Transcript 4. Sources of international law

6. state, government, recognition
• According to the Montevideo convention on the
Rights and Duties of State 1933 Article 1 States:
The state as a person of international law should
possess the following qualification.
• permanent population
• Defined territory
• Effective government
• Capacity to enter into relations with other states
6.1
• Defined territory: Importance of state is the
control of territory. Thus it establishaes the
exclusive competence to take legal and factual
measures within the territory and prohibiting
foreign governments from exercising authority in
the same area without consent. It is important to
note that the concept of territory is defined by
geographical areas seperated by borderlines
area. It includes the airspace above above the
land although there is a question as to the limit,
the earth it, and the 12 miles of territorial sea
adjcent to coast.
6.2
• Population
• Permanent population is the criterion for
consideration of statehood. Where the
population is nomadic.e.g the Antarctica cannot
be regarded as a state.
• There is the question of size of the population
constitutes a state. For example the Vatican city
in spite of small population it entertains
diplomatic relations with many states, has
concluded international agreements and joined
international org but not UN member. However
may state functions are performed by Italy.
6.3
• Another question is who belongs to the
permanent population of a state. Most
states have multilateral composition
defined by, ethnic, linguistic, historical,
religion.
6.4
• Effective government control. This is in two
respects internal and external. Internally –
the capacity to establish and maintain a
legal order. Externally-the ability to act
autonomously on the internationally
dependent states. 1920 Finland was
regarded as a state and was unable to
perform functions wit6hout assistance of
foreign troops.
6.5
• State of Palestine 1988- Palestinian org
was not a state due to lack of effective
control over the claimed territory. However,
it does not necessary mean that the failure
of effective government as a result of civil
war or other upheaval will suffice to say
there is no state e.g Somalia or the
occupation of European countries by
Germany WW1.
6.6
• Capacity to enter into relations with other state.
• Though contested as constitutive criterion. But
Restatement of the American law institute notes
that this quite important although there should
be qualifications.
• An entity is not a state unless it has competence
within its own constitutional system, to conduct
international relations with other states, as well
as the political and financial capabilities to do so.
6.7
• The Montevideo convention suggests a different
perspective in Article 3. “political existence of the
state is independent of the recognition by other
state. Even before recognition of the state has
the right to defend its independence, to provide
for its conservation and prosperity, and
consequently to organise itself as it sees fit, to
legislate upon its interest administer it services
and to define the jurisdiction and competence of
courts”
6.8
• However, other authors would like to agree on
additional factors on criteria for states such as
self determination and recognition, but these are
not generally regarded as constitutive elements
for state.
• Normally recognition is evidence that the
criterion has been met to some extent and it
remains in most cases that recognition will not
make any difference but only in borderline cases
6.9
• For example recognition is important fo0r
small states like Monaco and the Vatican
city as it might be doubted whether the
territory and population in such states
were large enough to make a state in the
face of international law.
6.10
• Governments: A state cannot exist for long
or at least cannot come into existence
unless it has a government. However, a
state need not to be confused/or be
identified by government, the state’s
international rights and obligations are
affected by change of government.
6.11
• In Tinoco Case RIAA 369. The new government
of Costa Rica which replaced dictator Tinoco
who had been acting in the name of Costa Rican
had granted concession to British companies
had invalidated bank notes. The Arbitrator held
that Tinoco was in effective control of Costa Rica
and that his acts were therefore binding to
subsequent government and the fact his regime
was unconstitutional under Costa Rican law and
that it has not been recognised by several states
including UK was irrelevant
6.12
• Also post war governments in western
Germany and Italy have paid
compensation for the wrongs inflicted by
Nazi and Fascist Regimes.
6.13
• Recognition: means willingness to deal with a
new state as a member of international
community.
• Issues of recognition are difficult to comprehend
in IL because there is a mixture of politics,
international law and municipal law. The legal
and political elements cannot be disentangled
and when state grant or withhold recognition
there are influenced more by political rather than
legal considerations but the acts have a legal
consequence.
6.14
• Another issue that makes the subject
contentious is that it deals with a variety of
factual situations, territorial claims,
belligerents/insurgents, national liberation
movements., Foreign legislature and
administrative acts.
• When a new state comes into being other states
are confronted with the problem of deciding
whether or not to recognise the new state.
6.15
• According to the constitutive theory a state or
government does not exist for the purpose of
International law until it is recognized, thus
recognition have a constitutive effect. Hence an
entity is not a state in International LAW UNTILL
IT IS RECOGNICED.
• This is opposed to declaratory theory were
recognition does not have any effect, the
existence of a state or a government in question
is of pure fact and recognition is merely an
acknowledgement of fact.
6.16
• In our days recognition can sometimes
have a constitutive effect although state
practice is not always consistent. If the
breach of International LAW IS
COMMITED BY THE ESTABLISHMENT
OF THE STAE OR GOVERNMANT
THERE IS NO LEGAL EXISTAENCE
UNTILL IT IS RECOGNISED.
6.17
• It has been observed that the two theories are of
little assistance in explaining the recognition or
determining the position of non recognised
entities in practice.
• Under declaratory theory, it is still a fact left to
other states to decide whether an entity satisfies
criteria of statehood. The declaratory theory
leaves unresolved the difficult of who ultimately
determines whether an entity meets the
objective test of statehood as a state.
6.18
• Recognition of another state does not lead
to any obligation to establish full diplomatic
relations or any other specific links with
other state. This remains a matter of
political discretion. Nor does the
termination of diplomatic relations led to
de-recognition.
6.19
• Recognition of Government- allows a state to
exercise great discretion when granting or
withholding recognition especially when a new
government comes into power in an existing
state by violent means.
• Recognition is given to the head of state there is
no problem of recognition if a revolution does no
affect the head of state e.g a revolution in
Greece 1967 overthrow the prime minister not a
king.
6.20
• A refusal to recognise is based on the
belief that the new state or government is
not in effective control of the territory.