States-Nationality-and-Statelessness-Handout PDF

Group 1 What is State Recognition? - State recognition is the legal process through which a government authority publicly acknowledges that another community meets the conditions of statehood set out in international law, thereby recognizing it as an independent state. TERRITORY...

Group 1 What is State Recognition? - State recognition is the legal process through which a government authority publicly acknowledges that another community meets the conditions of statehood set out in international law, thereby recognizing it as an independent state. TERRITORY - An independent state must have a distinct territory, including land or water, and cannot borrow resources from neighboring nations. GOVERNMENT - A functioning government is crucial for a proper state, whether it's a democracy, monarchy, or a combination of both, as it ensures decision-making and law enforcement. PERMANENT POPULATION - State needs residents, and negotiating citizenship and residency issues is crucial. FORMING RELATION FROM OTHER STATES - States must be able to interact with other sovereign states through diplomacy, treaties, and awkward exchanges at international conferences. Landmark Doctrines in State Recognition WILSON/TOBAR DOCTRINE - The Wilson/Tobar Doctrine, named after Carlos Tobar, a former Ecuadorian foreign minister, essentially states that governments should only be recognized if they came to power through legitimate democratic means. It was primarily adopted by Central American states in 1907 as a way to navigate recognition of new administrations. This principle aimed to promote stability and democracy in the region, influencing U.S. foreign policy by refusing to support regimes that gained power through force rather than elections. - Legitimate Democratic Processes. - Prohibits international recognition for unconstitutional governments. - Oppose revolutionary governments. - Promotion of Democracy. BETANCOURT DOCTRINE - The Betancourt Doctrine, a foreign policy principle by former Venezuelan president Rómulo Betancourt, states that Venezuela would sever diplomatic ties with governments lacking democratic legitimacy or dictatorial origins. LAUTERPACHT DOCTRINE - Lauterpacht formulated an intermediate position, arguing that on the basis of the constitutive theory, once prospective states have complied with the conditions  prescribed by international law for statehood, existing states have a duty to grant recognition. - Concept of Crimes Against Humanity - Individual Responsibility in International Law - Human Rights Advocacy - The Role of International Law in Protecting Individuals - Influence on Modern Legal Frameworks STIMSON DOCTRINE - This Doctrine stated that the United States would not recognize any treaty or agreement between Japan and Chinathat violated U.S. rights or agreements to which the United States subscribed. What are the Rights of States? - refer to nations' political rights to regulate foreign investments within their borders and monitor the operations of transnational firms operating within their jurisdiction. RIGHT TO INDEPENDENCE - The right to independence is the right to be recognized as a full-fledged independent nation, eligible to join the international community as such. THE RIGHT TO EQUALITY OF STATES - Nationality, and the issue of statelessness are fundamental concepts in international law and human rights discourse. ○ Sovereign Equality - All states are equal in sovereignty, irrespective of size or power. ○ Non-Interference - States must respect each other’s territorial integrity and internal affairs. ○ UN Charter - Establishes principles of equality among member states. ○ Nationality Legal Relationship - Defines an individual’s connection to a state, outlining rights and responsibilities. Right to Nationality - Recognized in the Universal Declaration of Human Rights; crucial for accessing civil and political rights. Discrimination Issues - Nationality laws may lead to unequal treatment of individuals. ○ STATELESSNESS Definition: Individuals who are not recognized as nationals by any state.  Causes: Factors like discrimination, conflict, and changes in nationality laws contribute to statelessness. Human Rights Challenges: Stateless persons often encounter significant barriers to education, healthcare, and employment. International Instruments: The 1961 Convention and 1954 Convention address statelessness and aim to protect the rights of stateless individuals. THE RIGHT TO EXISTENCE AND SELF DEFENSE Right of Existence: Considered a critical aspect of international law. Right of Self-Defense: Essential for states to counter threats to their existence. THE RIGHT TO TERRITORIAL INTEGRITY AND JURISDICTION - A state has control over its own territory and the exclusive authority to govern within its borders. It can enforce laws, regulate resources, and protect its territorial sovereignty against violations. THE RIGHT TO LEGATION - The right of legation, it is asserted, comprises the right to accredit its envoy to other states and the obligation to receive diplomatic representatives when accredited by those states. What is Nationality, Statelessness, and Refugees? NATIONALITY: Nationality is the legal status of belonging to a specific nation, encompassing a group of people organized within a country, under a specific jurisdiction, or united by culture. STATELESSNESS: A stateless person is a person not considered a national by any state, and some are refugees, but not all are stateless, and many have never crossed international borders. REFUGEES: A refugee is a person who has lost their country of origin's protection and is unable or unwilling to return due to fear of persecution. THE PRINCIPLE OF NON-REFOULEMENT - A principle that protects individuals from being returned to a place where they face danger or persecution. - Acts as a protective shield preventing countries from deporting individuals if it jeopardizes their life or freedom.  THE PRINCIPLE OF NON-REFOULEMENT FORMS AN ESSENTIAL PROTECTION - International human rights law prohibits states from transferring or removing individuals from jurisdiction if they fear irreparable harm upon return, such as persecution, torture, or serious human rights violations. Foundational Legal Basis: - The principle of non-refoulement is a fundamental concept in international law. - It is recognized in multiple legal frameworks. Broad Applicability and Jurisdiction: - Non-refoulement applies to individuals who are under the jurisdiction of a state. - This includes individuals located: - Within the territory of the state. - Within the territorial sea of the state. - Under the state’s effective control. Protection from Various Threats: - The principle safeguards individuals from being returned to situations where they face a substantial risk of serious harm. - This protection is applicable regardless of the nature of the threat, including: - Threats from a country at peace. - Threats from a country involved in armed conflict. Protection from Direct and Indirect Measures: - Non-refoulement prohibits: - Direct forced returns to potentially harmful situations. - Indirect measures that would effectively result in similar outcomes as forced returns. Procedural Safeguards: - To ensure the effective application of non-refoulement, it is essential to implement procedural safeguards. - These safeguards are vital for protecting individuals’ rights and ensuring compliance with the principle.  References McMurtry, J. (2012). Economic Globalization and Ethico-Political Rights. In Elsevier eBooks (pp. 20–27). https://doi.org/10.1016/b978-0-12-373932-2.00095-8 Human Rights, the Right of Self-Determination and the Right to Freedom - Munakata Takayuki; The International Journal for Peace Studies. (n.d.). 2002. https://www3.gmu.edu/programs/icar/ijps/vol4_1/takayuki.htm The principle of non-refoulement under international human rights law. (2018, January 1). United Nations Network on Migration. https://migrationnetwork.un.org/resources/principle-non-refoulement-under-international- human-rights-law Formation and Recognition of States Under International Law. (2024, June 10). Justia. https://www.justia.com/international-law/formation-and-recognition-of-states-under-inter national-law/ Stansifer, C. L. (1967). Application of the Tobar Doctrine to Central America. The Americas a Quarterly Review of Latin American History, 23(3), 251–272. https://doi.org/10.2307/980469 Wikipedia contributors. (2024, September 17). Betancourt Doctrine. Wikipedia. https://en.wikipedia.org/wiki/Betancourt_Doctrine?formCode=MG0AV3 Respicio, A. H. (2023, October 27). Self-Defense Law Philippines. RESPICIO & CO. https://www.respicio.ph/features/self-defense-law-philippines#:~:text=According%20to% 20Philippine%20law%2C%20specifically,attack%20must%20be%20reasonably%20nece ssary. Vidmar, J. (2015). The Concept of the State and its Right of Existence. Cambridge Journal of International and Comparative Law, 4(3), 547–565. https://doi.org/10.7574/cjicl.04.03.547