Subjects of International Law PDF

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04.11.2020

04. Actors and Statehood of International Law I. Subjects of International Law Subject= Entity possessing (1) international rights and obligations and having the capacity (2) to maintain its rights by bringing international claims to vindicate rights and (3) to be responsible for its breaches of obligation by being subjected to such claims. (possible by treaties, custom or principles of int. law) -> This is what law does in comparison in religion … -

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Issue in question of personality: capacity to make claims in respect of breaches of in. law, capacity to make treaties and agreements valid on the international plane and the enjoyment of privileges and immunities from national jurisdictions Incidents of statehood as developed under customary law have provided the indicia for, and instruments of personality in relation to, other entities. Can be ruled, that are not legal, without legal consequences treated without consequences?

Established legal persons 1. States - Supreme subjects of IL: Were the main actors in int. law, now: number has increased - “dependent” states with certain legal capacities - Obligation under VCCR – the state uncurs responsibility for the wrongful acts of its subdivisions 2. Entities legally proximate to states (history) 3. Entities recognized as belligerents - Belligerent or insurgent bodies within a state may enter into legal relations and conclude agreements on the int. plane with states and other belli./insurgents - Fritzmaurice: … 4. International Administration of territories prior to independence 5. International Organizations - Rights and duties like states because they are creatures of int law, based on treaties of states - Entities, acting with delegated powers from states, may appears to enjoy a separate personality and viability on the international plane - By agreement: Creation of joint agencies with delegated powers of supervisory, rulemaking, and even judicial character (By increasing of independence and legal powers -> it will approximate to an int. organization 6. Individuals - No rule that the individuals cannot be “subjects of int. law” - Rights “inuitu peronae” (vindication by int. action, HR, Investment protection)  Investment: Open consent needed, that they will go to arbitration of an other state, if it wants to -> Open invitation, agreement to arbitration. Only duty that can be applied: investor shall act under the law of the state of having investments, based on domestic law, NOT int. law

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HR recognizes a variety of rights for individuals (corporations), BUT nor applicable horizontally between individuals, in parallel to or substitution for the applicable nat. law Responsibilities and rights, BUT no means for their enforcement

Special Types of personality 1. Corporations, Public and Private - Coorp. (private or pub) often engage in economic activity in one or more states -> Can and do make agreement - Corp. do not have int.. legal personalities. Concession or contract betw. State and a foreign corp. is not governed by the law of treaties - Conduct of corp. may be attributed to the state - States may by treaty create legal persons whose status is regulated by nat. law of one of the parties – Treaty may contain obligation to create a privileged status under the national law or laws to which the corporation subjected

7. Non-self-governing peoples 8. Entities SUI GENRIS 9. Conclusion IV. Creation and incidence of statehood 1. Legal criteria of statehood - Art. 1, 1933 Montevideo Convention on the Rights and Duties of states (regional convention a) Permanent Population - Has to be settled (nomadic people do not qualify) - Nom minimum number established - Relationship between number and self-determination unsettled b) Defined Territory - Disputed boundaries are not to a bar to statehood; there has to be a permanent population and effective control over at least part of the territory - Ex.: Israel (disputed boundaries but effective control=state hood and Palestine(disputed boundaries + lack of effective control = no statehood) c) Government - Effective government is the best practical evidence of the existence of a political community organized as a state/government; Can be either unnecessary or insufficient to support statehood. Losing an effective government not enough to deny legal personality (failed states) d) Independence: Capacity to enter into relations with the other states - A qualitative, not quantitative criterian : 1) it is not dependent on the absence of pol. Influence or pressure: Reality=weak states often subject to pol. influence 2) it implies the competence and legal capacity to enter into relations with other states on a plane of sovereign equality: self-determination or secession 3) It might be achieved through self-determination or secession i. Dependent States ii. Association of states e) A degree of permanence f) Willingness to observe internat. Law g) Sovereignty h) Function as a state

i) States statu nascendi 10. Some issues of statehood j) Germany since 1945/48 k) Palestine l) Kosovo - Advisory opinion – what is the status of law on the moment, ICJ 2010: one part of the state declaring independence of the other part, Serbian was oppressing the albanian population: Decision of 5 Members needed in security council: Russia …? - Is is not unlawful = conclusion it is lawful - Community right to split? - (Lotus Case?) - Political issue 11. Achieving independence: Secession and self-determination - I (2) 1945 UN Charter: self-determination was stated, states took their right from this - 1960 UNGA Res 1512 XV: All peoples have the right of self-determination + explanation: freely determine of pol. State, independence from colonial … - 1966 Common Article 1, ICCPR and ICESCR: relevant for investment law (Can we nationalize oil right without obligation to pay UK, gaining control over nat. resources) 12. Identity and continuity of states 11.11.2020

06. Recognition of States and Governments, (Territory) I. -

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Recognition as a general category Legally not efficient State acts in a way which may affect the right or interests of other stater  Significance of their reaction to the event? Acts of protest or recognition play a significant role in claim to territory Disputes are often decided on the basis of facts, including elements of acquiescence, establishing a special content of legal relations betw. Parties, apart from treaty “Recognition” = referring to two related categories of state acts: 1. Rec. of another entity as a state 2. Rec. of that entity’s government as established, lawful or “legitimate”, entitled to represent the state for all international purposes

Recognition of States 1. Theoretiacal overlay - State dispute over title to territory  examination of all legally significant conduct (Declaration of non-recognition is worth very little)  dispute betw. “declaratory” and “constutive” views of recognition. a) Declaratory view Art. 3 Montevideo Convention

Decl. legal personality having been conferred previously by operation of law. In a relatively objectice forum such as int. tribunal, it would be proper to accept the existance of a state, although not recognized not other or third party  Substantial state practice supports the declaratory view b) Constitutive view = pol. Act of recognition is a precondition of the existence of legal rights (Opposed to the declaratory view) New state need to recognize the new. Technically= no, politically & legal = yes (-) substantial difficulties in terms of practical application  How many states must recognize? Existence relative only to those who recognize? Against sovereign equality (Palestine) It would allow unrecognized states to disregard PIL in its entitiy In favour of this theory: unrecognized states cannot claim rights in municipal courts of “unrecognized” States  Venezuela: Gold in UK banks, government has access. Who is government now ? Ven. Decided that UK banks are safer - Has value, but no one like to acknowledge, because balance of power - Montevideo C. : Attempt of latin Aemerica c) Solution: Collectivization of recognition - Easiest way to be accepted, not a legal requirement Statehood matures thorugh membershop of UN, or at least a call by UN that the new state be recognized. But you can only apply if you are a state (chicken and egg situation) No duty to recognize Simply mayority or 2/3 in general assembly, each state is member, everyone has a vote - Palestine: applied for memebership of unesco, member of int. criminal court. Individual states can recognize Palestine (-) Cannot account for legal position of state in the period betw. Its declaration of independence and its admission to the UN (Korea 43 years); Art. 4 UN Charter: statehood as criterion for membership, not a consequence 2. -

The varied legal consequences of recognition and non-recognition Very relevant!!  legal effects (-) uniform type of recognition or non-recognition “de iure recognition, de facto recognition , full diplomatic recognition, formal recognition … Legal function of act of recognition: a) Determination of statehood b) Condition of formal relations, diplomatic relations, conclusion of bilateral treaties (constitutive?) – no legal requirement to public declaration of recognition, BUT political move Abescence of recognition may not rest on any legal basis, Recognition may be party of policy aggression involving a creation of a puppet state (breaches of int. law?)

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Prob. Implict assumption in case of non-recognition! Possible meaning of bare statement of non-recognition:

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a) Statement of neutrality b) Driven purely by political calculations (thereby implying recognition of statehood in law) c) Driven by the understanding that rec. would be unlawful or premature d) Issued on the basis that supervening obligations in custom or treaty prevent recongnition e) Issued on the basis of a supervending obl. Imposed by the Security Council P: Practicatilities of recognition

3. The duty to recognize - Lauterpacht and Guggenheim: constutive recognition BUT legal duty to recognize  P. no relation to state practice (…what?) const. argument dependent on a uty to recognize in order to reconcile theoretical inconsistendy becomes a declaratotry theory viewed from a diff. perspective 4. Implied Recognition (unklar Text) - Implied intention is a process aided by certain presumptions - (1) conclusion of bilateral treaty (2) initiantion of dipl. Relations and (3) Issue of consular exequatutify the implication - NO recognition is implied from negotiations, unofficial relaation, conclusion of a multilateral treaty to whicht the unrecognized… also a party, admission to an international oorganizazion, or participation with the entity concerned an an int. conference - P:… 5. Retroactivity of Recognition - British and American courts: Interpretation the views of the executive in matters of recognition 6. Recognition and membership of int. organizations - Collective recognition: Voting on admission to membership and consideration of complaints involving threats to or breaches of the peace - Admission to the League and UN entails recognition by operation of law by all other members, whether ot not they voted for admission - Admission to membership is evidence of statehood - Not neccecerly (Admission of Palestine to UNESCO) III. -

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Recognition of Governments Related but conceptually distinct from recognition of States Only relevant when unconstitutional changes of government take place Political considerations crucial in recognition of governments The standard in PIL is “secure de facto control of all or nost of State territory (Tinoco Arbitration  government was considered the effective government? The government of the country Tinoco: Oil, GB not recognized government, but continued business, Contracts had value, even though GB didn’t recognize government LOTUS PRINCIPLE?????

1. De iure and de facto - De facto = - De jure = re. of effectice control withour reservations as to permanence and viability

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Could be finalization of a de facto recog (soviet, Spain); only de jura gov. can presen claims in municipal courts of recognizing state Only in contect of R. of government: NO de facto state, only political judgement

2. Recognition of G. in abeyance - British government: unconstitutional change of regime in recognized state, other states must take consideration 3. Credentials and representation in int. organizations - Approval/credentials of state representatives by organs of UN raises P. : formal requirements have challenges regarding to the representation of a state by a part. government IV. -

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Collective non-recognition and sanctions Resolution or decision of an organ of the -UN_m based on a determination that a illegal act has occurred (Kosovo) Art. 41 (2) ILC Articles on the Responsibility of States for int. wrongful acts

Issues of recognition before national courts Unrecognized state or government cannot claim immunity from jurisdiction, or sue in local courts

8. Forms of governmental authority over territory I. -

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The concept of Territory 4 types of regime in spatial terms: a) Territorial sovereignity b) Territory not subject to sovereignity of any state or states and which possess a stataus of its own (trust territories) c) Res nullius = area legally susceptible to acquisition by states but not as yet placed under territorial sovereignity d) Res communis = consisting of the high seas (incl. exclusive economic zones) and outer spacem is not capable of being placed under sovereignity. Customary int. law – air space above and suboil beneath state territory, are included in each category, also nullius

Key terms and distinctions Sovereignity and jurisdiction Sovereignity and ownership Sovereignity and administration “sovereign Rights” beyond state territory III. Terrtorial administration separated from state sovereinity Legal responsibility for territory by int. organizatios in respect of which no state has title  legal relation of an organization to the territory classified only as sui genris 1. 2. 3. 4.

1. Terminable and reversionary rights Defeaseability – by fulfillment of a condition subsequent or the failure of a condition under which sovereignity was transferred where there is an express or implied condition that title should revert to the greantor 2. Residual sovereignity Occupation of foreign territory in time of peace may occur on the basis of a treaty with the territorial sovereign 3. International Leases 4. Demilitarized and neutralized territory 5. Vassalge, Suzerainity, and Protection IV. Restrictions on disposition of territory 1. Treaty Provisions 2. The Principle of Appurtenance V. Conclusion 1. Concept of Title - Denotes the legal competence which a state enjoys in respect of its territory. This competence as a consequence of title and by no means conterminous with it - Important aspect of state competence = power of dispotion may be limited by treaty, but restriction, provided it is not tota, leaves title unaffected. - Sovereignity ( in the sense of concept of title) explains = (1) why the competence existsand what is fullset possible extent may be, and (2) whether claims may be enforced in respect of interference with the territorial aspects of that competence against a particular state. - Essence of title = the validity of claims to territorial sovereignty against other states, concept of ownership, opposable to all other states and unititular does exist - Res nullius may give rise to title which is equiv 2. Title, delimination, demarcation 3. Nemo dat quod non habet...