Rights arising from sovereign statehood

1. Rights arising from sovereign statehood • Continuedexistence • Self-determination • Acceptance as the basis for legal obligation • State immunity

2. Military and Paramilitary Activities in and against Nicaragua (1986) • US: Nicaragua has taken 'significant steps towards establishing a totalitarian Communist dictatorship‘ • ICJ:’adherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State. [...] The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system’

3. Military and Paramilitary Activities in and against Nicaragua (1986) • ICJ: Whatever the impact of individual alliances on regional or international political-military balances, the Court is only competent to consider such questions from the standpoint of international law. From that aspect, it is sufficient to say that State sovereignty evidently extends to the area of its foreign policy, and that there is no rule of customary international law to prevent a State from choosing and conducting a foreign policy in co-ordination with that of another State.

4. Military and Paramilitary Activities in and against Nicaragua (1986) • US: the militarization of Nicaragua is excessive and as such proves its aggressive intent • ICJ:it is “irrelevant and inappropriate … to pass upon this allegation … since in international law there are no rules other than such rules as may be accepted by the state concerned, by treaty or otherwise whereby the level of armaments of a sovereign state can be limited, and this principle is valid for all States without exception”

5. Sovereignty and statehood II Leila Brännström

6. 1933 Pan American Union's Montevideo Convention, art. 1 A State as a person of international law should possess the following qualifications: • a permanent population; • a defined territory; • government; and • capacity to enter into relations with the other states

7. Population There is no minimum number of people which is necessary for a State to exist There is no requirement of ethnic, or any other kind of, homogeneity

8. Territory Territory: an area delimited by international borders, need not form a physical unit, borders need not be unambiguously delimited. There is no size requirement. Comprises airspace, ground below territorial surface, and a zone of max. 12 nautical miles off the coast The real issue regarding territory in most cases is the ability to rightfully claim the territory as a domain of exclusive authority.The existence or absence of competing claims to sovereignty is key

9. (Effective)Government The government must have effective control over its territory and needs todemonstrate unrivalled possession and control of public power The government must be able to act as an independent actor v-a-v other governments Temporal interruption of control does not mean that the state disappears

10. The Creation of States in International Law(2006), James Crawford • ”since nationality is dependent upon statehood, and territory is defined by reference to the extent of governmental power exercised, there is a good case for regarding effective government as the most important single criterion of statehood, since all other criteria depend on it” (page 56).

11. The conditional effect of effective government(Crawford) The legal effect (for the purposes of statehood) of effective government depends on other relevant principles and factors • the absence of rivalling claims to sovereignty • the prohibition on the use of force • the principle of self-determination • other important principles of IL

12. The Case of the Republic of Congo • Was the international recognition of the Congo simply premature because it did not possess an effective government? • Did the international recognition of the Congo, in itself, had the effect of creating a State despite the fact that it was not properly qualified? • Is the requirement of ”government” less stringent in certain particular contexts?

13. Competing claims of sovereignty • On the one hand: the principlethatpopulated aspirant entitiespossessing an effectivegovernmentshould be recognized • On the other hand: the prohibition of the use of force as a legitimate means of acquiring title to territory and the duty not to violate the territorial integrity of existing states

14. The idea of national self-determination • One tradition ofthoughtstressed the congruenceof the nation (based on groupidentity) and the state. • Another tradition ofthoughtstressed representative self-governance.

15. The institutionalization of the principle of self-determination in IL • National self-determination was the implicit premise behind the reorganization of Europe after WWI. • The UN Charter identified respect for the principle of equal rights and self-determination of peoples as being one of the purposes of the Organization (Article 1). • Chapter XI of the UN-charter made clear that the primary concern in relation to those peoples which had ”not yet attained a full measure of self-government” was to foster self-government. In a series of resolutions this was interpreted as meaning “decolonization”.

16. The ”self” of self-determination • Colonial administration was the primary means for the designation of the ”selves” of self-determination • Uti possidetis:”a general principle...logically connected with the phenomenon of obtaining independence, wherever it occurs” (Frontier Dispute,1986) • The emphasis on territorial integrity served to secure the political integrity of newly emergent States once they had become established

17. Guidelines on the Recognition of New States in Eastern Europé and in the Soviet Union (16 December 1991) - respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights - guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE - respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement - acceptance of all relevant commitments with regard to disarmament and nuclear nonproliferation as well as to security and regional stability - commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes

18. The right to self-determination • The principle of self-determination implies an innate understanding of state sovereignty • The tension between two ideas of sovereignty (one innate, the other attributed or delegated) cut through international legal discourse