Subjects of International Law Flashcards
(35 cards)
What are subjects of international law?
Subjects are legal persons deemed to have the capacity needed to exercise all the rights, powers and duties required by the legal system. Under international law, these include:
- states
- international organisations such as the UN, AU and EU
- individuals (these rights derive from states)
- corporations
- non self-governing territories and national liberation movements
What was held in the Reparations for Injuries Suffered Case?
Does the United Nations have the capacity to bring a claim against Israel in its own capacity and on behalf of the actual victim? Yes, the United Nations does have the capacity to bring a claim against Israel in its own capacity and on behalf of the actual victim.
What is the definition of statehood?
States are the primary subjects of international law. They are the only subjects of IL that possess the full complement of international legal capacity:
a) can undertake international legal obligations e.g. treaty- making power
b) bring claims for violations of its international legal rights
c) bearing international legal responsibility
d) immunity from jurisdiction of foreign states
How does Article 1 of the Montevideo Convention define a state?
The state as a person of international law should possess the following qualifications:
a) a permanent population
b) defined territory
c) a government
d) capacity to enter into relations with other states
What was held in the North Sea Shelf Continental Cases?
The borders do not have to be certain, because many borders are contested. Hence, a state can still exist even if its exact borders are contentious.
What did the majority hold in the Austro-German Customs Union Case?
The ‘capacity to enter into relations with other states’ is:
the sole right of decision in all matters economic, political, financial or other with the result that the independence is violated, as soon as there is any violation there, either in the economic, political, or any other field, these different aspects of independence being in practice one and indivisible.
What is a federation?
When two or more entities associate in a permanent union that has central government organs with authority over both the member states and the citizens of those states. The central authority has complete autonomy over foreign relations. For example, the USA.
What is a confederation?
An entity in which a number of states are linked by treaty in a union, with central governmental organs and certain specified powers over its members, but not over the citizens of those members. For example, the former German Confederation.
What is a microstate?
Some states are so small that they cannot have sole control over their own affairs. For example:
Vatican City
Republic of San Marino
Principalities of Liechtenstein and Monaco
What did the Western Sahara Advisory Opinion hold?
Self-determination is applicable to all non-self-governing territories. This is a right available to all people, and requires a free and genuine expression of the will of the peoples concerned.
What is a failed state?
This is a state that cannot fulfill some or all of the basic responsibilities of a sovereign. Characteristics include the disintegration of structures of central government over a territory, and an implosion of power e.g. Somalia, Afghanistan. Failed states create refugee problems, and lack reliable international representation. They also create a power vacuum, that other states seek to fill. How do you hold them liable for human rights violations?
What is state recognition?
A legal acknowledgement by one state that another territorial entity qualifies as a state under international law.
What are the different forms of state recognition?
i) express and implied
ii) collective
iii) non-recognition
iv) de facto and de jure recognition
Elaborate more on i) express and implied recognition
Issuing a formal statement is express, but implied can be inferred from conduct e.g. sending diplomatic representatives etc.
Elaborate more on ii) collective recognition
Acceptance to the United Nations, or admitting a new party to a multilateral treaty of a political nature.
Elaborate more on iii) non-recognition and the Stimson doctrine
The Stimson declaration can be used to express that recognition of a ‘state’ will not take place. This is often reserved for states that do not comply with self-determination, prohibitions on apartheid and the use of force, as well as the embryonic right to democratic government.
Elaborate more on iv) de facto and de jure recognition
This is to confirm the recognition of a rebel government until their recognition is finalised and confirmed. Once recognition is given, it cannot be rescinded. De facto recognition is given before de jure recognition. Once given, de jure cannot be withdrawn, but it can be supplanted by recognition of a de jure successor.
What was held in S v Banda?
In this case 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.
The court considered both the constitutive and the declaratory theories. It came to the conclusion that the declaratory theory was the more acceptable one. It was found to be preferable, because:
- it was objective, and
- it took into account only those four requirements, which are based on well-established rules of international law
The court criticised the constitutive theory for being arbitrarily applied and politically based. It was found to make allowance for political, ideological and economic motives behind the act of recognition. Because it was ridden with so many variables, and was so subjective, it was considered an unsuitable theory to use in the determination of the existence of a legal entity.
What is the effect of recognition?
The declaratory theory proposes that a state comes into existence simply by fulfilling the objective criteria of statehood. Recognition then serves only to acknowledge the state’s existence.
What role does a change in government have on state recognition?
The type of government is a matter of domestic concern. Hence, changes in government have no effect on a state’s legal personality. Revolution led to the withholding of recognition, however, unless a new regime was prepared and able to carry out its international obligations.
What is the status of recognising belligerents and insurgents?
If rebels are recognized, then they can be held accountable for damages they inflict. However, because it constitutes an interference in the existing government’s internal affairs, recognition of a rebel group is unlawful unless three criteria have been met:
a) a government/military organisation must have been established
b) the rebellion must have developed beyond the stage of being a mere revolt
c) the rebel government must control a reasonable portion of the parent state
How do municipal courts deal with competing authorities?
When two entities exist in the same territory, one de facto and one de jure, the courts hold that the de facto authority was competent within the limits of the area under its actual control, whereas the de jure government remained competent to deal with all matters arising outside that area.
Define sovereign immunity
One state may not exercise power or authority over another. This is a rule of customary international law derived from the principle of sovereign equality.
Who represents the state?
Heads of state are the principal representatives of their countries. Notwithstanding municipal law, they have powers to bind their states in international relations.
