Statehood in International Law

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Statehood in International Law により Mind Map: Statehood in International Law

1. Montevideo Convention (1933)

1.1. 1) Permanent population

1.1.1. no minimum number of inhabitants defined (eg. Vatican)

1.2. 2) Defined territory

1.2.1. can vary greatly in size

1.2.2. contested borders not a barrier to statehood

1.2.3. crucial: 'a certain coherent territory effectively governed'

1.2.4. right of territorial integrity (Art 2(4) of UN Charter)

1.3. 3) Government

1.3.1. must be effective Untitled

1.3.2. traditionally little concern with form of government H. Charlesworth: not concerned with women's exclusion from systems of power an emerging norm of democratic governance (1990s)?

1.3.3. temporary or even long-term absence of a functioning government does not lead to a deprivation of statehood eg. Somalia eg. Afghanistan

1.4. 4) Independence

1.4.1. 'capacity to enter into relations with other states'

1.4.2. Customs Regime between Germany and Austria Case PCIJ (1931) independence may also be described as sovereignty, or external sovereignty no other authority than that of international law

1.4.3. depends on recognition of other states eg. Holy See non-member State maintaining permanent observer mission at UN full member of some UN specialised agencies and some European intergov. organisations

2. UN Charter

2.1. Article 2

2.1.1. 1) principle of sovereign equality of all Members

2.1.2. 3) peaceful settlement of disputes

2.1.3. 4) prohibition of threat or use of force against territorial integrity or political independence or in any manner inconsistent with the purposes of the UN

2.1.4. 7) non-intervention in matters which are essentially within the domestic jurisdiction except for measures under Chapter VII

2.2. Article 4

2.2.1. 1) Membership is open to all other peace-loving States which accept obligations in the Charter

2.2.2. 2) Admission will be effected by a decision of the General Assembly upon the recommendation of the Security Council

3. Legal implications

3.1. 1) Plenary competence to perform acts and make treaties in int sphere

3.2. 2) Exclusive competence re internal affairs

3.3. 3) Not subject to compulsory int process, jurisdiction or settlement without consent

3.4. 4) Formal equality with other states

3.4.1. does NOT mean entitlement to equal vote in IOs; or equal voice or influence eg. UNSC eg. IMF

3.5. 5) Derogations from these principles will not be presumed

3.5.1. Lotus presumption: in case of doubt freedom of action of States prevails

3.6. No general duty on a State to maintain its independence

3.6.1. no prohibition on its partial or permanent alienation

4. Recognition

4.1. J. Crawford: No generally accepted and satisfactory legal definition of statehood

4.1.1. Question normally arises only in borderline cases, where a new entity has emerged bearing some but not all of the characteristics of statehood

4.2. Unilateral declarations of independence

4.2.1. D. Akande: many states are indeed created by unilateral declaration of one State eg. end of colonialism in Africa and Asia eg. States in the Commonwealth in these cases the other State is renouncing the claims that it has to that territory

4.2.2. declarations of independence recognised by other (most) States membership of IOs may be strong evidence Western Sahara member of the OAU but not of the UN Switzerland only joined UN in 2002 Not members of the UN recently admitted members of the UN

4.2.3. Reference Re Secession of Quebec (1998)

4.3. I. Brownlie: 'not a term of art'

4.3.1. may refer to one State not recognising the existence as such of an entity does not satisfy criteria for statehood

4.3.2. or may refer to a political refusal to accord recognition does not accept govt as legitimate

4.3.3. what matters is the intention of the govt concerned acts of recognition may be implied eg. letter of felicitation by a Head of State to another

4.4. Theories

4.4.1. Declaratory recognition only recognises a legal state which already existed a State may exist without being recognised Tinoco Arbitration (1923) Reference Re Secession of Quebec (1998)

4.4.2. Constitutive political act of recognition on the part of other States is a precondition of the existence of legal rights Usually a mitigated version is defended extreme version amounts to saying that the very existence of a State depends on the political decision of other States In practice, hard to find non-recognition of existence of an entity policies of non-recognition tend to be of political non-recognition Helpful in the case of anomalous entities entity does not prima facie fit into orthodox categories recognition may help in overcoming the apparent anomaly of status

4.5. Democratic legitimacy

4.5.1. S. Murphy: there is a trend toward greater use of democratic legitimacy as a factor in recognition practice eg. Crimea? eg. Bolivia? eg. Venezuela? eg. Brazil (2016?) eg. Belarus (2020?)

4.5.2. 1) there is no international norm obligating States not to recognise an emerging State simply because it is not democratic in nature

4.5.3. 2) Existence of a democratic referendum when a political community seeks recognition will be one important, but not decisive, element in int community' decision to recognise it as a State

4.5.4. 3) Coups, non-democratic usurpations of power may lead to a reaction of refusal to recognise new govt

4.5.5. 4) Cf. int community's interest in int peace and stability: legitimacy, development, and stability do not always go hand in hand democratic legitimacy only one factor among others

5. Self-determination

5.1. UN Charter

5.1.1. Art 73: Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories...

5.2. Declaration on the Granting of Independence to Colonial Countries and Peoples - resolution 1514 (1960)

5.2.1. 1) The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation

5.2.2. 2) All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

5.2.3. 3) Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.

5.2.4. 5) Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

5.2.5. 6) Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

5.3. ICCPR and ICESCR (1966)

5.3.1. Art 1: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

5.4. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations GA Res 2625 (XXV) (1970)

5.4.1. All peoples have the right freely to determine, without external interference, their political status

5.4.2. Every State has the duty to promote the realisation of the principle of equal rights and self-determination of people... in order to 1) promote firendly relations and co-operation among States 2) bring a speedy end to colonialism, having regard to the freely expressed will of the peoples concerned

5.4.3. violations of the principle of equal rights and self-determination alien subjugation, domination and exploitation denial of fundamental human rights

5.4.4. modes of implementing the right of self-determination establishment of a sovereign and independent State free association or integration with existing State emergence into any other political status freely determined by a people

5.4.5. every State has a duty to refrain from any forcible action which deprives peoples of their right to self-determination

5.4.6. peoples in pursuit of self-determination acting against forcible action are entitled to seek and receive support in accordance with the principles of the UN Charter

5.4.7. territory of a colony or other non-governing territory has a status separate and distinct from the territory of the State administering it such separate status shall exist until the people of the territory or colony have exercised their right of self-determination

5.4.8. declaration shall not be constituted as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples...possessed of a govt representing the whole people belonging to the territory without distinction as to race, creed or colour

5.5. Western Sahara Opinion (1975)

5.5.1. 'the right of self-determination requires a free and genuine expression of the will of the peoples concerned'

5.5.2. BUT it is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory those instances were based either on the consideration that a certain population did not constitute a 'people' entitled to self-determination or on the conviction that a consultation was totally unnecessary, in view of special circumstances

5.5.3. Judge Dillard: 'a norm of int law has emerged applicable to the decolonisation of those non-self-governing territories which are under the aegis of the UN meaning of self-determination: 'it is for the people to determine the destiny of the territory and not the territory the destiny of the people' self-determination is satisfied by a free choice not by a particular consequence of that choice or a particular method of exercising it

5.6. Reference Re Secession of Quebec (1998)

5.6.1. is there a right of self-determination under int law that would give the National Assembly, legislature or govt of Quebec the right to effect the secession of Quebec from Canada unilaterally? Int law does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their 'parent' state people may include only a portion of the population of an existing state not necessary to decide whether the population of Quebec is 'a people' right of self-determination is normally fulfilled through internal self-determination within the framework of an existing state a right of external self-determination (potentially in the form of unilateral secession) arises only in the most extreme of cases, and, even then, under carefully defined circumstances 1) colonial domination 2) alien subjugation, domination or exploitation outside a colonial context *3) [Not clear] when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession there is no incompatibility between the maintenance of territorial integrity of existing states and the right of a people to achieve a full measure of self-determination a State whose govt represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to protection under int law of its territorial integrity

5.7. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004)

5.7.1. existence of a Palestinian people no longer an issue (even Israel has recognised it)

5.7.2. construction, along with measures taken previously, thus severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel's obligation to respect that right

5.7.3. obligations violated by Israel include certain obligations erga omnes obligation to respect the right of the Palestinian people to self-determination, and certain obligations under IHL

5.8. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (2019)

5.8.1. whether the process of decolonisation of Mauritius was lawfully completed

5.8.2. adoption of Resolution 1514 (XV) of 1960 represents a defining moment in the consolidation of State practice on decolonisation although Resolution 1514 (XV) is formally a recommendation, it has a declaratory character with regard to the right of self-determination as a customary norm wording has normative character abstentions justified on the basis of the time required for the implementation of such right; no one contested existence of such right

5.8.3. The means of implementing the right to self-determination in a non-self-governing territory 'geographically separate and...distinct ethnically and/or culturally from the country administering it' 1) emergence as a sovereign independent State 2) Free association with an independent State 3) Integration with an independent State in any case, must be the expression of the free and genuine will of the people concerned

5.8.4. the right of self-determination under customary int law does not impose a specific mechanism for its implementation in all instances

5.8.5. right to self-determination of the people concerned is defined by reference to the entirity of a non-self-governing territory customary character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination detachment by administering power of part of a non-self-governing territory, for the purpose of maintaining it under its colonial rule, is unlawful (at least since 1960) unless based on the freely expressed and genuine will of the people of the territory concerned

5.8.6. Chagos Islands case at the time of its detachment from Mauritius in 1965, the Chagos Archipelago was clearly an integral part of that non-self-governing territory Lancaster House agreement of September 1965 Premier and representatives of Mauritius, which was still under the authority of the UK, agreed in principle to detachment of Chagos Archipelago states that archipelago could not be ceded to any third party and would be returned to Mauritius at a later date Mauritius was a colony, under the UK's authority Court considers that the detachment was not based on the free and genuine expression of the will of the people concerned detachment and incorporation into a new colony (BIOT) was unlawful process of decolonisation of Mauritius was not lawfully completed when Mauritius acceded to independence in 1968 legal consequences

5.8.7. Judge Donoghue's dissent Advisory Opinion had the effect of circumventing the absence of British consent to judicial settlement of the bilateral dispute between the UK and Mauritius regarding sovereignty over the Chagos Archipelago

5.8.8. Judge Xue's declaration dispute cannot be viewed as a purely bilateral issue; needs to be understood in its colonial context passage of time does not make it a bilateral dispute

5.9. Types of self-determination

5.9.1. Internal free association autonomy minority rights representation

5.9.2. External colonised oppressed *severely persecuted peoples foreign occupation

6. Case studies

6.1. Vatican

6.1.1. Population almost entirely restricted to adult men

6.1.2. Population acquired by recruitment; reproduced assexually

6.1.3. non-member State maintaining permanent observer mission at UN

6.1.4. full member of some UN specialised agencies and some European intergov. organisations

6.1.5. independence comes from the Lateran Treaty of 1929 recognises 'full ownership and the exclusive and absolute power and sovereign jurisdiction of the Holy See'

6.2. Bantustans (South Africa)

6.2.1. never accepted as States by int community

6.2.2. Certain forms of racial policy (apartheid) may be significant

6.2.3. other forms of population change are insignificant is assessment of whether a group of people constitute a population

6.3. Southern Rhodesia

6.3.1. declaration of independence in 1965

6.3.2. UN's refusal to recognise dec. of independence based on its purpose of enabling continued white minority rule as well as unilateral assertion

6.4. Taiwan

6.5. Palestine

6.5.1. Decision of the OTP of the ICC competence for determining whether applicant is a State UN Secretary-General in case of doubt, UNSG will defer to guidance of UNGA Assembly of State Parties of Rome Statute could also address the matter Palestine recognised as a State by more than 130 governments nad by certain IOs, including UN bodies eg. UNESCO admitted Palestine in 2011 Current status granted to Palestine by UNGA is that of observer UNSC has not yet made a recommendation related to Palestine' art. 4(2) of UN Charter application UNSC rejected draft resolution which upgraded Palestine to full member State of UN in December 2014

6.5.2. UNGA vote in 2012 accorded non-member observer State status in UN

6.5.3. Instrument of accession to Rome Statute deposited in 2015 now a party to the ICC

6.6. Kosovo

6.6.1. 17 February 2008: Assembly of Kosovo issued its Declaration of Independence a unilateral declaration, erga omnes

6.6.2. recognition common feature of acts of recognition was to say that Kosovo was 'unique' or 'sui generis' not to be taken as a precedent to be relied upon by any ethnic group in a discrete territory rejected by a smaller number of states eg. Serbia the case for it being a 'special case' repression of Kosovars up to 1999 was pretty exceptional but by no means unique more unusual was the unilateral use of force against Yugoslavia in response to repression which was essential to cause Servia to withdraw international administration of the territory following Serbia's withdrawal against Kosovo's statehood we must be able to account for how Serbia's previous sovereign claim has been severed

6.6.3. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion (2010) is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law? does not ask whether or not Kosovo has achieved statehood nor does it ask about the validity or legal effects of the recognition of Kosovo by other States question is markedly different from that posed to the Supreme Court of Canada (re whether there was a right of secession) question here is limited to whether or not int law prohibited the declaration of independence Since 18th century until mid 20th century: there have been many declarations of independence; in no case does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to int law int law contained no prohibition of declarations of independence Second half of 20th century: int law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation is a prohibition of unilateral declarations of independence implicit in the principle of territorial integrity? UNSC resolutions condemning particular declarations of independence in all of those instances the Security Council was making a determination as regards the concrete situation existing at the time UNSC has never taken this position in the context of Kosovo is there a right of 'remedial secession'? radically different views expressed by those taking part in proceedings sharp difference of views as to whether the circumstances which would give rise to such a right were actually present in Kosovo Court considers it is not necessary to resolve these questions in the present case conclusion: Court considers that general int law contains no prohibition of declarations of independence accordingly, Kosovo's declaration did not violate int law UNSC resolution 1244 (1999) is part of the relevant law Constitutional Framework derives its binding force from the binding character of resolution 1244 binding on all Member States irrespective of whether they played any part in their formulation 1) established an international civil and security presence in Kosovo with full civil and political authority 2) designed for humanitarian purposes; to provide a means for the stabilisation of Kosovo and for the re-establishment of basic public order in an area beset by crisis 3) object and purpose: to establish a temporary, exceptional legal regime which superseded the Serbian legal order and which aimed at the stabilisation of Kosovo declaration of independence was not issued by the Provisional Institutions of Self-Government, nor was it intended to take effect within the legal order in which those Provisional Institutions operated authors of declaration were not bound by the framework of the Provisional Institutions declaration did not violate resolution 1244 or the Constitutional Framework Judge Koroma Dissenting Opinion majority statement that int law does not authorise or prohibit the unilateral declaration of independence only makes sense when made in the abstract unilateral declaration by Kosovo amounted to secession and was not in accordance with int law a unilateral secession of a territory from an existing State without its consent, as in this case under consideration, is a matter of int law the truth is that int law upholds the territorial integrity of a State

6.7. Crimea

6.7.1. Address by President of the Russian Federation, The Kremlin, Moscow, 18 March 2014 referendum held on 16 March 2014 'in full compliance with democratic procedures and international norms' 82% participation; 96% in favour of reuniting with Russia 2.2 million total population; 1.5 million are Russians, 350,000 Ukranians, 300,000 Crimean Tartars decision in 1954 to transfer the Crimean region to Ukraine by Krushchev treated as a formality because the territory was transferred within the boundaries of a single state new authorities began by introducing a draft law to revise language policy in infringement of ethnic minority rights there is no legitimate executive authority in Ukraine now those who opposed the coup were threatened with repression turned to Russia for help in defending their rights and lives residents of Crimea for the first time in history were able to peacefully express their free will regarding their future 'However, what do we hear from our colleagues in Western Europe and North America? They say we are violating norms of international law. Firstly, it’s a good thing that they at least remember that there exists such a thing as international law – better late than never.' 'what exactly are we violating?' Russia's armed forces were in Crimea in line with an int agreement self-determination according to the UN Charter the Kosovo precedent

6.7.2. UNGA Resolution on the Territorial Integrity of Ukraine 1 April 2014 affirms commitment to the sovereignty, political independence and territorial integrity of Ukraine within its internationally recognised borders calls upon States to refrain from actions aimed at the partial or total disruption of the national unity and territorial integrity of Ukraine underscores that the referendum held in Crimea and Sevastopol on 16 March 2014, having no validity, cannot form the basis for any alteration of the status of Crimea and Sevastopol calls upon all States IOs and specialised agencies not to recognise any alteration of the status of Crimea and Sevastopol on the basis of the above-mentioned referendum and to refrain from any action or dealing that might be interpreted as recognising any such altered status

6.8. Catalonia

6.8.1. independence illegal under Spanish constitution host state's approval not essential? argument here is that int right of self-determination overrides any constitutional/domestic provision a contrary view would sanction the immutability of borders

6.8.2. cases of declarations of independence accepted by host State albeit reluctantly given after an initial refusal Slovenia 1991 Timor-Leste 2002 South Sudan 2011

6.8.3. Kosovo and hypocrisy Spain has not recognised Kosovo; but 82% of EU States and 86% of NATO States have done so US, UK, Germany, France recognise unilateral secession of Kosovo, but deny Catalans the same right making the legitimacy of self-determination conditional on oppressive behaviour by a host State does not make sense It would be like telling independence activists that they have to stay within their existing state until they are killed in large numbers

6.9. Kurdistan