Is there a hierarchy of norms?

CHAPTER 5 :

SUBJECTS OF INTERNATIONAL LAW:

 

 

 

LEGAL PERSONALITY

 Participation + Community Acceptance

→International Personality

 different entities will possess different rights and

duties enforceable at law

 Individuals & companies become ‘legal persons’

possessing the certain rights and duties.

 Having a Legal personality is crucial.

 

 

 

 

 

EACH POSSESSING A DISTINCT LEGAL

PERSONALITY

 The law determines the scope and nature of

personality

 The status

 determinative of your powers and

obligations

 capacity

 link together the status of a person with

certain rights and duties.

 

 

 

LEGAL PERSONALITY IN INTERNATIONAL

LAW  A range of factors need to be examined

 International personality =

 participation + some form of community

acceptance.

 Wide range of participants:

 States

 international organizations

 regional organizations

 non-governmental organizations

 public companies

 private companies

 Individuals

 

 

 

STATES

 the most important legal persons

 maintain the primary focus for the social activity of

humankind → international law.

 positivist:

 only states are subjects of international law.

 

 

CREATION OF STATEHOOD:

 Montevideo Convention on Rights and Duties of States,

1933:

 provides the most widely accepted formulation of the

criteria of statehood in international law

 state as an international person should possess the

following qualifications:

 a permanent population:

 a defined territory:

 government;

 Capacity to enter into relations with other states’.

 

 

 

 

 

 

 

SELF-DETERMINATION AND THE CRITERIA

OF STATEHOOD

 The evolution of self-determination has affected

the standard necessary as far as the actual

exercise of authority.

 New Guidelines for recognition of new states

requiring:

 the need to respect Rule of law

 Democracy

 Respect for human rights

 Guarantees of minority rights

 

 

 

RECOGNITION

 Recognition may be viewed as:

 Constitutive or Declaratory:

 The constitutive theory of statehood :

 a state exists exclusively via recognition by other states

 requires “diplomatic recognition” or merely “recognition of existence”

 The declaratory theory of statehood:

 an entity becomes a state as soon as it meets the minimal criteria for statehood.

 Question: “can an entity become a state without depending on the actions [i.e., recognitions] of existing states.?

 

 

 

EXTINCTION OF STATEHOOD

 Merger

 Absorption

 Dismemberment of an existing state

 Annexation (historical)

 Usually governments disappear, BUT it is

rather rarer for states to become extinct.

 

 

 

 

THE FUNDAMENTAL RIGHTS OF STATES

 Draft Declaration on the Rights and Duties of

States prepared in 1949 by the International Law

Commission

 1-Independence: or sovereignty

 

 the capacity of a state to provide for its own well-

being and development free from the domination

of other states, providing it does not impair or

violate their legitimate rights.

 international law dictates the scope and content

of the independence of states and not the states

themselves individually and unilaterally.

 

 

 

 Declaration on Principles of International Law

Concerning Friendly Relations and Co-operation

among States adopted in October 1970 by the

United Nations General Assembly emphasized that:

 [n]o state or group of states has the right to

intervene, directly or indirectly, for any reason

whatever, in the internal or external affairs of any

other state. Consequently, armed intervention and

all other forms of interference or attempted threats

against the personality of the state or against its

political, economic and cultural elements, are in

violation of international law.

 

 

 

 

 2-Equality

 States, irrespective of size or power, have the same juridical

capacities and functions, and are likewise entitled to one vote

in the United Nations General Assembly.

 1970 Declaration on Principles of International Law:

(P155)

 States are juridically equal:

 States enjoy rights inherent in full sovereignty

 Territorial integrity and political independence are

sacred

 Can freely choose/develop its

political/social/economic/cultural systems

 

 

 

 3-Peaceful co-existence

 mutual respect for each other’s territorial

integrity and sovereignty

 mutual non-aggression and non-interference in

each other’s affairs

 the principle of equality.

 

 This idea was expanded in various resolutions of

the United Nations.

 Principles as execution of international

obligations in good faith with non-aggression

 

 

 

PROTECTORATES AND PROTECTED

STATES

 Protectorate: entity enters into relationship

with a state that results in separate

international personality, but NOT

statehood

 Protected state: Where two states retaining

their status as separate states but enter into

a treaty relationship that may give one state

the right to act on another’s territory

 

 

 

FEDERAL STATES

 

 There are various forms of federation or

confederation

 According to the relative distribution of

power between the central and local

organs.

 degree of authority and competence with

the component units

 division of powers

 

 

 

SUI GENERIS TERRITORIAL

ENTITIES/MANDATED AND TRUST

TERRITORIES

 UN Trusteeship Council / mandate system

 Condominium

 International administration of territories

 Taiwan

 The ‘Turkish Republic of Northern Cyprus’

(TRNC)

 The Saharan Arab Democratic Republic

 Various secessionist claimants:

 Somaliland: 17 may 1991

 Moldova: Moldavian Republic of Transdniestria’

23 June 1990

 

 

 

 

 

 

 

 Associations of states

 

 

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