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The case concerned a dispute between the Netherlands and the United States on sovereignty over an island about halfway between the Philippines and the now Indonesian Nanusa Islands. In his award of 4 April Judge Huber noted on the concept of territorial sovereignty: Territorial sovereigntyinvolves the exclusive right to display the activities of a State. This right has as a corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and 1 Harris CMIL, ; J.
Barberis, Los sujetos del derecho internacional actual, ; K. On state sovereignty see the literature in Chapter 2 above, Brownlie, Principles of Public International law, 4th edn , On the need for a simplified definition in international law to be able to conform to the principle of equality of states, see Doehring, op.
Jellinek, Allgemeine Staatslehre, 3rd edn , et seq. Rozakis, Territorial Integrity and Political Independence, ibid. On the acquisition of territory see Chapter 10 below, Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfill this duty.
Territorial sovereignty cannot limit itself to its negative side, i. It includes the air space above the land although there is no agreement on the precise upper limit 7 and the earth beneath it, in theory, reaching to the centre of the globe. It also includes up to twelve miles of the territorial sea adjacent to the coast.
There is for instance no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not. Thus, Israel was soon clearly recognized as a state, in spite of the unsettled status of its borders in the Arab-Israeli conflict. See See also P. See also Chapters 7, 10 and 10, , , below.
Schweisfurth, I. Brownlie, W. Hummer, R. Khan, and H. On the cases see Chapters 3, 44, 46 above and 12 below, , On the Arab-Israeli conflict see also Chapters 10, and 22, , and text below, On the membership of ministates in the United Nations, see Chapter 21 below, Population The criterion of a permanent population is connected with that of territory and constitutes the physical basis for the existence of a state.
On the other hand, the fact that large numbers of nomads are moving in and out of the country, as in the case of Somalia, is in itself no bar to statehood, as long as there is a significant number of permanent inhabitants.
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This raises the problem of so-called mini-states which have been admitted as equal members to the United Nations. In spite of its small population, the Vatican or the Holy See entertains diplomatic relations with many other states, has concluded international agreements and joined international organizations but it is not a UN member.
Many state functions, however, are actually performed by Italy. Thus, it would be absurd to legally require any ethnic, linguistic, historical, cultural or religious homogeneity in the sense of the antiquated political concept of the nation-state.
A state exercises territorial jurisdiction over its inhabitants and personal jurisdiction over its nationals when abroad. Internally, the existence of a government implies the capacity to establish and maintain a legal order in the sense of constitutional autonomy.
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Externally, it means the ability to act autonomously on the international level without being legally dependent on other states within the international legal order. The mere existence of a government, however, in itself does not suffice, if it does not have effective control. In , the International Committee of Jurists submitted its Report on the status of Finland and found that it had not become a sovereign state in the legal sense until a stable political organisation had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops.
It would appear that it was in May , that the civil war ended and that the foreign troops began to leave the country, so that from that time onwards it was possible to re-establish order and normal political and social life, little by little.
The long period of de facto partition of the Lebanon did not hinder its continued legal appearance as a state. Nor did the lack of a government in Somalia, which was described as a unique case in the resolution of the Security Council authorizing the United Nations humanitarian intervention, 25 abolish the international legal personality of the country as such. Even when all of its territory is occupied by the enemy in wartime, the state continues 17 See Chapter 17 below, Alting v.
The other side of the same coin is that the requirement of government is strictly applied when part of the population of a state tries to break away to form a new state.
There is no rule of international law which forbids secession from an existing state; nor is there any rule which forbids the mother state from crushing the secessionary movement, if it can. Whatever the outcome of the struggle, it will be accepted as legal in the eyes of international law.
Intervention by third states in support of the insurgents is prohibited. Particularly controversial in the context of the Yugoslavian conflict has been the drive for early recognition of Slovenia and Croatia, which Germany and Austria justified as being an attempt to contain the civil war, but which was seen by other states as premature action which actually stimulated it.
Indeed, some authors require independence as an additional criterion for statehood. An independent state becomes a dependent state only if it enters into a treaty or some 26 See Chapter 10 below, See also M. See also Chapters 11, and 22, and text, below. STATES other legal commitment whereby it agrees to act under the direction of another state or to assign the management of most of its international relations to another state.
It may seem artificial to have described Afghanistan, for instance, as an independent state, at the time when everybody knew that Afghanistan was forced to follow Soviet policy on all important questions;35 however, if international law tried to take all the political realities into account, it would be impossible to make a clear distinction between dependent and independent states, because all states, even the strongest, are subject to varying degrees of pressure and influence from other states.
Therefore, although sometimes amounting to little more than a mere legal fiction, the vast majority of states are considered to be independent in this sense. Moreover, it is important to note that, in principle, international law is indifferent towards the nature of the internal political structure of states, be it based on Western conceptions of democracy and the rule of law, the supremacy of a Communist Party, Islamic perceptions of state and society, monarchies or republics, or other forms of authoritarian or nonauthoritarian rule.
The legality or legitimacy of such an establishment are not decisive for the criteria of a state. Although the Holy Alliance in Europe after the Napoleonic Wars had sought a different solution,37 revolutions and the overthrow of governments have become accepted in international law; the only relevant question is whether they are successful.
The choice of a type of government belongs to the domestic affairs of states and this freedom is an essential pre-condition for the peaceful coexistence in a heterogeneous international society. Thus, international law also does not generally inquire into the question whether the population recognizes the legitimacy of the government in power. Nor is it concerned with the actual form of government, democratic in one sense or another or not so.
Certain qualifications in this respect may arise from the recognition of the principle of self-determination of peoples,38 but this is not pertinent to the question of whether or not a state exists. See Chapter 19 below, Capacity to enter into relations with other states The last criterion d in the Montevideo Convention suggested by the Latin American doctrine finds support in the literature40 but is not generally accepted as necessary.
Guinea-Bissau, for example, was recognized in the s by the United States and by Germany on the basis of only the first three elements.
The Restatement Third of the American Law Institute, however, basically retains this criterion, although with certain qualifications: An entity is not a state unless it has competence, within its own constitutional system, to conduct international relations with other states, as well as the political, technical, and financial capabilities to do so. The exercise of these rights has no other limitation than the exercise of the rights of other States according to international law.
There are several examples of dependent states, which have only a limited capacity to enter into international relations and are usually mentioned as a special category.
For example, colonies in the process of becoming independent44 often had a limited capacity to enter into international relations. In practice, the formal grant of independence was usually preceded by a period of training, during which the colonial power delegated certain international functions to the colony, in order to give the local leaders experience of international relations.
Protectorates were another example. However, the exact relationship depends on the terms of the instrument creating the relationship, and no general rules can be laid down. Protectorates were generally a by-product of the colonial period, and most of them have now become independent.
Trusteeships and associated territories that were placed under the control of the United Nations after the Second World War were also limited in their capacity to conduct foreign relations. Shaw, International Law, 3rd edn , Self-determination and recognition as additional criteria Some authors refer to other additional factors that may be relevant as criteria for states, such as self-determination and recognition.
These, however, are not generally regarded as constitutive elements for a state and it is agreed that what matters in essence is territorial effectiveness. In most cases the facts will be so clear that recognition will not make any difference, but in borderline cases recognition can have an important effect.
For instance, recognition of very small states such as Monaco and the Vatican City is important, because otherwise it might be doubted whether the territory and population of such states were large enough to make them states in the eyes of international law. Similar considerations apply in the case of secessionary struggles; outright victory for one side or the other will create a situation which international law cannot ignore, and no amount of recognition or non-recognition will alter the legal position; but in borderline cases such as Rhodesia now Zimbabwe between and , where the mother states efforts to reassert control are rather feeble, recognition or non-recognition by other states may have a decisive effect on the legal position.
If a member state of the federation acts in a manner which is incompatible with the international obligations of the federal state, it is the federal state which is regarded as responsible in international law.
For instance, when a mob lynched some Italian nationals in New Orleans in , the United States admitted liability and paid compensation to Italy, even though the prevention and punishment of the crime fell exclusively within the powers of the State of Louisiana, and not within the powers of the federal authorities.
The representation of the German Bundeslnder on the European level in Brussels is of a different nature. It does not allow the exchange of ambassadors only commercial representatives or to generally engage in relations with a foreign government.
Dehousse, Fdralisme et Relations Internationales, On state responsibility see Chapter 17 below, Malanczuk, Verfassungskrise und Probleme des Fderalismus in Kanada, Der Staat 20 , ; on recent secessionist tendencies see S. Doran, Will Canada Unravel? Beyerlin, Rechtsprobleme der lokalen grenzberschreitenden Zusammenarbeit, ; N.
Levrat, Le Droit applicable aux accords de cooperation transfrontire entre collectivs publiques infratatiques, Governments A state cannot exist for long, or at least cannot come into existence, unless it has a government.
ADRO 25A11 - Introduction to Public International Law
Thus the post-war governments of West Germany and Italy have paid compensation for the wrongs inflicted by the Nazi and Fascist regimes. The same principle is also illustrated by the Tinoco case. After his retirement, Costa Rica declared that the concessions and banknotes were invalid. The United Kingdom protested on behalf of the British companies, and the two states referred the case to arbitration.
See H. For further discussion of the Tinoco case, see text below, 84, Lauterpacht, Recognition in International Law, ; I. Brownlie, Recognition in Theory and Practice, in R. Verhoeven, La Reconnaisssance internationale: dclin ou renouveau? OConnell, International Law, 2nd edn , For the legal effects of recognition under English law, see Akehurst, 6th edn of this book, See also F.
See also Chapters 6, and 19, , below. Recognition of states and governments in international law Recognition is one of the most difficult topics in international law. The legal and political elements cannot be disentangled; when granting or withholding recognition, states are influenced more by political than by legal considerations, but their acts do have legal consequences. What is not always realized, however, is that the legal effects of recognition in international law are very different from the legal effects of recognition in municipal law.
Today a clear distinction must be made between the recognition of a state and the recognition of a government. The recognition of a state acknowledges that the entity fulfils the criteria of statehood.
The recognition of a government implies that the regime in question is in effective control of a state. The basic difference is that the recognition of a government necessarily has the consequence of accepting the statehood of the entity which the regime is governing, while the recognition of a state can be accorded without also accepting that a particular regime is the government of that state. The first example in history was the recognition in by Spain of the United Netherlands, which had declared their independence in Another well-known example is the dispute between France and Britain on the status of the United States when it declared its independence.
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The same policy has been applied in recent years by several other states, including France, Spain and the United States; in the Department of State Bulletin noted that in recent years US practice has been to deemphasize and avoid the use of recognition in cases of changes of governments and to concern ourselves [instead] with the question of whether we wish to have diplomatic relations with the new governments.
Self-determination and recognition as additional criteria Some authors refer to other additional factors that may be relevant as criteria for states, such as self-determination and recognition. We have therefore concluded that there are practical advantages in following the policy of many other countries in not according recognition to governments. Juras, J. At the end of the course they will take a written exam of three hours consisting of a paper on a general topic or a commentary of documents related to international law.
In the nineteenth century states were the only legal persons in international law; international law regarded individuals in much the same way as municipal law regards animals.
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