Cag University International Law II Spring 2

1. Belligerent Communities & Insurgents 2. State Succession (Universal & Partial)

Belligerent Communities & Insurgents These groups may fall into one of two categories: belligerent communities or insurgents. Belligerent Communities These groups “lack statehood, but after the initiation of hostilities, may effectively occupy territory extensive enough to move the conflict beyond a purely local uprising. [At this point,] other states may grant a limited measure of international personality by recognizing a status of belligerency and terming the group a belligerent community.” (pg. 159)

Belligerent Communities Responsibilities Legally responsible “for all violations of the law of war” Legally responsible “for the treatment of foreign property and citizens.”

Belligerent Communities Rights “Blockade, visitation, search, & seizure of contraband articles (kaçak eşya) on the high seas” “Abandonment of claims for reparation on account of ‘damages suffered’ through the conflict by foreign citizens” (pg. 159)

Belligerent Communities Limitations (No Rights) Cannot send or receive diplomatic agents Cannot join international organizations Cannot benefit from multilateral conventions concerned with peacetime international relations and activities of states.

Belligerent Communities Important Note Before a group can be legally recognized as a belligerent community, it must be recognized by other states. Once belligerency has been acknowledged, the group will be treated as “a state engaged in war;…[it will also be responsible] for all violations of the laws of war and for the treatment of foreign property and alien persons.”

Belligerent Communities What is traditionally required for recognition? There are 2 criteria that must be satisfied:

Belligerent Communities 1.There must be “at least a rudimentary government and military organization [established that is] reasonably in operative control of a substantial area of the parent state. 2.The rebellion must have grown “beyond a mere local uprising.” (pg. 160)

Belligerent Communities If other states decide that these criteria have been met, then the group may recognized as a belligerent community. How does this affect the parent state?

Belligerent Communities Effects on the Parent State: This recognition “frees the parent state from all international responsibility for the acts of the rebels from the (beginning) of the revolt (isyan).” This is true “only if the parent government has made some attempt...to assert its authority over the rebels.”

Belligerent Communities Note that granting or withholding recognition is the right of each individual foreign state. What about those foreign states that choose to withhold recognition?

Belligerent Communities A foreign state that withholds recognition; “Has a duty to refrain from assisting the rebel group” “Is free to grant or withhold aid to the lawful government”

Belligerent Communities A Final Note: “Recognition of belligerency is not synonymous with recognition as a state or as a government. The belligerent community is still considered legally an integral part of the state against whose government it is conducting hostilities.”

Insurgents “A rebellion that has not yet achieved the standing of a belligerent community is said to be in a state of insurgency – a condition described as intermediate between internal tranquility and civil war.”

Insurgents What is involved in recognizing an insurgency? Not much. Recognition generally involves; - Letting the public know about the insurgent group (usually via proclamation) and - Warning the public to be careful.

Insurgents Letting the public know of the existence of an insurgency is not the same thing as recognizing a belligerent community.

State Succession (Universal & Partial) From your understanding, what is state succession?

State Succession (Universal & Partial) It generally involves a change in sovereignty over territory and the legal consequences that result from that change. Here’s the International Law Comission (ILC)’s perspective: “the replacement of one state by another in terms of the responsibility for the international relations of relations of territory.” (pg. 172)

State Succession (Universal & Partial) Your textbook gives the example of an heir under Roman civil law. Let’s say that Mr. X has a son who is his heir. When Mr. X dies, his son will then step into the shoes of his father (Mr. X). In other words, the son will succeed “to the assets, rights, and obligations of [the deceased Mr. X].” State succession is similar in concept.

State Succession (Universal & Partial) There are 2 categories of succession: 1.Universal 2.Partial

State Succession (Universal & Partial ) Universal Succession “One state absorbs, or takes over completely, the international personality of another state.” When this happens, the new state is the successor state; the former state is considered extinct. There are a few ways that a state may become extinct:

State Succession (Universal & Partial) Universal Succession Extinction by Forcible Means (Forcible annexation by conquest (fetih)) Extinction by a Voluntary Act Examples of voluntary extinction: -Republic of Colombia’s separation into 3 separate states, and -Texas’ merger with the US. Through state division (if a state divides into separate states)

State Succession (Universal & Partial) Rights & Obligations of the Extinct State “When a state’s international personality is extinguished, its international rights and possibly also the obligations also come to an end.” “The rights of the defunct state cease to be enforceable in its name” “Its obligations can no longer be brought against it as a legal person” “Obligations of the extinct entity may be assumed by the successor state.”

State Succession (Universal & Partial) Rights & Obligations of the Extinct State All treaties and other agreements concluded by the defunct state with other countries automatically become null and void (hükümsüz), with 2 possible exceptions:

State Succession (Universal & Partial) Rights & Obligations of the Extinct State 1.If the defunct state was a party to a multilateral treaty that did not depend upon its ratification for entry into force, that agreement would still be in effect for the other parties to the treaty. Exp: 1936 Montreux Convention is still into force after dissolution of USSR.

State Succession (Universal & Partial) Rights & Obligations of the Extinct State 2. If an agreement did create a territorial government on the territory of the defunct state, it would be considered to be still in effect and to bind the successor state. Exp: 1923 Lozan Peace Treaty established border between Turkey and USSR. After dissolution of USSR the border established by Treaty still valid between Georgia and Turkey.

State Succession (Universal & Partial) Rights & Obligations of the Successor State If 3rd-party “states have any claims against the extinct state, the settlement of such obligations is up to the successor state.” Citizens of the extinct state have no right of appeal under international law against any actions taken by the annexing state…Any claims by or against such citizens involving their former government then become domestic questions of the annexing state.”

State Succession (Universal & Partial) Rights & Obligations of the Successor State The new sovereign…decides to what extent it will be bound by the extinct state’s obligations toward its citizens…” “Debts owed to citizens of the former state become domestic questions of the annexing state.” “Debts owed to 3rd states or their citizens may or may not be honored by the successor state.”

State Succession (Universal & Partial) Partial Succession “Occurs when; a state assumes sovereignty over portions of territory formerly belonging to another state, a new international personality is created by the secession of a territory from an existing state, when a member state of a federation…obtains independence.”

State Succession (Universal & Partial) Partial Succession – Effects Regarding Public & Private Property Rights “Normally such issues are taken care of in the instrument that transfers title” “Public property of the predecessor (öncül/selef) state located in the successor state normally passes to the successor state”

State Succession (Universal & Partial) Partial Succession – Effects Regarding Public & Private Property Rights “Private property rights in territory ceded by one state to another or annexed by another are not formally affected by the change” “Titles to land…are usually protected by the successor state unless the new government adheres to some form of socialism that demands nationalization of all land.”

State Succession (Universal & Partial) Partial Succession – Domestic & Foreign Debts 1. “When part of a state is transferred to another state, the passing of the state debt (internal) from predecessor to successor normally is settled by negotiation and agreement between the parties. If there is no agreement, then the debt passes ‘in an equitable portion’.” 2. “If the successor is a newly independent state, no state debt normally passes to the new state unless there is an agreement that states otherwise.”

State Succession (Universal & Partial) Partial Succession – Domestic & Foreign Debts 3. “When 2 or more state unite to form one successor state, the state debt of the predecessors passes on to the new entity.” 4. “When part or parts of a state’s territory separate from that legal person and form a new state, the state debt of the predecessor state passes to the successor state on a proportional basis unless the parties agree otherwise.”

State Succession (Universal & Partial) Partial Succession – Domestic & Foreign Debts 5. “When a state dissolves and ceases to exist and the parts of the predecessor state’s territory form 2 or more successor states, the state debt of the dissolved unit passes, normally, in equitable proportions to the successor states.” “Unless otherwise decided, debts owed to the predecessor state become debts owed to the successor state.”

State Succession (Universal & Partial) Effects of Treaties Universal Succession “Political treaties, as well as treaties of commerce, navigation, and extradition, are abrogated at once.” Partial Succession “Political treaties are abrogated. Other agreements may be terminated after consultation between parties.”

State Succession (Universal & Partial) Effects of Treaties Newly Independent States “Not bound to maintain in force treaties applicable to the predecessor state.” “May signify its status as a party to a multilateral treaty of the predecessor state by notification in writing of succession (or accession).”

State Succession (Universal & Partial) Effects of Treaties Newly Independent States “A bilateral treaty between another state party and the predecessor state that directly relates to the newly independent state remains in effect after succession only if the new state and the other state party agree (expressly or via clear conduct) to give it effect.”

State Succession (Universal & Partial) Effects of Treaties Merger of States “If 2 or more states unite and form one successor state, any treaty in force for any of the merged entities at the time succession continues in force for the successor state unless the latter and the other state party…otherwise agree.”

State Succession (Universal & Partial) Effects of Treaties Merger of States There is one exception: “…when it appears from the treaty…that its application to the successor state (merged entity) would be incompatible with the object or purpose of the treaty.”

If you have any questions, make an appointment to see me in my office. See you next week!