Table of Contents
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(1) A State as a Subject of International Law:
Definition, Requirements of Statehood, and Fundamental Rights and Duties
Independence
- A State as a Subject of International Law: Definition, Requirements of Statehood, and Fundamental Rights and Duties
- State Territory and Territorial Sovereignty
- State Jurisdiction
- State Responsibility
- Recognition
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(1) A State as a Subject of International Law:
Definition, Requirements of Statehood, and Fundamental Rights and Duties
In general, a subject (a person) of law is
an entity to whom the law provides rights and assigns obligations. The requirements to be met for an entity to
be considered a subject of International Law are the ability to have rights and
obligations under International Law, the capacity to enter into relations with
other subjects and to stand before international courts. States are, in this sense, clearly subjects
of International Law since they fulfill all of these requirements.
A State is the primary legal subject
(person) in International Law. A State,
by evidencing a separate legal and corporate personality, fulfills the basic
requirement for the entrance into the community of nations. For an entity to be a State, it should be
free from political control of another State and be free to enter into
relations with other States.
What is a State? What are the criteria of statehood? What are the rights and duties of a
State? The answers to these questions
are dealt with in the following sections.
Section 1: Definition
and Requirements of Statehood
There is no exact definition of the term
“State” in International Law. However in this law, the essential criteria for
statehood are well settled. Article 1 of
the Montevideo Convention on the Rights and Duties of States of 1933 provides
the following:[1]
The state as a person of
international law should possess the following
qualifications:
a. a permanent population;
b. a defined territory;
c. government; and
d. capacity to enter into relations with other States.
According to this article an entity to be
a person of International Law, it should fulfill the enumerated qualifications
which are regarded as the essential requirements or characteristics of
statehood. However, these requirements
are not exhaustive; other requirements may be relevant including sovereignty,
independence, self-determination and recognition; these requirements are
considered in correlation of the essential requirements. All these requirements are considered below.
(a) A Permanent Population
The existence of a permanent population is
naturally required as an initial evidence of the existence of a State. This requirement suggests a stable community. Evidentially it is important, since in the
absence of the physical basis for an organized community, it will be difficult
to establish the existence of a State.[2] The size of the population, however, is not
relevant since International Law does not specify the minimum number of
inhabitants as a requirement of statehood.
Nevertheless, an acceptable minimum number of inhabitants is required
with regard to self-determination criterion.[3]
(b) A Defined Territory
The requirement of a permanent population
is intended to be used in association with that of territory. What is required by a defined territory is
that there must be a certain portion of land inhabited by a stable
community. A defined territory does not
suggests that the territory must be fixed and the boundaries be settled since
these are not essential to the existence of a State, although in fact all
modern States are contained within territorial limits or boundaries.
The past practice shows that the existence
of fully defined boundaries is not required and that what matters is the
existence of an effective political authority having control over a particular
portion of land. In 1913, Albania was recognized as a State by a number of
States even though it lacked settled boundaries, and Israel
The existence of a particular territory
over which a political authority operates is essential for the existence of a
State. For this reason, the “State of Palestine”
declared in November 1988 at the conference of Algiers was not legally regarded
as a valid State since the Palestine Liberation Organization had have no
control over any part of the territory it was claiming.[5]
The size of the territory of a State and
alterations to its extent, whether by increase or decrease, do not of
themselves change the identity of that State.
A State
continues to exist as long as a portion of land is retained.
(c) A
Government
For a stable community to function
reasonably effectively, it needs some sort of political organization. It is required that an effective government
be created, and this political authority must be strong enough to assert itself
throughout the territory of the State without a foreign assistance. The existence of an effective government,
with some sort of centralized administrative and legislative organs, assures
the internal stability of the State, and of its ability to fulfill its
international obligations.[6]
However, the requirement related to the
existence of an effective government having control throughout its territory
although strictly applied in the past practice, it has been subjected to
certain modification in modern practice.
In certain cases, the requirement of an effective government was not
regarded as precondition for recognition as an independent State. The State of Croatia and the State of Bosnia
and Herzegovina Burundi
and Rwanda
Moreover, a State does not cease to exist
when it is temporarily deprived of an effective government because of civil war
or similar upheavals. The long period of
de facto partition of Lebanon Somalia Germany
in the Second World War and the occupation of Germany
and Japan
Nevertheless, the requirement of effective
government remains strictly applied in case when part of the population of a
State tries to break away to form a new State.
(d) A Capacity to Enter into Relations with Other States
The capacity to enter into relations with
other States is an attribute of the existence of an international legal
personality.[12] A State must have recognized capacity to
maintain external relations with other States.
Such capacity is essential for a sovereign State; lack of such capacity
will avert the entity from being an independent State. Capacity distinguishes States from lesser
entities such as members of federation or protectorates, which do not manage
their own foreign affairs, and are not recognized by other States as
full-members of the international community.
(e) Other Requirements
Some jurists consider sovereignty as an
important criterion of statehood; even some of them use the term sovereignty as
a synonym for independence.[14] The concept of sovereignty denotes,
internally, the supreme undivided authority possessed by a State to enact and
enforce its law with respect to all persons, property and events within its
borders, and externally, the capacity of a State to enter into relations with
other States, such as sending and receiving diplomats and engaging in treaty
making, and the enjoyment of certain immunities and privileges from the
jurisdiction of other States.[15] Sovereignty, in this regard, is the
indication of the international personality of an entity seeking a status of a
State in the community of nations. Lack
of sovereignty suggests that an entity is not independent and has no
international legal personality, and consequently, not a State. However, some others reject sovereignty as a
criterion of statehood on the considerations that Germany
In the practice of States, the principle
of self-determination has been used as a criterion modifying the requirement of
effective government.[16] The evolution of the right of
self-determination has affected the level of effectiveness a concerned
government required to exercise in order to fulfill such requirement of
statehood. Therefore, a lower level of
effectiveness has been accepted; this occurred particularly in decolonization
situations where colonies were seeking their independence and the creation of
their States. Moreover, the principle
of self-determination has been used as an additional criterion of statehood in
certain circumstances, such as, in the case of Rhodesia
when it unilaterally declared independence on November 11, 1965 , and in the cases of the successor
States of the former Yugoslavia
In the context of the constitutive theory
of recognition, recognition has been required as an additional criterion of
statehood.[17] The constitutive theory considers that the
act of recognition constitutes or creates the new State, i.e., that the
existence of a State begins with its recognition by other States. Accordingly, it is only through recognition
that a State comes into being under International Law. The practice of States has required
recognition as an additional criterion of statehood in certain instances, such
as in the case of Rhodesia Rhodesia
Section
2: Fundamental Rights and Duties of a
State
Rights and duties of a State have been the
primary concern of International Law.
The formulation of a list of the so-called fundamental or basic rights
and duties of a State has been a persistent preoccupation of international
conferences and bodies. The Montevideo
Convention of 1933 on the Rights and Duties of States was the first attempt in
the process of such formulation.[18] This attempt
was followed by the preparation of the International Law Commission of the
United Nation “the Draft Declaration on the Rights and Duties of States of
1949”,[19]
and the adoption of the General Assembly of the United Nations the Resolution
2625 of 1970 entitled the “Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation Among States in Accordance with
the Charter of the United Nations.”[20] The above instruments, together with the
Charter of the United Nations, provide references for fundamental rights and
duties of States.
Accordingly, under International Law
States are entitled to enjoy certain fundamental rights and bound by certain
duties.
A. Rights of a State
The rights of a State are those inherent
rights which a State is entitled to under International law. These rights exist by virtue of the
international legal order, which is able to define the rights of its subjects.
Among the fundamental rights of a state are
the following:
(1) The Right of Independence
Apart of being a requirement of statehood
as mentioned previously, independence is an outstanding fundamental right of a
State. Independence
However, any political or economic dependence
that may in reality exist does not affect the legal independence of the State,
unless that State is formally compelled to submit to the demands of a superior
State, in such a case a dependent Status is involved.[22]
The right of independence in International
Law includes a number of rights, such as, the right of territorial integrity,
and the right to have an exclusive control over own domestic affairs.
(2) The Right of Sovereignty
The right of sovereignty is a fundamental
right of a State. All States must enjoy such right. Sovereignty has twofold meaning. Firstly, sovereignty means that a State has
the supreme undivided authority over its territory--this concept of sovereignty
is known as territorial sovereignty.
Secondly, sovereignty means the capacity of a State to enter into
relations with other States, such as sending and receiving diplomats and
engaging in treaty making, and the enjoyment of certain immunities and
privileges from the jurisdiction of other States--this concept is connected
with the concept of international personality.
Sovereignty has a much more restrictive
meaning today than in the 18th and 19th Centuries when,
with the emergence of powerful national States, few limits on State sovereignty
were accepted. At the present time there
is hardly a State has not accepted, in the interest of international community,
restrictions and limitations on its freedom of action. Actually, the exercise of sovereignty today
is not absolute. A State has subjected
its sovereign powers to several limitations by virtue of treaties or decisions
of international organizations of which it is a member, or by virtue of its
consent.
(3) The Right of
Territorial Jurisdiction
The Right of Territorial Jurisdiction is
derived from the right of sovereignty.
This right entitles a State to have the absolute and exclusive authority
over all persons, property and events within the limits of its national
territory. This authority implies
jurisdiction of the State to enact the law, to enforce the law and to
adjudicate persons and events within its territorial land, its internal and
territorial water, and national air space.
(4) The Right of
Sovereign Equality
Sovereign equality means that all State
have equal rights and duties, have the same juridical capacities and functions,
and are equal members of the international community, notwithstanding
differences of an economic, social, political or other nature.[23] Sovereign equality is mentioned in the
Charter of the United Nations as the principle on which this Organization is
based.[24]
(5) The Right
of Self-Defense
The right of self-defense to which a State
is entitled is recognized by Customary International Law as well as Article 51
of the Charter of the United Nations.
However, this right cannot be exercised by a State unless an armed
attack occurs against it and until the Security Council has taken the measures
necessary to maintain international peace and security. In invoking this right, the State must comply
with the requirements of Customary Law, which are the use of peaceful
procedures—if they are available, necessity and proportionality.[25]
B. Duties of a State
In correlation to the rights of the
States, there are duties binding the States.
All States are bound to observe their duties under International
Law. Non-compliance of a State with its
duties constitutes a violation of International Law for which it is responsible
under this Law. Among the duties of a
State are the following.
(1) The Duty to Refrain
from the Threat or Use of Force
A
State is under a duty to refrain in its international relations from the threat
or use of force against the territorial integrity or political independence of
any State. This duty includes within its scope certain recognized duties, such
as, the duty to refrain from propaganda for wars and aggression, the duty to
refrain from organizing or encouraging the organization of irregular forces or
armed bands for incursion into the territory of another state, the duty to
refrain from organizing, assisting or participating in acts of civil strife or
terrorist act in another State and the duty to refrain from forcible action
which derives peoples from their rights to self-determination, freedom and
independence.[26]
However, the use of force is accepted and
considered lawful under International Law only if it is exercised in case of
self-defense and in accordance with the provisions of the Charter of the United
Nations.
(2) The Duty to Settle International Disputes by Peaceful Means
A State is under a duty to settle its
international disputes with other States by peaceful means in such a manner
that international peace, security, and justice are not endangered. The Charter of the United Nations, in Chapter
6, provided the machinery for the fulfillment of this duty by the States.
Accordingly, States must seek a just settlement of its international dispute by
any of the peaceful means stated in the Charter or by any peaceful means agreed
upon by them.[27] In case of their failure to reach a peaceful
settlement by themselves, they are under a duty to comply with the actions
taken by the United Nations.
(3) The Duty not to Intervene in the Affairs of Other States
A State is under a duty not to intervene,
directly or indirectly, for whatever reason, in the internal or external
affairs of any other State.[28] It constitutes a violation of International
Law any use, encourage the use or threat to use of military, economic,
political or any other form of intervention against a State or against its
political, economic and cultural elements.
(4) The Duty to Co-Operate with One Another
A State is under a duty to co-operate with
other States, irrespective of the differences in their political, economic and
social systems, in various spheres of international relations, in accordance
with the Charter of the United Nations.[29] Accordingly, a State should co-operate with
other States in the economic, social, cultural, educational and scientific
fields, as well as, in the fields of peace and security, and human rights and
freedoms.
(5) The Duty of a State to Fulfill Its Obligations in Good Faith
A State is under a duty to fulfill in good
faith the obligations assumed by it under the Charter of the United Nations and
the International Law, including international treaties.[30] The concept of good faith implies that a
State should perform its assumed obligations honestly, without malice and
defraud, and without seeking unconscionable advantage.
[1] Text in 165 L.N.T.S. 19.
[2] Brownlie, p. 70.
[3] See Shaw, pp. 178-9.
[4] Id.
[5] Shaw, p. 179.
[6] Id.
[7] Shaw, p. 180-1.
[8] See Brownlie, p. 71.
[9] Malanczuk, p. 77.
[10] Id.
[11] Id.
pp. 77-8.
[12] See
Shaw, p. 181.
[13] See
generally Brownlie, pp. 71-2; and Shaw, pp. 181-3.
[14] See
generally Brownlie, pp. 75-6.
[15] See
Bledsoe & Boczek, p.55.
[16] See
Malanczuk, p. 80; and Shaw, pp. 183-5.
[17] See
generally Shaw, pp. 185-6; and Malanczuk, pp. 83-4.
[18] Text in
165 L.N.T.S. 19.
[19] Text in
Yearbook of the I.L.C. (1949).
[20] G.A.
Res. 2625, 25 GAOR, Supp. 28, U.N. Doc. A/8028, at 121 (1970). [Hereinafter
cited as the 1970 Declaration on Principles of International Law].
[21]
Yearbook of the I.L.C. 1949, p. 286.
[22] Shaw,
p. 189.
[23]
Montevideo Convention art. 4; and the 1970 Declaration on Principles of
International Law, principle (f).
[24] U.N.
Charter art. 2(1).
[25] See
infra chapter 15.
[26] 1970
Declaration on the Principles of International Law, principle (a); and U.N.
Charter art. 2(4).
[27] U.N.
Charter arts. 2(3) & 33; and the 1970 Declaration on the Principles of
International Law,
principle (b).
[28]
Montevideo Convention art. 8; and the 1970 Declaration on the Principles of
International Law,
Principle (c).
[29] The
1970 Declaration on the Principles of International Law, principle (d).
[30] Id.
principle (g).
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(2) State Territory
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As stated in a previous chapter dealing with a State, a territory is one of the fundamental elements of statehood. Without a territory, an entity cannot be a State.[1] The notion that a State occupies a definite portion of the earth within which it exercises, subject to the limitations of International Law, its exclusive authority to the exclusion of other States lies at the basis of International Law.[2] The exercise of such a supreme authority by a State over its own territory is known in International Law as “territorial sovereignty”.
Notably, the concept “territorial sovereignty” is confused with the concept “jurisdiction”. Some have used the two concepts interchangeably. However, there is a distinction between the two concepts. Territorial sovereignty signifies ownership and possession of a territory, which entitles a State to exercise its authority and jurisdiction over the territory. Jurisdiction justifies competence to affect peoples, properties and events within a territory.
Because “territorial sovereignty” and“jurisdiction” are two legal concepts connected to territory and can only be understood in relation to territory, therefore, in the following two sections“territorial sovereignty” and modes of acquiring territory are dealt with. While “jurisdiction” will be the subject of the next chapter.
Section 1: Territorial Sovereignty
Sovereignty in regard to a territory is known as territorial sovereignty. Territorial Sovereignty is the right of a State to exercise over its own territory, to the exclusion of any other States, the functions of a State.[3] It has a positive and a negative aspect.[4] The first aspect relates to the exclusivity of the right of the State with regard to its own territory, while the second aspect refers to the obligation to protect the rights of other States.
A State exercises its territorial sovereignty within its boundary. Boundary is an imaginary line that delineates the territorial limit of a State.[5] Boundaries are of three dimensions.[6] They include the State land and the maritime domain of its internal waters and territorial sea, the airspace and its subsoil. They are either natural topographical, having physical distinguishable features such as mountains, rivers or lakes, or imaginary and artificial such as lines of attitude and longitude, surveyor lines or posts. Both types have equal legal effects and usually based upon treaties or historical title.
The sovereignty of a coastal State extends, beyond its boundaries, over its contiguous zone, over its continental shelf and over its exclusive economic zone. Moreover, the sovereignty of State whether coastal or land-locked extends over its national vessels. The sovereignty of a State extends also to its national aircrafts.
The right to territorial sovereignty enables a State to exercise the fullest measures of sovereignty powers over its land territory, large measures over its territorial waters and air space, and smaller measures over its continental shelf and adjacent area. In addition, it enables a State to exercise sovereignty over vessels and aircrafts that fly its flag or carry its nationality, which are treated as its territory.
Corollary to the rights generated from territorial sovereignty, there are duties imposed upon a State. These duties involve the obligation to protect within its territory the rights of other States, together with the rights that each State may claim for its nationals in foreign territory.
Many treaties and conventions have been concluded to regulate State sovereignty over land, sea, airspace and outer space. Over airspace and outer space, there are the 1944 Convention on International Civil Aviation (the Chicago Convention),[7] the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water, [8]and the 1967 Treaty on Principles Governing the Activities in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies (the Outer Space Treaty).[9]
Over the sea, there is the 1982 Convention on the Law of the Sea,[10]which replaced the 1956 Conventions related to the Territorial Sea
Since the rights generated from the concept of territorial sovereignty can only be exercised in relation to a territory, it is necessary to know how a territory can be acquired.
Section 2: Acquisition of Territory [12]
The international rules related to territorial sovereignty are rooted in the Roman Law provisions governing ownership and possession. In addition, the classification of the different modes of acquiring territory is a direct descendant of the Roman rules dealing with property.[13]
Territory is the space within which the State exercises sovereign authority. Title to territory is acquired either through the claim of land not previously owned (terra nullius) or through the transfer of title from one State to another.[14] Title acquired in the first category is called original title, while in the second category is called derivative title. Modes of original acquisition of territory include occupation, prescription and accretion. Derivative modes include cession (voluntary or forcible), and conquest and annexation. All these modes are dealt with in the following.
(1) Occupation
Occupation is an original mode of acquisition by a State of a title to a territory. It implies the establishment of sovereignty over a territory not under the authority of any other State (terra nullius) whether newly discovered or abandoned by the State formerly in control (unlikely to occur).[15]
For the title acquired through occupation to be final and valid under International Law, the presence and control of a State over the concerned territory must be effective.[16] Effectiveness requires on the part of the Claimant State Claimant State
Occupation was often preceded by discovery that is the realization of the existence of a particular piece of land. In the early period of European discovery, in the Fifteenth and Sixteenth Centuries, the mere realization or sighting was sufficient to constitute title to territory. As time passed, something more was required and this took the form of symbolic act of taking possession, whether by raising of flags or by formal declarations. By the Eighteenth Century, the effective control came to be required together with discovery to constitute title to territory.[17]
(2) Prescription
Prescription is a mode of establishing title to territory which is subject to the sovereignty of another State (not terra nullius) through peaceful exercise of de facto sovereignty over a long period of time.[18] It is the legitimization of a doubtful title by the passage of time and the presumed acquiescence of the former sovereignty. It differs from occupation. It relates to territory which has previously been under the sovereignty of another State. However, both modes are similar since they require evidence of sovereignty acts by a State over a period of time.
A title by prescription to be valid under International Law, it is required that the length of time must be adequate, and the public and peaceful exercise of de facto sovereignty must be continuous. The Possession of Claimant State must be public, in the sense that all interested States can be made aware of it. It must be peaceful and uninterrupted in the sense that the former sovereign must consent to the new sovereign. Such consent may be express or implied from all the relevant circumstances. This means that protests of whatever means by the former sovereign may completely block any claim of prescription.
As the requirement of adequate length of time for possession is concerned, there is no consensus on this regard. Thus, the adequacy of the length of period would be decided on a case by case basis. All the circumstances of the case, including the nature of the territory and the absence or presence of any competing claims will be taken into consideration.
(3) Accretion
Accretion is a geographical process by which new land is formed mainly through natural causes and becomes attached to existing land.[19] Examples of such a process are the creation of islands in a rive mouth, the drying up or the change in the course of a boundary river, or the emerging of island after the eruption of an under-sea volcano. When the new land comes into being within the territory of a State, it forms part of its territory, and this causes no problem. However, in case of a drying or shifting of a boundary river, the general rule of International Law is that if the change is gradual and slight, the boundary may be shifted, but if the change is violent and excessive, the boundary stays at the same point along the original riverbed.[20]
Where a new territory is added, mainly through natural causes, to territory already under the sovereignty of the acquiring State, the acquisition and title to this territory need no formal act or assertion on part of the acquiring State.[21]
(4) Cession
Cession of territory is a transfer of sovereignty from one sovereign to another.[22] Its basis lies in the intention of the concerned parties to transfer sovereignty over the territory in question, and it rests on the principle that the right of transferring its territory is a fundamental attribute of the sovereignty of a State. It occurs by means of an agreement between the ceding and the acquiring States. The cession may comprise a portion of the territory of the ceding State or the totality of its territory. In the latter case, the ceding State disappears and merges into the acquiring State.[23]
Cession of territory may be voluntary as a result of a purchase, an exchange, a gift, a voluntary merger, or any other voluntary manner, or it may be made under compulsion as a result of a war or any use of force against the ceding State.[24] History provides a great number of examples of cession.[25] Examples of voluntary cession are the United States ’ purchase of Alaska from Russia in 1867, the exchange of a portion of Bessarabia by Romania to Russia in exchange for Dobrudja in 1878, the France ’s gift of Venice to Italy in 1866, and the voluntary merger of the Republic of Texas into the United States Germany by France of the region of Alsace- Lorraine in 1871, and the merger of Korea into Japan
(5) Conquest and Annexation
Conquest is an act of defeating an opponent State and occupying all or part of its territory.[26] Annexation is the extension of sovereignty over a territory by its inclusion into the State.[27] Under traditional International Law, conquest did not of itself constitute a basis of title to the land. It was merely a military occupation. If followed by a formal annexation of the conquered territory, then it was called subjugation and could be considered a valid derivative title to territory. Accordingly, conquest followed by annexation constituted a mode to transfer the title of the conquered territory to the conqueror.[28]Like compulsory cession, conquest followed by annexation would transfer territory by compulsion, but unlike cession, it involved no agreement between the concerned parties.
While the acquisition of territory through conquest followed by annexation was an accepted mode of acquiring title to territory under traditional International Law, it is no longer legal at modern times. The acquisition of territory through the use of force is outlawed by paragraph 4 of article 2 of the Charter of the United Nations, which obliged the member States to refrain from the use of force against the territorial integrity or political independence of any State. This same principle is reaffirmed in the 1970 General Assembly “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations”.[29] This Declaration adds that the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that no territorial acquisition resulting from such act shall be recognized as legal.[30]
Although today conquest is not a legal mode of acquiring title to territory, it does give the victor certain rights under International Law as regards the occupied territory, such as rights of belligerent occupation.[31] The territory remains the legal possession of the ousted sovereign because sovereignty does not pass by conquest to the occupying State, although it may pass in certain cases where the legal status of the territory occupied is in dispute prior to the conquest.
At present times, acquisition of territory following a war would require further international action in addition to internal legislation to annex. Such further international action would be either a treaty of cession by the former sovereign or international recognition.[32]
Modern examples of annexation following conquest are Israel ’s annexation of the Golan Heights and the East Jerusalem, and Iraq ’s annexation of Kuwait
Corresponding the modes of acquiring territory, there are modes of losing it. Territory may be lost by express declaration or conduct such as a treaty of cession or acceptance of cession, by conquest, by erosion or natural geographic activities, by prescription or by abandonment.[34]
[1] See L. Oppenheim, 1 International Law, p. 563, eds. R.J. Jennings and A.D. Watts, 9th ed. London
[3] See Shaw, pp. 411-12.
[4] Id. p. 412.
[5] Bledsoe & Boczek, p. 143.
[6] Id.
[7] Text in 15 U.N.T.S. 295.
[8] Text in 480 U.N.T.S. 43.
[9] Text in 610 U.N.T.S. 205.
[10] Text in 21 I.L.M. (1982), 1261.
[11] Text in 402 U.N.T.S. 71.
[12] See generally Brownlie, pp. 126-57; and Shaw, pp. 417-43.
[13] SeeShaw, p. 412.
[14] Bledsoe& Boczek, pp. 155-6.
[15] Bledsoe& Boczek, p. 149; and Shaw, p. 424.
[16] SeeShaw, pp. 424 and 432-6; Brownlie, pp. 133-6.
[17] SeeShaw, pp. 425-6
[18] Id.
[19] Shaw, p. 419.
[20] See id. pp. 419-20.
[21] See Brownlie, p.144.
[22] SeeC.H. Hackworth, 1 Digest of International Law, 421, U.S.
[23] SeeHackworth, pp. 421-2.
[24] Bledsoe& Boczek, p. 144.
[25] See id. pp. 144-5; and Shaw, pp. 421-2
[26] Shaw, pp. 422.
[27] Bledsoe& Boczek, p. 140.
[28] SeeShaw, pp. 422-3.
[29] G.A. Res. 2625 of October 24, 1970, 25 GAOR, Supp. 28, U.N. Doc. A/8028, at 121 (1970).
[30] Seeprinciple (a).
[31] SeeM. McDougal and F. Feliciano, Law and Minimum World Public Order, pp. 733-6 and 739-44, New Haven (1961).
[32] Shaw, p. 424.
[33] S.C. Res. 662 of 1990, paras. 1 and 2.
[34] Shaw, pp. 442-3.
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State jurisdiction is the capacity of a State under International Law to prescribe and enforce the rules of law.[2] It is derived from the State sovereignty and constitutes its vital and central feature. It is the authority of a State over persons, property and events which are primarily within its territories (its land, its national airspace, and its internal and territorial water). This authority involves the powers to prescribe the rules of law, to enforce the prescribed rules of law and to adjudicate. The powers related to State jurisdiction raise the question regarding the types and forms of State Jurisdiction.
State jurisdiction may extend beyond its territory over persons and things which have a national link. This extension raises the question regarding the grounds or the principles upon which the State can assert its jurisdiction within and beyond its boundaries.
Nevertheless, there are certain persons, property and events within a State territory which are immune from its jurisdiction. This limitation to a State jurisdiction raises a question regarding the immunity from jurisdiction.
The answers to the above raised questions are dealt with in the following sections.
Section 1: Types of State Jurisdiction
State jurisdiction implies the competence to prescribe rules of law, the jurisdiction to enforce the prescribed rules of law and the jurisdiction to adjudicate.[3] Accordingly, it is of three types: legislative jurisdiction, executive jurisdiction and judicial jurisdiction.
(1) Legislative Jurisdiction
Legislative jurisdiction is the capacity of a State to prescribe rules of law (the power to legislate).[4] A State has the supremacy to make binding laws within its territory. It has a legislative exclusivity in many areas. This supremacy is entrusted to constitutionally recognized organs.
Although legislation is primarily enforceable within a State territory, it may extend beyond its territory in certain circumstances. International Law, for example, accepts that a State may levy taxes against persons not within its territory as long as there is a real link between the State and the proposed taxpayer, whether it is nationality or domicile.[5]
The question of how far a court will enforce foreign legislation is a matter within the field of Private International Law (conflict of laws). It is common practice of States that a State enforces civil laws of another State, but it is rare to enforce the penal or taxes laws of another State.
The legislative supremacy of a State within its territory is well established in International Law. However, this supremacy may be challenged in cases where a State adopts laws that are contrary to the rules of International Law.[6] In such cases, a State will be liable for a breach of International Law. A State may also be liable for a breach of International Law if it abuses its rights to legislate for its nationals abroad.
(2) Executive Jurisdiction
Executive jurisdiction is the capacity of a State to act and to enforce its laws within its territory.[7]Generally, since States are independent of each other and possess territorial sovereignty, they have no authority to carry out their functions on foreign territory.[8] No State has the authority to infringe the territorial sovereignty of another State. In this sense, a State cannot enforce its laws upon foreign territory without the consent of the host State; otherwise, it will be liable for a breach of International Law.
(3) Judicial Jurisdiction
Judicial jurisdiction is the capacity of the courts of a State to try legal cases.[9] A State has an exclusive authority to create courts and assign their jurisdiction, and to lay down the procedures to be followed. However, in doing so, it cannot by any means alter the way in which foreign courts operate.
There are a number of principles upon which the courts of a State can claim jurisdiction.[10] In civil matters, the principles range from the mere presence of the defendant in the territory of a State to the nationality and domicile principles. In the criminal matters, they range from the territorial principle to the universality principle. These principles are the subject of the following section.
Section 2: Principles of Jurisdiction[11]
Generally, the exercise of civil jurisdiction by courts of a State has been claimed upon far wider grounds than has been the case in criminal matters.[12] The consequent reaction by other State with this regard has been much mild. This is partly because public opinion is far more vigorous where a person is tried in foreign territory for criminal offences than if a person is involved in a civil case. In addition, International Law does not impose any restrictions on the jurisdiction of courts in civil matters.
In Common Law countries such as the United States and United Kingdom Netherlands , Denmark and Sweden
As far as criminal jurisdiction is concerned, the grounds or principles of jurisdiction mostly invoked by States are as follows.
(1) The Territorial Principle[16]
The territorial principle is derived from the concept of State sovereignty.[17] It means that a State has the primary jurisdiction over all events taking place in its territory regardless of the nationality of the person responsible. It is the dominant ground of jurisdiction in International Law. All other State must respect the supremacy of the State over its territory, and consequently must not interfere neither in its internal affairs nor in its territorial jurisdiction.
The territorial jurisdiction of State extents over its land, its national airspace, its internal water, its territorial sea, its national aircrafts, and its national vessels. It encompasses not only crimes committed on its territory but also crimes have effects within its territory. In such a case a concurrent jurisdiction occurs, a subjective territorial jurisdiction may be exercised by the State in whose territory the crime was committed, and an objective territorial jurisdiction may be exercised by the State in whose territory the crime had its effect.[18]
Although jurisdiction is primarily and predominantly territorial, it is not exclusive. A State is free to confer upon other States the right to exercise certain jurisdiction within its national territory.[19] States are free to arrange the right of each one to exercise certain jurisdiction within each national territory. The most significant recent examples of such arrangements are: the 1991 France-United Kingdom Protocol Concerning Frontier Control and Policing, under which the frontier control laws and regulations of each State are applicable and may be enforced by its officers in the control zones of the other; the 1994 Israel-Jordan Peace Treaty, under which the Israeli criminal laws are applicable to the Israeli nationals and the activities involving only them in the specified areas under Jordan’s sovereignty, and measures can be taken in the areas by Israel to enforce such laws.[20]
(2) The Nationality Principle[21]
The nationality principle implies that a State jurisdiction extends to its nationals and actions they take beyond its territory.[22] It is based upon the notion that the link between the State and its nationals is personal one independent of location.[23]
Criminal jurisdiction based on the nationality principle is universally accepted. While Civil Law countries make extensive use of it, the Common Law countries use it with respect to major crimes such as murder and treason.[24] The Common law countries, however, do not challenge the extensive use of this principle by other countries.
A State may prosecute its nationals for crimes committed anywhere in the world; the ground of this jurisdiction is known as active nationality principle.[25] Also, it may claim jurisdiction for crimes committed by aliens against their nationals abroad; the ground of this jurisdiction is known as passive nationality principle.[26] This last principle has been viewed as much weaker than the territorial or active nationality principle as a basis for jurisdiction.[27] It has been considered as a secondary basis for jurisdiction, and a matter of considerable controversy among States. However, in recent years this principle has come to be much acceptable by the international community in the sphere of terrorist and other internationally condemned crimes.[28]
(3) The Protective principle[29]
The protective principle implies that a State may exercise jurisdiction over an alien who commits an act outside its territory, which is deemed prejudicial to its security and interests.[30] It is universally accepted, although there are uncertainties as to its practical extent, particularly as regard to the acts which may come within its domain.[31] It is justified on the basis of protection of State’s vital interests, particularly when the alien commits an offence prejudicial to the State, which is not punishable under the law of the country where he resides and extradition is refused.[32]
Although the protective principle is used as a secondary basis for jurisdiction and in a narrower sense than the territorial or the nationality principle,[33] it can easily be abused, particularly in order to undermine the jurisdiction of other States.[34] In practice however, this principle is applied in those cases where the acts of the person which take place abroad constitute crimes against the sovereignty of the State, such as plots to through a government, treason, espionage, forging a currency, economic crimes and breaking immigration laws and regulations.[35] This principle is often used in treaties providing for multiple jurisdictional grounds with regard to specific crimes, such as the 1979 Hostage Convention and the 1970 Hague Aircraft Hijacking Convention.[36]
(4) The Universality Principle[37]
The universality principle, in its broad sense, implies that a State can claim jurisdiction over certain crimes committed by any person anywhere in the world, without any required connection to territory, nationality or special State interest.[38] Before the Second World War, such universal jurisdiction has been considered as contrary to International Law by the Common Law countries, except for acts regarded as crimes in all countries, and crimes against the international community as a whole such as piracy and slave trade.
After the Second World War, universal jurisdiction has been universally recognized over certain acts considered as international crimes. International crimes are those crimes committed against the international community as a whole or in violation of International Law and punishable under it, such as war crimes, crimes against peace and crimes against humanity.[39] In recent years, crimes such as Hijacking of aircraft, violation of human rights and terrorism, have been added to the list of international crimes.
Today under the universality principle, each State and every State has jurisdiction over any of the international crimes committed by anyone anywhere.
Section 3: Immunity from Jurisdiction[40]
The concept of jurisdiction is derived from the concept of sovereignty, and is connected with the principles of equality and non-interference in domestic affairs of other States.[41] The grounds for jurisdiction are related to the duty of a State under International Law to respect the territorial integrity and political independence of other States.[42] Immunity from jurisdiction is grounded on this duty, and constitutes derogation from the host State jurisdiction.
Under International Law, immunity from jurisdiction is granted to certain persons, namely States (sovereigns) and their diplomatic and consular representatives, and international organizations.
(1) Sovereign Immunity [43]
In International Law, sovereign immunity refers to the legal rules and principles determining the conditions under which a State may claim exemption from the jurisdiction of another State.[44] Sovereign immunity is a creation of customary International Law and derives from the principles of independence and equality of sovereign States; since States are independent and legally equal, no State may exercise jurisdiction over another State without its consent.[45] It is a limitation imposed by International Law upon the sovereignty of a State.
Although rules of sovereign immunity form part of customary International Law, today they are incorporated either in international treaties, such as the 1972 European Convention on State Immunity,[46]or in national statutes of certain States, such as the 1976 U.S Foreign Sovereign Immunities Act[47]and the 1978 U.K State
Historically, the head of a State (a sovereign) was associated with the State. Originally, both of them enjoyed under customary International Law absolute immunity, in all areas of their activities, from the jurisdiction of another State. While the head of a State continues today to enjoy such absolute immunity, even for his private activities, a State nowadays enjoys only qualified (restrictive) immunity. Under the qualified immunity, a State enjoys immunity only in respect of its governmental acts (acts jure imperii), not in respect of its commercial acts (acts jure gestionis).[49]
In practice, sovereign immunity arises on two levels.[50] The first level concerns the immunity of a State from the jurisdiction of courts of another State; courts of a State cannot adjudicate a claim against a foreign State. The second level concerns the immunity of a State from the execution of enforcement measures undertaken by courts of another State.
Sovereign immunity covers the head of a State as well as the State itself, its government, its departments, and its agencies. It embraces the acts of these entities, their property and assets. This immunity may, however, be voluntarily waived by a State.[51] A State may waive its immunity from jurisdiction and consequently submits itself to the jurisdiction of a foreign court. However, such submission (waiver of jurisdictional immunity), although gives the court of a State the competence to adjudicate and enter a judgment against a foreign State, it does not authorize the execution of the court’s decision against such State. In case of execution, another waiver is needed, namely a waiver of immunity from execution. Waiver must be express; however, implied waiver is accepted if indicated by the circumstances.
(2) Diplomatic Immunity[52]
The rules of diplomatic immunity are the most accepted and uncontroversial rules of International Law. They are essential for the maintenance and efficient conduct of relations between States. Prior to the 1961 Vienna Convention on Diplomatic Relations, diplomatic law, especially privileges and immunities were based upon custom as well as contained in bilateral treaties and national statutes. Nowadays, most of the modern law of diplomatic immunity is contained in the 1961 Vienna Convention on Diplomatic Relations which both codified existing customary law and established others.[53]
Under this convention, “a diplomatic agent” (the head of the mission and any member of the diplomatic staff of the mission) enjoys complete immunity from the criminal jurisdiction of the receiving State;[54] also, he enjoys immunity from its civil and administrative jurisdiction, except in the case of real action relates to private immovable property situated within the receiving State, action related to succession matters in which he is involved as a private person, and action related to professional or commercial activity, in the receiving State, outside his official functions.[55] No measures of execution may be forced upon him, except in the above mentioned cases. He cannot be obliged to give evidence as a witness. His person is inviolable.[56] He cannot be arrested or detained. All appropriate steps should be taken by the receiving State to protect him and prevent any attack on his person, freedom and dignity. He is exempt from all dues and taxes, except in certain cases.[57] The premises of the mission and the private residence of a diplomatic agent as well as their archives, documents, papers, official correspondence and other property are inviolable.[58]
A diplomatic agent enjoys immunity from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs.[59] He also enjoys such immunity when passes through or is in the territory of a third State on proceeding to take up or to return to his post, or when returning to his own country.[60]
The immunity granted to a diplomatic agent is immunity from the jurisdiction of the receiving State and not from liability.[61] He is not immune from the jurisdiction of the sending State. Moreover, he can be sued in the receiving state after a reasonable time elapses from the ending of his mission.
The immunity of a diplomatic agent from jurisdiction of the receiving State may be waived by the sending State.[62] The waiver must be express. However, such waiver of immunity from jurisdiction does not imply waiver of immunity in respect of the execution of a judgment; in such case, a separate waiver is required. Immunity may also be waived by the diplomatic agent himself, by submitting voluntarily to the jurisdiction of the court of the receiving State.[63]
Members of the family of a diplomatic agent, if they are not nationals of the receiving State, likewise enjoy the same immunity from jurisdiction.[64] The same immunity, with certain exceptions, is enjoyed by members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, if they are not nationals or permanent residents of the receiving State.[65] Members of the service staff who are not nationals or permanent residents of the receiving State enjoy immunity only in respect of acts performed in the course of their official duties.[66]
(3) Consular Immunity [67]
A consular officer, like a diplomatic agent, represents his State in the receiving State. However, unlike a diplomatic agent, he is not concerned with political relations between the two States, but with a variety of administrative functions, such as issuing visas and passports, looking after the commercial interests of his State, and assisting the nationals of his State in distress.[68] Thus, he is not granted the same degree of immunity from jurisdiction as a diplomatic agent.
Notably nowadays, many States combine its diplomatic and consular services. Thus, a person who acts simultaneously as a diplomat and consul enjoys diplomatic immunity.
Under the 1963 Vienna Convention on the Consular Relations[69], a consular officer (the head of the consular post and any person entrusted to exercise consular functions) is immune from an arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.[70] He is immune from imprisonment or any other restriction on his personal freedom save in execution of a final judicial decision. If criminal proceedings are instituted against him, he must appear before the competent authorities. The proceedings must be conducted in a manner that respects his official position and does not hamper the exercise of consular functions, and with the minimum delay.
A consular officer is immune from the jurisdiction of the judicial or administrative authorities of the receiving State only in respect of acts performed in the exercise of consular functions.[71] He is exempt from all dues and taxes, except in certain cases.[72] In addition, the consular premises, archives and documents are inviolable.[73]
A consular officer enjoys the immunities from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties.[74] The same immunities are enjoyed by members of the family of the consular officer from the date which he enjoys his immunities.[75]
The immunities of a consular officer may be waived by the sending State.[76] The waiver must be express. However, the waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings does not imply waiver of immunity from the execution of a judicial decisions; in such case, a separate waiver is required. Immunity may also be waived by the consular officer himself, by submitting voluntarily to the jurisdiction of the court of the receiving State.[77]
(4) Immunities of International Organizations[78]
It is uncertain which immunities and to what extent international organizations enjoy under customary International Law; the position of this law is far from clear.[79] Actually, immunities are granted to international organizations by treaties, or by headquarters agreements concluded with the host State where the organization is seated.
The purpose of immunity granted to international organizations is purely functional. Immunity is regarded as functionally necessary for the fulfillment of their objectives.[80] It is not a reflection of sovereignty, as it is in case of a State, except only indirectly when aiming to protect the interests of the member States of the organization.[81]
Probably the most important example of treaties providing immunities to international organizations is the 1946 General Conventions on the Privileges and Immunities of the United Nations,[82] which sets out the immunities of the United Nations and its personnel. The United Nations enjoys complete immunity from all legal process.[83] Its premises, assets, archives and documents are inviolable.[84] It is exempt from direct taxes and customs duties.[85] Its staff is exempt from income tax on their salaries.[86]
The U.N Secretary General and the Assistant Secretaries General enjoy diplomatic immunity.[87] Other staff members enjoy limited immunities, such as immunity from legal process in respect of their official acts.[88]
Representatives of member States attending the United Nations meetings are granted almost the same immunities as diplomats, except their immunity from legal process applies only to their official acts.[89]
An example of treaties providing immunities to representatives of States in international organizations is the 1975 Vienna Convention on the Representatives of States in their Relations with International Organizations of a Universal Character.[90] This treaty applies to representatives of States in any international organizations of a universal character, irrespective of whether or not there are diplomatic relations between the sending State and the host States.
Under this treaty, the representatives of States in universal international organizations enjoy similar immunities to those provided in the 1961 Vienna Convention on Diplomatic Relations. They enjoy immunity from criminal jurisdiction, and immunity from civil and administrative jurisdiction in all cases, save for certain exceptions. The mission premises, archives, documents and correspondence are inviolable.
[1] See generally Brownlie, chapter 14; Shaw, chapter 12; Malanczuk, chapter 7.
[2] Bledsoe and Boczek, pp. 102-3.
[3] See Bledsoe & Boczek, pp.102-3; Brownlie, p. 297; and Shaw, pp. 257, 576-8.
[4] Shaw, p. 576.
[5] Id.
[6] Shaw, p. 577.
[7] Cf. Brownlie, p. 297; but seeShaw, id.
[8] Shaw, id.
[9] Id. p. 578.
[10] Shaw, p. 578.
[11] See generally Brownlie, pp. 298-305; Shaw, pp. 578-593; and Malanczuk, pp.111-3.
[12] Shaw, p. 578.
[13] Id.
[14] Id.
[15] Shaw, p. 578.
[16] See generally Shaw, pp. 579-84; Brownlie, pp. 299-301; and Bledsoe & Boczek, pp. 105-6.
[17] Bledsoe& Boczek, p. 105.
[18] SeeShaw, p. 580-1; and Brownlie, p. 299-300
[19] SeeShaw, pp. 584.
[20] These two examples are mentioned in Shaw, pp. 583-4.
[21] See generally Shaw, pp. 584-91; Brownlie, pp. 301-3; Malanczuk, pp. 111-12 and Bledsoe & Boczek 103-4.
[22] Bledsoe& Boczek, p.103.
[23] Id.
[24] SeeMalanczuk, p. 111; Bledsoe & Boczek, p. 103; and Shaw p. 588.
[25] SeeMalanczuk, p. 111.
[26] Seeid.; Bledsoe & Boczek, p. 104; Brownlie, p. 302; and Shaw 589.
[27] Bledsoe& Boczek, id.
[28] SeeShaw, p. 591; and Malanczuk, p. 111.
[29] See generally Shaw, pp. 591-2; Malanczuk , pp. 111-2; Brownlie, 302-3; and Bledsoe & Boczek, pp. 104-5.
[30] SeeBledsoe and Boczek, p. 104; Shaw, p. 591; Malanczuk, p. 111; and Brownlie, p. 302.
[31] Shaw, id.
[32] Shaw, id.
[33] SeeBledsoe & Boczek, pp. 104-5.
[34] SeeShaw, p. 592.
[35] Bledsoe& Boczek, p. 105.
[36] Textes in 74 A.J.I.L. 277 (January 1980), and 22 U.S.T. 1641 respectively.
[37] See generally Shaw pp. 592-7; Malanczuk, pp. 112-3; and Bledsoe and Boczek, p. 106.
[38]Malanczuk, p. 113.
[39] SeeChapter 17 infra.
[40] See generallyShaw, chapter 13; Brownlie, chapter 16; and Malanczuk, chapter 8.
[41] SeeShaw, p. 621.
[42] Id.
[43] See generally H. Fox, The Law of State Immunity, Oxford
Brownlie, pp. 323-40; and Malanczuk, 118-23.
[44]Malanczuk, p. 118
[45] Id.
[46] Text in 11 I.L.M. (1972), 470.
[47] Text in 15 I.L.M. (1976) 1388.
[48] Text in 17 I.L.M. (1978) 1123.
[49] SeeMalanczuk, p. 119.
[50] Id. p. 118.
[51] SeeBrownlie, pp. 335-6; and Shaw, pp. 659-61.
[52] See generally Shaw, pp. 668-88; and Malanczuk, pp. 123-7; and the 1961 Vienna Convention on Diplomatic Relations.
[53] Text in 500 U.N.T.S. 95.
[54] The 1961 Vienna Convention on Diplomatic Relations arts. 1 and 31.
[55] Id. art. 31.
[56] Id. art. 29.
[57] Id. arts. 23, 34 & 35.
[58] Id. arts. 22 & 30.
[59] Id.art. 39.
[60] Id. art. 40.
[61] Id. art. 31(4).
[62] Id. art. 32.
[63] Id. art. 32(3).
[64] Id. art. 37(1).
[65] Id. art. 37(2).
[66] Id. art. 37(3).
[67] See generally Shaw, pp. 688-90; Malanczuk, p. 127; and the 1963 Vienna Convention on Consular Relations.
[68]Malanczuk , p. 127.
[69] Text in 596 U.N.T.S. 261.
[70] The 1963 Vienna Convention on Consular Relations arts. 1 & 41.
[71] Id.art. 43.
[72] Id. arts. 32, 49 & 50.
[73] Id.arts. 31 & 33.
[74] Id. art. 53(1).
[75] Id.
[76] Id. art. 45.
[77] Idart. 45(3).
[78] See generally Shaw, pp. 1205-12; Brownlie, pp. 652-4; and Malanczuk, pp. 127-8.
[79] SeeMalanczuk, p. 127.
[80] See id. pp.127-8; Brownlie, p. 652; and Shaw, p, 1205.
[81]Malanczuk, p. 128.
[82] Text in 1 U.N.T.S. 15.
[83] Id.
[84] Id.
[85] Id.
[86] Id.section 18(b).
[87] Id.
[88] Id.
[89] Id.
[90] Text in 69 A.J.I.L (1974), 730.
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State
responsibility is one of the fundamental principles of International Law. It arises out of the international legal
system and the principles of State sovereignty and equality of States. It
implies that if a State commits an internationally wrongful (unlawful) act
against another State, it will be internationally responsible for reparation.[2]
The subject
of State responsibility has been the most difficult question of the codification
work of the International Law Commission (ILC).[3] The ILC has been working extensively on this
subject. In 1975, the ILC initiated its
work on the draft articles concerning State responsibility. The Articles on the State Responsibility was
finally adopted by the ILC on August 9, 2001.[4] The General Assembly adopted the resolution
83/56 of December 12, 2001, taking note of “the International Law Commission’s
Articles on the State Responsibility” and recommending it to the member States
of the United Nations. The ILC Articles,
in addition to the State practice and the decisions of international tribunals
(the case law) on the subject, constitute the international law of State
responsibility.
The law of
State responsibility is concerned with the nature of the State responsibility,
the legal consequences resulted from, and the implementation of such
responsibility.
Section 1:
The Basis and Nature of State
Responsibility
State
responsibility is founded on three basic elements.[5] The first element is the existence of an
international legal obligation in force between the concerned States. The second is the occurrence of a wrongful
act or the omission of an act in violation of such an obligation, which is
imputable to the State. The third is
that loss or damage has resulted from such wrongful act or omission. These three elements are the requirements of
establishing the responsibility of the State, which have been made in a number
of leading international legal cases and reiterated by the ILC “Articles”.[6] The “Articles” provides that every
internationally wrongful act (a delict) of a State entails responsibility.[7] It defines internationally wrongful act as a
conduct consisting of an action or omission attributable to the State under
International Law and constitutes a breach of an international obligation of the
State.[8] A breach of an international obligation is
defined as an act which is not in conformity with what is required of the State
by that obligation, regardless of its origin or character.[9]
Responsibility is the necessary corollary of a right. All rights of an international character
involve international responsibility.
International Law does not distinguish between contractual (conventional)
and tortious responsibility. International responsibility relates both to
breaches of treaty and to other breaches of legal duty.[10] Any violation by a State of any obligation of
whatever origin or character gives rise to State responsibility and consequently
to the duty of reparation. Reparation
therefore is the indispensable complement of a failure of a State to apply any
of its obligations.
State
responsibility only arises when the act or omission which constitutes a breach
of legal obligation is imputable (attributable) to a State.[11] It may be founded on “fault” or “no fault”
concept.
Notably, it
is important to mention here that a State is responsible for wrongful acts which
constitute international delicts, not international crimes. Because of the controversy concerning State
responsibility for international crimes, the ILC Articles does not mention
international crimes. However, the ILC
Draft Articles made a distinction between international crimes and international
delicts. The Draft Articles provided
that an international wrongful act resulting from the breach of an international
obligation which was essential for the protection of fundamental interests of
the international community and which was recognized as a crime by that
community constituted an international crime; examples of such international
crimes were aggression, colonial domination, slavery, genocide, apartheid and
massive pollution of the atmosphere. [12] All other international wrongful acts
constituted international delicts.
While it is
apparent that a State is responsible for international delicts, it is not clear
that it is responsible for international crimes. The question of State criminal responsibility
has been highly controversial.[13] Some have argued that the concept is of no
legal value and cannot be justified.[14] Others have argued that since 1945 the
attitude towards certain crimes committed by State has altered so as to bring
them within the scope of International Law.
They have pointed to three specific changes that have occurred since 1945
to justify States responsibility for international crimes.[15] The first change has been the development of
the concept of peremptory norms of International Law (jus cogens) as a
set of principles from which no derogation is allowed. The second change is the establishment of
individual criminal responsibility directly under International Law. Finally, the Charter of the United Nations
and its provisions concerning the enforcement action which may be taken against
a State in case of committing a threat to or breaches of the peace or act of
aggression. In the light of these
changes, the ILC, in its Draft Articles, adopted the approach of including
international crimes by States within the scope of International Law. However, because of the controversy
concerning this question, the ILC omitted any mention of international crimes of
States in its Articles as finally approved.
The “Articles” provides that States are under a duty to co-operate to
bring an end, through lawful means, any serious breach by a State of an
obligation arising under a peremptory norm of International law and not to
recognize as lawful any such situation.[16]
A. The Question of “Imputability”
A State is
responsible (liable) only for its own acts or omissions. A State is identified with its “government”
which includes the executive, the legislature and the judiciary, and includes
central authorities as well as local authorities.[17]
It is
established by the case law that a State is liable for the conducts of any of
its organs. This established rule is
reiterated by the ILC “Articles”. The
ILC “Articles” provides that the conduct of any State organ (including any
person or entity) having that status under the internal law of that State,
whether that organ belongs to the constituent, legislative, executive, judicial
or other authority, whether its functions are of an international or an internal
character, and whether it holds a superior or a subordinate position in the
organization of the State, shall be considered as an act of the State concerned
under International Law, provided that organ was acting in that capacity in the
case in question.[18] The conduct of an organ of a territorial
governmental entity within a State shall also be considered as an act of that
State under International law, provided that organ was acting in that capacity
in the case in question.[19] The conduct of an organ of an entity which is
not part of the formal structure of the State or the territorial governmental
entity, but which is empowered by the internal law of that state to exercise
elements of governmental authorities, shall also be considered as an act of the
State under International Law, provided that organ was acting in that capacity
in the case in question.[20]
It is also
established that a State is liable for the acts of its officials if those acts
are imputable (attributable) to the State. This rule depends on the link that
exists between the State and the person or persons committing the wrongful act
or omission. The State as a moral legal
entity, in reality acts through authorized officials. It is not liable under International Law for
all acts of its officials; it is liable only for acts of its officials that are
imputable to it. Imputability is a legal
notion which assimilates the acts or omissions of the State officials to the
State itself and which renders the State liable for damages to persons or
properties resulting from such acts.[21]
The question
of “imputability”, however, creates problems when officials exceed or disobey
their instructions. Because the evading
of liability by a State in such a case will be unjust, it is established that a
State is liable for the acts of its officials, even when they exceed or disobey
their instructions, if those officials are acting with “apparent authority” or
if they are abusing “powers” or “facilities” placed at their disposal by the
State.[22] The ILC “Articles” reiterates such a rule by
providing that the conduct of any organ of a State, having acted in that
capacity, shall be considered as an act of the State under International Law
even if such organ exceeded its competence according to internal law or
disobeyed instructions concerning its authority.[23]
With regard
of wrongful acts committed by private persons, in principle, a State is not
responsible for such acts. However, it
is established by case law and reaffirmed by the ILC Articles that a State is
responsible for acts of private persons if those persons are acting on behalf of
that state, on its instructions, under its control, or exercising elements of
governmental authority in the absence of governmental officials and under
circumstances which justify them in assuming such authority.[24] It is also responsible for acts of private
persons if such acts are accompanied by some act or omission on part of the
State, for which it is liable. Such act
or omission by the State may take one of the following forms: encouraging the
person to perform such act, failing to take reasonable care to prevent the
person from performing such act, failure to punish the person, obtaining some
benefit from the act of the person, or express ratification of the person’s
act.[25]
With regard
of actions of rioters or rebels causing loss or damage to a foreign State or its
nationals, the general principle is that the State is not liable for such
actions if it has acted in good faith and without negligence.[26] However, in such a case, the State is under a
duty to show due diligence.
Nevertheless, when the rebellion movement succeeds in establishing the
new government of a State or a new State in part of the territory of the
pre-existing State, it will be held responsible for its activities prior to its
assumption of authority; this rule is reaffirmed by the ILC Articles.[27]
B. The
Question of “Fault”
There are
two theories used as foundations for State responsibility: the “risk” theory and
the “fault” theory.[28] The “risk” theory is based upon the principle
of objective responsibility which maintains that the liability of the State is
strict. Once a wrongful act causing
damage has been committed by a State official or organ, that State will be
responsible under International Law to the injured State irrespective of its
intention. In contrast, the “fault”
theory is based upon the principle of subjective responsibility which requires
the establishment of an element of intention, fault or negligence on the part of
the State official or organ before rendering the State liable for any
damage.
There is no
agreement in the International Law on the question of the basis of State
responsibility. The relevant cases and
the opinions of legal scholars are divided on this question. However, the majority of cases and opinions
tend towards the “risk” theory of responsibility.[29]
Section 2:
Legal Consequences of State Responsibility
A State is
responsible for its international wrongful act. This responsibility entails
certain legal consequences on that State.
The first consequence is the cessation of the wrongful act, and the
second is the reparation.
A. Cessation
of the Wrongful Act
The first
legal consequence of State responsibility under International law is that the
wrongdoing State is obliged to cease the wrongful act, if it is continuing, and
to offer appropriate assurances and guarantees on non- repetition.[30]
B.
Reparation
The second
legal consequence resulting from State responsibility for international wrongful
act is that the wrongdoing state is under a duty to remedy its acts. The injured State is entitled for full
reparation in form of restitution in kind, compensation and satisfaction, either
singly or in combination.[31] The wrongdoing
State cannot employ its
internal law to avoid providing full reparation.
Restitution
in kind means that the wrongdoing State has to re-establish the situation
that existed before the committing of the wrongful act. It can be provided if it is not materially
impossible, not involving breach of an obligation arising from a peremptory norm
of general International Law, not involving a burden out of all proportion to
the benefit which the injured State would gain from obtaining restitution in
kind instead of compensation, or not seriously jeopardize the political
independence or economic stability of the wrongdoing state.[32]
If
restitution in kind is not available, compensation for the damage caused must be
paid.[33] Monetary compensation covers any financially
assessable damage suffered by the injured state, and may include interest, and
may include, in certain circumstances, loss of profits.[34] It may be paid for both material and
non-material (moral) damage.[35]
Satisfaction
is the third form of reparation. It is a
remedy which is appropriate in cases of moral damage and non-monetary
compensation. It may take the forms of
an official apology, a nominal damage, the punishment of the guilty officials or
the acknowledgement of the wrongful character of an act.[36]
Section 3:
The Implementation of State Responsibility
A State is
entitled to invoke the responsibility of another State if the obligation
breached is owed to it individually or to a group of States, including it, or to
the international community as a whole.[37] A State other than an injured State may
invoke the responsibility of another State if either the obligation is owned to
a group of States including it, and is established for the protection of a
collective interest of the group, or the obligation breached is owed to the
international community as a whole.[38] In such cases, a State may demand the
cessation of the wrongful act, assurances and guarantees of non-repetition,
satisfaction, as well as reparation.
These doctrines are reaffirmed in the ILC
Articles.
Where several
States are injured by the same wrongful act, each State may separately invoke
responsibility.[39]
Where several states are responsible, the responsibility of each may be
invoked.[40]
However,
responsibility can not be invoked if the injured State has validly waived the
claim, or it has caused, by reason of its conducts, in the lapse of the claim.[41] Any waiver needs to be explicit and
clear.
An injured
State may seek to settle its claim peacefully through any of the peaceful means,
or it may take countermeasures against the wrongdoing
State . In a case of an injury affecting its
national, the State may provide him with diplomatic
protection.
A State may
present an international claim against the wrongdoing
State before an
international tribunal. However, a State
has to establish its qualifications for bringing the claim and the validity of
the claim itself before the merits of the claim can be addressed. Where a claim is brought before an
international tribunal, objections may be raised against its admissibility. The first is an objection to the jurisdiction
of the tribunal; if successful, it will stop all proceedings in the case. Other objections are the nationality of the
claimant, the non-exhaustion of local remedies, and the undue delay in
presenting the claim.
A. Diplomatic
Protection and Nationality of Claims
The doctrine
of state responsibility with regard to injuries to nationals is based upon the
attribution to one State of the wrongful act or the omission and the capacity of
the other State to adopt the claim of its injured national.[42] Nationality is the link between the
individual and his State as regards particular benefits and obligations. It is also the link between the individual
and the benefits of International law.
Although International Law is now tending to grant certain rights to
individuals apart of the intervention of the State, the basic rule remains that
in a State-oriented world, it is only through the State the individual may
obtain the full range of benefits available under International Law, and
nationality is the key.[43]
Although a
State is under a duty to protect its nationals, it is not under a duty to
provide them with diplomatic protection.[44]
A State may provide diplomatic protection to its nationals. Diplomatic protection consists of resorting
to diplomatic action or other means of peaceful settlement by a State adopting
in its own rights the cause of its nationals in respect of an injury to any of
its national arising from an internationally wrongful act of another State. Such diplomatic protection is not a right of
the national concerned, but a right of the State which may or may not choose to
exercise.[45]
The
diplomatic protection is the result of the historical reluctance to permit
individuals the right in International Law to bring claims against foreign
States, for reasons related to the principles of state sovereignty and
non-intervention in domestic affairs of a State. The exercise of diplomatic protection is not
regarded as intervention contrary to International Law.[46] A State may take up the claim of its national
against another state before an international tribunal. Once a State does this, the claim then
becomes that of the state, not of the injured individuals. Thus, the State may waive its claim, but the
individual cannot.
In
International law, the normal and important function of nationality is to
establish the legal interest of a State when its national suffers injury or loss
caused by another State. The subject
matter of the claim is the individual and his property, and the claim is that of
the State. If the plaintiff State
cannot establish the nationality of the claim, the claim will be inadmissible
because of the absence of the legal interest of the claimant. The “nationality of the claim” principle is
well established in customary International Law. However, there are certain exceptions to the
principle of the nationality of the claim.
Examples of such exceptions are the right of protection of an alien
seaman on a ship flying the flag of the protecting State, an alien in the
service of the armed forces of a claimant State, and stateless person or refuge
who at the dates of the injury and presentation of the claim is lawfully and
habitually resident in that state.
The
nationality must exist at the date of the injury, and should continue until at
least the date of the formal presentation of the claim.[47] Where an individual possesses dual or
multiple nationalities, any State of which he is a national may adopt his claim
against a third State. Where a case
involves more than one State of nationality, the State with which he has the
more effective connection may adopt his claim against the other State. As far as a moral legal person (such as a
corporation) is concerned, there must be some tangible link between it and the
State adopting its claim.[48]
B. The
Exhaustion of Local Remedies[49]
It is
established in the customary International Law that before international
proceedings are instituted or claims or representations made, the remedies
provided by the local State should have been exhausted.[50] This rule implies that an injured individual
must exhaust remedies in the courts of the defendant
State before an
international claim can be brought on his behalf. It is a rule which is justified by political
and practical considerations, not by any logical necessity deriving from the
International Law.[51] Among the political and practical
considerations suggested to justify such rule are the avoidance of resorting to
diplomatic protection in small and insignificant claims, and the greater
suitability and convenience of local courts as forums for claims of
individuals.[52] This rule is reaffirmed in the ILC Articles
which provides that the responsibility of a State may not be invoked if the
claim is one to which the rule of exhaustion of local remedies applies and any
available and effective local remedy has not been exhausted.[53]
The
exhaustion of local remedies rule does not apply where one State has been guilty
of a direct breach of International Law causing direct injury to another
State.[54] It applies to cases of diplomatic protection
where a State claims injury to its nationals, and when effective remedies are
available in the wrongdoing State .
A claim will not be admissible in the International Law unless the
natural or legal foreign person concerned has exhausted the legal effective
remedies available to him locally in the defendant State.
C.
Unreasonable Delay and Improper Activities of the Injured
National
A claim by a
State against another State will not be admissible if it is presented after an
unreasonable delay by the claimant State .[55] It may be inadmissible if the injured
national has suffered injury as a result of his improper activities. However, in such a case, the injury suffered
by the national must be roughly proportional to his improper activities.[56]
D. Resorting to Countermeasures
An
injured State may seek to settle its claim peacefully through any of the
peaceful means, or it may take countermeasures against the wrongdoing State .[57] Countermeasures are acts of retaliation which
are traditionally known as “reprisal”.
They may be in a form non-compliance of the injured State with its legal
obligations towards the wrongdoing State , or unilateral coercive actions taken by the
injured State against the wrongdoing State wrongdoing State to discontinue its wrongful act and
to provide reparation.
Today, there
are certain legal limits to countermeasures.
The most important limit is the prohibition of the armed retaliations
because of the general prohibition of the use of force provided in Article 2(4)
of the Charter of the United Nations.
Countermeasures have to be proportional to the wrongful act. They must not violate basic human rights or
the peremptory norms of International Law.
[1] See
generally Brownlie, part VIII; J. Crawford, The International Law
Commission’s Articles on State Responsibility, Cambridge (2002) ; C. Gray, Judicial Remedies in
International Law, Oxford
[2] Shaw, p.
694.
[3] See
Malanczuk, pp. 254-6.
[4] See
ILC Commentary 2001, U.N. Doc. A/56/10 (2001).
[5] See
Shaw, p. 696.
[6] Id,
pp.696-7.
[7] ILC Articles
on the State Responsibility art.1.
[8] Id.
art. 2.
[9] Id.
art.12.
[10] See Brownlie, p. 421.
[11] See Brownlie, p. 422.
[12] See the ILC Draft Articles on the State
Responsibility art. 19.
[13] See e.g. Oppenheim, vol. 1, pp.
533-5.
[14] See e.g. I. Brownlie, International Law and
the Use of Force by States, 150-4, Oxford
[15] See the Commentary of the Rapporteur to draft
article 19, 1970 Yearbook of the ILC, vol. II, pp.102-5.
[16] The ILC Articles art. 41.
[17] See Malanczuk, p. 257.
[18] The ILC Articles art. 4.
[19] Id. art. 4.
[20] Id. art. 5.
[21] See Shaw, p. 701.
[22] See Malanczuk, p. 258; also Brownlie, pp. 434-6; and Shaw, pp.
702-4.
[23] The ILC Articles art. 7.
[24] Id. art. 8.
See also 704-5.
[25] See Malanczuk, p. 259.
[26] See Shaw, 705-6; also Brownlie, pp.
436-8.
[27] The ILC Articles art. 10.
[28] See Shaw, p. 698.
[29] See generally Shaw, pp.
698-700.
[30] Id.
[31] The ILC Articles art. 34.
[32] See Shaw 716; also the ILC Articles
art. 35.
[33] See the ILC Articles art. 36(1).
[34] Id. art. 36(1).
[35] Id. art. 31(2).
[36] See Shaw, pp. 719-20; also the ILC
Articles art. 37.
[37] The ILC Articles art. 42.
[38] Id. art. 48.
[39] Id. art. 46.
[40] Id. art. 47.
[41] Id. art. 45.
[42] See Shaw, pp. 721-2.
[43] Id. p. 722.
[44] Id.
[45] Id. p. 723.
[46] Id. pp. 722-3.
[47] Id. p. 726.
[48] Id. p. 727.
[49] See generally Brownlie, pp. 772-81; and Shaw,
pp. 730-2.
[50] Shaw, p. 730; see also the ILC Articles art.
44.
[51] See Brownlie, p. 473.
[52] Id.
[53] The ILC Articles art. 44.
[54] Shaw, p. 731.
[55] See Malanczuk, p. 269.
[56] Id.
[57] See the ILC Articles art.
49.
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
International community is a living entity in the sense
that it is changeable. The identity and
number of States are by no means fixed and invariable. History produces many changes. Old States disappear or unite with other
States to form a new State, or disintegrate and split into several new
States. Former colonies attain
statehood. Even in the case of existing
State, a revolution or unconstitutional event may occur and the status of new
government becomes a matter of concern to other States, which formerly had
relations with the displaced government.
These instances raise several problems for the international community.
The most important problem is the question of recognition of the new State or
the new government. Each State has to
decide whether to recognize the new State or the new government.
Recognition
involves legal consequences both internally and internationally. If an entity is recognized as a State, it
will be entitled to rights and subjected to duties that would not be relevant
otherwise, and it will enjoy privileges and immunities of a foreign State,
before the national courts, which would not be allowed to other
entities.
What is
recognition? Why and how is it
granted? What are the types and forms of
recognition? What are the legal
consequences generated from recognition?
The answers
to all these questions are dealt with in the following
sections.
Section 1: Definition and Nature of
Recognition
Recognition
is a discretionary unilateral act exercised by the government of a State
officially acknowledging the existence of another State or government or
belligerency.[2]
It is one of the most difficult subjects of International Law. It is a complicating mixture of politics and
laws both national and international. It
is difficult mainly for the following three reasons.
(1)
Recognition is, as the practice of States shows, much
more a question of politics than of law. The act of the recognizing State is
conditioned principally by the necessity of protecting its own national
interests, which lie in maintaining proper relations with the new State or the
new government. However, there is an
irresistible tendency of the recognizing State to use legal principles as a
convenient camouflage for political decisions.
For this reason, recognition is considered to be a political act with
legal consequences.
(2)
In form
and in substance, recognition remains primarily a unilateral diplomatic act on
the part of the recognizing State. No
collective procedure for granting recognition based on established legal
principles has yet been evolved by the international
community.
(3)
There
are several distinct categories of recognition.
There are the recognition of a new State, a new government and
belligerency. In addition there are
de jure, de facto, conditional, implied and express
recognition. Although the same
principles may be applicable to some of these types, it is still that each of
them is subject to different legal principles and entails different legal
consequences.
Basically,
there are two theories as to the nature, functions and effects of recognition,
the constitutive theory and the declaratory theory.[3] The constitutive theory considers that the
act of recognition by other States creates a new State and grants it the
international legal personality.[4]
This implies that the new State is established as an international person by
virtue of the will and consent of already existing States. In case of a new government, it is the
recognition that grants it the status at the international
level.
The
Constitutive theory is opposed by the declaratory theory. According to the declaratory theory,
recognition has no legal effects; statehood or the status of a new government
exists as such prior to and independently of recognition.[5]
The existence of a State or a new government is a question of pure fact. The act of recognition is merely a formal
acknowledgement of established facts.
When an entity satisfies the requirements of a State objectively, it is a
State with all international rights and duties, and other States must treat it
as such.
Historically, the constitutive theory has its merits.[6] During the Nineteenth Century, International
Law was regarded as applying mainly between States with European civilization.
Other countries were admitted as States to this community only if they were
recognized by those member States. Even today, recognition can sometimes have a
constitutive effect, although State practice is not always consistent. When the establishment of a new State or
government is in violation of International Law, this State or government is
often regarded as having no legal existence until it is
recognized.
However, the
prevailing view today is that recognition is declaratory and does not create a
State.[7]
This view was laid down in the Montevideo Convention on the Rights and Duties of
States of 1933. Article 3 of this
Convention provides that “The political existence of the state is independent of
recognition by the other states. Even
before recognition the state has the right to defend its integrity and
independence”.
Actually,
the two theories are of little assistance in explaining recognition or
determining the status of non-recognized entities in practice.[8] In addition, the practical differences
between these two theories are not significant.
Under the declaratory theory, the decision whether an entity satisfies
the criteria of statehood is left to other States, and the granting formal
recognition to another State, which is a unilateral act, is left to the
political discretion of States. On the
other hand, the significance of the constitutive theory has diminished because
of the obligation imposed on States to treat an entity that satisfies the
criteria of statehood as a state.
Moreover, the States practice regarding recognition shows that States
follow a middle position between these two theories.
Section 2: Types and Forms of Recognition
There are
several distinct categories of recognition. There are recognition of a new
State, recognition of a new government and recognition of belligerency. In addition there are different entities to
be recognized. Recognition itself may
take different forms. Recognition may
be de jure or de facto.
Recognition may be express or implied.
It may be conditional.
(A) Recognition of a State and of a
Government[9]
When a new
State comes into existence, other States are confronted with the question
whether or not to recognize it. Recognition implies a willingness of the
recognizing State to deal with the new state as a member of the international
community. To grant recognition to a new entity, the entity must satisfy the
basic requirements of statehood, which have been discussed in the previous
chapter. The first example of State
recognition in the history of nations was the recognition in 1648 by Spain
Recognition
of a State defines its membership in the world community, and consequently
supports its claim as an international person.
It allows the recognized State to exercise the rights and duties of a
State under International Law.[11]
Recognition of a new State automatically involves recognition of its government,
although the latter may be recognized only de
facto.
Recognition
of a new government is quite different from the recognition of a new State,[12]
although in principle most of the considerations whether legal or political
apply equally to both types of recognition.
As far as a State is concerned, the satisfaction of basic requirements of
statehood is examined by the recognizing State before granting its recognition
to the new State. Recognition of a new
government requires its satisfaction of certain conditions such as effectiveness
and independence. Notably, the existence
of an effective and independent government is the essence of statehood. By recognizing a government, the recognizing
State accepts to deal with this government as the governing authority of the
State and grant it the legal consequences of such status in terms of privileges
and immunities within its domestic legal system. In both these types of recognition, we should
not forget the great role played by political considerations in the decision
whether or not to grant recognition.
The granting
or refusal of recognition of a government has no effect on the recognition of a
State itself. Recognition of a State
affects its legal personality, whether creating or acknowledging it, while
recognition of a government affects its status as the governing authority, not
the State. A subsequent government may
not be recognized, even though the recognition of a State is permanent as regard
to its existence and its status as a legal person under International Law. If the government of a State is changed in
accordance to constitutional processes, no problem of recognition arises as long
as the new government is firmly in power and secures stability in the
country. In this case, recognition by
other States is purely a matter of formality.
The problem of recognition of a new government arises in cases when
changes occur as a result of an unconstitutional practice or a revolution. The recognition of the revolutionary
government is a serious problem and the decision thereon is made with great
care. On this matter, no definite legal
principles are established and the practice of States is inconsistent and
confused. However, certain rules have
been recognized to cover recognition of illegal changes in government.[13] Such rules imply the acceptance of the
realities of the transfer of power and suggest that once a new government
effectively controls the country and that this seemed likely to continue,
recognition should not be withheld.
(B) Recognition of Belligerency[14]
Belligerency
exists when a portion of the State’s territory and population is under the de
facto control of insurgents seeking either to establish a separate State or
to overthrow the existing government. To
be recognized as belligerents, the insurgents must have a political organization
able to exercise such control and maintain some degree of popular support, and
conduct themselves according to the laws of war. Accordingly, recognition of belligerency is a
formal acknowledgement by third-party States of the existence of a state of war
between the State’s central government and a portion of that State. This implies that the recognizing State
recognizes that a revolt within another State has attained such a magnitude as
to constitute in fact a state of war, entitling the revolutionists or insurgents
to the benefit, and imposing upon them the obligations, of the laws of war. Two conditions should exist before a
third-party State grant belligerent recognition, the insurgency has progressed
to a state of general war and the effects of this war have gone beyond the
borders of the State to affect other States.
By this recognition, the insurrectionary movement is elevated to the
status of a quasi-international person having certain rights and duties under
International Law. This sort of international personality is both nonpermanent
and particular. It is nonpermanent,
because the insurrection may fail. It is
particular, because it exists only for the recognizing
States.
Recognition of belligerency was accorded during most of civil wars of the
Nineteenth Century, such as the revolts of the Spanish-American colonies and the
American Civil War, and during most of the wars of independence of the Twentieth
Century.
To grant
recognition of belligerency, the recognizing State is always dictated by the
primary motive, which is to protect and promote its national interests. The recognizing State may intend either to
get the status of neutrality between the belligerent parties or to support the
legitimacy of the insurrection.
(C) De Jure and De Facto
Recognition[15]
The practice
of States draws a distinction between de jure and de facto
recognition. This distinction usually arises in the case of governments since
States can normally be recognized only de jure, although there have been
few cases of recognizing States de facto. For example, Indonesia was recognized de facto by
several States while it was fighting for independence against Netherlands
De
jure recognition means that according
to the recognizing State the recognized State or government fulfils the
requirements laid down by International Law.
De facto recognition means that in the opinion of the recognizing
State, with all due reservations for the future, the recognized State or
government provisionally and temporarily fulfils the above requirements in
fact. As such, de facto
recognition is provisional and temporary and could be withdrawn at any future
date, although it is usually followed by de jure recognition. Notably, the terms de jure and de
facto describe the government, not the act of recognition. Choosing the type of recognition to be
granted, the recognizing State is always occupied by political realities and
considerations as well as its national interests.
De
facto recognition of a government implies that there is a doubt as to the
permanence and viability of the concerned government. De facto recognition involves a
hesitant position by the recognizing State, an attitude of wait and see, which
is usually followed by de jure recognition when the recognizing State
accepts that the effective control exerted by the government in question is
permanent and firmly established and there is no legal basis for withholding the
de jure recognition.
De
facto recognition may be a preface stage to the de jure recognition,
particularly in cases of governments coming into power by unconstitutional
processes. In such a case, de
facto recognition is a non-committal act whereby the recognizing State
acknowledges that there is a de facto government possessing in fact the
powers of sovereignty, but such possession may be illegal, unstable or
nonpermanent. At a later stage when the
need for reservations no longer exists because the permanence of the de
facto government is completely assured, de jure recognition is
formally granted. For example,
United
Kingdom United
Kingdom Lebanon
When
recognition is granted by an express statement, it should always be regarded as
de jure recognition, unless the recognizing State provides
otherwise. When recognition is implied,
there will often be uncertainty as to the intention of the recognizing State
whether granting de jure or de facto
recognition.
Choosing the
type of recognition to be granted, the recognizing State is occupied mostly with
political realities and considerations as well as own national interests, and to
a lesser degree with legal considerations. A statement that a government is
recognized as de facto may, on one hand, involve a purely political
judgment, involving either a reluctant or cautious acceptance of an effective
government, lawfully established according to International Law, or an
unwarranted acceptance of it as a de jure government. It may, on the other hand, be intended to be
or to include a legal determination of the existence of an effective government,
but with reservations as to its viability and permanence. It may, of course, happen that the legal and
political considerations for caution coincide.
The distinction between these two types of recognition is insubstantial,
since it is a question of intention, not of a legal matter. However, it is considered that de jure
recognition is irrevocable while de facto recognition can be
withdrawn. Actually, in the political
sense recognition of either type can always be withdrawn, while in the legal
sense it cannot be unless a change of circumstances warrants such
withdrawal.
Whatever the
basis for the distinction between de jure and de facto
recognition, the effects of the two types are mostly the same. Nevertheless, there are certain important
differences between these two types, which are:[19]
(a)
Only the
de jure recognized State or government can claim to receive property
locally situated in the territory of the recognizing
State.
(b)
Only the
de jure recognized State or government can represent the old State for
the purposes of State succession or with regard of espousing any claim of its
national for injury done by the recognizing State in breach of International
Law.
(c)
The
representatives of the de facto recognized state or government may not be
entitled to full diplomatic immunities and
privileges.
Whatever the
type of recognition, once given may in certain circumstances be withdrawn. Actually, this is more easily done with
regard to de facto recognition than to de jure recognition,
because of the nature of the former one, which is temporary. De facto recognition is intended to be
a preliminary acceptance of political realities and may be withdrawn in
accordance with a change in political conditions. When a de facto government loses its
effective control over the country, the reason for recognition disappears and it
may be withdrawn. De jure
recognition, on the other hand, because it is intended to be generally a
definitive act, it is more difficult to be withdrawn. When a government recognized de jure
is overthrown, a new situation arises and the question of recognizing a new
government will have to be faced. In
such instance, the withdrawal of recognition of the overthrown government is
assumed; it does not have to be expressed. Withdrawal of recognition of one
government without recognizing a successor is a possibility. This approach, for example, was adopted by
the United Kingdom and
France with regard to
Colombia
Withdrawal
of recognition remains possible in other circumstances. The loss of one of the required criteria of
statehood will result in the withdrawal of recognition of a State. Recognition of belligerency will naturally
terminate with the end of the state of belligerency.
Because
recognition is essentially a political act, no matter how circumscribed or
conditioned by the law, a State has a discretionary power to determine whether a
particular situation justifies a withdrawal of recognition and to take such
action if it serves its national interests.
Notably, we
must not confuse the withdrawal of recognition with the rupture in the
diplomatic relations. In the practice of
States, the usual method of expressing disapproval with the actions of other
governments is to break diplomatic relations, since this method does not entail
the legal consequences and the problems that the withdrawal of recognition would
produce.
(D) Express and Implied Recognition[21]
Recognition
is essentially a matter of intention.[22] It is founded upon the will and intention of
a State.[23] It may be express or implied.[24] The mode by which recognition is accomplished
is of no special significance. It is
essential, however, that the act constituting recognition must give a clear
indication of the intention either to deal with the new State as such, or to
accept the new government as the effective government of the State and to
maintain relation with it, or to
recognize in case of insurgents that they are entitled to belligerent
rights.
Express
recognition indicates the acknowledgment of the recognized State by a formal
declaration. In the practice of States,
this formal declaration may happen by either a formal announcement of
recognition, a personal message from the head of a State or the minister of
foreign affairs, a diplomatic note, or a treaty of recognition.
Recognition
needs not to be express. It may be
implied in certain circumstances.[25] There are circumstances in which it may be
possible to declare that in acting in a certain manner, one State does by
implication recognize another State or government. However, because of this
possibility, States may make an express declaration to the effect that a
particular action involving another State is by no means to be regarded as
inferring any recognition. This
position, for example, was maintained by Arab States with regard to Israel
Implied
recognition is recognition of a State or a government through actions other than
official declarations or actions intended to grant recognition. The required
actions for implied recognition must be unequivocal, leaving no doubt of the
intention of the State performing them to recognize the State or government and
to deal with it as such. There is a
variety of actions undertaken by a State in regard to an unrecognized State or
government. Some actions are
conclusively regarded implying recognition, while others are not. Included in
the first category are the official congratulatory statements upon independence,
the formal establishment of diplomatic relations and the conclusion of a
bilateral treaty.[27] The actions that do not conclusively imply
recognition are the participation in multilateral treaty, the membership in
international institutions, the common participation in international
conference, the maintenance of informal and unofficial contacts, the initiation
of negotiations with an unrecognized state, and the making of claims against an
unrecognized State.[28]
(E) Conditional Recognition[29]
The
political character of recognition is manifested in what is termed conditional
recognition. Sometimes States are
recognized subject to certain conditions, generally the fulfillment of certain
obligations. Examples of such conditions
are: the respect and the guarantee of the rights of ethnics, national groups and
minorities; the respect of religious freedoms; and the respect of the rule of
law, democracy and human rights.[30]
The failure
to fulfill the obligations does not annul the recognition, as once given it
cannot be withdrawn.[31] The status obtained by the recognized State
from the act of recognition cannot be withdrawn. The recognized State will be guilty of a
breach of International Law, and this will allow the recognizing State to severe
diplomatic relations as a form of sanction.[32] However, the conditional recognition of a
State or government in process of emerging is probably revocable.
Section 3: Legal Effects of Recognition
Although
recognition is essentially a political act, it is one that entails important
legal consequences. Recognition involves
legal effects both in the international level and in the domestic level. If an entity is recognized as a State, it
will be entitled to rights and subjected to duties that would not be relevant
otherwise, and it will enjoy privileges and immunities of a foreign State before
the national courts of other States, which would not be allowed to other
entities.
What are the
effects of recognition? Are there
effects for non-recognition? The
Answers to these two questions are dealt with in the following sub-sections.
(A) International effects of recognition[33]
Apart of all
the theoretical arguments involving the constitutive and declaratory theories,
it is accepted that recognition of a State or government is a legal
acknowledgement of factual situations.[34] Recognition entails the recognized State the
enjoyment of rights and the subjecting to duties prescribed in International Law
for States (these rights and duties are discussed in the previous
chapter).
Recognition
of a State by another State does not lead to any obligation to establish
diplomatic relations or any other specific links between them. Nor does the termination of diplomatic
relations automatically lead to withdrawal of recognition. These remain a matter
of political discretion. [35]
It should
not be assumed that non-recognition of a State or government would deprive that
entity rights and duties under International law.[36] It is well established in International Law
that the political existence of a State is independent of recognition by other
States, and thus an unrecognized State must be deemed subject to the rules of
International Law. Unrecognized State is
entitled to enjoy certain rights and be subject to many duties. It has the rights to defend its integrity and
independence, to provide for its conservation and prosperity and consequently to
organize itself as it sees fit. The
exercise of these rights by unrecognized State has no other limitation than the
exercise of the rights of other States according to International Law. Moreover, unrecognized State is subject to
most of the rules of International Law, such as those related to the law of
wars, and is bound by its agreements.
Non-recognition, with its consequent absence of diplomatic relations, may
affect the unrecognized State in asserting its rights against unrecognizing
States, or before their national courts. However, non-recognition will not
affect the existence of such rights, nor its duties, under International Law.[37]
(B) Internal
Effects of Recognition[38]
Recognition
entails the recognized State the rights to enjoy privileges and immunities of a
foreign State before the national courts, which would not be allowed to other
entities. However, because recognition
is essentially a political act reserved to the executive branch of government,
the judiciary branch must accept the discretion of the executive branch and give
effect to its decisions.[39] The national courts can only accept and
enforce the legal consequences that flow from the act of recognition. They can accept the rights of a foreign
government to sue, to be granted immunities or to claim other rights of a
governmental nature. They can give
effect to the legislative and executive acts of the recognized State. In the case of non-recognition, national
courts will not accept such rights. In
this context, recognition is constitutive, because the act of recognition itself
creates the legal effects within the domestic jurisdiction of a State.[40]
[1] See
generally H. Lauterpacht, Recognition in International Law, Cambridge (1947); C. Chen, The International law of
Recognition, London
[2] Bledsoe
& Boczek, pp. 44-45.
[3] See
Shaw, pp. 268-376; Malanczuk, pp. 83-8; and Bledsoe & Boczek,
pp.47-8.
[4] See
e.g. J. Grawford, The Creation of States in International Law, pp.
17-20, Oxford (1979); and C. Henkin, R. C. Pugh,
O. Schachter and H. Smit, International Law, pp. 244-50, 3rd
ed., St
Paul
[5] See
e.g. J.L. Brierly, The Law of Nations, p. 138, 6th ed., Oxford
[6] See
Malanczuk, p.83.
[7] Malanczuk,
p.84.
[8] Id.
pp. 84-6.
[9] See
generally Brownlie, pp. 86-91; Malanczuk, pp. 82-3 and 86-90; and Shaw pp.
368-82.
[10] Malanczuk, pp. 82-3.
[11] Bledsoe & Boczek, p. 44.
[12] See Shaw, pp. 376-82.
[13] See Malanczuk, pp. 87-8.
[14] See generally Lauterpacht, pp. 270-4; and
Bledsoe & Boczek, pp.46-47.
[15] See generally Brownlie, pp. 91-2; Shaw, pp.
382-3; Malanczuk, 88-90; and Bledsoe & Boczek,
pp.
48-50.
[16] Malanczuk, p.88.
[17] Shaw, p. 382.
[18] Id.
[19] See Shaw, p. 383.
[20] Shaw, p. 389.
[21] See generally Lauterpacht, pp. 396-408; Chen,
pp. 201-12; Shaw, pp. 384-7; and Brownlie, p. 93.
[22] Brownlie, p. 93.
[23] Shaw, p. 385.
[24] Brownlie, p. 93; and Shaw, pp. 384-4.
[25] See Shaw, pp. 384-6.
[26] Shaw. p. 385.
[27] See Shaw, p. 385.
[28] See Brownlie, p. 93; and Brownlie, pp.
386-7.
[29] See generally Shaw, pp.
387-8.
[30] Shaw, p. 387. See the 1991 European Community
Declaration on Yugoslavia
[31] Shaw, p. 387.
[32] Id.
[33] See generally Shaw, p. 393; Brownlie, p.
88-9; and Malanczuk, p. 83-6.
[34] Shaw, p.393
[35] Malanczuk, p. 86.
[36] Shaw, p. 393.
[37] See Shaw, p. 393.
[38] See generally Shaw, pp. 393-408; and
Brownlie, pp. 95-100.
[39] Shaw, p. 393.
[40] Shaw, p. 394.
