privacy
A) Right to self-determination
Which legal case explained the concept of international legal personality and how?
Reparations for Injuries Suffered in the Service of the United Nations (1949 ICJ Rep):
an entity which is endowed with international legal personality is an international law subject and as such it is ‘capable of possessing international rights and duties, and has the capacity to maintain its rights by bringing international claims
What is an original (primary) international legal subject?
It has international legal personality simply by virtue of its existence.
For example, the state is the original, primary and principal subject of int law.
Who can automatically acquire international legal personality?
Any entity that meets all requirements for statehood. As the state is the original subject of international law.
What is a derivative (secondary) international legal subject?
These subjects have international legal personality **only if **and to the extent that the primary subjects have conferred it onto them. Like an international organisation.
What are the charateristics of statehood?
- A permanent population
- A defined territory
- Government
- Capacity to enter into relations with other states
Listed in 1933 Montevideo Convention on the Rights and Duties of States
Where do the characteristics of statehood come from?
1933 Montevideo Convention on the Rights and Duties of States
What are the different theories of statehood?
Constitutive theory and declarative theory
Did a South African court decide if the constitutive theory or the declarative theory was better? If yes, which case and how so?
Yes in S v Banda 1989 4 SA 519 (Bop).
They decided the declarative theory was more acceptable as it was objective and only took into account the four characteristics.
The court had to decide whether Bophuthatswana qualified as a state under international law or not, which would have been relevant to the accused’s charge of treason which, as you know, can only be committed against a state.
Has a South African court considered the constitutive theory?
Yes in S v Banda 1989 4 SA 519 (Bop).
The court criticised the constitutive theory for being: arbitrarily applied, politically based, subjective, too many variables and made allowance for political, ideological and economic motives behind the act of recognition etc.
Does meeting the characteristics of statehood in the Montevideo Convention automatically grant statehood? If not then why?
No.
Some states that fully met the guidelines were not considered states because establisment would violate self-determination (Southern Rhodesia [Zimbabwe] in the 1960s).
Some states that didn’t meet the guidelines were granted statehood because doing so supported the right to self-determination (Congo in 1960).
What is the constitutive theory of statehood?
That the act of recognition is a requirement for the creaton of international legal personality. Simply recognition constitutes the state.
What is the declarative theory of statehood?
Statehood and international legal personality arise the moment the characteristics of the Montevideo Convention have been fulfilled. It advocates that the **act of recognition **is not a requirement.
Act of recognition declares existing state of affairs.
What principle was recognized by the United Nations charter after World War II?
The principle of self-determination
This principle allows peoples to determine their political status and pursue their economic, social, and cultural development.
What resolution followed the 1960 Declaration regarding decolonization?
Resolution 1541
This resolution further facilitated the decolonization process of African States.
What principle requires respect for colonial boundaries during decolonization?
Uti possidetis
This principle dictates that newly independent states should retain the borders that existed at the time of independence.
What is the practical reason for the rule of uti possidetis?
To prevent chaos in the world and particularly in Africa
If states could question their boundaries, it would lead to disputes and instability.
How does the principle of* uti possidetis* conflict with self-determination?
It restricts self-determination to existing colonial boundaries
This can be seen as unfair, as it limits the ability of peoples to redefine their territorial claims.
What case acknowledged the conflict between uti possidetis and self-determination?
The Frontier Dispute case (1986) ICJ Rep 554
In this case, the ICJ ruled that uti possidetis ‘freezes the territorial title’ of states.
What does the term ‘freezes the territorial title’ mean in the context of the Frontier Dispute case?
It means that the territorial boundaries established by colonial powers are maintained
This limits the ability of states to alter their borders post-independence.
What principles are argued to underpin Kosovo’s statehood?
Self-determination and remedial secession
These principles suggest a legal basis for Kosovo’s independence.
What is the status of the legality of Crimea’s secession from Ukraine?
The legality remains doubtful
This applies regardless of the theory of statehood considered.
Fill in the blank: Kosovo’s statehood is argued to derive from the principles of _______ and remedial secession.
[self-determination]
True or False: The ICJ discussed Kosovo’s statehood status in its Advisory Opinion.
False
