This is a final exam. I would like somebody to write 5 pages for each question following the instructions below. Your answers should be from your own words after reading the course readings I have attached.
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unit_5.docxUnit Learning Objectives
After reading this unit, you will:
· Understand the importance of having a 'Legal Personality' in international law
· Be able to describe the different types of states in international law and the kinds of rights they enjoy and duties they must uphold
· Understand the importance to states of having their sovereignty recognized by other states
· Understand and be able to explain how sovereign states may legally acquire and change territory, and the legal consequences of a change in title to territory.
Unit Plan and Summary
This unit examines how international law defines and ranks different types of international actors, with sovereign states at the top of the ranking. We also examine how international law classifies states, their rights and duties, the legal effects of recognizing or not recognizing states and the legal consequences of changes in states' territory and legal personalities.
Outline
1. The Allocation of International Legal Competences
2. Types of States
3. Recognition of States & Governments
4. Title to Territory & State Succession
5. Rights & Duties of States
Readings
· von Glahn, Gerhard, and Taulbee, James Larry. “ Rights and Duties of International Legal Persons .” In Law Among Nations: An Introduction to Public International Law, 178-204. 10th ed. Upper Saddles Rivers, NJ: Pearson Education, 2013.
Key Concepts
· Allocation of international Legal Competences
· Subjects & Objects of International Law
· Sovereignty and the State
· Title to Territory
· State Succession
· Recognition
· Constitutive Principles/Rules & Regulative Rules
· Constitutive and Declaratory Theories of Recognition
· Explicit/Express & Implicit/Tacit Recognition
· Wilson & Estrada Doctrines of Recognition
· Defacto and Dejure Recognition
· Res Communis
· Terra Nullius (Discovery & Occupation)
· Prescription
· Accretion
· Merger (Peaceful Annexation)
· Conquest
· Territorial Servitude
· Cession (voluntary)
· Secession
· Irredentism
· Dissolution
· Total & Partial Extinction
· Abatement Theory
· State Responsibility
The Allocation of International Legal Competences
The allocation of international legal competences refers to the way in which IL distributes and ranks international and national actors according to their status, their rights and duties, and their powers of jurisdiction. The basis of this ranking is territorial supremacy (sovereignty), which distinguishes between subjects and objects of law.
Subjects have international "legal personality" with entitlements under the law. For example, legal personality allows an actor to participate in making international law, and to have jurisdictional powers and rights with the procedural capacity to defend those rights (i.e., ability to go to court to sue and be sued). In most areas of international law, recognized sovereign states are "full legal persons" with the greatest rights and duties, and jurisdictional powers within their territories. At present, states and a few Intergovernmental Organizations (IGOs) such as the United Nations and the European Union are the only true subjects of international law.
Objects of law are not normally considered legal persons – although they enjoy rights and protections under the law, these are not direct entitlements that allow them to participate in making international law, and to have jurisdictional powers and rights with the procedural capacity to defend those rights.
Ranking of Subjects and Objects in International Law
Subjects:
1. States: States, which possess all the attributes of statehood and are fully recognized enjoy the greatest rights and duties and have wide-ranging jurisdictional powers within their territorial boundaries. (The issue of recognition is discussed in section 3)
2. Public IGOs: Next in rank are IGOs (organizations created by states for states). They are ranked as qualified legal persons. A few of these, such as the UN, enjoy rights and duties similar to states, but for most other IGOs (e.g., IMF, World Bank) their jurisdictional powers are limited (largely because unlike states, they lack sovereign authority over territory). The rights of IGOs, however, are derivative rights -- whatever rights they enjoy are derived from states or are conferred by states (e.g., through the treaty that created them)
Objects:
3. Individuals, Corporations and NGOs: All individuals acting in their private (non-official) capacity are classified as objects of international law, except for individuals who are the official representatives of states. Most private corporations and NGOs are in the same category as private individuals; i.e., they lack international legal personality and cannot make international law. However, this is changing with the growing phenomenon of "private authority" in which private international institutions are making authoritative rules and regulations in a growing number of issue areas. Individuals and other private actors can acquire some legal personality in international law through treaty provisions that give them access to an international tribunal to defend their rights. Currently, individuals have such rights only in Europe (the human rights system of the Council of Europe). Some treaties grant corporations rights and access to an international tribunal to enforce their rights. Examples include the World Bank's International Center for the Settlement of Investment Disputes (ICSID) and Chapter 11 of the North American Free Trade Agreement (NAFTA).
Ranking of Individuals in International Law
As far as individuals are concerned, all of humanity is placed into five categories. The status of any individual in international law, and the kinds of rights and benefits enjoyed, vary according to which of these groups she/he belongs to at any given moment. As with allocation of legal competences, the ranking of individuals is also based on territorial supremacy.
The groups, ranked in descending order of importance, are:
1. Heads of State/Government
2. Extraterritorial individuals (Diplomats and Consuls)
3. Resident aliens (non-nationals living in a foreign state)
4. Nationals of a state living in their own state
5. Stateless persons.
In international law therefore, the status and rights of individuals are defined by three factors:
1. Their relationship to their government (sovereignty & territoriality)
2. Their nationality
3. Their territorial place of residence
Five propositions
1. Heads of state/government have extensive rights and are protected by rules of Sovereign Immunity & Act of State Doctrine
2. Generally, nationality laws define the relationship between most individuals and international law. Without nationality, individuals have little or no status in international law (and thus enjoy little protection).
3. Nationals of a state, who represent that state in an official capacity (diplomats, consuls, etc), enjoy the greatest benefits/protection in international law, followed by resident aliens, then nationals.
4. Non-nationals (resident aliens) within a given territory enjoy greater protection in international law than nationals of that territory. They are protected by a body of rules known as the "Rights of Aliens" – the Minimum International Standard of Justice (MIS) & Imputability [examined later in Unit 6]. Note: NGOs and commercial enterprises such s Transnational Corporations (TNCs) have the same status and enjoy the same benefits as resident aliens.
5. Since the acquisition of nationality is a precondition for the enjoyment of status and protection in international law, stateless persons (except for the provisions of specific treaties) have little or no protection in international law.
International Human Rights Law is an attempt to establish a minimum international standard for the treatment of all individuals irrespective of their placement in any of these categories.
Types of States
International law distinguishes between 'full members', 'qualified full members', 'special subjects' and 'other subjects'.
Full-fledged Members
Fully Sovereign & Independent States: In order to be a full-fledged member a state must possess the following characteristics:
1. Clearly demarcated territory;
2. Settled or permanent population (nation?);
3. A government which is independent (internal & external)
4. Capacity to enter into international relations (external recognition)
C and D are essential components in internal and external sovereignty.
Full sovereignty (i.e., external and domestic independence and recognition) is a necessary condition for statehood in international law.
Types of Full-Fledged Members: Unitary States
These are the most common types of states. Here a single central government exercises authority over a population and territory. The constitution only provides for one level of government (E.g., the UK).
Types of Full-Fledged Members: Composite International Persons
Several types: Personal Unions, Real Unions, Confederations, and Federations.
Personal Unions
Personal Unions are formed when two states are joined because they possess the same monarch. (e.g, Canada & the UK). These personal unions are not really legal persons, but their individual components are.
Real Unions
Real Unions are created when two independent states are linked by treaty under the same government or ruler and thus act as a single unit. A real union is not a single state but a union of two states acting as a single composite international legal person. The union has definite legal personality and may enter into international agreements on behalf of members. E.g., union of Tanganyika and Zanzibar to form Tanzania in 1964; N & S Yemen formed the Yemeni Republic in 1990, dissolved in 1994 after civil war.
Confederation
Occurs where a number of independent states are linked by treaty in a union with a central government of its own. This central government has power over the member states but not over their citizens. In IL, the confederation as a whole is not a single legal person. Each of its member states retains a separate identity and each can conclude int'l agreements. Confederations are not very stable -- e.g., the USA (1778-1787); the Netherlands (1580-1795); and Senegambia (1982-1989).
Federation
This is a permanent union of several previously independent states with a central government that has authority over member states and their citizens. Constitution divides power between a central government and member state (provincial) governments. Unlike a confederation, however, a federation is a real state (legal person) in IL. Central government alone has power to declare war, etc. Some federations, e.g., Canada & Germany, grant member states limited international activity. This is more the exception than the rule. The USA does not.
Qualified Full Members
Neutral/Neutralized States
States which either declare themselves neutral or whose condition of neutrality is imposed by outside powers. Neutral states are prevented from entering alliances or going to war (except in self-defense). E.g., Switzerland since 1815; Luxembourg 1867; Laos 1962; Sweden and Finland have voluntarily accepted neutrality.
Conditional Admission
This occurs where a state is admitted into international society under specific conditions which amount to a requirement that the state fulfill certain obligations and adhere to certain rules as the price of admission. E.g., the Austrian Treaty of 1955 which created the independent state of Austria.
Divided States
This occurs where an existing state is divided as a result of political/strategic rivalries. Largely a Cold War phenomenon. E.g., E & W Germany reunited after treaty signed Sept-Oct 1990 and ratified in 1991); N & S Korea; China (ROC and PROC. PROC became only recognized China in 1979); N & S Vietnam (reunited in 1976/77); and Cyprus (Greek and Turk).
Special Subjects of International Law
City States: (The Vatican)
The Vatican was created by the Lateran Treaty of 1929 (with Italy) that recognized the 108.7 acres in Rome as a sovereign and independent state. The Vatican is widely recognized by over 100 countries. It is neutral and in self-imposed isolation from world politics except when explicitly called upon. A special member of IL system enjoys some membership in IOs (e.g., the International Postal Union). The Vatican today is the only state that is not a UN member (192 out of 193 states are UN Members).
Dwarf States (micro states)
Exceptionally small states which do posses all the attributes of sovereignty. E.g., Liechenstein (62 sq.mi); San Marino (24 sq.mi); Monaco (0.73sq.mi); Maldive Is. (115 sq.mi. pop. 179K); Nauru (8 sq.mi. pop. 8000).
Condominiums
A territory jointly governed by two or more states. Not international legal person. It has no government and no sov. E.g., Antarctica?
Mandated/Trust Territories:
A former colonial territory supervised by a foreign power under either the League of Nations or the UN. Three types of classification by the League during the 1920s and 30s:
· Class A: Those countries soon to gain independence (colonies of Ottoman empire).
· Class B: Former German Colonies. (Tanganyika; Togoland, etc).
· Class C: E.g., SW Africa (Namibia) were placed under S. African Mandate and became independent in 1990
· Trust territories: All former Class C mandates were placed under UN Trusteeship system in 1946 and 1947. Trust territories do not have international legal personality. The last Trust Territory to become independent was Palau in 1994.
Other Subjects of IL
International Organizations
Public IGOs – those created by states for state purposes do have definite legal personality. IOs have powers of negotiation, treaty making and enjoy certain immunities. The only IGO with full-fledged international legal personality is the UN, with rights and duties specified in its Charter (chapter 16, art 104 & 105)
Sub-national Actors
Liberation movements (e.g., the PLO, SWAPO) do/did have some limited legal personality. They enjoyed observer status in some IGOs such as the UN.
Recognition of States & Governments
Recognition means a formal acknowledgement or declaration by the government of state "A" of the existence of state/government "B" as a legal person in IR and of the willingness of "A" to enter into international relations with "B".
Although recognition is nominally a legal act, the majority of IL writers agree that it is better described as a political act with legal consequences. When recognition is granted, it indicates the willingness of the recognizing state to accept the consequences of its act and to enter into formal relations with the recognized state.
Note: Recognition is not a duty of state. There is nothing in IL that requires states to recognize each other. New states do not have a right to be recognized (e.g., Macedonia).
Forms of Recognition
Explicit/Express Recognition:
A formal statement is issued by the executive of a state.
Implied/Tacit Recognition:
No formal statement is issued but the recognizing state does enter into formal relations with the recognized state (diplomatic, trade, etc) with the intention of formally recognizing the latter (e.g., US and China from 1955 to 1973. Formal recognition took place in 1979).
Legal Effects of Recognition
Analysts disagree about the consequences/effects of recognition. Two perspectives:
The Constitutive theory:
A state is a state in international law only if it has a capacity to enter into IR. A state does not exist for the purposes of international law until it is recognized. Recognition has a constitutive effect: it is a necessary condition for the achievement of statehood.
The Declaratory theory:
The existence of a state is a question of fact, an empirical matter and recognition is merely an acknowledgement of the facts. A state comes into existence when it has acquired the attributes of statehood regardless of whether or not it is recognized. Recognition simply affects the legal consequences of statehood.
There is more to be said for the constitutive theory. Evidence suggests that recognition is more than merely declaratory and has a constitutive effect. (e.g., Taiwan, Macedonia). Countries such as Canada, UK, USA, and most Commonwealth countries subscribe to the constitutive theory. This is because of constitutional provisions that require the executive to inform the judiciary in cases of recognition for purposes of litigation.
Once a state/government has been recognized, it has access to the courts of the recognizing state and can enter into the full range of international activities, and enjoys the full range of immunities (sovereign immunity & act of state doctrine). A non-recognized state does not have access to the courts of other countries and cannot sue. The effects of non-recognition are much exaggerated for states. Non-recognition of governments has greater legal consequences. A non-recognized government enjoys immunities just as a recognized government (you cannot sue something whose existence you deny). International law allows states discretion in terms of recognition, and as a result there are inconsistencies in the practice. E.g., premature recognition (Biafra).
Note: severance of diplomatic relations does not constitute a withdrawal of recognition.
Recognition can be granted to states and/or governments:
Recognition/Non-recognition of States
This occurs when recognition is extended to the sovereign territorial entity as a whole, or when it is withheld or withdrawn. Non-recognition can assume different forms:
Existing states
For existing states, this is largely a political act. There are strong legal consequences for the state withdrawing/withholding recognition. (e.g., it cannot sue and cannot protect its citizens or property).
New States
Greater effect than with existing states especially when it assumes the form of collective non-recognition (e.g., the S. African Bantustans). IGOs such as the UN can recommend collective non-recognition
Collective Recognition
This does not exist. Each state must individually recognize other states. IGOs have no authority to authorize recognition. However, a state admitted to the UN (General Assembly) is recognized by all UN members but is not automatically recognized outside the UN (this is hardly a problem today with 193 out of 194 states as UN members). Also, a state can be recognized yet not be a member of the UN (e.g., the Vatican).
Recognition/Non-recognition of Governments
Some confusion exists between recognizing a state and recognizing a government. Recognition of a government is a political act different from recognition of states only in the nature of entity being recognized.
A government is the operative agency of a state and is that part of the state that undertakes actions that are subject to the rules of IL. Logically, recognizing a state should entail automatic recognition of its government, but what if that government came to power illegally (unconstitutionally, e.g., through a military coup)? Two views:
The Wilson Doctrine
(Named after US President Woodrow Wilson (1913-1929). Argued that recognition should be restricted to legal constitutional governments. An example of this was in Haiti after the military coup in 1993-94.
The Estrada Doctrine
(Named after Mexican Foreign Secretary Genoro Estrada, 1930). Never recognize a government explicitly, only recognize states. Thus, problem of whether the government is legal/illegal is avoided. (Substitutes implied recognition for explicit recognition). The Estrada Doctrine was more widely adopted among UN members than the Wilson Doctrine. However, various regional organizations – the EU, OAS, and more recently the African Union (AU, 2002) have adopted the Wilson Doctrine.
Recognition of Governments is more political and implies the following: That recognized government is effective/legitimate and that recognizing government wishes to have normal int'l relations with, and grant full-range of diplomatic and sovereign immunities to recognized government.
Because recognition brings a lot of benefits, the recognizing government may decline to act until certain concessions are made. E.g., following the dissolution of the USSR, the USA, UK, France and Germany declined to recognize any of the successor states until the latter gave assurances on: a) democracy and minority rights; and b) nuclear disarmament.
Defacto and Dejure Recognition
The phrases defacto (in fact) and dejure (in law) are technically incorrect. Dejure: Recognition of a dejure government. Defacto: This describes the government, not the act of recognition.
The terms imply that a defacto government does not have the same legal basis as a dejure government. However, there is no body of international law that says this is so. Distinction between defacto and dejure government arises when transfer of power occurs through illegal means.
Sometimes the distinction is based on the degree of legitimacy a government is seen to possess (Wilson Doctrine). Most often, the distinction is based on the degree of effectiveness (in terms of political and administrative control) of a government. Defacto recognition in this instance is used to recognize governments that are in unstable situations.
The distinction between defacto and dejure governments has had no standing in international law – it is mainly a political act. However, some argue that effects of Wilson Doctrine and notions of dejure recognition are becoming part of international law – increasing prominence of "Good Governance" and "Democracy" discourse in international relations and international development since early 1990s.
Recognition of Governments in Exile
This occurs where a state's territory is occupied or annexed by another state. Recognition is sometimes granted to governments in exile as dejure governments, as for example, the governments of Ethiopia, Poland, Czechoslovakia, and France during WWII.
Retroactive Recognition
The timing of recognition may have a major effect on its legal consequences. In the USA, Canada, UK and other commonwealth countries, recognition is retroactive – i.e., it applies from the date the government first came to power/existence (even if recognition is granted years later).
Reasons for non-recognition are important in addition to the timing. If government-to-government dealings had occurred but then non-recognition takes place, then legal effects still hold.
Title to Territory And State Succession
Title to territory refers to how states claim sovereignty over territory. These rules define and regulate how states may legally acquire, maintain, or change territory; or how new states may be created.
Rules are found in:
1. 1978 Vienna Convention on the Succession of States with Respect to Treaties
2. 1983 Vienna Convention on the Succession of States in Respect of Property, Archives and Debts.
The following modes of acquiring territory are illegal (since 1945)
Conquest
This was previously recognized, but since 1945 and the advent of the UN Charter, it is illegal (art 2(4)). No state can acquire territory through conquest, even if that state was the "innocent party to a war" (e.g., all territory acquired by Israel since its original 1948 territorial demarcation are considered illegal, and are not recognized by the UN).
Irredentism
This occurs when a state wants to unite with people of similar ethnicity/culture living in a different state (E.g., Hitter's annexation of Austria and the Sudetenland in Czechoslovakia); or when a people who consider themselves a distinct nation living in different states want to unite to form their own state (e.g., the Kurdish populations). Irredentism is illegal.
Exceptions to Territorial Sovereignty
Res Communis: Anything classified as res communis (owned by the community of states) cannot be claimed by any state as part of its sovereign territory. This applies to land areas such as Antarctica, international waters and international air space, and to outer space and celestial bodies (the moon, etc). This principle is also known as the Common Heritage (of humanity) Principle. The 1959 Antarctic Treaty prohibits signatory states from claiming ownership.
Modes of Acquiring Territory
States may legally acquire territory, and/or new states may be created, in the following ways:
Discovery and Occupation: (terra nullius)
States may acquire ownership of territory that previously belonged to no other state. The occupying state must exercise effective control over the new territory. (E.g., the Greenland Case 1933, PCIJ). This rule is not particularly relevant today as there are few territories undiscovered and unoccupied.
Prescription
Similar to terra nullius, but territory acquired previously belonged to another state and occupying state encountered no resistance/objection to occupation.
Accretion
Territory can be acquired as a result of acts of nature – volcanic eruptions, silting of lakes and rivers, earthquakes, etc.
Merger (or Peaceful annexation)
Occurs when two or more states, through treaty, agree to unite into a new state (usually in the form of a real union).
Territorial Servitude
This occurs when the territory of one state is made to serve the interests and territory of another state (or of the wider community of states), usually in the form of a "lease" governed by treaty. E.g., the Suez and Panama Canals; Guantanamo bay in Cuba.
Voluntary cession
Here one state voluntarily transfers (cedes) part of its territory to another state, usually by treaty. Eg., the USA's acquisition of Alaska from Russia in the 1920s.
Secession
This occurs when part of the territory and population previously part of one state breaks away to form an independent state. Institutionalized in the principle of self-determination (UN Charter art 1(2) and UNGA res. 1514, and 2625). This principle applies only to 'peoples' under colonial domination under the "salt water" principle. Outside the context of decolonization, secession is illegal. Indeed, since 1945, outside of decolonization, there hasn't been a single case of peaceful secession. In those cases where it has occurred, the international community was presented with a fait accompli following a military victory – e.g., Bangladesh seceded from Pakistan in 1971 following a war between India and Pakistan, and Eritrea from Ethiopia in 1992. In theory, it is possible for peaceful secession to occur outside of decolonization. However, in most cases, so-called "peaceful secessions" are actually instances of dissolution (discussed below). For secession to occur the legal personality of the pre-existing state must continue onto a successor state, albeit with a smaller territory and population.
Dissolution
This occurs when a state (usually a union or federation) breaks apart and its constituent member states become independent states. E.g., dissolution of Czechoslovakia, USSR, Yugoslavia, Senegambia, etc. With dissolution, the legal personality of the pre-existing state disappears and is not transferred onto a successor state. (Note: Slomanson mistakenly refers to the breakup of Yugoslavia as a case of secession).
State Succession
State succession involves the takeover by one state of another state's territory, and describes the legal consequences of a change in Title to Territory.
Types of state succession
1. Achievement of independence by a territory previously under the control of another state or that was in union with another state. (Secession/dissolution)
2. The loss of the status of a state through merger (or peaceful annexation).
3. The change in sovereignty over a territory from one state to another through voluntary cession.
Legal Consequences of State Succession Treaties, Debts, Property and Nationality Effects on Treaties
Total Extinction
When a state's international legal personality is extinguished, its international obligations also come to an end. Total extinction usually results from dissolution. It may also result from secession (but not always). When total extinction occurs, all bilateral treaties are voided, but not multilateral treaties. In the case of multilateral treaties, the treaty remains in effect, but the obligations of the extinct state under the terms of that treaty are of course voided. If there is a successor state, then the rights of the defunct state devolve onto the successor state. The successor state may assume the obligations of the defunct state if it so chooses.
Partial extinction
Occurs when despite a change in title to territory, the legal personality of a pre-existing state continues in a successor state (with a changed territory), or is transferred onto a new successor state created from the territory that has changed title. Partial extinction may occur in several ways:
· Voluntary cession
· Secession
· Merger
1. In the case of succession resulting from voluntary cession or secession, all that has happened is that a pre-existing state has altered its form, and expanded/contracted its territory. All treaty obligations (bilateral and multilateral) for the state that has acquired the new territory or lost territory remain intact.
2. However, when part of the territory of a predecessor state becomes part of the territory of a successor state, treaties in the former cease to be in effect for the transferred territory. The state that has acquired the new territory does not assume any treaty obligations (bilateral or multilateral) as a result of that transfer.
3. In other words, when an existing state acquires new territory it does not automatically succeed to the predecessor state's treaties. But its own treaties become applicable to the newly acquired territory.
4. In the case of merger, when two or more states unite to form a single state, any treaty in effect at the time of succession in respect of any of the merged entities continues to the successor state (with some exceptions).
Effects on Foreign Debt
Partial Extinction
1. When partial extinction occurs through cession or secession, the predecessor state's debts pass onto the successor state in 'equitable proportion'. However, if the new state is an ex-colony, no state debt of the predecessor state passes onto the new state (except when specified by treaty).
2. In the case of merger, debts of the predecessor state are assumed by the successor state.
Total Extinction
When a state is dissolved and its legal personality becomes extinct, and the parts of the predecessor state form two or more independent successor states, the state debt of the predecessor state passes onto the successor states in 'equitable proportion'.
Effects on Public Property
When state succession results in partial or total extinction, the public property of the predecessor state passes onto (i.e., becomes the property of) the successor state without compensation.
However, the public property of third states and their rights and interests recognized under the laws of sovereign immunity are not affected by state succession.
Effects on Nationality/citizenship
When state succession results in partial extinction (cession or secession), the nationality/citizenship that was previously bestowed on the inhabitants of a territory that has changed its sovereignty is also extinguished. However, this does not automatically affect the nationality of the people residing in the territory of the preexisting state. In the case of merger, the nationality of residents of the preexisting states is also extinguished (but not always – it depends on the treaty). In all cases of partial extinction, the state acquiring new territory may bestow its citizenship/nationality on the residents of the territory it has acquired. This is largely determined by the national laws of the successor state, not by international law.
In the case of total extinction, nationality of the preexisting state is also extinguished. If there is a successor state, it may bestow its citizenship/nationality on the residents of the territory it has acquired. This is largely determined by the national laws of the successor state, not by international law.
The Rights And Duties of States
Rights of States
There is little agreement on the range and substantive content of specific rights of states. There are differences between positive and natural law adherents on this issue. Several attempts have been made to define the content of state rights including: UN General Assembly Resolution 178 (II) 1947, and Resolution 3281 (XXIX) 1974. The following are the list of rights included in the first Resolution. They are listed briefly here and discussed in greater detail in subsequent Units:
Right of Existence?
The right of a state to continue to exist. This is not widely recognized. States do become extinct – (Total extinction) e.g., the dissolution of the USSR, Czechoslovakia, etc.
Right to Political Independence and Territorial Integrity/Supremacy
This is widely accepted. However, it is not really a right, but a constitutive principle (i.e., defines sovereignty) and belongs in the realm of state duties, in the sense that the independence of one state and its territorial supremacy is largely contingent on other states recognizing that state's sovereignty and non-intervention by those states. This right is codified in articles 2(4) (non-aggression) and 2(7) (non-intervention) of the UN Charter. It is also mentioned in the following UN Gen. Assembly Resolutions: 2131 (1965), 2625 (1970), and 3314 (1974).
Right of Equality?
Difference between equality in law and equality in fact. States are supposed to be equal in law –– a right codified in article 2(1) of the UN Charter. However, the UN Charter violates its own principle of sovereign equality by granting the power of veto to only five states in the Security Council –– a recognition that not all states are equal in fact.
Right to Self-defense
This is a widely recognized right codified in article 51 of the UN Charter. Here states have a right to self-defense in the "event of an armed attack". However, there is disagreement about the conditions under which self-defense is justified (what does "in the event of an armed attack" mean?) especially when it requires the use of military force –– does it include "preemptive" or "preventative" actions? We discuss this question in detail in Unit 9.
Right of Development?
This is a right claimed by developing countries through a series of General Assembly resolutions in 1973-74. This right is not binding and is not widely recognized in international law
The Right to Intervene
Do states have a right to intervene (in the domestic jurisdiction of other states)? This is perhaps the thorniest issue in contemporary international law, especially when such intervention involves the use of force. One of the key duties of states, based on both treaty and customary law is the prohibition on "unlawful" and "dictatorial" intervention into the domestic affairs of other states (see right #2 above). However, not all forms of intervention are unlawful even when they involve the use of force. Intervention is lawful under the following conditions:
1. By virtue of a treaty.
2. The Abatement Theory: This 'theory' (a corollary of the duty of state responsibility – see #3 under state duties below) stipulates that when conditions in a state border on anarchy with a danger of a transborder spill-over, other states that are adversely affected have a right, if not a duty, to intervene to restore order. However, the intervention is only lawful if the intervening state has no long term territorial or political ambitions and the use of force when intervening is proportional to the threat. (An example of a lawful intervention under the Abatement theory would be Tanzania's intervention into Uganda in 1979 to overthrow the government of Idi Amin. Another example was Israel's intervention into southern Lebanon in 1982).
3. Rights of Aliens: (also a corollary of the duty of state responsibility) States have the right to intervene to protect their nationals living abroad. Use of force is permissible provided all peaceful means have been exhausted.
4. Self-defense: Intervention is lawful if it occurs in the process of defending against an armed attack.
5. UN Security Council authorization under Chapter 7 of the UN Charter. Only the Security co. can override article 2(7).
6. Humanitarian Intervention? Do states have the right to intervene with force to stop and prevent the abuse of human rights? This was a recognized right based on customary law prior to the advent of the UN Charter in 1945. Since 1945 there has been much debate about humanitarian intervention because it potentially conflicts with article 2(4) and 2(7) of the UN Charter. However, there is some agreement that intervention is justified (indeed intervention is a duty) where the violation of human rights involves a jus cogens norm –– genocide, slavery, etc. Where the nature of the human rights violation is not at the status of a jus cogensnorm, there is less agreement on the legality of intervention (see # 3 on state responsibility below).
7. Intervention is lawful if it takes place after the explicit invitation of the "lawful" government of a state.
Duties of States
There are a number of important duties of states. A (non-exhaustive) list includes:
1. Duty to refrain from the 'aggressive' use of force against 'political independence' and 'territorial integrity' of other states (article 2(4) of UN Charter. Use of force is only lawful if it is in self-defense (art. 51) or when authorized by UN Sec. Council under Chapter 7. Is pre-emptive or preventive self-defense lawful? This issue was brought to the fore by the US-invasion of Iraq in 2003.
2. Duty to refrain from "unlawful intervention" in other states domestic affairs (UN Charter article 2[7] and the Act of State Doctrine).
3. State Responsibility (duty of Due Diligence, and Good Neighbourliness). States have a duty to ensure that conditions prevailing within their territorial jurisdiction to not cause harm/injury to other states, their official agents and property (sovereign & diplomatic immunities), and the nationals of those states (Rights of Aliens). [Do states also have a duty or responsibility to protect the rights of their own nationals, and if they fail to do so, do other states have a right/duty to intervene to ensure such protection through humanitarian intervention? We discuss this question in Unit 9]
4. Pacta Sunt Servanda: Duty to comply with rules (treaty and customary) of international law.
5. Duty to seek peaceful means for settling disputes.
6. Duty to comply with Security Council resolutions under Chapter 7 of the UN Charter.
7. Duty to refrain from recognizing any territorial acquisitions made in violation of the UN Charter.
8. Duty to provide development assistance/aid? Developing countries made this argument as a corollary of their demand for recognition of a "right to development". The target set by the UN in 1974 was for rich countries to provide a minimum of 0.7% of their GNPs in aid to poor countries. This is not widely accepted as a legally binding duty in international law
