5 Statehood - Lecture notes 5 PDF

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Summary

International Legal Personality ● ‘Personality’ - “short-hand for the proposition that an entity is endowed by international law with legal capacity” - O’Connell ● States, international organizations, and individuals all have international legal personalities → contents of their legal capacity and t...

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International Legal Personality ● ‘Personality’ - “short-hand for the proposition that an entity is endowed by international law with legal capacity” - O’Connell ● States, international organizations, and individuals all have international legal personalities → contents of their legal capacity and the manner in which they acquire and exercise their legal personalities vary ○ Recognition of international state status ● Legal capacity may include: ○ the ability to appear before international tribunals (or national tribunals) in order to enforce rights under international law ○ being subject to obligations under international law ○ the capacity to make binding international agreements (treaties) ○ the enjoyment of immunities ● Considerations: ○ What is a State ○ Does international law recognize that State in a convention (Montevideo) ○ Is the State recognized by other States as being a State Participants in the International Legal System ● Personality → relative concept and each category has a different version of it ● States ● Territorial entities not constituting independent states ○ Rebel groups seeking to overthrow a government) ● International Organizations ○ UN ● Individuals ● Corporations/companies ● NGO’s ○ Human Rights Watch ● Sui generis entities ○ Vatican City States ● Central entity in international relations ● Emergence of a new State → terra nullius is no longer apparent → all land belongs to someone ○ Only the diminution or disappearance of existing states can lead to the creation of new states ○ Eg. Australia - terra nullius → Aboriginals inhabiting prior to European settlement ● All States are equal in their international legal capacity and personality ‘sovereign equality’ ● “Montevideo Criteria” → Montevideo Convention on the Rights and Duties of States 1933: ○ Permanent Population ○ Defined Territory ○ Government ○ Capacity to Enter into Relations with Other States ● Craven suggests some “quantitative measure of intensity” along with the Montevideo criteria ○ High levels of loyalty and allegiance to the ‘sovereign’ were concentrated in ‘centres of power’ within denser urban sites → distribution of political authority ● Other criteria such as the “EC Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union” etc. Permanent Population

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Population linked to a specific piece of territory → there can be some movement across borders and there does not have to be a fixed number of inhabitants ● No minimum requirement of population → ‘micro-States’ such as the Vatican, Brunei, etc. ● See Western Sahara Advisory Opinion ○ Population was made up of ‘nomadic Saharan tribesmen’ who crossed territory with no regard to borders → still a permanent population Defined Territory ● Deutsche Continental Gas-Gesellschaft v Polish State ○ “In order to say that a State exists and can be recognized as such, it is enough that its territory has a sufficient consistency, even though its boundaries have not been accurately delimited” → presence of a community within an area though frontiers may be uncertain ● North Sea Continental ○ “There is for instance no rule that the land frontiers of a state must be fully delimited and defined, and often in various places and for long periods they are not” ● Nor does the occupation of territory by a hostile/invading State extinguish statehood ○ Ex. State of Palestine Government ● Aaland Islands ○ Date on which Finland became a state → was a part of the Russian Empire until manifesto proclaiming right of all people to self-determination (opposition and violence) ○ Requirement of a “stable political organization” with “public authorities strong enough to assert themselves throughout the territories of the State without assistance of foreign troops” ○ Date was not when Parliament declared Finland’s independence, but when the above elements were established ● However, existing State that descends into civil war or lacks a stable government is still likely to be considered a State ○ Somalia → recognized as a ‘failed state’ ■ Geographical and territorial problems → implosion, disintegration and destructuring ■ Internal collapse of law and order ■ Absence of bodies capable of representing the State and being influenced by the outside world (functional element) ○ Desire to keep treaty/customary international law in force ○ Respect for the principle of self-determination Capacity to Enter into Relations with Other States ● Suggesting independence → territory cannot be a state if it is under the direct or indirect control of another State ● Austro-German Customs Union ○ Austria and Germany concluded an agreement on free trade ○ Was the customs agreement compatible with the Treaty of Saint-Germain? ■ Treaty of Saint-Germain - military, economic, financial restrictions that were still compatible with Austria's sovereignty and independence ■ New customs agreement was compatible → no matter how “extensive or burdensome those obligations may be” said Judge Anzilotti, they did not touch on the legal independence of Austria ● Legal independence - the territory not being under the legal, sovereign authority of another state ○ Ex. Manchukuo’s dependence on Japanese authority → not independent and UN actually resolved that Manchuria belonged to China (before Japanese invasion) Self-Determination (extra consideration relevant to Statehood)

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Art 1 UN Charter (Starting point): Purpose of the UN is to respect the self-determination of peoples UNGA 1514 Resolution on Granting Independence to Colonial Territories and People ○ Subjection of peoples to alien subjugation, domination, and exploitation… right to self-determination to freely pursue political, social, economic, and cultural developments UNGA 2625 Declaration on Friendly Relations ○ States shall refrain from the threat or use of force against the territorial integrity or political independence of any State or in any manner inconsistent with the purposes of the UN ○ Refrain from forcible action which deprives people of equal rights and self determination Uni possidetis juris - newly formed sovereign states should have the same borders from before Court in Western Sahara case accepts that self-determination is a principle of customary international law Western Sahara Case ○ Decolonization of Western Sahara (Spanish colony) → UNGA called Spain, Morocco (neighbour), and Mauritania (neighbour) together to enable this population to exercise its right to self-determination ○ At the time of colonization, the land was NOT terra nullius (belonged to someone) BUT no evidence of legal ties of allegiance or territory to Morocco and Mauritania → suggests that the land belongs to the people of Western Sahara - Sahrawi people ○ Legal ties should not disturb the decolonization process → “self-determination through the free and genuine expression of the will of the peoples of the Territory” ■ Decide whether to be sovereign, associated with another State, or integrate with another State → modes of implementing the right of self-determination by that people ○ Morocco misconstrued ICJ’s opinion and justified invasion → to this day, Morocco vs. Polisio (independence movement) ○ Consideration that Morocco’s control would help Western Society’s foothold in Africa… “perceived stability” There is little evidence in the UN or other state practice to suggest that the right to political self-determination would apply outside the colonial or similar context → principle does not mean that the political status of a minority group (Scots, Kurds, French Canadians) in an existing state must be determined in accordance with their wishes which might result in their secession Higgins → who exactly is entitled to the right to self-determination? ○ “Two possibilities - that ‘peoples’ means the entire people of a state, or that ‘peoples’ means all persons comprising distinctive groupings on the basis of race, ethnicity, and perhaps religion. The emphasis in all the relevant instruments and in state practice on the importance of territorial integrity means that ‘peoples’ is to be understood in the sense of ALL the peoples of a given territory. All members of distinct minority groups are part of the peoples of the territory. But minorities as such do not have a right of self-determination.” Reference re Secession of Quebec ○ Self-determination is a right for former colonies where people are oppressed under foreign military occupation or where a definable group is denied meaningful access to government to pursue their political, economic, social, and cultural development ○ These circumstances are manifestly inapplicable to Quebec

*Though not definitively established as criteria, sense that democracy and human rights may be emerging as respected elements to be determined a ‘State’ in international law*

Kosovo Advisory Opinion

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Unilateral declaration of independence does not violate international law UNSC resolution regulates the interim administration of Kosovo (channel the long term political process to establish its final status) → did not prevent or exclude Kosovo’s independence Kosovo’s declaration of independence did not violate the UNSC resolution...