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International Law
SUNY Buffalo Law School
Mutua, Makau W.

Discussion on States and Statehood

INTERNATIONAL LAW

i. Where do we find international law?
ii. Is international law part of the national law? Are there tensions that exist between the two?
iii. Who is bound by international law?
iv. Who are the main actors in international law? à Sovereign, independent states
1. Sovereign: exclusive jurisdiction over the affairs of the state and not subject to dictation by anyone else.
2. The 190 states are said to be equal under international law under the concept of “sovereign equality.” This may be just a legal fiction as states are often not equal to each other (compare the U.S. with Afghanistan, for example).
v. There is also public international law regarding water, airspace, environment, nationality, human rights, group rights, international criminal law, and no-man’s land (Antarctica).

WHAT IS A STATE?

Characteristics of States:

1. Ability to establish control over a defined geographic territory. If there is no land, there can be no state.
2. The control must be effective.
3. The land must have a defined permanent population.
4. The state must be able to engage in international intercourse with other states.
5. The state must be sovereign and independent.

There is an idea of separateness between states.
States comprise of more than one ethnicity. Many nations can exist in one state.

How can you distinguish between a state and a government?
· States are perpetual, identifiable with the territory in question. Governments can disappear – they are temporal and limited. The state pre-exists and survives the government.

RECOGNITION OF STATEHOOD

Doctrine of Recognition: states become states because they are recognized in international law.

1. Declaratory Recognition: the international community looks at the conditions on the ground and decides that a state exists.
a. If it is not a UN member, it is not a state under international law.

2. Constituted Recognition: by the international community recognizing the state, that recognition constitutes the state. The act of recognition acts to constitute a state, rather than just declaring it exists already.

QUESTION: Between 1967 and 1970, the Ibo people of Nigeria broke away and formed a new state called Biafra. Five countries recognized it as a state, but no Western country recognized it. Was Biafra a state?
· No – the countries that recognized it had no international clout.
· The notion of sovereign equality is a fiction, as seen here – had the U.S. recognized Biafra, it may have been a state.

Examples of Formal Inequality

ope, following the 30 Year’s War à this launched the modern European state).

International Criminal Court – more limited jurisdiction than the ICJ, as it deals only with crimes against humanity, war crimes, genocide, and acts of aggression.

The ICJ – replaced the Permanent Court of International Justice in 1945.

Countries that are members of the UN are also parties to the ICJ Statute, as that Statute was appended to the UN Charter. Hence, the sources of international law that the ICJ Statute lists are followed by all UN Members.

Section 1. Sources

Restatement (THIRD) § 102
1. Sources of International Law
a. A rule of international law is one that has been accepted as such by the international community of states
i. In the form of customary law;
ii. By international agreement; or
iii. By derivation from general principles common to the major legal systems of the world
Customary international law results from a general an consistent practice of states followed by them from a sense of legal obligation