THE Subjects OF International LAW AND Recognition PDF

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THE SUBJECTS OF INTERNATIONAL LAW AND RECOGNITION

Having looked at how IL is made, and the details of the form it takes (treaties and custom), we now turn to look at who are the main actors in the international legal system. This will help us understand what kind of subjects are empowered to make and use the rules that we are discussing throughout the course. We will focus on the rules and concept of personality, especially in relation to statehood (still the main category of IL subjects) and how this is recognised/conferred (recognition). Throughout we should keep in mind that these legal categories are both at the very centre of the international legal system and at the borders where law and politics meet. Class reading: Shaw, chapters 5 & 9. And D&M, Ch. 5. Further reading (as this is a central topic you may profit from wider reading) Craven, ‘Statehood, Self-determination and Recognition’, in Evans (ed) International Law, Akande, ‘International Organisations’ in Evans (ed) International Law, Knop, ‘Statehood: territory, people, government’ in Crawford and Koskienniemi, chapter 4 & Crawford, ‘Sovereignty as a legal value’ in Crawford and Koskienniemi, ch 5 See the Symposium on ICJ’s Advisory Opinion on Kosovo’s declaration of independence in 24:1 (2011) Leiden JIL 71 et seq http://journals.cambridge.org/action/displayIssue?jid=LJL&volumeId=24&seriesId=0& issueId=01

Summary of issues: What does it mean to be a subject of international law? Subjects of international law are those that enjoy international personality. They are distinguished from objects of international law by having the capacity to exercise -to varying degrees - rights and duties under international law. Oppenheim: An international person is one who possesses legal personality in international law meaning one who is a subject of international law so as to itself enjoy rights duties and powers established in international law and generally the capacity to act on the international plane either directly or indirectly through another state. On the varying degrees of international personality see:

Reparations For Injuries Suffered in the Service of the United Nations Case (Advisory Opinion) 1949 ICJ Reports 1949, p.174; D&M 145-7: The subjects of international law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the Community.

STATEHOOD Why is statehood so significant in international law? International law operates primarily between states, created by states for states; Only states may be parties to cases before the International Court of Justice Article 34(1) ICJ Statute: Only states may be admitted as full members to the United Nations. Article 4(1) United Nations Charter 1945: Membership in the United Nations is open to all other peace loving States which accept the obligations contained in the present Charter and in the judgement of the Organisation, are able and willing to carry out these obligations. Only states (or existing Heads of State) are entitled to sovereign immunity; Only states can be parties to the International Criminal Court

What makes a State a State? The Traditional criteria of statehood Montevideo Convention on Right and Duties of States 1933 165 LNTS (1934) 19; D&M 133 Article 1: The 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. a)

Permanent population Is there a minimum? Nauru/San Marino Nomadic populations?

b)

Defined territory Is there a minimum? Nauru What if existing territorial claims? Is there a need for settled borders? Israel’s admission to the United Nations 1949:

c)

Government Traditional rule: effective and exclusive control But note: decolonisation exceptions:

d)

Capacity to enter into relations with other states Independence Island of Palmas Case (1928) 2 R.I.A.A. 829; D&M 237

Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise there, to the exclusion of any other State, the function of a State. Austro - German Customs Union case PCIJ Series A/B No. 41 (1931); Judge Anzilotti: locus classicus on independence : Independence as thus understood is really no more than the normal condition of States according to international law. It may also be described as sovereignty or external sovereignty by which is meant that the State has over it no other authority than that of international law. Lauterpacht: If a community were a satellite of another State it would not be fulfilling the primary condition of independence and would not be entitled to recognition as a State. Has the requirement of independence been followed in state practice? Puppet states: Manchukuo 1931; South African Homelands ; Transkei (1976); Bophuthatswana (1977); Venda (1979); and Ciskei (1981). Turkish Republic Of Northern Cyprus 1983; Security Council Resolution 541 (1983). But note the Annan Plan 31st March, 2004. Application and Questions Note: the traditional criteria for statehood outlined above were founded on the principle of effectiveness not legitimacy. Has this changed? KOSOVO Provisional/Conditional statehood/’Earned Sovereignty’ – Kosovo; The Middle East Road Map. Security Council Resolution 1244 (1999) Republic of Kosovo Declaration of Independence 17 February 2008 Security Council Debate 18 February 2008 UK Recognition 18 February 2008 60 states have recognized Accordance with international law of the unilateral declaration of independence in

respect of Kosovo (Advisory Opinion) ICJ July 2010 D&M 142-3

RECOGNITION D&M 158-175 Three Questions 1. What is recognition? 2. What is the effect of recognition? 3. What are the criteria for recognition?

1. What is recognition? Shaw: ‘Recognition is a statement by an international legal person as to the status in international law of another real or alleged legal person.’ Express/ implied; De jure/de facto; Collective/ unilateral. 2

What is the effect of recognition?

Two schools: a) The Constitutive School Oppenheim Lauterpacht (duty)

b) The Declaratory School  Deutsche Continental Gas- Gesellschaft v. Polish State 5 ILR 11 D&M 161 ... the recognition of a State is not constitutive but merely declaratory. The State exists by itself and the recognition is nothing more than a declaration of its existence.. 

Montevideo Convention Articles 1 supra & 3& 6:

Article 3: The political existence of the State is independent of recognition by the other States . Article 6: that recognition of a State merely signifies that the State which recognises it accepts the personality of the other with all the rights and duties determined by International law.

More recent practice: Conference on Yugoslavia Arbitration Commission, Opinion No.1 para 1.a) 92 ILR 162; D&M 162 1.a) that the answer to the question should be based on the principles of public international law which serve to define the conditions on which an entity constitutes a State; that in this respect the existence or disappearance of the State is a question of fact; that the effects of recognition by other States are purely declaratory; (emphasis added).

3

When do States recognise? What are the criteria for recognition?

The position of the United Kingdom is typical The normal criteria which the Government apply for recognition as a State are that it should have, and seem likely to continue to have a clearly defined territory with a population, a Government who are able of themselves to exercise effective control of that territory and independence in their external relations. (1986). But does this happen in practice? Distinguish three scenarios: i)

Premature recognition - where State A recognises an entity B as a State before it truly fulfils the criteria of statehood – i.e., before it has the requisite criteria of effectiveness or independence.   

US & USSR de jure recognition of Israel 1948; India’s recognition of Bangladesh 1971 KOSOVO

The general rule is: premature recognition is unlawful. Exception: Situations involving the right of self-determination or decolonisation:  

The Congo (Zaire) 1960; Guinea- Bissau 1974.

But compare East Timor and Kosovo 1999. ii)

Withholding of recognition – i.e., the entity satisfies the traditional criteria of statehood yet recognition is withheld – i.e., East Germany

iii)

Conditional recognition - where State A imposes conditions on entity B beyond those required for statehood under international law – i.e., makes recognition conditional on compliance with political criteria or human rights.

OTHER INTERNATIONAL ACTORS  Vatican City

     

Hong Kong SAR Peoples – (see materials on self-determination ) Belligerents/Insurgents National Liberation Movements – (PLO, SWAPO etc) Multinational Corporations The Individual (see lectures on human rights/international criminal law)

Questions  Consider the criteria for statehood under the Montevideo Convention 1933? Are these based on the principle of effectiveness or legitimacy?  To what extent, if at all, did the emergence of the right of self-determination of peoples, impact on the traditional criteria for statehood?  Explain the difference between the ‘constitutive’ and ‘declaratory’ theories of recognition. Which do you find more satisfactory? What is the relationship between statehood and recognition? Do you think recognition is a matter of law or a matter of politics?  To which extent is being a subject (and being recognised as a subject?) a sign of acceptance, legitimacy and status in the international legal system? How is this seen in recent practice (e.g. Kosovo, Libya, Palestine)?  North and South Korea? Progress?...