International Law Course Notes

Introduction In everyday conversation, we use the word “custom” casually. We often ask others questions such as “is it customary to leave a tip?” after we have been served in a restaurant and we are about to pay our bill. Sometimes dignitaries visiting foreign countries perform som...

Introduction In everyday conversation, we use the word “custom” casually. We often ask others questions such as “is it customary to leave a tip?” after we have been served in a restaurant and we are about to pay our bill. Sometimes dignitaries visiting foreign countries perform some acts so regularly that it can be said it is “their custom” to do so: the late Pope John Paul II, for example, had the remarkable habit of kissing the ground of any country that he visited upon disembarking from the aircraft and it is habitual for the Queen of England to shake people’s hands wearing a pair of gloves. The question is: when we speak of “custom” in international law, do we mean such ordinary habits as these? The answer to this question is both “yes” and “no”, it is “yes” because for a thing to become custom in IL, it requires a degree of consistency in its occurrence. It is “no” because IL custom requires much more in terms of duration, consistency, prevalence and expectation. Once customs are established, they must always be observed and non-observance would attract sanctions. For exp., the head of State of a country being visited by Pope John Paul II could not sue the Vatican (the Papal State) if the Pope were to refuse to kiss the ground on his visit to that country; nor could England be sanctioned if the Queen were to decide to take off her gloves when shaking the hands of the citizens of a foreign State. The Pope’s and the Queen’s habits are matters of individual choice, not matters of legal obligation. The way things have always been done becomes the way things must be done! Historically, at the international level, once the authority of natural law, in the sense of what was given by God or imposed by the nature of an international society made up of independent princes, had weakened, it was natural to derive legal obligations from the legitimate expectations created in others by conduct. The precise nature and operation of the process have, however, always presented obscurities. What is “custom” in IL or customary IL? Art. 38 (1) of he ICJ Statute refers to international custom as evidence of general practice accepted as law: 1) General practice; and 2) International custom can arise through acts or omissions. According to §102 (2) of the Restatement of the Law (Third), Foreign Relations Law of the USA, published by the American Law Institute in 1987: “Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.” Examples: It is an international custom that a State will not generally prosecute foreign diplomats under its own laws: customarily, an offending diplomat is sent back to his or her home country by the  host State. It is also customary that a ship flies its national flag while at sea. There is a custom in IL if a usage does not create legal obligations. N.B. An act of an omission is not a custom if States do not feel that they are bound by law to follow it. Customary Rules of International Law What is said in Art 38➔ “international custom, as evidence of a general practice accepted as law” Two Basic Elements in the creation of customary rule of international law: – 1- Objective element➔ “state-practice”➔ actual behavior of states/intl. organizations – 2- Subjective element➔ “opinio juris”➔ a belief that such behavior is law In the international legal discourse, these 2 criteria are commonly referred to as “State practice” and opino juris sive neccesitatis, or opinio juris for short. Some of the important cases of the ICJ have dealt with these criteria. Example: ✓ Case study #1: Colombia v. Peru (1950) – The Asylum Case There was a failed attempt to overthrow the government of Peru in a coup in 1948. the coup leader, Mr. Haya de la Torre, was granted refuge in the Colombian embassy in Lim, the capital of Peru. Colombia then attempted to fly the rebel out of Peru, but the Peruvian government refused to allow him a passage. Colombia claimed before the ICJ that, as the asylum-granting nation, it was entitled, under a regional custom in Latin America, to qualify the offence for the purpose of the asylum. Held: “The parties which rely on custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by States in question in such a manner that it has become binding on the other Party.” ✓ Case study #2: The Scotia (1872), US Supreme Court Facts: A collision occurred between an American sailing vessel, The Berkshire, and a British steamer, The Scotia. A British law of 1863 and an 1864 US Act had both established that ships should carry colored, not white, lights when sailing on the high seas. Nearly all of the maritime nations worldwide had adopted these regulations before the end of 1864, including both countries. On the fateful day, The Berkshire had displayed only white lights, which were forbidden, and no single coloured light, which was mandated by law. Arguments: The American owners of The Berkshire had argued that the regulation requiring their ships to carry coloured lights was a domestic regulation and that not conforming to it should not excuse the loss or damage caused to their ships by British. It was held that The Scotia had complied with all the rules concerning lights display and movement in accordance with the custom at that time.  The court reasoned that, although no single country can change the law of the sea, when navigational rules established by 2 states (in this case the US and UK) had been widely accepted by virtually every maritime state, and accepted as obligatory by more thatn 30 of the world’s principal maritime nations, those rules have become part of the law of sea, a usage has been changed into a legal custom, and the rules in question were the law at the place and time the collision occurred. Customary rules of intl. law Customary rules are not usually written down or codified➔ but 1947 International Law Commission➔ “codification” – Lex lata➔ the law as it is – De lege ferenda➔ progressive development of intl. law – Customary Rules➔ State-practice State practice is a total sum of how States behave in respect of a particular issue or situation. To establish State practice, one needs to look at a combination of many things (to look at what States do and say) What type of legal acts should be taken into consideration as State-practice? – Not only external, but also internal acts (legislation + court decisions + diplomatic correspondence + voting behavior at international conference, org. + treaties + recognition) – Some conditions for an acceptable state practice: 1- Duration: No rigid time element➔ depend upon circumstances➔ in certain fields rules have developed quickly➔ normally it takes time➔ a slow process 2- Continuity and repetition: “does a single act form a usage/practice?”➔ sometimes yes (“instant customary rule” which was criticized) Conditions for valid practice Consistent and uniform practice: – “no interruption” in favor of other practice – Must not be uncertain and contradictory – Sufficient uniformity of practice is needed – Some inconsistent conducts➔ should be treated as breach not a new rule Generality: – Don’t have to be accepted/observed by every state➔ an extensive practice is needed – If enough practice exist➔ silence is acceptance  – But once the rule exists➔ it will be binding for every state➔ except “persistent objectors” Customary Rules➔Opinio juris Subjective element➔ why? Art. 38 ICJ➔ “accepted as law” To separate IL from principles of morality or social usage Distinguish between practice undertaken because of law from practice undertaken because of series of other reasons (such as good will & ideological support) Opinio juris➔ a belief that a State activity is legally obligatory Customary Rules➔Opinio juris State will behave a certain way because they are convinced it is binding upon them to do so. Opinio juris may be deduced from: a) conclusion of bi-lateral and multi-lateral treaties; b) attitudes during the process of passing certain resolutions of the UN General Assembly and other int org; c) statements by state representatives Other points about customary rules of international law “Major powers of the field”➔ no need for a rule to be accepted by every State➔ but there is a need for such rule to be acceped by the major powers of that field. – Influence of the UK on the development of the law of the sea➔ not practice by “land- locked States” – Impact of Soviet Union and the US on space law – Impact of certain States on law on nuclear weapons Protest, acquiescence and change 1984. ICJ. Gulf of Maine: acquiescence is ‘equal to tacit recognition manifested by unilateral conduct which the other party may interpret as consent’ Generally, if States acquiesce in the development of new customary rules it can be deemed as reinforcing it – BUT: States may not protest for different reasons! Persistent objector: objection against a newly emerging customary rule since its inception, the new norm is inapplicable to the objector Other points about customary rules of international law  “Local custom in international law”: – All States from that region must participate – Silence does not mean implied acceptance – Invoking states must prove it “Persistent objector”: – If there is a failure to act against a customary rule/a failure to object➔ this can be seen as an “acquiescence” (tacit acceptance)➔ this may make customary rule binding for that state as well. – If a state objects from the very begining of the formation of that rule + persistently (determined to do so) Can omission constitute State practice? In the definition of “custom”, it is referred not only to acts, but also to omissions. This implies that it is not only what States say or do, but also what they omit to say or do that can constitute custom. It is possible that a State may refrain from doing a thing because it believed that it has a legal obligation not to do that thing. If that happens, then, in those circumstances, that omission can constitute a custom provided that other States expect it so to act. Example: Art. 2 (4) of the UN Charter, prohibits States from using or threatening to use force against other States in their international relations. Regional custom Can there be regional customs? Can certain customary rules of international law be applicable only in certain regions of the world? There can be customs that apply to certain regions of the world. As few as 2 States in a region can form a regional custom. Regional customs do not establish a general rule of law, but apply only to the States of the region of its application. The standard of proving regional custom is usually much higher than that of proving general custom. Potential forms of state practice Diplomatic correspondance Policy statements Press releases Official manuals on legal questions  National laws Judgments of domestic courts Practice of international organizations Modalities of state practice Duration: depends on the circumstances, but requires repetition (no instant practice) Uniformity and generality – 1969. ICJ. North Sea Continental Shelf cases: ‘both extensive and virtually uniform’ – 1986. ICJ. Nicaragua: ‘conduct of states should, in general, be consistent with such rules’ Acceptance of States whose interests are specifically affected. General Principles of IL The 3rd source of international law listed in Art. 38(1) is “the general principles of law recognized by civilized nations”. The phrase “civilized nations” was previously used to describe States with well-developed legal systems that could satisfy to complex relations amongst nations. For example, in Petroleum Development Ltd. V. Sheikh of Abu Dhabi (1951), the Arbitrator found that the law of Abu Dhabi contained no legal principles that could be applied to modern commercial instruments, and could not therefore be applied to oil concessions. However, the phrase often implied a more general distinction between developed and undeveloped States, and was used during the colonial era to distinguish between colonial governments and the colonized peoples. Thus, in ancient times, only general principles of law developed and practiced by “civilized nations” qualified as a source of IL. However, following the formulation of the UN, this phrase has been replaced by “peace-loving nations” under Art. 4 of the UN Charter. All nations are now considered “civilized”. General Principles of Law (Recognized by civilised nations) As a source of IL, the general principles of law was inserted into the ICJ Statute in order to enable the Court to decide disputes in circumstances in which neither treaties nor custom provide guidance or solutions regarding a particular claim. This kind of situation, in which the Court would be forced to declare a case inadmissible due to lack of applicable law, is known as “non liquet”.  What does the phrase “General principles of law” mean? Does it refer to “general principles of IL”? Or “general principles of municipal law”? We assume that ‘the general principles of law’ referred to by the Statute means those principles that are mainly derived from principles of municipal law. The legal systems of individual States contained certain principles known to other systems and which could be justly applied to disputes between States. But this doesn’t mean that international tribunals will automatically take principles common to domestic legal systems and apply them to cases. Certain legal principles that can be found in all major legal systems (continental, common law, Asian etc.) Eg: binding force of treaties, finality of judgments (res judicata), good faith (bona fides), compensation (indemnity), Ex aequo et bono and equity (‘according what is right and good’), awarding the injured party the damnun emergens and lucrum cessans (the full compensation of prejudice), obligation to make reparation, non use of force, etc. Are there other sources of PIL? Many developments have had their impact on international law. Jus cogens Art. 53. of Vienna Convention on the Law of Treaties A norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Erga omnes ICJ. Barcelona Traction case Erga omnes obligations: owed to the international community as such Legal norms which protect the entire international community, it is the legal interest of all states to enforce them Prohibition of genocide, slavery, aggression, racial discrimination, right to self-determination, humanitarian rules Other Sources : Resolutions of international organizations Usually non-binding except for member States. UN General Assembly resolutions: might be evidence of custom if:  – (i) predominant majority of states - including states whose interest are specially affected -, – (ii) repeatedly, – (iii) adopt it with the same content. Moreover, they might constitute authoritative interpretation of the UN Charter. SC resolutions: binding if adopted with reference to breach or threat to peace or aggression. Soft law Role: not legal norm but might be important for the development of international law (e.g. international environmental law) 2 types: - Non-binding terms in a binding treaty, e.g. “The parties will endeavour..,… attempt” - Apparently binding language but the parties only wanted a political agreement. E.g. 1974. Helsinki Final Act. Relationship of international law and domestic (municipal) law Dualism: international law and domestic law are separate legal orders, cannot overrule each other – International legal rules become domestic norms through transformation Monism: international law and domestic law comprise of one single legal system – Incorporation: international law is automatically part of the law of the land Example Case : Portugal v. India (1960) [The Rights of Passage over Indian Territory Case] Portugal contended that general principles of law supported its claim that it had a right of passage from the coast to its enclaves of territories. It supported its argument by demonstrating that a comparative study of various legal provisions of many States tended to support what can be called “rights of way of necessity”. Other commonly applied general principles of law Aside from equity, the ICJ and other international tribunals have applied other general principles of law to disputes among States. Exp. Case of Germany v. Poland in 1928 (The Chorzow Factory Case), the Court said that it is a principle of IL, and even a general conception of law, that any breach of engagement involves an obligation to make reparation. In the Case of Argentina v. Chile in 1994 (The Laguna Del Desierto Case), the Tribunal stated that a judgment having the authority of res judicata (i.e. a matter already judged) is judicially binding  on the Parties to the dispute. This is a fundamental principle of law of nations repeatedly invoked in the jurisprudence, which regards the authority of res judicata as a universal and absolute principle of IL. The principle of pacta sunt servanda Although the principle of pacta sunt servanda is a principle of general international law, in the sense that it owes its existence to customary international law, it has now been formally codified by the UN Charter and the VCLT. When will the ICJ not apply general principles of law? No matter how well or widely accepted, the Court or tribunal will not simply apply a general principle, much depends on the facts and circumstances of individual cases. Other Sources: The writings of publicists Art. 38(1)(e) of the ICJ Statute provides that the Court consider the teachings of the most qualified publicists of various nations. As a subsidiary means, the writings of publicists generally show evidence of the law. However, some works have had significant influence on the development of IL. For example, from time immemorial, States had claimed the right to explore areas adjacent to their territorial seas – but it was Gidel who introduced the concept of the “contiguous zone” as a means of discussing the validity of their claims. Also, the majority of international legal scholars acknowledge the decisive impact of Grotius, Vattel, and Gentili, on the various aspects of international law, especially between the sixteenth and eighteenth centuries. The influence of writers, as a subsidiary means of the development of IL has declined remarkably in recent times. Reasons for this decline include the rise of State sovereignty and the considerable role of custom and treaties. One could also point to the impact of some significant historical developments late in the 20th century. The end of colonialism, for exp., showed that most former colonial States regard some aspects of IL to be one-sided. The relationship between sources of IL The relationship between customs and treaties is marked out for discussion separately from the general question of the hierarchy of sources because they are the 2 most important of the 5 sources listed in Art. 38(1) of the ICJ Statute. In addition, it is clear that Art. 38(1) prioritizes custom and treaties as the principal sources, since treaties embody rules “recognized by the contesting States”, and customs are “evidence of a general practice accepted as law” by those States. The relationship between customs and treaties, as sources of IL, is a very intricate one. This is because one influences the other: one is reflective of, or is subsumed (included) by, the other.  A treaty is said to be declaratory of customary international law if it merely recognizes the existence of the custom that it codifies. Conversely, a treaty is constitutive of customary international law if it gives birth to that custom again. Therefore, we have first to establish what a treaty does to custom. If it is established that the treaty is merely declaratory of the custom, then this affects the strength of the treaty for obvious reasons. Hierarchy of sources Are all sources equal? Are some more equal than others? Hierarchy of sources Looking at the structure of Art. 38(1) of the ICJ Statute, it is tempting to conclude that the sources are to be applied in their order of appearance. This is even more the case because Art. 38(1) seems to subordinate some sources to others by the use of the phrase ‘subsidiary means’ in describing some of the sources. Where a State alleges that a treaty rule overtakes a customary rule adduces evidence that it was aware of the existing customary rule before ratifying the treaty and that, in ratifying the treaty, it accepted the supremacy of the treaty rule, However, where neither of the disputing States likes such a claim, then the presumption that a State that ratifies a treaty intends its provision to overtake the customary rules flies in the face of the ICJ’s reasoning in the Nicaragua Case, in which the Court held that a State may ratify a treaty for many reasons, none of which may be an acceptance of the superiority of the ratified treaty over customary rules. Recalling the example of the Colo Summer Treaty (CST) The treaty entitles nationals of the 2 States to visit the other’s countries without visas during the summer period of any given year. Let us imagine that, after the treaty has entered into force, citizens of the 2 parties to the treaty begin to visit each other’s countries for several weeks after the summer period has ended, and that, in doing so, they will simply give notice of their impending visit to the Home Affairs Ministry of the other country. In addition to this, these citizens also develop several specific practices, relating to their visits, which are neither contemplated by, nor provided for, in the treaty. No one protests any of these practices. Recapitulation Art. 38 (1) does not explicitly instruct that there is hierarchy among the sources.  Treaties and customs are the most important sources of international law. The principles concerning the time in which treaties are adopted govern the priority order of the rules contained in them when there is a conflict. If a treaty rule provides on a specific issue that is also subject to a general provision of another treaty, the specific rule prevails. Subjects of IL??? A subject of IL is an entity possessing international rights and obligations and having the capacity: (a) to maintain its rights by bringing international claims; and (b) to be responsible for its breaches of obligation by being subjected to such claims. It’s an entity of a type recognized by customary law as capable of possessing rights and duties and of bringing and being subjected to international claims is a legal person. Capacities of the subjects of IL The main formal contexts in which the question of personality has arisen have been: ✓ Capacity to make claims in respect of breaches of IL; ✓ capacity to make treaties and agreements valid on the international plane; ✓ The enjoyment of privileges and immunities from national jurisdiction. States pre-eminently have these capacities and immunities. Organizations may have these capacities and immunities if certain conditions are satisfied. Established legal persons: States This category is by far the most important, but it has its own problems, for instance the existence of “dependent” states with certain qualified legal capacities has historically complicated the picture. In some federations, the constituent members retain certain residual capacities. In the constitutions of Switzerland and Germany component states are permitted to exercise certain state functions including treaty-making. Normally, the states, even when acting in their own name, do so as agents for the union. The US Constitution enables the states of the Union to enter into agreements with other states of the Union or with foreign states with the consent of Congress. The position of the ICJ in LaGrand and Avena, is that international obligations under the Vienna Convention on Consular Relations (VCCR) must be fully observed irrespective of constitutional limitations, and, though the means of implementation remain for it to choose the federal state incurs responsibility for the wrongful acts of its subdivisions. Entities legally proximate to States Political settlements have from time to time produced entities, such as the former Free City of Danzig, which, possessing a certain autonomy, territory and population, and some legal capacities on the international plane, are more or less like states. Politically such entities are not states in the normal sense, yet legally the distinction is not very significant. The treaty origin of the entity and the existence of some form of protection by an international organization – the League of Nations in the case of Danzig – matter little if, in the result, the entity has autonomy and a nucleus of the more significant legal capacities, for example the power to make treaties, to maintain order and exercise jurisdiction within the territory, and to have an independent nationality law. Entities recognized as belligerents In practice, belligerent or insurgent bodies within a state may enter into legal relations and conclude agreements on the international plane with states and other belligerents/insurgents. A belligerent community often represents political movement aiming at secession: outside the colonial context, states have been reluctant to accord any form of recognition in such cases including recognition of belligerency. International administration of territories prior to independence In relation to territories marked out by the UN as under a regime of illegal occupation and qualified for rapid transition to independence, an interim transitional regime may be installed under UN supervision. Today, there are no more trust territories, and because the UN Charter recognizes the equality and sovereignty of States, placing a State under a trust to prepare it for independence is not a practice that can be considered “politically correct” in modern IL and relations. But there are international territories, which are territories administered by an IO on behalf of the international community, in order to prepare the entity for independence. Exp: The final phase of Namibian independence involved the UN Transition Assistance Group, establishing by SC Resolution 435 (1978). Watch the video and take notes for discussion …Who are the subjects of IL? International Organizations The condition under which an organization requires legal personality on the international plane. The most important person of this type is the UN. Entities, acting with delegated powers from states, may appear to enjoy a separate personality and viability on the international plane. By agreement, states may create joint agencies with delegated powers of a supervisory, rule- making, and even judicial character. Examples are the administration of a condominium, a standing arbitral tribunal, the International Joint Commission set up under an agreement concerning boundary waters between Canada and the US and the former European Commission of the Danube. As the degree of independence and the legal powers of the particular agency increase it will approximate to an international organization. Individuals There is no general rule that the individuals cannot be “subjects of international law” and in particular contexts individuals have rights inuitu personae which they can vindicate by international action, notably in the field of human rights and investment protection. At the same time to classify the individual as a “subject” of the law is unhelpful, since this may seem to imply the existence of capacities which do not exist and does not avoid the task of distinguishing between the individual and other types of subject. The criteria for statehood States are the primary and the most important subjects of international law. However, while understanding what an entity requires in order to become a State is not as straightforward, determining the criteria of statehood is of particular importance in the contemporary world. First, there may be many entities within a single territory claiming to be autonomous States. For example, during a civil war or other form of national uprising breakaway parts of an existing State may describe themselves as States and may even sometimes be recognized as such by their sympathizers. Often, an existing State collapses, or, as is sometimes said, “fails”. Examples Following a violent conflict in Somalia in the 1990s, the Somali State collapsed. The rule of law broke down and was substituted with the rule of the gun; the legitimate government was fired by the rebel insurgency. The physical entity called “Somalia” splintered into various parts. The same example can be given of the former Socialist Federal Republic of Yugoslavia (SFRY). Following a civil war in the 1990s, SFRY broke into as many as 6 States, with each claiming autonomy and the competence to represent the old State. The remains of the old SFRY, the Federal Republic of Yugoslavia (FRY), also known as Serbia and Montenegro, claimed that it had succeeded the old SFRY. Meaning of “State” under IL The State as a person of IL should possess the following qualifications: (a) a permanent population (b) a defined territory (c) government (d) capacity to enter into relations with the other states N.B. When we speak of “a State” in IL, we do not refer to the component units of a country or federating States. According to Art. 1(2) of the Montevideo Convention, for exp., “the federal state shall constitute a sole person in the eyes of IL”.  2 senses for “State” 1. A country. Exp. UK, USA, Australia, Nigeria, Indonesia, etc. 2. Within such “States”, it is possible to have “lesser” entities also referred to as States. Exp. USA and Nigeria (sharing governmental powers between a central authority and component federating units). A permanent population For an entity to be regarded as a State in IL, it must have a permanent population. 2 things are implied in this criterion: “population” and “permanence”. A State’s population can be enormous and run into several millions, a billion, or even more, as with China and India, or it may consist of a few thousand, as with Nauru, which, at independence in 1968 when it became a State, had only 8,042 inhabitants. By “permanent population”, we mean that the organic population of a State must be distinguishable, by virtue of its identity, culture, and customs, from other peoples who may be present in the State, such as foreigners. Thus a State cannot solely be composed of foreigners. This criterion therefore requires the existence of a core people who belong permanently to that State in terms of citizenship of nationality. How many people may form a State? There is no requirement in the Montevideo Convention on the Rights and Duties of States (1933) for any given number as the absolute minimum for the purpose of forming a State. Thus, in theory, any number of people can form a State, in so far as all other requisite conditions of the Convention are met by the entity claiming statehood. But IL is not categorical on this issue (problem of self-determination: the ability of a people to govern themselves, a process that must be preceded by the people being able to form an independent State). The people comply with the relevant provisions of the UN Charter, in addition to the specific requirements of the Montevideo Convention. A defined territory What does a “defined territory” mean? A territory is, amongst other things, a geographical expression that refers to a space, whether sold land, terrestrial, or marine. The vast land of the Sahara desert is as much a territory, in the sense of space, as the Atlantic ocean. Thus, in addition to its physical land asset, a State claims as its territory its waters and airspace. Therefore, in speaking about a “defined territory” as a requirement of statehood, we mean the land, sea, and airspace of a State, over which the State possesses and exercises control. But what composes a territory is not = what defines a territory. A defined territory means a territory that is reasonably ascertainable (well determined). It simply means that it should be possible that if they were to be asked where the territory of the State lies, those of its citizens who desire self-determination would be able to respond: “from this pillar to his pole – although we are still uncertain about how far deep in or spread out our territory goes vis-à-vis our neighbors”. Government A State must also have a sovereign government. This is a very important requirement because it is only when people are self-governing that they can be said to constitute a State under IL. But the Montevideo Convention doesn’t specify any particular type of government for the purpose of statehood. While most States today desire to have democratic governments, “democracy” is not a requirement of statehood under IL. Exp., the Kingdom of Saudi Arabia is considered a State, despite the fact that its leaders are not chosen in a popular election and are not subject to periodic elections as common in democracies. N.B. For the purpose of statehood, a government does not have to operate from within its State. Circumstances do sometimes compel governments to operate from exile. Exp: In 1990, the government of the Kuwaiti State fled into exile in Saudi Arabia and ruled from there, following the Iraqi attack on Kuwait. Similarly, the Tejan Kabbah-led government in Sierra Leone fled into exile in Guinea in 1997 after its overthrow by a military junta. Remarks Regardless of where it operates from, the government must be effective, legitimate, and, more importantly, independent. It is only when a government can exercise total control over its territory that it can be said truly to be a government in the language of the Montevideo Convention. A State does not lose its statehood just because it relies on another financially, or because it seeks financial aid from other States to bail it out of trouble. In modern society, States, no matter how economically tough, must interact with other States and will sometimes require the assistance of other States or international institutions. Exp: Following the global economic crisis of 2007-2008, several European States, such as Greece, Portugal, and Ireland, had to fall back on financial bailouts from such bodies as the International Monetary Fund (IMF) and help from individual States. The recognition of States and Governments Why recognition? A State may exist legally because if meets all of the criteria of the Montevideo Convention, but that does not mean that the reality of its existence is politically accepted by other States, or that other States would want to have any relationship with it. The factual existence of a State is quite distinct from the political reality of its existence vis-à-vis other States. Even if a State exists physically, if it or its government is not recognized, certain fundamental consequences will follow as regards its relations with other States. Recognition applies not only to States, but also to governments, so that new State would have to be recognized by other States in order for them to deal with it, and a new government – particularly one that comes into power by unconstitutional means – would have to be recognized by other Sates for it to deal with them. Even constitutionally elected governments may be refused recognition, as was the case with the popular election of Hamas in the parliamentary elections of the Palestinian territories, which the US government refused to recognize. The recognition of States In the Dictionnaire de la Terminologie du Droit international, the recognition of a new State is defined as: “a unilateral act by which one or more States declare, or tacitly admit, that they consider a political unit which exists in fact and considers itself to be a State, as a State having the rights and duties which flow from statehood.” The effects of recognition The existence of a State is independent of recognition (art. 3 of Montevideo Convention). A similar position is found in Art. 9 of the OAS Charter (1948). But all this depends on to what theory of recognition one subscribes: 1. the declaratory theory: The recognition of one State by another is a mere political act that does not confirm the statehood of the recognized State. So recognition is legally inconsequential and is merely a political gesture. 2. The constitutive theory: it says that a State is a State only if it is recognized as such by existing States. Examples… While several States recognized the Republic of Korea (South Korea) before it joined the UN, only Communist countries first recognized North Korea and this did not change for a long time until after other non-Communist States also recognized it, despite the fact that it met all of the Montevideo criteria. Similarly, most Western nations did not recognize the German Democratic Republic (GDR), created in 1949 by the Soviet Union following the creation of the Federal Republic of Germany (FRG) by Britain, France, and the USA. Although the latter States recognized the FRG in 1955, it was not until 1973 that Britain recognized the GDR – and that took place only following the signing of the 1972 General Relations Treaty between the FRG and the GDR. Most Western powers regarded the GDR as a dependent of the Soviet Republic and therefore lacking in sovereignty, which is the foremost criterion of the Montevideo Convention. The recognition of governments  The recognition of States is different from recognition of governments. Whereas the recognition of a State automatically affects the recognition of its government, the non-recognition of a government does not affect the recognition of a State. Thus a State can be recognized even though its government is not, but a government cannot be recognized in the absence of a recognized State. Degree of recognition: De facto and De jure De facto recognition: is a complete recognition of the authority of a government. It’s a government that exists in fact and is in effective control of a State. De jure recognition: refers to a recognition that is inchoate (immature), usually pending the acquisition of full and effective control and powers by the government seeking recognition. It’s a government that exists in law, but is not in effective control of a State. Example The Candoman government may choose both to recognize a new government that has just taken power through a coup d'état in Rutamu and has effective control of the country, and to deal with the overthrown democratic government of Rutamu now conducting its business in exile. Candoma may deal with the new military junta, for example, in order to protect the Candoman business interest inside Rutamu over which the new government has effective control. However, the representative of Candoma to the UN may still be engaged in conducting international affairs with the representative of the exiled Rutamu government, which is the only one that sits in the UN General Assembly. In such scenario, it is possible to speak of the varying degrees of recognition: Candoma recognizes the de facto government established by the junta for the purpose of the internal affair of Rutamu; it recognizes the de jure authority of the government in exile for the purpose of international law. Is there a duty to recognize in IL? If there is a duty to recognize, then logically it means that recognition will be legally consequential, so that non-recognition of a new State implies serious legal and not merely political consequences. A duty to recognize will imply that the existence of a State depends on other States performing that duty, regardless of whether the new State has met the formal criterial fro statehood. The opinion of writers is divided on this issue. States practice has been uneven as far as applying the Montevideo criteria for the purpose of recognition. The attitude of the USA on the question of whether there is a duty to recognize (1976) International law does not require a state to recognize another entity as a state; it is a matter for the judgment of each state whether an entity merits recognition as a state. The USA has traditionally looked to the establishment of certain facts: effective control over a clearly-defined territory and population; an organized governmental administration of that territory; and a capacity to act effectively to conduct foreign relations and to fulfill international obligations. The USA has also taken into account whether the entity in question has attracted the recognition of the international community of states. While the USA refused to recognize Cuba in 1875, due to the absence of an effective government, it recognized Albania in 1919, despite that country’s not having an effective government; while it recognized Algeria as a State in 1962, it did not recognize the Algerian government until 3 months later. Another Example During the Liberian civil war, the government of Samuel Doe, the legitimate government of Liberia when the war broke out in 1989, was later confined to the capital city, Monrovia, while the rebel forces of the Charles Taylor-led National Patriotic Front of Liberia (NPFL) controlled nearly 98% of the country. Nonetheless, Liberia was still widely regarded as a State in international law and was so dealt with by other States. Distinction This distinction between the types of government and types of recognition is important because States usually grant de jure recognition to the de jure government and de facto recognition to the de facto government – but the reverse may be the case, in that the de facto leader has established a very strong authority backed by legitimacy. De facto recognition usually consists in acts that are not conclusive, such as representing the State at the inauguration of another country’s head, while de jure recognition includes such conclusive acts as the exchange of diplomats. The recognition of States and Governments under MUNICIPAL LAW As a matter of practice, most States make formal declarations on recognition. In the UK, the Foreign and Commonwealth Office (FCO) used to issue certificates of declaration, at the request of British courts, stating categorically whether Her Majesty’s Government recognized a State or government or not, and if it did, to what extent. Nowadays, the UK no longer issues formal declarations for recognition, but now grants recognition implicitly. Methods of acquiring title to territory Title to territory has been obtained by States through the transfer of land from one owner to another or through the acquisition of land not belonging to any other state. There are 6 methods of acquiring title to territory recognized by States today: Occupation – Accretion – Prescription – Voluntary cession – Treaties of peace – Forced cession or conquest Discovery “Discovery” is the oldest and historically the most important method of acquiring title to territory. Up to the 19th century, discovery alone sufficed to establish a legal title but since then such discovery has had to be followed by an effective occupation in order to be recognized as the basis of a title to territory. Occupation It means a State’s settlement of a territory hitherto not belonging to any other State, for the purpose of adding the land in question to the national territory. Such “vacant” land (terra nullius) exists even if it already has a native population – provided the latter consists of nomads or of a people judged to possess a civilization inferior to that of the standard prevailing in Europe (The Aztec Empire in Mexico is an example). The actual settlement has to be made if the, at best, vague claim based on discovery is to be transformed into a legal, recognized title. Such settlement must be made within a “reasonable” time after discovery and must assume a permanent character. Accretion A minor mode of acquiring title to territory is “accretion”, the gradual deposit by the water of solid material (mud, sand, sediment) by a river flowing past a shore or by an ocean along its coasts, so as to cause that to become dry land which was before covered by water. The rule governing accretion dates back to Roman days and is quite simple: a thing that is added follows the fate of the principal thing. Soil added to a river bank represents an addition to the territory of the riparian state; islands built up within a riverbed become a part of the territory of the State within whose boundary lines the flats or islands are formed. Mud flats or islands built up within a State’s territorial waters not only become the property of that State but also cause an outward extension of the maritime frontier from the new islands to a distance normally claimed along its shores by the State in question. Voluntary cession Cession means the formal transfer of title (sovereignty) over territory from one State to another. Voluntary cession conveys a lawful title to the new owner. Normally, cession is formulated through the provisions of a treaty of cession that specifies precisely the area to be transferred as well as the conditions under which the transfer is to be accomplished. All kinds of related provisions may be encountered in such instruments, regarding the nationality of the inhabitants, of the territory, the adjustment of public debts connected with the area, the establishment or fate of servitudes therein, and so forth.  Cession may take one of a number of forms: a common and simple type is a treaty of sale (Exp. USA used this type to acquire Louisiana in 1803, Alaska in 1867). Another form is the exchange of one piece of real estate for another, such as the transfer of the island of Heligoland by Great Britain to Germany in 1890. Cession has also been effected by means of a gift, in past centuries as part of a royal dowry or in more modern times, as a donation. But session has on rare occasions, been accomplished by a conveyance of title by demise (i.e. a legal transfer of property or real estate by a monarch, not necessarily by the latter’s death). Exp. Transfer of the Congo Free State to Belgium (1908) by King Leopold II, who was sovereign of the Congo in his personal capacity, in addition to being king of the Belgians. Involuntary Cession by Conquest It has been accomplished most commonly through military conquest. A country defeated in war is subjugated; that is, its government and armed forces cease to exist, and its territory is occupied by the victorious enemy, who then achieves legal title to the territory of the defeated state by annexation. Or portions of enemy territory are occupied and then retained as part of the occupants’ territory without the formal confirmation of annexation in any peace treaty. Title in the latter case is based on abandonment by the former owners. Modes of acquiring nationality An individual may acquire nationality through 5 modes: 1. By birth 2. By marriage 3. By naturalization 4. By adoption or legitimation 5. Through the transfer of territory Right of the state to confer nationality International law permits each state to decide who shall be its nationals; under what conditions nationality shall be conferred, and who and in what manner shall be deprived of such status. Curiously, only a few rules of customary law, multilateral treaties, and “general principles” exist that deal with nationality. Examples… Millions acquired new nationalities when the former Yugoslavia and Soviet Union broke up. Former nationals of the Soviet Union and Yugoslavia suddenly became Lithuanians, Latvians, Georgians, Ukrainians, Bosnians, etc. Before WWII, many states had laws that forced women who married a man of another nationality to take his nationality. Most State laws today permit women (and men) to choose by electing naturalization under a modified set of requirements: Law of the soil (jus soli) In customary international law, any individual born on the soil of a given state of parents who have the nationality of that state receives the nationality of the state in question. E.g. USA and most Latin American states. Exceptions exist based on comity or courtesy rather than on international law. E.g. children of foreign heads of state, foreign diplomats, and in a few cases, foreign consular officials have an exemption. Another exception: in case of war on American soil, a child born in a portion of the USA then under the occupation of enemy military forces does not acquire American nationality under jus soli because during such occupation the authority of the legitimate sovereign is suspended and the enemy occupation of forces exercise temporary control over the territory in question. Law of the blood (jus sanguinis) This means that the status of the territory where birth occurred has no significance. Ancient Egypt used jus sanguinis exclusively. States have the prerogative to place conditions of the application of jus sanguinis. E.g.: Brazilian law specifies that jus sanguinis applies to those born abroad of a Brazilian father or a Brazilian mother, provided that either of them is at the service of the Federative Republic of Brazil, or; those born abroad, of a Brazilian father or a Brazilian mother, provided that they come to reside in the Federative Republic of Brazil and opt for the Brazilian nationality at any time. U.S. Law Specifies a Number of requirements: UNITED STATES – 8 USCS §1401 (2005) complications Because many states use both jus soli and jus sanguinis, many individuals may find themselves eligible for dual nationality. Thus a child born to French parents in the USA would be a French national through jus sanguinis as well as an American national through jus soli. In the USA, that individual would be an American citizen; in France, a French citizen; and in Ghana, a citizen of both France and the USA (dual nationality). The Denmark is among the states who seek to avoid both dual nationality and statelessness. Naturalization Naturalization forms the second most common mode of acquiring nationality. It’s generally a voluntary act by which the national of one state becomes the citizen of another. For exp. Nottebohm deliberately sought to acquire a nationality other than the German one he received at birth. In the world of today, immigrants may seek to acquire the nationality of their new state for many reasons: access to professions and jobs that require citizenship, ease of travel {e.g. EU passport}, or simply pride. Naturalization may also apply to whole groups through an executive or legislative act (a collective naturalization) Dual nationality Individuals may also become nationals through marriage. For exp. neither French nor British law stipulates the loss of citizenship if a national undergoes naturalization after marriage unless the person specifically renounces the previous nationality. Current U.S. law does not mention dual nationality, nor does the law require dual nationals to make a definite choice. While being a dual national may have some benefits, a dual national also owes allegiance to both countries and, depending upon the particular legal code (e.g. France), may subject to the laws of both states even when traveling overseas. A U.S. citizen with dual nationality must use a U.S. passport to enter and leave the United States. Britain and France have similar requirements. Japan forces a choice: A Japanese national who also holds foreign nationality (a person of dual nationality) shall choose one of the nationalities before s/he reaches age 22. if the person received the second nationality after s/he reached age 20, s/he should choose one nationality within 2 years after the day s/he acquired the second nationality. If s/he fails to choose one nationality, s/he may lose Japanese nationality. Marriage Prior to WWII, many nationality laws simply “imposed” the husband’s nationality on an alien spouse. Until 1990, Swiss women who married a non-national automatically lost their Swiss citizenship. Today, many states (e.g. France, Japan and Ireland) offer an expedited naturalization process for those spouses of either sex who choose to do so. In Indonesia, a non-national wife may easily acquire Indonesian nationality. A non-national husband qualifies if he has “proved meritorious and have served the interest of Indonesia. Such nationality shall be grante4d with the approval of the House of Representatives. The current law of Iran states that non-Iranian-national women who marry Iranian citizens obtain Iranian nationality upon marriage and must convert to Islam. Status of children  Complicated questions have arisen with respect to the nationality of children, particularly illegitimate offspring and foundlings. A number of international conventional have been developed to deal with such questions, but limited ratification has caused the problems to continue. Most countries hold that minor children follow the nationality of their parents. When the latter changes through naturalization, the nationality of the minor child changes accordingly. In the U.S. starting 1994, the law permits a child under 18 who has a citizen grandparent who meets the physical presence requirements to gain expeditious naturalization. The Child Citizenship Act of 2000 in the U.S. eased the requirements of acquiring citizenship for both biological and adopted children born abroad, provided one parent is a U.S. citizen (by birth or naturalization) and the child is under 18 and legally residing within the U.S. Statelessness Before WWII, statelessness, the lack of nationality, was a rare occurrence. The few recorded instances occurred in post-revolutionary Russia or in Nazi Germany. Frequently, the issues involved illegitimate children. N.B. a de facto stateless position = refugees. Stateless persons lack the fundamental link by which they might derive benefits from the protection of international law: the benefits of “diplomatic protection”; no access to identity documents; travel permits, work cards, marriage licenses, and other kinds of papers normally issued to citizens in the 20th century. Many conventions deal with this issue: the 1951 Geneva Convention on the Status of Refugees (slightly improved the condition of some stateless persons); the 1954 UN Convention on the status of Stateless Persons (US is not party to it); the 1961 Convention on the Reduction of Statelessness (also US is not party); the 1969 OAU Convention on Refugee Problems in Africa Diplomatic protection A State has the right to exercise diplomatic protection on behalf of its nationals. Diplomatic protection = efforts of states to ensure their nationals are not abused through the actions of other states: 1. States have a duty not to mistreat the nationals of other states. 2. Individuals traveling outside of their own country are subject to the laws of the country where they may be at the time. E.g. When you are in Rome, you should behave as the laws of Italy require you to behave. If you violate a law in Italy, you are subject to the police and judicial authorities of Italy. Lebanon (State of nationality) may give advice on procedure, help procure attorneys, and observe the proceedings for irregularities, but they have no right to intervene directly. If abuse does occur, Lebanon has a right to raise a claim against Italy (usually through diplomatic correspondence/negotiation) on behalf of its national to seek redress or damages, whichever seems appropriate.