International Law: State Recognition, Intervention, and More

Posted on May 14, 2024 in Law & Jurisprudence

Recognition of State

Statehood is a central subject in international law. Recognition of a state is an act by which an existing state acknowledges that a political entity possesses all the essential elements of statehood:

1. Permanent population
2. Definite territory
3. A government
4. Capacity to enter into relations with other states

By recognizing a state as a member of the international community, existing states declare that, in their opinion, the new state fulfills the conditions of statehood proposed by international law.

Theories of Recognition

1. Constitutive Theory: This theory states that a state acquires rights and duties under international law only when existing states recognize it. If a state is not recognized by other states, it will have neither duties nor rights under international law. This theory is considered absurd by many. If accepted as correct, it would create difficulties in establishing new states recognized by some but not all states.
2. Declaratory Theory: This theory posits that a state exists even without recognition. Recognition is merely a formal acknowledgment through which existing states accept an established fact. The act of recognition is simply a declaration of the existing fact that a particular state possesses all the essential elements required under international law.

Modes of Recognition

1. De Facto Recognition: This means that the recognized state possesses the essential elements of statehood, but its stability is doubtful. Diplomatic relations are not established under de facto recognition, which is provisional. In such cases, the recognizing state establishes relations with the recognized state without establishing diplomatic relations.
2. De Jure Recognition: This is final and permanent. It is granted when the recognized state possesses all the essential requirements of statehood and is capable of fulfilling its obligations under international law. Conditions for De Jure Recognition:
   1. The government should have the general support of the population.
   2. There should be reasonable assurance of stability.
   3. The government should be able and willing to fulfill international obligations.

Legal Effects of Recognition

1. The recognized state becomes entitled to sue in the courts of the recognizing state.
2. The courts of the recognizing state give effect to the legislative and executive acts of the recognized state.
3. The recognized state can claim diplomatic and property immunity in the recognizing state.

Intervention

Intervention is the dictatorial interference by a state in the affairs of another state for maintaining or altering the existing condition of things. The interference must be dictatorial, opposed to the will of the affected state, and result in impairing the political independence of the affected state.

1. Intervention for Self-Defense: A state is justified in intervening in the affairs of another state when necessary for self-preservation.
2. Intervention on Humanitarian Grounds: A state is justified in intervening in the affairs of another state to check human rights violations.
3. Intervention in Civil Wars: Intervention in civil wars is a complex issue with varying justifications and implications.

State Territory

State territory can be defined as the portion of the globe subject to a state’s sovereignty. A state without territory is inconceivable. Even with a small territory, a state can exist. A state’s territory includes not only its landmass but also its national waters and territorial sea.

Rivers

1. National River
2. Boundary River
3. Non-National Rivers
4. International Rivers

Different Modes of Acquisition and Loss of Territory

1. Occupation: If a state discovers a new territory not under the sovereignty of another state and exercises sovereignty over it, the territory becomes part of that state by occupation (e.g., Island of Palmas Arbitration Case).
2. Prescription: Prescription results from the peaceful exercise of de facto sovereignty for a prolonged period over a territory subject to another state’s sovereignty.
3. Accretion: When a new territory is added through natural processes to the territory already under a state’s sovereignty, accretion occurs, and the added territory becomes part of that state.
4. Cession: When a state voluntarily gives territory to another state, the other state becomes the sovereign of that territory.
5. Annexation: Acquisition of territory after conquest.
6. Lease: Leasing part of a territory for a definite period.

Law of the Sea

1. Maritime Belt or Territorial Waters: A coastal state is entitled to exercise sovereign rights over its territorial sea. Foreign merchant vessels have the right of innocent passage through a state’s territorial waters. A coastal state must not hamper innocent passage through its territorial sea and is required to give appropriate publicity to any danger to navigation within its territorial sea. In the Corfu Channel Case, the ICJ held that even foreign warships can pass through a state’s maritime belt during peacetime. Passage is innocent as long as it is not prejudicial to the peace, order, or security of the coastal state.
2. Contiguous Zone: This is the part of the sea beyond and adjacent to the coastal state’s territorial sea. The contiguous zone does not extend beyond 24 nautical miles from where the breadth of the territorial sea is measured.
3. Continental Shelf: The sea’s construction is such that it becomes deeper as one proceeds seaward, reaching a point where it becomes steep. The landmass and deep sea are separated by a shelf or terrace known as the continental shelf.
4. Exclusive Economic Zone or Patrimonial Sea: This zone extends 200 nautical miles from the baseline from which territorial water is measured. All states have the freedom of navigation and overflight and the laying of submarine cables and pipelines. All states shall give due regard to the laws and regulations adopted by the coastal state regarding its exclusive economic zone.
5. High Seas: The high seas are the common heritage of humankind and are not within the property of any state. All states are free to use them.

State Responsibility

State responsibility refers to the circumstances in which a state is responsible for paying compensation for violating international law rules. A state would be liable to pay compensation to the injured state under the following:

1. International Delinquency: This refers to every neglect of an international duty. It arises from wrongs committed by a state. If a state’s citizen causes damage or harm to a foreigner, the foreigner has the right to file a suit for compensation according to that state’s law (e.g., Youmans Claim Case (USA v. Mexico, Mayor)).
2. Responsibility for Expropriation of Foreigners’ Property: If a state expropriates foreigners’ property, state responsibility may arise. The aggrieved foreigner can claim compensation for the confiscation of their property.
3. Responsibility for Breach of Contract: A state may enter into contracts with foreigners for construction, goods, or services. If the state breaches its contractual obligations, the foreigner can file a suit claiming compensation in that state’s court.

Calvo Clause

Sometimes, a citizen of one state may agree with another state that they will not seek their state’s assistance and protection in any matter arising from a particular contract. Such a clause in the agreement is known as the Calvo Clause, named after the Argentinean jurist Carlos Calvo. Such clauses were frequently included in contracts between Central and South American governments and foreign companies. According to this clause, foreign companies holding concessions or other grants could not invoke the intervention of their country’s diplomatic agents. They could only file suits in the municipal court of the state granting the concession.

Asylum

A person may, after committing a crime in one country, escape to another country and seek asylum to avoid prosecution in the country where they committed the crime. The Universal Declaration of Human Rights declares that everyone has the right to seek asylum in other countries from persecution. Although everyone has the right to seek asylum, there is no corresponding duty on states to grant it. Granting asylum to a refugee is at the state’s discretion. The word”asylu” means giving shelter and active protection to a person who has committed a crime in a foreign country and escaped to the country where they are presently.

Types of Asylum

1. Territorial Asylum: This is granted by a state within its own territory. It is considered an attribute of the state’s territorial sovereignty.
2. Extraterritorial or Diplomatic Asylum: A state may grant asylum in its embassies in foreign countries. It can be classified into the following categories:
   1. Asylum in Foreign Litigation: Asylum in foreign litigation is not permitted.
   2. Asylum in the Premises of International Institutions
   3. Asylum in Warships
   4. Asylum in Merchant Vessels

Extradition

Extradition is the delivery of an accused or convicted individual to the state in whose territory they allegedly committed a crime by the state in whose territory the criminal is found. Under international law, there is no duty for a state to extradite criminals. The obligation to extradite arises only when there is a bilateral treaty.

Essential Conditions for Extradition or Restrictions on Surrender

1. Political Crimes: Even with a bilateral extradition treaty, persons accused of political crimes are not extradited (e.g., Re Reacioni Case: Castioni was accused of murdering a member of the state council. An armed mob attacked the municipal place and killed the member of the state council).
2. Military Crimes
3. Religious Crimes
4. Double Criminality
5. Rule of Specialty
6. Prima Facie Case
7. Extradition Must Be Formally Made

Nationality

Nationality refers to the political status of an individual attached to a state by the tie of allegiance. The term signifies the legal tie between an individual and the state. A person’s nationality is determined according to municipal law rules. A state is entitled to protect its nationals’ person and property in foreign countries. If a state’s national is expelled from a foreign state, it becomes the former state’s duty to receive back its national. Refusal to receive back and expulsion of a state’s own national are inconsistent with international law.

Modes of Acquisition of Nationality

• By birth
• By descent
• By naturalization
• By registration

Double Nationality

A person may have the nationality of two states simultaneously due to the lack of uniformity in municipal laws. When a person has the nationality of two states simultaneously, it is known as double nationality. In a third country, such a person would be treated as having only one nationality, typically the country in which they habitually reside.

Immunities and Privileges of Sovereign and Diplomatic Agents

Foreign Sovereign

A foreign sovereign enjoys absolute immunity from the civil and criminal jurisdiction of another state. A civil or criminal court of a country cannot exercise its jurisdiction against a foreign sovereign. A dispute regarding a foreign sovereign’s property cannot be decided by another country’s court (e.g., Mighell v. Sultan of Johore).

Diplomatic Agents – Duties, Immunities, and Privileges

Diplomatic agents reside in foreign countries as representatives of the sending state, acting as a link between the sending and receiving states. By virtue of the Vienna Convention on Diplomatic Relations, they can be classified into the following:

1. Ambassadors, nuncios, and other heads of mission of equivalent rank
2. Envoys, ministers, and internuncios
3. Chargé d’affaires

Article 14(2) of the Vienna Convention on Diplomatic Relations provides that, apart from precedence and etiquette, there is no difference between diplomatic agents.

Immunities of Diplomatic Agents

1. Inviolability of the person of envoys
2. Immunity from the criminal jurisdiction of courts
3. Immunity from civil jurisdiction
4. Immunity regarding residence
5. Immunity from being compelled to be a witness
6. Immunity from taxes
7. Immunity from inspection of personal baggage
8. Right to worship
9. Right to travel freely in the receiving state’s territory

Duties of Diplomatic Agents

1. Diplomatic agents have a duty to respect the receiving state’s laws and rules.
2. They have a duty not to interfere in the receiving state’s internal affairs.
3. The mission’s premises should not be used in any manner incompatible with the mission’s function.
4. Diplomatic agents should not practice for personal profit or engage in commercial activity.

Burmans Case

The defendant was a French envoy from Bolivia. While traveling from France to Bolivia, he landed in New York. The plaintiff started civil proceedings against him. The defendant claimed diplomatic immunity, which the court granted, dismissing the suit.

International Treaties

Treaties are agreements of a contractual character between states or organizations of states, creating legal rights and duties. According to Article II of the Vienna Convention on the Law of Treaties (1969), a treaty is an agreement whereby two or more states establish a relationship between them governed by international law.

Pacta Sunt Servanda

In the view of Italian jurist Anzilotti, pacta sunt servanda is the basis of the binding force of international treaties. This principle means that states are bound to fulfill in good faith the obligations they assume under agreements. The ICJ described it as a time-honored basic principle. Thus, the Convention recognized pacta sunt servanda as the basis of the binding force of international treaties.

Who Can Enter into a Treaty?

Under international law, only sovereign states and international organizations can be parties to an international treaty.

Main Steps in the Formation of a Treaty

1. Accrediting of agents or persons
2. Negotiations and adoption
3. Signature
4. Ratification
5. Accession and adhesion
6. Registration and publication

Termination of Treaties

A concluded treaty may be terminated by:

1. Operation of law
2. Act of parties

A treaty may be terminated by operation of law in the following ways:

1. Extinction of either party to a bilateral treaty
2. Outbreak of war
3. Impossibility of performance
4. Rebus sic stantibus
5. Expiration of a fixed time
6. Jus cogens

Rebus Sic Stantibus

Rebus sic stantibus means that when the fundamental or material circumstances under which a treaty was concluded change, the change becomes the basis for avoiding or terminating the treaty. It is based on the assumption that an implied clause in every treaty states that the agreement is binding only as long as the material circumstances on which it rests remain unchanged.

Jus Cogens

Jus cogens means the emergence of a new peremptory norm of international law. By virtue of Article 53 of the Vienna Convention, a treaty is void if, at its conclusion, it conflicts with a peremptory norm of general international law. A peremptory norm of general international law is a principle accepted and recognized by the international community of states as a whole, from which no derogation is permitted.

Pacta Tertiis Nec Nocent Nec Prosunt

It is a fundamental principle of contract law that only parties to a contract are bound by it. Similarly, it is a general principle of international law that only a party to an international treaty is bound by it.

Exceptions

:  a)milti lateral treaties declaring the established customary orinciple of international law may bind even on non parties   b)multi lateral treaties which create a new rule of international lawe may also bind non parties.

#THE UNITED NATIONS ORGANISATION : UN is considered to be an association or organisation or states.it bhas a distinct legal personality of its own apart from those those of its members. The ICJ in the case reparation for the injuries suffered in the service of UN .held that UN is a legal person and subject of international law .it can claim compensation  for injuries suffered by persons in its service. Objects : a) to maintain international peace and secuirity  b)to develop friendly relations among nations c)to achieve internatioinal co noperation in solving internationalmproblem of economic,social cultural and huminarian character.  d)to promote and encourage respect for bhuman rights and fundamental for all without distiction as to race,sex,language religion. Principle: a) all members states are equal.the permanent members of secuirity council possess more powers than other members.    b)all members shall fulfil in good faith the obligations assumed by them c)all members shall settle the international disputes by peaceful means   d)all members shall refrain from the tbhreat or use of force. e)all members shall give the UN assistance in common action f)UN is prihibited from intervening in domestic affairs of a member state.