SUBJECTS

OF
PUBLIC INTERNATIONAL LAW I:
State
a) Introduction
b) The Concept of International Legal Personality
c) State
i. Statehood: territory, population, effective government
ii. Recognition
iii. Succession
iv. Jurisdiction (and jurisdictional immunities)
d) Inter-governmental organizations - Three examples
i. UN
ii. EU: Law of the EU
iii. Council of Europe: International Human Rights Law
e) Individuals
i. International rights: International Human Rights Law
ii. International obligations & responsibility: International Humanitarian Law &
International Criminal Law
Optional listening: Prof.Dr. Mónica Pinto, “The Evolution of International Society and International Law”, UN
Audiovisual Library of International Law: http://legal.un.org/avl/ls/Pinto_IL_video_1.html 1
1648 Westphalia Peace Treaties
è SECULAR BASIS for the law of nations
è NO COMMON VALUES (such as religion) BUT
peaceful coexistence among sovereign states
è European public order
è sovereign equality of nations
è prohibition of interference in another state’s
domestic affairs
è war, only as a balance of power

Contemporary ages (1789-today)

1789 French Revolution
1792-1802: French Revolutionary Wars
1803-1815: Napoleonic Wars
1814-1815 Congress of Vienna è Remaking
Europe (except the Ottoman Empire) after the
downfall of the French Emperor Napoleon
Bonaparte.
1815-1914 Peace Era in Europe
è The Concert of Europe (Concert Européen / Avrupa uyumu)
è Peace & economic and technologic revolutions: advancement of communication, transportation, and trade (raw
materials & market)
è 1856 Treaty of Paris between Russian Empire and an alliance of the Ottoman Empire, Great Britain, the Second French
Empire and the Kingdom of Sardinia.
✯✯ (m. 8, 9 +1839 Gülhane (Tanzimat) Fermanı)

19th century: the aftereffects of the French Revolution:

- Transformation from monarchies to republics
- Rise of nationalism and new states
+ European relations with other Asian & African states: Colonialism ((right to colonize by conquest + condominion, 5
protectorat) or capitulation
1865 1874 1893 1907–1918
International Telegraphic International Bureau United International The Central American
Union of Weights and Bureaux for the Court of Justice
Measures Protection of Intellectual
Property (today World
Intellectual Property
Organization)

Intergovernmental
Universal Postal Union Organisation for La Haye I. Peace
(today International International Carriage by Conference: PERMANENT
Telecommunication Union) Rail COURT OF ARBITRATION

1874 1893 1899

1914-1918 World War I

1919 Paris Peace Conference è a series of peace treaties incl.

10 January 1920 Treaty of Versailles

League of Nations è Covenant Art. 11: “Any war, or threat of war, whether immediately
affecting any of the Members of the League or not, is hereby declared a matter of concern to the
whole League, and the League shall take any action that may be deemed wise and effectual to
safeguard the peace of nations.”

Reasons of failure:
1) No armed forces
2) Needed unanimous votes
3) Major countries (e.g. USA) not members + Germany, Japan, Italy withdrew.

1939-1945 World War II

1945 UN Charter è prohibition of use of force (jus cogens)

7
Key developments following WW II:

u The growth, and increased mobility, of capital & technology

- Decreased capacity to regulate foreign direct investment (FDI)
- Superiority of markets over state control

u The growth of cross border NGO movements

(HR, environment, disarmament)
è “international civil society”

u The growth of transnational crimes

(drug trafficking, human trafficking, arms trade, money laundering, terrorism)
è “international uncivil society”

u Self-determination and the growth of secessionist movements

8
 States
INTERNATIONAL COMMUNITY

⇟ Primary subject of PIL

Full (complete) legal capacity
SUBJECTs of international law = sui generis entity
entities bearing international legal (for historic reasons):
rights & obligations The Holy See

International Individuals &

Organizations other entities
Limited legal capacity
(real & legal persons)
Reparation for injuries suffered in the service of the UN, ICJ Rep. 1949, para.
!? national liberation movements, non-
179: (in concluding that the UN is an intl person è “That is not the same thing
self-governing territories,
as saying that it is a State, which it certainly is not or that its legal personality belligerent/insurgent, minorities,
and rights and duties are the same as those of a State. Still less is it the same indigenous people
thing as saying that it is a super-State, whatever that expression may mean. It
does not even imply that all its rights and duties must be upon the international
NGOs: Even if (like Amnesty or
plane, any more than all the rights and duties of a State must be upon that
Greenpeace) they operate
plane. What it does mean is that it is a subject of international law and capable internationally, NGOs are bodies
of possessing international rights and duties, and that it has capacity to established under domestic law.
maintain its rights by bringing international claims.”
sui generis entity:
Rome Statute of the International Criminal Court Art 4(1): “The Court shall International Committee of the
have international legal personality. It shall also have such legal capacity as may Red Cross (ICRC)
9
be necessary for the exercise of its functions and the fulfilment of its purposes.”
 Law of the sea

OBJECTS of international law= International

the who, what, and where these subjects act upon. Environmental
law

⇟
= the legitimate topics of international legal regulation.
Global economy

Laws of war

International
criminal law

10
 STATEHOOD
(Aybay&Oral, pp. 149-154)

Draft Declaration on the Rights and Duties of States (GA Res. 375(VI), 6 Dec 1949, Annex)
è has never been adopted.

26 Dec 1933 Montevideo Convention on the Rights and Duties of States (PanAmerican Unionè OAS)
Art. 1 The state as a person of international law should possess the following qualifications:
a. a permanent population;
b. a defined territory;
c. government; and
d. capacity to enter into relations with the other states.
State
1) Establishes inter-governmental organizations
as an
international 2) Has the capacity to make claims (to apply and
appear) before the ICJ in a contentious case
legal person:
3) Capable of possessing international rights and
duties

4) Has the capacity to become party to

international conventions

5) Establishes diplomatic and consular relations

with other states

6) Enjoyment of privileges and immunities from

national jurisdictions.

12
 1. Defined Territory
è territorial sovereignty (ülkesel egemenlik)
★ Control of a territory is essential for a state: exclusive competence to take legal and factual
measures within that territory and prohibiting foreign governments from exercising authority in the same
area without consent.

Island of Palma case (NL v USA), Permanent Court of Arbitration (Judge Huber), 4 April 1928, RIAA 829 at
839: “Territorial sovereignty … involves 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 inviolability in peace and war, together with the rights which each State may
claim for its nationals in foreign territory. 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.e. to excluding the activities of other States; for it serves to divide between the nations
the space upon which human activities are employed, in order to assure them at all points the minimum of
protection of which int’l law is the guardian.”

★ Territorial delimitation is important, but no absolute certainty required. Consistent control

on a sufficiently identifiable territory is enough (e.g. Palestine-Israeli conflict):

North Sea Continental Shelf case, ICJ Rep. (1969), para. 46: “The appurtenance of a given area,
considered as an entity, in no way governs the precise determination of its boundaries, any more than
uncertainty as to boundaries can affect territorial rights. There is for instance no rule that the land frontiers
of a State must be fully delimited & defined, and often in various places & for long periods they are not.13”
★ Territory includes the air space above the land (no agreed limit) and the earth beneath it,
in theory reaching to the centre of the globe. It also includes upto 12 miles of territorial sea
adjacent to the coast:
Law of the Sea è 1982 UNCLOS

Internal waters (içsular), including rivers, lakes, sea waters within the baselines (bays) è full and exclusive
sovereignty!!! (no right of innocent passage, consent of the coastal State is required!!!, except cases of distress)

Territorial waters (karasuları), including gulfs, straits: max. 12 nm è within the territorial sea (plus its airspace,
seabed and subsoil) the coastal State enjoys full sovereignty!!!, subject to the right of innocent passage of
foreign merchants’ ships and warships (however, for submarines it is required that they must navigate on the
surface and show their flag).

Contiguous zone (bitişik bölge): max. 24 nm è Coastal States may prevent and punish infringements of its
customs, fiscal, immigration, or sanitary regulations committed within its territory or its territorial sea.

Exclusive economic zone (münhasır ekonomik bölge): max. 200 nm è Coastal State enjoys sovereign rights in
some specific matters, only for purposes of exploring, exploiting, conserving, and managing living and non-living
natural resources. It has jurisdiction over artificial islands, installations and infrastructures, marine scientific
research, and the protection and preservation of the marine environment.

The continental shelf (kıta sahanlığı): Coastal state has sovereign rights limited to certain specific activities:
exploration and exploitation of the natural resources of the shelf (essentially oil and fishing resources).

High seas (açık denizler): res communis omniumè free for every State, rules of the flag State.

International seabed (soil and subsoil under the high seas): common heritage of mankind 14
 Principality of Sealand
(UK, offshore platform in
international waters (open seas) of
the North Sea, 2 September 1967))
https://www.sealandgov.org/

Taking over offshore platforms or submerged

coral reefs declaring their own independence,
electing their own officials, issuing their own
passports is impermissible under international
law, because “territory” requirement refers to a
naturally formed part of the Earth’s surface. (In
re Duchy of Sealand, 80 ILR 683 (Admin Ct.
Cologne 1978); United States v. Ray, 423 F.2d 16
(5th cir. 1970)) (Bederman & Keitner, pp. 85-86) 15
Free Republic of Liberland
proclaimed on 13 April 2015 on a small
plot of uninhabited parcel of disputed
land on the western bank of the
Danube, between Croatia and Serbia. It
uses a Bitcoin like currency and minimal
government.
It is on a floodplain and lacks
infrastructure.

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 TERRITORY

Özel statülü ülke

(=Bağımsızlığı sınırlı devlet)
Sahipli ülke
(mandat / trusteeship)
(vekalet/vesayet)

Sahip olunamayan ülke

Sahipsiz ülke (res communis è high seas)
(terra nullius è Antarctica) (common heritage of humankind è deep
seabed, moon)

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 (Modes of) Acquisition of Territory I
(Aybay/Oral, p . 167-170; Klabbers, p. 76-79)
Origins: Roman Law of Property

Discovery (keşif) Occupation (işgal) Conquest (fetih) Annexation (ilhak)

*Columbus 1451-1506 See Island of Palma case (NL v USA), Permanent

*Magellan 1480-1521
*Amerigo Vespucci 1454-
1512
occupatio in Roman Law:
someone assumes
ownership over a good that
was not earlier subject to
ownership. (terra nullius è
no man’s land è today only
Antarctic è 1959 Antarctic
Treaty.)
prescriptio in Roman Law:
ownership is assumed
despite competing claims.
Court of Arbitration (Judge Huber), 4.4.1928, RIAA
829. (The Spanish had discovered the Palmas and
Acquisitive then after the US-Spanish War it became a US colony,
prescription but the Dutch have been occupying and
(kazandırıcı administering it since 1898 (effective government)
zamanaşımı)
exercise of authority over an
extended period of time,
accompanied by the intent
and will to do so (animus
occupandi), and preferably TODAY è
uncontested. prohibition of threat or use of force
18
terra nullius è no one’s land è today only Antarctic where Argentina, Australia, Chile, Fr, New Zealand,
Norway & UK claim territorial sovereignty, but not recognized by any of the claimant or non-claimant states

ANTARCTIC TREATY SYSTEM

1959 The Antarctic Treaty
1964 Agreed Measures for the Conservation of Antarctic Fauna and Flora
1972 Convention for the Conservation of Antarctic Seals
1982 Convention for the Conservation of Antarctic Marine Living Resources
1988 Convention on the Regulation of Antarctic Mineral Resource Activities
1991 Madrid Protocol on Environmental Protection to the Antarctic Treaty: extraction of natural
resources is prohibited, except for scientific research

1959 The Antarctic Treaty (entered into force in 1961)

Art. 1: Antarctica shall be used for peaceful purposes only.
Art. 2: Freedom of scientific investigation in Antarctica and cooperation toward that end … shall continue.
Art. 3: Scientific observations and results from Antarctica shall be exchanged and made freely available.
Art. 7: "All areas of Antarctica, including all stations, installations and equipment within those areas … shall
be open at all times to inspection ”

Among the signatories of the Treaty were seven countries - Argentina, Australia, Chile, France, New Zealand,
Norway and the United Kingdom - with territorial claims, sometimes overlapping. Other countries do not
recognize any claims. The US and Russia maintain a “basis of claim”. All positions are explicitly protected in
Article IV, which preserves the status quo: No acts or activities taking place while the present Treaty is in
force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in
Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing
19
claim to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.

Cession by
treaty (devir)
one state handing over
territory to another,
usually in exchange for a
sum of money or, on
occasion, for another
piece of territory.
*Sale of Alaska to US by Russia,
1867
*1803 Louisiana Purchase (US
(Thomas Jefferson) acquiring
territory from Fr. (Napoleon);
*1819 Florida Purchase Treaty
(Adams-Onis Treaty) US
acquiring territory from Spain)
(Modes of) Acquisition of Territory II
Leasing Adjudication Natural events
(kiralama) (yargı kararı) (doğa olayları)
territory belongs to e.g. rising sea levels,
one State, sovereign esp. for accretion (arazinin
acts performed by maritime genişlemesi)
the other. boundaries * new island in a river mouth,
* UK leased Hong Kong * formation of a dry land due to
from China (British colony the change of the flow of the
until 1997; today Hong river (normally the new land is
Kong Special held to be under the
Administrative Region of sovereignty of the State within
the People’s Republic of whose territory it has come into
China) being (Cassese, p. 83)
* US leased Guantanamo
Bay from Cuba
22
Cession by treaty (devir): one state handing over territory to another, usually in exchange for a sum of
money or, on occasion, for another piece of territory.
e.g. 1867 Sale of Alaska to the US by Russia;
1803 Louisiana Purchase (US (Thomas Jefferson) acquiring territory from French (Napoleon);
1819 Florida Purchase Treaty (Adams-Onis Treaty) (US acquiring territory from Spain)

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 2. Permanent population
Nationality, Self-determination, Indigenous peoples, Rights of minorities

No permanent population in Antractica = Large number of nomads moving in and

not a State!
* State have territorial jurisdiction over its
inhabitants, and personal jurisdiction over its
nationals abroad.
out of Somalia=
Somalia is a State, because there’s a
significant and sufficient (no min.)
number of permanent inhabitants.
24
 Micro-states (mini-states)
small territory & population under 1 million è UN Charter Art. 4 (Aybay, 162)

25
 Right to Self-Determination (After the UN)

*** UN Charter Art. 1(2), 55

UN Charter Chapter XI (Declaration Regarding Non-Self-Governing Territories) (Arts. 73-74)
UN Charter Chapter XII (International Trusteeship System) (Arts. 75-83)
UN Charter Chapter XIII (The Trusteeship Council) (Arts. 86-91)

UDHR Art. 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of
any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or
other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status
of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any
other limitation of sovereignty.

- TWO MAJOR ISSUES: DECOLONISATION & APARTHEID

- 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples

- Twin Covenants of 1966 Common Art. 1:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any
obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-
Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that
right, in conformity with the provisions of the Charter of the United Nations. 26
 • Frontiers Dispute (Burkina Faso/Mali), Judgement, ICJ Rep. 1986, 554: “uti
possidetis is a general principle, which is logically connected with the
phenomenon of obtaining independence, wherever it occurs. Its obvious purpose
is to prevent the independence and stability of new States being endangered by
fratricidal struggles provoked by the challenging of frontiers following the

uti withdrawal of the administering power.”

possidetis
• Yugoslavia Arbitration Commission, Opinion no. 2 relating to Croatia and
Bosnia-Herzegovina, 3 EJIL 1992, 183-4: “whatever the circumstances, the right
to self-determination must not involve changes to existing frontiers at the time of

jure
independence (uti possidetis juris) except where the States concerned agree
otherwise.”

(you will have • Yugoslavia Arbitration Commission, Opinion no. 3, 1992: “Except where
otherwise agreed, the former boundaries become frontiers protected by
sovereignty international law. This conclusion follows from the principle of respect for the
territorial status quo and, in particular, from the principle of uti possidetis. Uti
over those possidetis, though initially applied in settling decolonization issues in America
and Africa, is today recognized as a general principle, as stated by the ICJ.”

territories you • 1970 Declaration on Principles of International Law Concerning Friendly

possess as of Relations and Co-operation among States in Accordance with the Charter of
the United Nations: … Convinced that the subjection of peoples to alien
law) subjugation, domination and exploitation constitutes a major obstacle to the
promotion of international peace and security, Convinced that the principle of
equal rights and self-determination of peoples constitutes a significant
contribution to contemporary international law, and that its effective application
is of paramount importance for the promotion of friendly relations among
States, based on respect for the principle of sovereign equality,… *** The
principle of equal rights and self-determination of peoples***
27
LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM
MAURITIUS IN 1965, 25 Feb. 2019, Advisory Opinion:

151. As the Court has noted: “General Assembly resolutions, even if they are not binding, may sometimes
have normative value. They can, in certain circumstances, provide evidence important for establishing the
existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General
Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also
necessary to see whether an opinio juris exists as to its normative character.” (Legality of the Threat or Use
of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), pp. 254-255, para. 70.)

152. The Court considers that, although resolution 1514 (XV) (E.O.: Declaration on the Granting of
Independence to Colonial Countries and Peoples, 14 December 1960, A/RES/1514(XV)) is formally a
recommendation, it has a declaratory character with regard to the right to self-determination as a
customary norm, in view of its content and the conditions of its adoption. The resolution was adopted by
89 votes with 9 abstentions. None of the States participating in the vote contested the existence of the
right of peoples to self-determination. Certain States justified their abstention on the basis of the time
required for the implementation of such a right.

153. The wording used in resolution 1514 (XV) has a normative character, in so far as it affirms that “[a]ll
peoples have the right to self-determination”. Its preamble proclaims “the necessity of bringing to a speedy
and unconditional end colonialism in all its forms and manifestations” and its first paragraph states that
“[t]he subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of
fundamental human rights [and] is contrary to the Charter of the United Nations”.

30
 3. Effective Control by Government
(over its territory and population)
≅sovereignty

sovereignty

Internal sovereignty: AY m. 6
the capacity to establish and maintain a legal order
in the sense of constitutional autonomy.
External sovereignty=independence
the ability to act autonomously on the
international level without being legally dependent
on other states within the international legal order.

★ Mere existence of government is not enough: Report of the International Committee of Jurists on
the status of Finland, 1920: “… 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 1918, 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.”

★ E.g. Palestine in 1988: no effective control

★ “Effectiveness”, operates as a principle the parameters of which are legally determined and may interact
with other relevant principles such as those of self-determination or the prohibition on the use of force,
and those that putatively govern the extinction of States. 31
Sovereignty (external sovereignty = independence of States)

Definition & content:

Sovereignty is the power possessed by states and the right or ability to exercise it.
Sovereign equality of states (UN Charter Art. 2(1) + 1970 Declaration 6)
Each state, as a full subject of the international legal order, is endowed with formal equality before the law =
Rule of law

Limits on sovereignty:

1. prohibition of intervention in domestic affairs (UN Charter Art. 2(7) + 1970 Declaration 3)
2. prohibition of use of force (UN Charter Art. 2(4), 2(3) + 1970 Declaration 1, 2)
3. international treaty obligations (self-imposed restrictions and limits è UN Charter Art. 2(2) + 1970
Declaration 7)
4. peremptory norms (jus cogens)
5. human rights
6. Limits on jurisdiction: Par in parem non habet imperium = equals have no sovereignty over one another.
Par in parem non habet jurisdictionem= equals have no jurisdiction over one another.

Cassese, p. 98: Limitations imposed on State sovereignty are the natural legal consequences of
the obligation to respect the sovereignty of other States.

Island of Palmas case, RIAA II 829, 1928 at 838 (sole arbitrator Max Huber): “Sovereignty in the
relations between States signifies independence. Independence in regard to a portion of the globe is the right
to exercise therein, to the exclusion of any other State, the functions of a State. The development of the
national organization of States during the last few centuries and, as a corollary, the development of
international law, have established this principle of the exclusive competence of the State in regard to its own
territory in such a way as to make it the point of departure in settling most questions that concern 32
international relations.”
Independence of States (state sovereignty): (e.g. TCK Art. 8)
Examples of rights associated with a state’s independence:
a. The power exclusively to control its own domestic affairs;
b. The power to admit and expel aliens;
c. The privileges of its diplomatic envoys in other countries;
d. The exclusive jurisdiction over crimes committed within its territory.

Examples of correlative duties and obligations binding states:

a. The duty not to perform acts of sovereignty on the territory of another state;
b. The duty to abstain and prevent agents and subjects from committing acts constituting a
violation of another state’s independence or territorial supremacy;
c. The duty not to intervene in the affairs of another state.

• International law is indifferent towards the nature of the internal political structure of
states,

• The state’s international rights and obligations are not affected by a change of
government, nor its international legal personality.

33
 4. Capacity to Enter into Relations ?!

Not customary law, but generally accepted:

e.g. Third Restatement of American Law Institute, para. 201: “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.”

Montevideo Convention Art. 3: The political existence of the state is independent of recognition by the
other states. Even before recognition the state has the right to defend its integrity and independence, to
provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon
its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise
of these rights has no other limitation than the exercise of the rights of other states according to
international law.

DEPENDANT STATES (have only a limited capacity to enter into international relations and are
usually mentioned as a special category) UDHR Art. 2(2)
1) Colonies
2) Protectorates (koruma altındaki devlet) (e.g. Morocco and Tunis & France)
3) Mandat (MC’de vekalet rejimi), Trusteeships (BM’de vesayet rejimi) and ‘associated territories’
(e.g. Arabian Peninsula was under the mandat of the LoN following the defeat of the Ottoman Empire in I. WW)
Trusteeship system ended on 1 Nov 1994, after Palau become an independent state; and UN Trusteeship Council suspended
its operations as of that date.

34
 Categories of States (Aybay, 155-165)
1) Dependant state (colony, protectorate, mandat) è NONE today.

2) State having limited military capacity:

- 1919 Versailles Peace Treaty è Germany with limited military equipment.
- 1946 Japanese Constitution Art. 9: 1. Aspiring sincerely to an international peace based on
justice and order, the Japanese people forever renounce war as a sovereign right of the nation
and the threat or use of force as a means of settling international disputes.
2.In order to accomplish the aim of the preceding paragraph, land, sea and air forces, as well as
other war potential, will never be maintained. The right of belligerency of the state will not be
recognized. è BUT, following the invasion of South Korea by the North Korean forces, the National Police
Reserve of Japan has been established based on an authorization (order) by General MacArthur (US) due to
the fear of a Soviet invasion in Japan. And then the Self Defense Forces (SDF) has been established.

- TODAY:
US has full authority & responsibility
for the defense & security of the
Federated States of Micronesia (600 islands)
Located in the Pacific Ocean.

3) State established by an international treaty:

- Bosnia&Herzegovina Constitution is the Annex 4 of The General Framework Agreement for
Peace in Bosnia and Herzegovina, also known as the Dayton Agreement (14 December 1995)
- Cyprus è 1959 London and Zurich Agreements btw UK, TR, GR è 1960 Constitution
annexed these agreements. 35
4) Neutral State:
- Turkey was a neutral state in WW II (then declared war against the Axis Alliance of Germany, Italy and Japan, and became
a constituent member of the UN, which required declaration of war against).
- Austria (since 1955 due to an intl treaty, but today it is disputed because of the membership to the EU, similarly see
Finland) (obligation not to get involved in armed conflicts in war time and obligation not to participate in military alliances
in peace time)
TODAY: Switzerland (permanently neutral state since 1815 due to historical reasons, has had permanent observer status at
the UNGA until 2002)
5) A special case: The Vatican City (Holy See): The Vatican City, the government of which is the Holy See, the
administrative centre of the Catholic Church, is a special case. It has diplomatic relations with many other states, has
concluded international agreements and joined international organizations (but not a UN member). It has permanent
observer status at the UNGA, is a full member of some other international organisations, and is a party to certain
multilateral and bilateral treaties. Many state functions, however, are actually performed by Italy. It may be best to see it
as sui generis.

6) Federal States: The authority over internal affairs is divided by the constitution between the federal authorities and
the member states of the federation, while foreign affairs are normally handled solely by the federal authorities. e.g. US
(Union-State), Canada (Province), Commonwealth of Australia (six federated states and ten federal territories, some of
them are self-governing territories), Switzerland (Confederation-Canton), Germany (Federation-Land)
Montevideo Conv. Art. 2: The federal state shall constitute a sole person in the eyes of international law.
International law is concerned only with states capable of carrying on international relations; consequently the federal
state is regarded as a state for the purposes of international law, but the member states of the federation are not. 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.
• Although the normal practice is for foreign affairs to be handled solely by the federal authorities, there are a few federal
constitutions which give member states of the federation a limited capacity to enter into international relations. è In
1944, the constitution of the former USSR was amended so as to allow the Ukraine and Byelorussia (two member states of
the USSR) to become members of the UN alongside the USSR; the purpose and effect of this device was to give the USSR
three votes instead of one. There has been no other comparable example of a member state of a federation exchanging
diplomats on this level.
* US Constitution: a constituent state may make contracts/agreements with foreign powers—with certain minor
exceptions—only with the consent of Congress, but these are limited in scope and content. It does not allow the exchange
of ambassadors (only commercial representatives) or to generally engage in relations with a foreign government.
* The province of Quebec has signed treaties on cultural questions with France and other French-speaking countries,
under powers reluctantly delegated by the federal authorities of Canada. 36
 RECOGNITION of STATES
and
RECOGNITION of GOVERNMENTS
Aybay p. 273-288.
 Types of recognition
Recognition of states: the entity
fulfills the criteria of statehood. (no
automatic recognition of the
government.)
Recognition of governments: the
regime has effective control over the
territory. (automatic recognition of the
state, too.)

Recognition
of territorial
claims

Recognition
of
belligerency
Recognition of
or insurgents
foreign
legislative and Recognition of
administrative national
acts liberation
movements

40
 Recognition of States
• An entity is not a state in international law until it is generally recognized by other states.
Constitutive
theory:

Declaratory
theory:

Montevideo Conv. Art. 6: The recognition of a state merely signifies that the state which
recognizes it accepts the personality of the other with all the rights and duties determined
by international law. Recognition is unconditional and irrevocable.

41
★ The prevailing view today is that recognition is declaratory and does not create a state. As a practical matter, however, an
entity will fully enjoy the status and benefits of statehood only if a significant number of other states consider it to be a state
and treat it as such, in bilateral relations or by admitting it to major international organizations.

★ Recognition is a unilateral act, left to the political discretion of states.

Exception: collective recognition: membership to the UN è UN Charter art. 4

Montevideo Convention Art. 3: The political existence of the state is independent of recognition by the other states.
Even before recognition the state has the right to defend its integrity and independence….

Charter of the Organization of American States Art. 12: The political existence of the State is independent of
recognition by other States. Even before being recognized, the State has the right to defend its integrity and
independence.

★ Premature recognition may constitute a violation of int’l law, esp. in cases of civil war.
= if a State recognizes an insurgent movement as an independent state before the moment at which it had fully established
itself, that recognition constitute “a wrong done to the parent state” and , “an act of intervention”.

★ No obligation to recognize!
★ Even sometimes there may be an obligation not to recognize! (e.g. UN Charter 2(4); Declaration of Principles of Intl Law
Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the UN, Principle 1)

In the case of Rhodesia, where a white minority government declared independence without the consent of the colonial
power and backing of the whole population, the UNSC, acting under Chapter VII of the Charter, called upon ‘all states not to
recognize this illegal act’. è Art. 25 of the UN Charter!

The prohibition on the use of force has also been an idea instrumental not merely in resisting the establishment of puppet
regimes, but in preserving the formal “continuity” of States during periods of occupation. The Baltic Republics (Estonia,
Latvia and Lithuania), for example, were occupied by the USSR in 1940 and incorporated within the Union. Many States did
not recognize the legality of the incorporation. EU declaration, following the independence of Baltic States in 1990:
“welcoming the restoration of sovereignty and independence of the Baltic States which they had lost in 1940” 42 è Also
invalidity of treaties due to coercion on the representative (VLCT Art. 51) and on the State (VLCT Art. 52).
Montevideo Conv. Art. 7: The recognition of a state may be express or tacit. The latter
results from any act which implies the intention of recognizing the new state.

Express recognition

Implied recognition: existence of diplomatic relations! However, recognition should only be

deduced from acts which clearly show an intention to that effect. The establishment of full
diplomatic relations is probably the only one unequivocal act from which full recognition
can be inferred. All other forms of contact do not necessarily imply recognition.

The following acts do not amount to an implied recognition:

1) Being a member of the same IO,
e.g. Israel, Malaysia, Indonesia UN members
2) Being parties to the same multilateral treaty,
e.g. Turkey and Cyprus è ECHR
3) Hosting an IO headquarters or conference,
e.g. UN headquarters in the US
4) Having commercial relations,
e.g. launching commerce offices in a state è Türk Ticaret Ofisi in Taiwan
5) Indirect diplomatic relations.
e.g. diplomatic relations via a third state è Israel (TR) Pakistan

43
De facto recognition: means recognition of a de facto government!!!
Indonesia was recognized de facto by several states while it was fighting for its independence against the
Dutch in 1945–9.

De jure recognition: means recognition of a de jure government!!!

When recognition is granted by an express statement, it should probably always be treated as de jure
recognition, unless the recognizing state announces that it is granting only de facto recognition.

Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union
(for the European Community, 16 Dec 1991):
1) Respect for the provisions of the Charter of the UN 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;
2) Guarantees for the rights of ethnic and national groups and minorities in accordance with the
commitments subscribed to in the framework of the Commission on Security and Cooperation in Europe
(CSCE);
3) Respect for the inviolability of all frontiers which can only be changed by peaceful means and by common
agreement;
4) Acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as
well as to security and regional stability;
5) Commitment to settle by agreement, including where appropriate by recourse to arbitration, all
questions concerning state succession and regional disputes.

44
 Recognition of Governments

Estrada Doctrine: Because non-recognition of foreign governments has often been used as a mark of
disapproval, recognition of a foreign government has sometimes been misinterpreted as implying
approval, even in cases where no approval was intended. In order to avoid such misinterpretations,
some states have adopted the policy of never recognizing governments (although they continue to
grant or withhold recognition to foreign states). This policy originated in Mexico, where it is known as
the Estrada Doctrine. In 1930, the Secretary of Foreign Relations of Mexico declared that: ‘the Mexican
Government is issuing no declarations in the sense of grants of recognition, since that nation considers
that such course is an insulting practice.’

This statement reflects the fact that the change of government in a state is legally an internal matter,
whether in conformity with the national constitution or not, and does not concern international law or
other states. The same policy has been applied in recent years by several other states, including
France, Spain and the United States; in 1977 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.”

In 1980 the British Foreign Secretary announced that the UK also would adopt this policy:
“we have decided that we shall no longer accord recognition to governments.”

45
Governments in Exile (Shaw, 2017):

When a foreign invader or local insurgents have occupied a State, its government may flee
abroad and, provided the State of refuge agrees, operate as a government in exile with the
same legal status as it had before. But, recognition of a revolutionary government
established abroad before it has gained control over the greater part of the territory of the
State concerned may well be premature and amount to an interference in the affairs of the
State.

During the Second World War the Polish government-in-exile stationed in London was
recognised by the UK as the de jure government of Poland. However, on 28 June 1945 the
communist provisional government was established with effective control of the country
and at midnight on 5 July the UK recognised that government as the de jure government of
Poland.

TODAY X

46
STATE SUCCESSION
(Aybay, 289-298)
* Mostly customary international law, codified in two treaties and one ILC articles:
1978 Vienna Convention on Succession of States in Respect of Treaties: only 22 parties incl. mostly
Former Yugoslavian States
1983 Vienna Convention on State Succession in Respect of Property, Debts and Archives: 7 parties,
not in force yet, but these issues generally dealt with agreement btw states.
1999 ILC Articles on Nationality of Natural Persons in Relation to the Succession of States
Practically, all problems regarding succession are solved by mutual agreement btw the parties to
various bilateral and multilateral treaties. (Bederman & Keitner, p. 93)

* Predecessor (selef, öncül) / Successor (halef, ardıl)

* Always a strong presumption of continuity of States.

e.g. Somalia, whose government has been ineffective or even non-existent since the early
1990’s, continues to be considered as a state, albeit perhaps a “failed state”.
e.g. In 2011-2012, Belgium remained without a government after the elections for almost a year,
but the previous government maintained a caretaker function during this period, though it
signified ineffectiveness and instability. (Klabbers, p. 80)

CHANGE OF IDENTITY OF THE STATE ITSELF (not just a change in the government, whether
revolutionary or extra-constitutionally)
see e.g. Tinoco Concession case (Costa Rica)
1) Secession (siseşın) (separation)

(≠cessation(seseyşın)) (≠cassation (kaseyşın)) (≠succession (sıkseşın))

Existence of the predecessor state continues while a part of its territory and population is lost +
a new state is born
a) peaceful
b) violent (e.g. civil war, war) è secession of Bangladesh from Pakistan in early 1970s.
secession of Belgium from Netherlands following Napoleon’s defeat
and declaration of independence in 1830.
secession of South Sudan from Eritrea in early 1990s.
• 1990-91: Independence of Baltic States (Estonia, Latvia, Lithuania), which were annexed by
USSR in 1940. (not clear whether secession or dismemberment; newly independent or
successor)

2) Cession (terk)
Transfer of some part of territory of a State to another State.

3) Decolonization (1950s-1960s)
4) Merger or unification (or incorporation) (or annexation)
A State or States die(s); and its territory and people become an element of another State.
e.g. Federal Republic of Germany and German Democratic Republic in 1990 è Germany
North Yemen and South Yemen in 1990 è Yemen
Tanganyika and Zanzibar in 1964 è Tanzania
(United Provinces of) the Netherlands
(United States of) America
1978 Vienna Convention on Succession of States in Respect of Treaties art. 31: presumption is the
continuance of the existing treaties, unless the parties concerned agree on a different solution under Art.34.

5) Dissolution (dismemberment)
Death of the predecessor State and birth of two or more new States.
Czechoslovakia è Czech Republic and Slovakia (both successors, no predecessor remained.)
SFRY (Socialist Federal Republic of Yugoslavia) è Federal Republic of Yugoslavia (Serbia and
Montenegro) claims to be the continuing State were only recognized by Russia and China. SO, it is regarded
as a new state.
e.g. Application of the Genocide Convention (Croatia v. Serbia), ICJ 2015, 118: Serbia is bound by the SFRY’s
ratification of the Genocide Convention, giving the ICJ jurisdiction over claims based on conduct by the
Yugoslav army prior to Serbia’s independence.
USSR (Union of Soviet Socialist Republics) è Russian Federation is the continuing State (NOT
SUCCESSOR).
Commonwealth of Independent States: willing to guarantee, in accordance with their
constitutional procedures, “the discharge of the intl obligations deriving from treaties and agreements
concluded by the former USSR (≅16,000 docs.) and to support Russia’s continuance of the membership of
the UNSC, and other intl organizations.” Russia nuclear power, others non-nuclear status! (Akehurst’s, 166)

BUT, after 1917 Soviet Revolution, the new government declared that it is not bound with some50of the
treaties concluded by the Russian Empire.
1) Treaties

Localized treaties (≈ dispositive treaties):

They impose obligations and confer rights with regard to specific territories. (e.g. regulate frontier matters, law
down a right of transit over certain specific areas, demilitarize a territory, establish fishing rights in certain waters or
rights of navigation in specific rivers, etc.) è attached to a specific territory è not get affected (automatic
succession for intl stability)
That is why the borders of the “newly independent states” in the African continent still reflect the boundaries
drawn by rulers in the colonial era. (uti possidetis juris – see the relevant slide!)
1978 Vienna Convention on Succession of States in Respect of Treaties
Arts. 11 and 12: state successions do not affect boundary treaties or other territorial regimes, and the Convention is
without prejudice to questions arising from military occupation (Art. 40).

Non-localized treaties:
a) Newly independent states (successor states): “the territory of which immediately before the date of the
succession of States was a dependent territory for the intl relations of which the predecessor State was
responsible” è “clean slate” principle (anti-colonialist approach) è customary intl law, although practice after
1945 involves examples of automatic succession
1978 Vienna Convention on Succession of States in Respect of Treaties, Art. 2(1)(f), 16, 17, 20, 24: they may start
their existence with a “clean slate”, because of the injustices of colonialism.

★ Notification of succession & full powers: art. 2(1)(g), 2(1)(h) 22, (+38)
★ Succession to a bilateral treaty requires the consent of the other party, art. 24
★ Succession to a multilateral treaty does not require the consent of the others, unless it would be incompatible
with the intention of the parties

b) Other states (disintegration and merger) è principle of continuity (Treaties binding on the predecessor are
binding on the successor, as well, subject to certain exceptions.)
1978 Vienna Convention on Succession of States in Respect of Treaties, Art. 31, 34 and 35. (but NOT customary
law!!!)
c) HUMAN RIGHTS TREATIES: The successor state, whether newly independent or not, must
respect the HR treaties. Individuals should continue to be protected even after a change in
sovereignty over a particular territory. In addition, human rights are now considered so
essential that it would be inconsistent with the whole thrust of the present world community
to discontinue protecting them only because one State has replaced another operating as the
governing entity responsible for the international relations of a particular territory. (Cassese,
p. 78-79)

HRC, CCPR General Comment No. 26: Continuity of Obligations, 8 Dec 1997, para.4: “The
Human Rights Committee has consistently taken the view, as evidenced by its long-standing practice, that
once the people are accorded the protection of the rights under the Covenant, such protection
devolves with territory and continues to belong to them, notwithstanding change in government
of the State party, including dismemberment in more than one State or State succession or any
subsequent action of the State party designed to divest them of the rights guaranteed by the
Covenant.”

d) Disarmament treaties? Controversial!

e) Does a newly independent state remain bound by customary human rights obligations
resting on the metropolitan (colonial) state? Controversial!
1978 Vienna Conv. Art. 5: Obligations imposed by international law independently of a treaty
The fact that a treaty is not considered to be in force in respect of a State by virtue of the application of
the present Convention shall not in any way impair the duty of that State to fulfil any obligation embodied
in the treaty to which it is subject under international law independently of the treaty.
2) Property, Archives (20, 27-31), and Debts (33, 37-41) è 1983 Vienna Convention on State Succession in
Respect of Property, Debts and Archives (7 parties, not in force yet) but these issues generally dealt with
agreement btw states.
Article 6: Rights and obligations of natural or juridical persons
Art. 8: State property (+Arts. 11, 12, 14-18)
è State that wields control over the territory where the assets are located succeeds the previous territorial
state with regard to ownership. The same holds true for state archives.
Art. 40: Separation of part or parts of the territory of a State

3) Nationality è 1999 ILC Articles on Nationality of Natural Persons in Relation to the Succession of States
Art. 5: Subject to the provisions of the present draft articles, persons concerned having their habitual
residence in the territory affected by the succession of States are presumed to acquire the nationality of the
successor State on the date of such succession.

4) Membership to IOs
Rule: “Once a state ceases to exist, so does its membership of an IO. So, they should apply for membership.”
Exception: Membership to financial institutions (IMF, World Bank, etc.), where membership is not
considered personal, because otherwise a heavily indebted member state could decide to dissolve and
thereby escape liability. (Klabbers, p. 84)

e.g. India joined the UN in 1945 but did not become independent until 1947; independence did not affect India’s
membership of the UN. Pakistan, however, was regarded as a new state and had to apply to be admitted as a new member.
Whether India succeeded to treaties made by the UK, however, is a much more difficult problem. (Akehurst’s p. 164)
Merging è new state should apply to the IO.
Secession è both states should apply to the IO. (e.g. Federal Republic of Yugoslavia and other 5 new states applied
for UN membership. BUT Russian Federation did not apply for UN membership, because it was considered as the continuing
state. Its permanent membership at the UNSC also continued!)