Persons of International Law Presentation 4 PDF

Persons of International Law Presentation 4 THE SCOPE OF INTERNATIONAL LAW IN ACTUAL PRACTICE • The nature of treaties — they may be: A requirement in a legal document A. Self-executing treaty: One that contains a provision that says the treaty will apply in the parties’ municipal courts without...

Persons of International Law Presentation 4 THE SCOPE OF INTERNATIONAL LAW IN ACTUAL PRACTICE • The nature of treaties — they may be: A requirement in a legal document A. Self-executing treaty: One that contains a provision that says the treaty will apply in the parties’ municipal courts without their having to adopt any domestic enabling legislation. Relating to a governing body of a city A process of enrolling laws. B. Non-self-executing treaty: One that has no such provision. • The structure of states — constitutions may assign to one or more state organs (or branches) the responsibility for entering into treaties. • Q: How about the application of customary law and treaties in our municipal court??? 2 INTERNATIONAL PERSONS 1- States • Definition: Political entities which have all of the following: 1) A territory. 2) A population. 3) A government capable of entering into international relations. 4) A government capable of controlling its territory and peoples. • Kinds of states: 1) Independent states are free from the political control of other states, and free to enter into agreements with other international persons. 2) Dependent states have formally surrendered some aspect of their political and governmental functions to another state. 3) Incomplete or semi-states lack some attribute required to be treated as a fully independent state; most commonly they lack territory or population. 3 INTERNATIONAL PERSONS • Recognition: • A unilateral declaration either explicit (express) or implicit (tacit) by other states. • Effect: Implies that the recognized state or government is entitled to the rights and privileges granted by international law. • Two kinds of recognition: A. Recognition of a state: Usually granted when an identifiable government, people, and territory first come into existence. B. Recognition of a government: May be denied even if recognition of the state continues. 4 When Government Recognized? • When government should be recognized? • Theories about when governments should be recognized: A. Declaratory doctrine: The legal existence of a government happens automatically by operation of law whenever a government is capable of controlling a territory and its people. B. Constitutive doctrine: A government does not truly come into existence until such time as it is recognized by other states and participates in the international arena. 5 Government Recognition ❖ Practical considerations concerning the recognition of governments: • Estrada Doctrine: To avoid any possible connotation that recognition also means approval, many governments have adopted a policy of never formally recognizing other governments. • This policy is named after the Mexican Foreign Minister who first stated it. 6 Sovereignty • Territorial Sovereignty: The right to exercise the functions of a state within a territory. • Not an absolute right? Other states may obtain servitudes, either by treaty or practice, to a limited use of certain territory. a) Positive servitude: The exercise of a right-of-way. b) Negative servitude: Prevents one state from doing something within its territory that causes injury to a second state. • Acquiring territory: This is done either by: a) Occupying land not claimed by another sovereign. b) The transfer of territory from one sovereign to another. 7