POLC38H3 Lecture Notes - Lecture 3: Erga Omnes, Montevideo Convention, Legal Personality
Polc38 lecture 3
States as subjects of IL
The most important of all subjects
Possesses legal personality – capable of applying the law and against whom law applies
• Enjoys rights, capable of claiming them
• Has duties incurring responsibility for the behaviour
• Has capacity to enter relationships with others
Legal persons – special status, diplomatic immunity
Obligatio erga omnes – obligation amongst all (international community)
States
How to distinguish a state?
Article (1) 1 Montevideo Convention on Rights and Duties of states (1933)
Possessing these qualifications:
1) A permanent population
2) A defined territory
3) A sovereign government
4) Capacity to enter into relations with other states
Federal states
Population
1) Distinguishable population (identity, culture, customs) different from other people present in
state
2) Fixed and nomadic population
3) No absolute minimum – No population limit
4) People comply with relevant provisions of the UN charter and Montevideo convention
Territory
Refers to a space
- Solid land, terrestrial or marine
- Its reasonably ascertainable (where exactly the territory lies)
- Not contested by others (ex. Israel)
3. Government
Democracy required for statehood?
Fully functional government
No lesser states (Venezuela vs Italy)
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Financial aid not important (EU- Greece, Portugal)
4. Capacity to enter relations with others
Capacity distinguishes states from other subjects
Wide capacity
Consequence of independence
Handling of own foreign affairs
Exhaustive Criteria?
Unlikely to be meant exhaustive
Benchmarks or common denominator
Other criteria may be added (ex. Respect for civil and political rights)
Kosovo case – uniliteral declarations of independence not prohibited by IL
EU criteria
The EU criteria for membership Respect for UN provisions
Guarantees for minority rights
Commitment to disarmament and nuclear non-proliferation
Respect for inviolability of al frontiers
Commitment
Lesser states and special Territories
Condominiums (2 or more states exercise political power over an entity)
Free cities (Danzig) – states that lack sovereignty
International territories – special protection under it – trusteeship – city of Jerusalem
Colonies – powerful states subjugating the weak ones
Protectorates – Territory protected by a military power in return to protection
Recognition of states
Political instrument to express approval/disapproval of a new states / government or territory
Recognition, a political act vs legal requirement?
Declaratory theory – recognition is legally inconsequential and merely political gesture
Constitute theory: recognition legally required to consider the new state as member of the int
community
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Possesses legal personality capable of applying the law and against whom law applies: enjoys rights, capable of claiming them, has duties incurring responsibility for the behaviour, has capacity to enter relationships with others. Obligatio erga omnes obligation amongst all (international community) Article (1) 1 montevideo convention on rights and duties of states (1933) Possessing these qualifications: a permanent population, a defined territory, a sovereign government, capacity to enter into relations with other states. Federal states: distinguishable population (identity, culture, customs) different from other people present in. Population state: fixed and nomadic population, no absolute minimum no population limit, people comply with relevant provisions of the un charter and montevideo convention. Its reasonably ascertainable (where exactly the territory lies) Financial aid not important (eu- greece, portugal: capacity to enter relations with others. Kosovo case uniliteral declarations of independence not prohibited by il. The eu criteria for membership respect for un provisions.
