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International Law
Stetson University School of Law
Nagle, Luz Estella

International Law Outline—Nagle Spring 2010

Color Codes:

VCLT

UN

US Constitution

ICJ

RECOGNITION OF STATES AND GOVERNMENTS

v Difference between a “state” and a “government”

Ø For the purposes of international law, there is a difference between states and the governments that represent them

Ø States, not governments, are the bearers of rights and obligations under international law

§ Thus, the general rule is that a change in government does not affect the international obligations of the state

§ Example of a right held by a state: in the US, states have the right to bring suit in American courts

Ø However, how a state governs internally may be relevant to statehood and recognition of governments

§ Example: in the US, recognized governments of states are entitled to the state’s assets in the US

States

v In the past 50 years, there has been a rapid increase in the number of states that exist

Ø Example: when the United Nations was formed in 1945, it had only 51 states members; now the United nations has 191 states members

Ø What lead to the increase in members?

§ 1) Decolonization

§ 2) Break up of various states, such as the USSR, Yugoslavia, Ethiopia (Eritrea broke away), Czechoslovakia

v Break-ups of states occur in two ways: 1) Dissolution, or 2) Secession

Ø 1) Dissolution – an existing state implodes and becomes two or more new states; all resulting states are new

§ Example – Yugoslavia and Czechoslovakia

§ Political and legal results of dissolution:

· If there is a state that maintains the entity of the original state, the maintaining state can no longer deploy troops to the new independent state

Ø 2) Secession – a part of an existing state breaks away to become its own state

§ example: Eritrea broke away from Ethiopia

§ Political and legal results:

· The new state does not have to recognize the government of the state from which it broke

· The new state has the right to govern its own citizens

· The new state can independently enter into treaties

· The new state can have membership in organizations that were previously closed to it, as some international orgs are open only to states

· The new state can be a party to an ICJ case

v 4 Conditions must be met for an aspiring entity to be recognized as a state:

Ø (1) a defined territory

§ Having nearly exclusive authority over what happens in your territory requires that you know what your territory is

§ “Defined” doesn’t mean there are no boarder disputes

§ Size doesn’t matter

Ø (2) A permanent population

§ Size doesn’t matter

§ The people can’t simply be passing through, be seasonable inhabitants, etc

§ It is sometimes said that this implies an organized community

Ø (3) an effective government

§ Emphasis on the control that the government exercises over the relevant territory, to the exclusion of other entities

§ Must have effective control over the territory

§ There are situations where states are recognized even when there is a civil war and no single entity that is in effective control of the whole territory

Ø (4) the capacity to enter into relations with other states

v Recognition

Ø Recognition: formal acknowledgement by other states that the entity is a state

Ø Two Theories of Recognition

§ Declaratory theory—(Objective) an entity is ipso facto a state once these conditions are met, regardless of what other states do or say

· The more widely accepted theory

§ Constitutive theory—(Subjective) only when other states decide that such conditions have been met, and acknowledge the legal capacity of the new government, is a new state actually constituted

· The more realistic theory because a new entity can only achieve many of the benefits of statehood when other states agree to accord it such benefits

Governments

Three different approaches to recognition of governments by other states (these three doctrines are not mandated; recognition is largely a political call) (government is the legal representative of the state)

v I) Traditional approach: states consider four factors in deciding whether to recognize a state:

§ 1) effectiveness of control

§ 2) stability and permanence

§ 3) popular support

· this does not mean that the government has to be democratic – it means something more like acquiescence

· purpose of this factor: states don’t really want to have relations with a state that is internally unstable

§ 4) ability and willingness to fulfill obligations

v II) Estrada doctrine: when a new government comes to power either through constitutional means or otherwise, its relations with other states remain unchanged

§ This was created by the Mexican government, which found that it would be insulting to make determinations about recognition of governments because it would involve passing judgment on the internal affairs of other states

§ Mexico no longer follows this doctrine

v III) Tobar doctrine: states will not recognize governments which come into power as a consequence of a coup or of a revolution against the government, so long as the freely elected representatives of the people thereof have not constitutionally reorganized the country

§ In the past 12 years, the US and other countries have spent a lot of resources writing about the importance of democratic governance new trend

· The OAS has adopted significant resolutions to further this objective

§ in some cases, the UN will not allow a government to take a seat at the UN when the gov

eaties are like Contracts between two or more States

§ As the US has not ratified the VCLT, treaties are legally binding under customary international law

§ As for states that have ratified the VCLT, treaties are legally binding under Article 26 of the VCLT: Pacta Sunt Servanda

· “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”

· Thus, if a treaty creates legally binding obligations, then a breach of a treaty by one of its parties is a breach of international law

§ A treaty enters into force when:

· (1) the state has consented to be bound

· (2) The treaty has entered into force

§ A party—is a state that is bound by a treat

§ A signatory—is a state that has signed but is not bound by a treaty

v The Vienna Convention on the Law of Treaties (VCLT)

Ø Adopted in May 1969 at a UN conference as a means of codifying the background rules states were following in their treaty practice

Ø VCLT only applies to treaties made after its adoption date

Ø VCLT is considered to reflect the customary practice of states

Ø The VCLT frequently establishes rules that will apply as a default when a treaty does not say how it will operate (i.e.—Article 24: entry into force of a treaty)

Ø Specific Articles:

§ Article 2 (1)(a): Definition of a treaty – “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”

· The VCLT’s definition recognizes that a treaty may consist of not just a single written instrument but of multiple instruments, such as an exchange of diplomatic notes between two states

· Comments on this article

¨ “concluded between states” – customary international law shows that entities other than states can be parties to treaties, including international organization

¨ “in written form” – international agreements do not have to be in writing according to customary international law

¨ “governed by international law” – VERY important

¨ “and whatever its particular designation” – the title of a document does not necessarily determine whether a document is a treaty