LAW 221: INTERNATIONAL LAW

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Presentation transcript:

LAW 221: INTERNATIONAL LAW Dr. Başak Çalı

Territory People Government Capacity to enter into relations with other states What is a state? Article 1 of the Montevideo Convention on the Rights and Duties of States

Montevideo clauses are necessary, but not always sufficient conditions Three aspects: A) The legality of secession from an already existing state B) The legality of the government of the entity C) Recongition by other states Montevideo clauses are necessary, but not always sufficient conditions

Non-consensual secession from an already existing state is not recognised by IL (e.g. Secession in Quebec, Canadian Supreme Court, 1998) Secession

Kosovo a case of secession? US argued that the case of Kosovo was sui-generis and does not create a precedent for other states in the future. Security Council Resolution 1244 of 1999 2008 Unilateral Declaration of Kosovo – immediately recognised by many states. ICJ Advisory Opinion ‘declaration of independence does does not violate SC 1244.’ Kosovo a case of secession?

The legality of the entity Can a regime that effectively exercises apartheid be regarded as a state? Southern Rhodesia was not viewed as a legitimate state in 1966 The legality of the entity

Two theories of recognition The declaratory theory The constitutitve theory Two theories of recognition

EU Guidelines on Recognition (1991) “'The Community and its member States adopt a common position on the process of recognition of these new States, which requires: - respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights; - guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE - respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement; - acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability; - commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes. The Community and its member States will not recognise entities which are the result of aggression.” EU Guidelines on Recognition (1991)

Recognition, Non-recognition KKTC is recognised only by Turkey South Osetia is recognised by Russia Kosovo: a case of mixed recognition Taiwan: recognised by a small number of states Sahrabi Arab Democratic Republic, member of African Union Palestine Authority: non-member observer state of the UN Recognition, Non-recognition

What consequences flow from non-recognition? The validity of nationality documents and travel documents would be contested Cannot have diplomatic representation in other states Cannot become a member of international organisations (but, see KKTC) Cannot have its own international airlines (but, see KKTC for a short while) Cannot benefit from international aid (but see Palestine) What consequences flow from non-recognition?