Please enable JavaScript.

Coggle requires JavaScript to display documents.

PUBLIC INTERNATIONAL LAW: SUBJECTS - Coggle Diagram

- - - - OBJECTS ARE NOT DIRECTLY GOVERNED BY RULES OF INTERNATIONAL LAW
        They are not directly governed by the rules of international law.
        
        HOW OBJECTS' RIGHTS ARE ASSERTED
        Their rights (e.g. human rights of individuals) may be asserted and their responsibilities imposed indirectly, through the instrumentality of an intermediate agency (e.g. state).
        
        CAVEAT: DISTINCTIONS HAVE BEEN CRITICIZED AS UNHELPFUL
        This traditional distinction has been criticized as unhelpful, as non-state actors (e.g. individuals and civil society organizations) already have standing to bring suits in the fields of international criminal law and international human rights law.
        Thus, some call the entities actors [Higgins].
  - - - UN HAS OBJECTIVE INT'L PERSONALITY
        The United Nations has objective international personality
        [Reparations for Injuries Advisory Opinion (ICJ, 1949)].
  - - - STATES = MOST IMPORTANT ACTORS
        States remain the most important actors in international law. They possess objective or erga omnes personality.
      - ELEMENTS OF STATEHOOD
        The state as a person of international law should possess the following qualifications
        [Art. 1, Montevideo Convention on the Rights and Duties of States (1933)]:
        
        PERMANENT POPULATION = SETTLED
        The population does not have to be homogeneous racially, ethnically, tribally, religiously, linguistically, or otherwise.
        
        But it must be a settled population, although the presence of certain nomadic inhabitants does not matter [Aust].
        
        HOMOGENEITY IS NOT REQUIRED
        
        NOMADIC INHABITANTS' PRESENCE DOES NOT MATTER
        
        What is a "settled" population?
        
        DEFINED TERRITORY
        State territory is that defined portion of the surface of the globe, which is subjected to the sovereignty of the State [Oppenheim].
        
        A state must exercise control over a certain area. It need not be exactly defined by metes and bounds, so long as there exists a reasonable certainty of identifying it. No minimum land area is required.
        
        MODES OF ACQUIRING TERRITORY
        There are four modes of acquiring territory. The first two are original modes while the last two are derivative modes.
        
        OCCUPATION
        Occupation refers not to mere discovery, but to effective exercise of sovereignty over a territory that is terra nullius (i.e., not subject to the sovereignty of any other state).
        
        OCCUPATION vs CONQUEST
        Occupation is different from conquest, which is the taking of a territory of another sovereign by force of arms.
        Conquest is generally accepted to have been outlawed as aggression and violative of the prohibition on the use of force and territorial integrity.
        [See Definition of Aggression, UN GA Res. 3314 (XXIX) (1974)]
        
        EFFECTIVE OCCUPATION
        Effective occupation means continued display of authority. It involves
        
        INTENTION & WILL TO ACT AS SOVEREIGN
        The intention and will to act as sovereign or animus occupandi; and
        
        EXERCISE/DISPLAY OF AUTHORITY
        Some actual exercise or display of such authority
        [Eastern Greenland Case (PCIJ, 1933)].
        
        1 more item...
        
        PRESCRIPTION
        Through prescription, title is acquired by continuous and undisturbed exercise of sovereignty over a period of time.
        
        POSSESSION MUST BE
        
        UNDER TITRE DE SOUVERAIN
        Exercised under titre de souverain (Title of sovereignty);
        
        UNINTERRUPTED/PEACEFUL
        Peaceful and uninterrupted;
        
        PUBLIC
        Public; and
        
        FOR A CERTAIN LENGTH OF TIME
        Endure for a certain length of time [Johnson].
        
        OCCUPATION v. PRESCRIPTION
        
        2 more items...
        
        ACCESSION OR ACCRETION
        Accession or accretion is the natural process of land formation resulting in the increase of territory
        
        CESSION
        Cession means the transfer of territory from one state to another by treaty (derivative). It is the only bilateral mode of acquiring territorial sovereignty.
        
        The validity of cession depends on the valid title of the ceding state. The cessionary state cannot have more rights than what the ceding state possessed [Magallona]
        
        GOVERNMENT
        Government is the physical manifestation of a state.
        
        Government must be organized, exercising control over and capable of maintaining law and order within its territory.
        
        CHANGES OF ENTIRE GOV'T, INVASION, OR DISORDER DO NOT AFFECT IDENTITY/PERSONALITY OF STATE
        Under the rules on succession of States, even changes of entire governments do not affect the identity and personality of the state.
        Once statehood is established, neither invasion nor disorder alone can remove its character as a state [Brownlie].
        
        EFFECTIVE GOVERNMENT:
        GENERAL RULE:
        CENTRAL GOVERNMENT +
        EFFECTIVE CONTROL
        There must be a central government operating as a political body within the law of the land and in effective control of the territory [Aust].
        
        EXCEPTION: CIVIL STRIFE/CHAOS
        The requirement of effective government is not strictly applied when the State, already long-existing, happens to undergo a period of civil strife or internal chaos due to natural disaster or invasion.
        
        FAILED STATE: NO GOVERNMENT
        One which has not had a government in control of most of the territory for several years [Aust].
        
        A FAILED STATE IS STILL A STATE
        A failed State does not cease to be a State. (e.g. Somalia, which has not had an effective government in years, but continues to be recognized by the UN).
        
        SOME STATES WERE DEEMED STATES EVEN BEFORE A GOV'T WAS
        WELL-ORGANIZED
        Further, some States were deemed States even before their governments were very well-organized (e.g. Poland, Burundi, and Rwanda).
        
        GOVERNMENTS DE JURE AND DE FACTO
        
        GOVERNMENT DE JURE = LEGITIMATE
        Government from law, that is, one with a color of legitimacy.
        
        GOVERNMENT DE FACTO =
        WITHOUT MANDATE OF LAW
        Government de facto: One that governs without a mandate of law.
        
        So long as it is in place, it may command obedience from the inhabitants of the occupied area.
        The de facto ruler may suspend laws and enact new ones.
        
        DE FACTO PROPER/GOVERNMENT BY REVOLUTION = USURPER:
        That which usurps, either by force or the will of the majority, the legal government and maintains control against it;
        
        GOVERNMENT BY PARAMOUNT FORCE / GOVERNMENT BY OCCUPATION:
        Results from the occupation of a state or a part thereof by invading forces in time of war; and
        
        GOVERNMENT BY SECESSION: Government established as an independent government by inhabitants of a country who rise in insurrection against the parent state.
        [See Co Kim Cham v. Valdez Tan Keh, G.R. No. L-5 (1945)].
        
        1 more item...
        
        CAPACITY TO ENTER INTO RELATIONS WITH OTHER STATES
        A state must be free from outside control in conducting foreign and internal affairs, i.e. sovereign and independent.
        
        EXTERNAL APPEARANCE OF CAPACITY SUFFICES
        It is sufficient for a State to possess external appearance of capacity to enter into international relations [Brownlie].
        
        POSSIBLY ACTING UNDER DIRECTION OF ANOTHER STATE DOES NOT MATTER
        That a State may be acting under the direction of another State does not affect this requirement [See Treaty of Friendship (India and Bhutan), where Bhutan agreed to be guided in its external relations by Indian advice; Aust].
    - - EFFECTIVENESS
        
        TOTALITY OF INTERNATIONAL RIGHTS & DUTIES EMBODIED IN AN INDEPENDENT TERRITORIAL UNIT MAKES UP A STATE
        Instead, it is the “totality of international rights and duties recognized by international law” as embodied in an independent territorial unit that is the state.
        
        STATEHOOD MEANS THERE IS SOVEREIGNTY, BUT SOVEREIGNTY IS NOT A PRECONDITION TO STATEHOOD
        In other words, an entity endowed with statehood has sovereignty, but sovereignty itself is not a precondition but only an attribute, or “an incident or consequence of statehood.”
        
        STATEHOOD = EFFECTIVENESS
        The issue of possession of the status of a state (statehood) under international law, traditionally defined as “effectiveness,” is closely linked to the concept of sovereignty, although the latter is not itself a criterion for statehood.
        
        POSSESSION OF A STATUS OF A STATE
      - DECLARATION OF INDEPENDENCE
        
        INTERNATIONAL LAW DOES NOT PROHIBIT DECLARATIONS OF INDEPENDENCE
        General Rule: International law contains no prohibition on declarations of independence.
        
        UNLAWFUL USE OF FORCE
        Exception: If the declaration is connected with
        
        the unlawful use of force; or
        
        UNILATERAL DECLARATION IS NOT PROHIBITED
        Hence, the Kosovo declaration of independence did not violate general international law just because it was unilateral [Kosovo Advisory Opinion (ICJ, 2010)].
        
        EGREGIOUS VIOLATION OF JUS COGENS NORM
        If the declaration is connected with
        
        other egregious violations of jus cogens norms.
      - RIGHT TO SELF DETERMINATION
        
        Internal self-determination v. External selfdetermination: Through internal selfdetermination, the state recognizes a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state.
        
        A right to external self-determination (which, in this case, potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances [Akbayan v. Aquino, G.R. No. 170516 (2008), citing In re Secession of Quebec (Can., 1998)].
        
        SECESSION DEFINED
        Secession is the effort of a group or section of a state to withdraw itself from the Political and Constitutional authority of that state,
        with a view to achieving statehood for a new territorial unit on the international plane
        [In re Secession of Quebec (Can., 1998)].
        
        GROUNDS FOR SECESSION
        
        REMEDIAL SECESSION
        When a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession.
        [In re Secession of Quebec (Can., 1998)]
        
        1 more item...
        
        COLONIZATION
        Colonization;
        
        ALIEN SUBJUGATION, DOMINATION, OR EXPLOITATION OUTSIDE COLONIAL CONTEXT
        Alien subjugation, domination, or exploitation outside the colonial context;
    - - DEFINITION OF RECOGNITION
        Definition: Recognition is an act by which a state acknowledges the existence of another state, government or belligerent community and indicates willingness to deal with the entity as such under international law.
        
        NOT A LEGAL DUTY: RECOGNITION IS NOT A LEGAL DUTY
        Not a legal duty: As a public act of state, recognition is an optional and political act and there is no legal duty in this regard.
        
        a. DECLARATORY SCHOOL:
        DOES NOT REQUIRE RECOGNITION
        Recognition is a mere declaration or acknowledgement of an existing state of law and fact, legal personality having been previously conferred by operation of law.
        This is the prevailing view.
        
        b. CONSTITUTIVE SCHOOL:
        REQUIRES
        The political act of recognition is a precondition to the existence of legal rights of a state.
        In its logical extreme, this is to say that the very personality of a state depends on the political decision of other states. This is the minority view [Brownlie]
      - LEGAL FUNCTIONS OF RECOGNITION
        (The typical act of recognition has two legal functions)
        
        EVIDENCE OF STATEHOOD
        The determination of statehood as a question of law which may have evidential effect before a tribunal; and
        
        ESTABLISHMENT OF RELATIONS
        A condition of the establishment of formal, optional, and bilateral relations, including diplomatic relations and the conclusion of treaties [Brownlie].
      - EFFECTS OF RECOGNITION
        
        ESTABLISHMENT OF DIPLOMATIC RELATIONS
        Establishment of diplomatic relations;
        
        RIGHT TO SUE IN COURTS OF RECOGNIZING STATE
        Grant of right to sue in courts of recognizing state;
        
        RIGHT TO POSSESSION OF PROPERTIES OF PREDECESSOR IN RECOGNIZING STATE
        Grant of right to possession of properties of predecessor in the recognizing state; and
        
        RETROACTIVE VALIDITY OF RECOGNIZED STATE'S ACTS
        Retroactive validity: All acts of the recognized state or government are validated retroactively, preventing the recognizing state from passing upon their legality in its own court.
      - DOCTRINES ON RECOGNITION OF DE FACTO GOVERNMENTS
        
        WILSON/TOBAR DOCTRINE
        (“Doctrine of Legitimacy” or “Policy of Democratic Legitimacy”):
        This holds that governments which came into power by extra-constitutional means [e.g. revolution, civil war, coup d’etat or other forms of internal violence] should not be recognized, at least until the change had been accepted by the people
        [After US President Wilson, 1913 and Ecuadorian FM Tobar (1907)].
        
        STIMSON DOCTRINE
        This is the doctrine of not recognizing any situation, treaty or agreement brought about by non-legal means. It precludes recognition of any government established as a result of external aggression.
        [After US Sec. of State Henry Stimson (1932)]
        
        ESTRADA DOCTRINE
        This holds for automatic recognition of governments in all circumstances.
        
        It posits that dealing or not dealing with the government established through a political upheaval is not a judgment on the legitimacy of the said government.
        [After Mexican Minister Genaro Estrada (1930)] [Shaw]
    - - INTERNATIONAL ORGANIZATIONS HAVE SPECIAL PERSONALITY
        General rule: International organizations have special personality.
        The status and powers of an international organization is determined by agreement and not by general or customary international law.
        They are considered subjects of international law “if their legal personality is established by their constituent instrument.”
        
        THE UNITED NATIONS HAS OBJECTIVE INTERNATIONAL PERSONALITY
        Exception: The United Nations has objective international personality. Its personality is binding on the whole international community, including States who are not UN members [Reparations for Injuries Advisory Opinion (ICJ, 1949)].
        
        CONSTITUENT RIGHTS & DUTIES
        ARE LIMITED TO TREATY
        Further, their constituent rights and duties, or capacities and immunities, are limited to those set forth in the treaty creating the international organization.
        Thus, legal personality in this context is a relative concept.
        [Magallona]
      - PRECONDITIONS FOR INTERNATIONAL PERSONALITY
        
        a. It must constitute a permanent association of states, with lawful objects, equipped with organs;
        
        b. There must be a distinction, in terms of legal powers and purposes, between the organization and its member states; and
        
        c. It must have legal powers that it may exercise on the international plane and not solely within the national systems of one or more states [Brownlie].
      - THE UNITED NATION'S CAPACITY TO BRING CLAIMS FOR REPARATIONS IS GRANTED BY NECESSARY IMPLICATION, THOUGH NOT EXPRESSLY PROVIDED
        As the “supreme type of international organization,” the UN must be deemed to have such powers, which, though not expressly granted in its Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.
        Thus, though the UN Charter did not expressly clothe the UN with the capacity to bring an international claim for reparations, the UN nevertheless possessed functional personality.
        [Reparations for Injuries Advisory Opinion (ICJ, 1949)]
      - NATURAL OR JURIDICAL PERSONS
        
        SPECIAL PERSONALITY
        Individuals, whether natural or juridical, may assume the status of subjects of international law only on the basis of agreement by states and in specific context, NOT in accordance with general or customary international law.
        
        EXAMPLES
        
        Art. 187(c)-(e), UNCLOS provide for jurisdiction of the Sea-Bed Disputes Chamber of the ITLOS over disputes between parties to contracts relating to the exploitation of marine resources. Parties to such contracts may be natural or juridical persons.
        
        The Claims Settlement Declaration of 1981 between US and Iran provides for direct access to the Iran-US Claims Tribunal to individuals for the settlement of their claims involving more than $250,000 either against Iran or the US.
        
        The Mixed Claims Tribunals established in the Treaties of Peace concluded at the end of World War I provided for locus standi of individuals in actions against states relating to contracts, debts, and property adversely affected by the war.
        
        1 more item...