Week 4 - International Law PDF

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Week 4 - International Law
Professor Natalie Oman...

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INTERNATIONAL LAW Class 1

WEEK 4 Jan. 27, 2020

State Recognition and International Legal Personality 

How governments of states gain recognition by governments of other states

Montevideo Convention on the Rights and Duties of States  Defining characteristics of states: o 1) Permanent population  has to be a populated o 2) A defined territory  cant be something in the current state system if a boundary isn’t fixed, it fluctuates, fixed boundaries are a must o 3) Government  a group of people who have established some form of rules o 4) A capacity to enter into relations with other states  there are enough trans-boundary issues that are significant to the international community – pollution, movement of trade, refugee issues, they need to be able to work together  Eligibility o Territorial states o They remain the primary subjects of international law o Only entities that recognize full legal personality are entitled  Distinguishing feature of statehood o Agency; capacity to choose its course of action o i.e. independence o = both a criterion and an entitlement of statehood What is recognition? – Why does it matter?  Recognition o An act by which a state acknowledges the emergence of a new state or, less frequently, the legitimacy of a new government within an existing state o Legitimate government authority o Outside authorities recognize one person being the leader 

Competing claims to recognition of governments o Whats at stake? o Diplomatic relations, ability to sign treaties, UN membership, ability to take on sovereign debt (to issues bonds in a foreign currency to finance the country’s growth), state immunity (sovereign protection from being sued in the courts of other states on “sovereignty” issues), eligibility for WB and IMF assistance  Ethiopia

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Recognition: Criteria  Customary International Law o Traditional source of rules regarding the recognition of states o CIL is created by:  1) general state practice (usus)  2) accompanied by the conviction that such practice is REQUIRED as a matter of international law (opinio juris) o Place where we look to see if a state has been recognized o Montevideo Convention – cheat sheet o Traditional source of rules regarding the recognition of states  Declartive Theory of Statehood o The 4 criteria of statehood contained in the Montevideo Convention are sufficient o A declaration of a pre-existing legal state of affairs o “Recognition presupposes a states existence; it does not create it” o States become states by declaring it to be so o Declaration – powerful assertion  Constitutive Theory of Statehood o A state exists only insofar as it is recognized by other states o It is the communal act of recognition that constitutes a new state o Types of Challenges 

Challenges: Type 1 – New Territorial Units o Case: Kosovo  Declared independence in Feb. 2008  Recognized by 100 states as of Dec. 2012  Ethnic cleansing – concept immerged from many years of internal violence – Bosnian/Serbs  Genocide – intent to kill every member of an identifyable group  Ethnic cleansing – proving that a military force is trying to remove by any means people from a acertain area (involves crimes against humanity, war crimes, rape as a weapon of war); not necessarily prove genocidal intent  To become a recognized state, every one of the 15 countries of the UN has to agree and 2/3 of the general assembly has to vote in favour  Kosovo – not a state under international law o Advisory Opinion of the ICJ on the Legality pf Kosovo’s Unilateral Declaration of Independence  In the Kosovo Advisory Opinion, the ICJ was asked by the UN General Assembly to decide whether the unilateral declaration of independence

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WEEK 4 of Kosovo in February 2008 was in accordance with interanational law. The Court ruled that the applicable international law did not prohibit a unilateral declaration of independence. Based on this finding of a lack of prohibition, the Court decided that “the adoption of the declaration of independence did not… violate any applicable rule of international law.”

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Challenges: Type 2 Competing Governments o Case: Kenya 2017-18  Raila Odinga was sworn in as rival president following contested election results in election in which Uhuru Kenyatta claimed victory  http://www.bbc.com/news/world-africa-42870292 

UN Membership  Qualified Members: o Neutralized States  Status of permanent neutrality is imposed by outside powers  Eg. Switzerland since 1815, Belgium (1831 and 1839) o Divided States  Eg. pre-1990 German subdivision into the Federal Republic and the Democratic Republic Taiwan and China  Civil War > Nationalist government’s flight to Taiwan in 1949 (Chiang Kai-shek) and dominance on mainland of Communists led by Mao Tse-tung  Both governments claim to be the government of China –Taiwan’s Republic of China and the mainland People’s Republic of China  “One-China Policy” of the PRC o PRC also claims to be the sole elgal representative of China o Asserts that Taiwan is under its sovereignty, and denies the status and existence of ROC as a sovereign state o PRC has threatened the use of military force as a response to any formal declaration of Taiwanese independence, or if it deems peaceful reunification no longer possible  UN Status o In 1971, the PRC assumed China’s seat at the UN which the ROC originally occupied o International recognition rof the ROC has gradually eroded as most countries switched recognition to the PRC with mainland China’s rising military and economic clout o Only 22 UN member states and the Hoy See currently maintain formal diplomatic relations with the ROC (though it has informal ties with most other states) o Taiwan – Chinese Taipai: the name under which Taiwan is allowed to participate internationally

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WEEK 4 Does not have state status and does not have a seat at the UN

Vatican City (The Holy See)  Lateran Treaty of 1929 recognized the City of the Vatican as a sovereign independent state  Occupies about 110 acres in Rome  Either a member or an official observer of key international organization. At the UN, enjoys “permanent official observer” status Palestine  Succeeded in gaining recognition by the UN of its status as a STATE and conditional membership as a permanent observer state in fall 2012  Significance: is now able to apply for full membership to UN bodies, such as the ICJ

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Sovereignty:

Prepare with a case where recognition has been in question  Taiwan  Hong Kong  Indigenous Communities (UNDRIP)  Kashmir  Brexit…?  Catalonia Syria  A coalition of rebel forces sought recognition by foreign governments in the early years of the Syrian conflict Somaliland  Own currency, flag, regular elections, issues passports, has a consulate, postal services, etc.  Not recognized by any state in the world as being a state  Used to be a British protectorate until 1952  Borders of current Somaliland used to be part of a British colony  Haudenosaunee (Iroquois Confederacy)  In 2010, Great Britain refused to allow the Iroquois Nationals lacrosse team to travel to the World Lacrosse Championships in Manchester on Haudenosaunee passports so the team was unable to compete

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Canada does not like the idea that an entity within its borders is using passports that are not Canadian

State Recognition  Armenia (Turkey)  Catalonia (Spain)  Artsakh (Azarbaijan)  Wet’suwet’en  Palestine  Qat’nuk (Jumbo Valley) BC – treaty Ktunaxa  South Korea  Turkish Republic of Northers Cyprus (Republic of Cuprus)  Kosovo ...