Insurgents & Belligerents

Insurgents

Insurgency is an armed rebellion against a constituted authority and it is essentially a

domestic matter of a state and not a subject of international law.

However, if the insurgents have effective control over the territory and the insurgency
has reached a certain degree of intensity and duration, according to traditional
international law they could be recognised as belligerents.

Belligerents

They acquire international legal personality and are subject to international

humanitarian law. Belligerents within a state may enter into legal relations and conclude
agreements valid on the international plane with states and other belligerents.

Sir Gerald Fitzmaurice – parastatal entities recognised as possessing a definite if

limited form of international personality, for example, insurgent communities recognized
as having belligerent status – de facto authorities in control of specific territory.

● Adoption of the 1949 Geneva Conventions and the 1977 Additional

Protocols

The Legal concept of War has been replaced by legal concept of Armed Conflict.
Non-International Armed Conflict (NIAC) notion was introduced.

Impact – terms of civil war or the doctrine of belligerents has been less used ever since.

Art 1(1) of the 1977 Additional Protocol 11, a non-international armed conflict (NIAC) is
defined

“an armed conflict which takes place in the territory of a High Contracting Party between
is armed forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over part of (the relevant State’s)
territory to enable them to carry out sustained and concerted military operations and to
implements this protocol”.

● Dissident armed forces or other organised armed groups (OAGs) that fulfil the

above requirement are subject to the relevant principles of the international

humanitarian law.

National Liberation Movements

The emergence of national liberation movements of peoples under colonial, alien, or

racist domination, having a representative organisation

● SWAPO – The South West Africa People’s Organisation

● ANC – The African National Congress

● PLO – Palestine Liberation Organization

Most of these movements were hosted in a friendly country from where they conducted
military operations against their adversaries.

Control of territory is not their distinguishing trait. Their chief characteristic is their
international legitimation based on the principle of self-determination. Given
international status on a account of their political goals: their struggle to free
themselves from

● Colonial domination

● A racist regime

● Alien occupation
In 1988 when the US invoking Anti-Terrorism Act, intended to close PLO office in New
York, a US Court ruled that the act of its government was a violation of the Head
Quarters Agreement of the US with the UN.

There are generally accepted rights and obligations under international law of national
liberation movements of people under colonial, alien or racist domination, having a
representative organisation.

● The right to self determination

● Jus in bello – the rights and obligations deriving from international humanitarian

law

● The capacity to enter into treaty and agreements with states or other entities on

matters such as cessation of hostilities, the granting of independence and

boundary questions.

The Right to Self Determination of Peoples

‘The right of a people to determine freely by themselves their political and legal status
as a separate entity, the form of government of their choice and the form of their
economic, social and cultural system’.

It is a collective right of a people and only be claimed by people not by an individual.

The right to self determination as a legal principle

Art 1(2) Charter of United Nations

- “Respect for the principle of equal rights and self-determination of peoples”.

Art 55 of the Charter

 - All people have the right to self determination by virtue of the right they freely
determine their political status and freely pursue their economic, social and
cultural development.

Resolution 2625 General Assembly Declaration 1970

- By virtue of the principle of equal rights and self-determination of people

enshrined in the charter, all people have the right freely to determine, without
external interference, their political status and to pursue their economic, social
and cultural development and every state has the duty to respect this right.
- Every state has the duty to promote, realization of the principle of self
determination of people in order to bring speedy end to colonialism having due
regard to the freely expressed will of the peoples concerned and bearing in mind
that the subjection of people to alien subjugation domination and exploitation
constitutes a violation of the principle.
- The establishment of a sovereign and independent state, the free association
and integration with an independent state or the emergence into any other
political status freely determined by a people constitute modes of implementing
the right of self determination by that people.

The right of self determination established in both treaty law and customary
international law.

Two distinguish feature are

● That the obligation flowing from it are erga omnes (obligation owed towards the

international community as a whole)

● That it is generally agreed that is a rule of jus cogens ( a peremptory norm from

which no derogation is permitted)

The meaning of People

1989 UNESCO convened an International Meeting of Experts: People for the purpose
for the right to self determination has the following characteristics:

● A group of individuals who enjoys some or all of the following common features:

- Common historical tradition

- Racial or ethnic identity
- Cultural homogeneity
- Linguistic unity
- Religious or ideological affinity
- Territorial connection
- Common economic life

● The group must be of a certain number which need not be large

● The group as a whole must have the will to be identified as a people or the

consciousness of being people.

● The group must have institution or other means expressing its common

characteristics and will for identity.

Types of Self Determination: External and Internal

Re Secession of Quebec 1998 – distinguished between rights to internal versus
external self determination for the Quebecois. The SC held

- That international law recognise the distinction between internal self

determination and external self determination
- That any right of external self determination arises in strictly limited
circumstances
- That international law does not specifically grant component parts of sovereign
states the legal right to secede unilaterally from the parent state
- That international law supports the general principle of the territorial integrity of
existing states

- That any right to external self-determination could only arise:

● In the colonial context

● Where there has been alien subjugation

● Where the right of internal self determination is denied (remedial secession)

External Self determination

Full self-determination – the right to decide on the political status of a people and its
place in the international community.

The right to external self determination is only available to

- People under a colonial rule

- People under foreign domination or occupation

Self determination of Colonial people: now is undisputed under international law it has
been reaffirmed in the successive GA resolutions

- GA Resolution1514 (1960) Declaration on Granting Independence to Colonial

Countries
Namibia case 1971, Advisory Opinion on Wester Shara 1975.

Self Determination of people under foreign domination or occupation

State practice and UN Resolutions make it clear that external self-determination is a

right belonging to people subject to foreign domination or occupation.

GA Resolution 1514 was upheld in Art 1 common to the two international covenants on
Human Rights, makes it clear that alien subjugation or domination may exist outside a
colonial system.

Palestinian Wall Advisory Opinion, the ICJ ruled that the construction of a wall by Israel
in the Occupied Palestinian Territory violates Palestinian legitimate right to self-
determination, constitutes a de facto annexation of the occupied lands and is therefore
illegal.

It is gross injustice that in contravention of numerous GA and SC resolutions, the self

determination of Palestinians people to possess an independent sovereign Palestinian
State has been denied by Israel.

East Timor Case 1995

Whether the agreement between Indonesia and Australia infringed the right of the
people of East Timor to determine their own future.

Upholding the principle of self determination, the ICJ found itself unable to accept
jurisdiction due to lack of consent on the part of Indonesia.

The people of East Timor voted overwhelmingly to reject the Indonesian offer, special
autonomy in favour of an independent state.
Internal Self Determination

Means, Peoples of a defined territory to have control over their political, economic,
social and cultural development.

Also means that racial and religious minorities and indigenous peoples should
have cultural, social, political, linguistic and religious rights and those rights should be
respected by the mother state.

However, internal self determination does not allow people to secede from the
mother land. Especially when the mother state observes the right to internal self
determination of its peoples and possesses a government which represents the whole
people belonging to their territory without any distinction of race, creed or colour.

A state government who represented by all the people within its territory on a basis of
equality and without discrimination and respects the principle of internal self
determination is entitled to the protection of its territorial integrity under international law.

The people have no right to external self determination or to secede unilaterally.

Recognition

The legal effect of recognition in international law

Constitutive Theory

A state or government does not exist unless it has been recognised as such by other
states. Thus, recognition is needed and necessary condition for the creation of the
state/government concerned. This is constitutive effect.

Declaratory Theory

The granting of recognition to a new state when the entity satisfies the requirement of a
state objectively, it is a state.

International personality of a state does not depend on its recognition as such by other
states

Tinoco Arbitration 1923 – Tinoco came to power in Costa Rica after a successful coup
d’etat. Tinoco was ousted and the new government repudiated the obligations
undertaken by the Tinoco government towards British.

The main issue was the status of the Tinoco regime in international law in the light of
non-recognition of it by other states.

The arbitrator held: Tinoco regime was the government of Costa Rica because it was
clearly in effective control of Costa Rica. Not being recognised by several states made
no difference.
Recognition of states and governments

May occur expressly or Implication.

Express – when it is made by a formal declaration/statement.

Implied – when it is to be inferred from certain relations between the recognising state
and the new state or government. ( Entry into diplomatic relation or the conclusion of a
bilateral treaty).

Recognition of States

A new state may come into existence by gaining of independence of a former colony, by
disintegration of an existing state or by merger of two or more states.

British Practice – whether an entity is recognised as a state by the United Kingdom is

a matter for the executive authorities. A request will be made by the court to the
Foreign Office, who may issue an executive certificate. This certificate will specify
whether or not the new state is recognised and it is conclusive.

The Foreign Office of the United Kingdom have Criteria for recognition as a state should
have, Montevideo Convention requirement of statehood

● defined territory,
● permanent population,
● effective government.
Recognition of Government

Government coming into power normally and constitutional

- Require no recognition in international law.

- There will be message of congratulation and a continuation of normal bilateral
diplomatic dealings.

Government coming into power abnormally and in a revolutionary manner

- The condition under international law for the recognition of a new regime has in
fact effective control over most of the state’s territory and that this control seems
likely to continue.
- The effectiveness of the government is a sine qua non of recognition of an entity
as the government of a state.

The Estrada Doctrine

- Policy of never recognising government (by recognising government that comes

into power unconstitutionally may interpret as approval of such government)
- According to this doctrine, the change of government in a state is an internal
matter and does not concern international law or other states.
- In practice it merely substitutes implied recognition for express recognition,
whereby, recognition is not announced expressly. But can be implied from the
existence of diplomatic relations or other dealings with a new government.
The Legal Effects of Recognition in Municipal Law

Three major effects

● Will be able to sue before the court of recognising state

● May claim immunity from the jurisdiction of the courts of recognising state

● The legislative, judicial and executive act of only a recognised state will be

accepted as valid in the courts of recognising state.

Luther v Sagor 1921

- The Soviet Union passed a decree declaring all sawmills and wood working
establishment to be nationalised.
- The court of first instance referred to a letter from foreign office and held that
since the united kingdom government had not yet recognised the Soviet
Government
- The defendant appealed by adducing further evidence consisting of two letters
from the Foreign Office stating that the United Kingdom Government had
recognised the Soviet Government as the De Facto Government of Russia.
- This case established three principles

● A foreign office certificate will be a conclusive proof of whether the British

Government recognises a foreign state or government.

● Recognition, once given is retroactive if effect from the time that the

recognised government

● The British courts will not recognised or enforce the laws or other official

acts of an unrecognised government.

The Malaysian Practice

By virtue of S 3 of the Civil Law Act 1956, the Malaysian courts will rely on a certificate
from the Foreign Office to be able to decide whether a state or government is one
recognised by Malaysia.

Duff Development Co Ltd v Government of Kelantan 1921

“it is settled law that it is for the Court to take judicial cognisance of the status of any
foreign government. If there can any doubt on the matter the practice is for the court to
receive information from the appropriate department of His Majesty’s Government and
the information so received is conclusive”.

Where there is no announcement that there is no longer grant recognition to

governments from Malaysia, therefore we can conclude that Malaysia will still grant
recognition to government and the criterion will be the traditional one of whether it
can effectively control the territory concerned and it seems likely to continue to
do so.