Unit 03

Ancy P Anto
Introduction
• Criteria of Statehood:
• According to the classic formulation of the Montevideo Convention on the Rights and Duties of States
(1933), a state is required to have four elements to qualify for statehood:
1. A defined territory
2. A permanent population
3. A government
4. The capacity to enter into relations with other states
• Case law:
• In the case of Western Sahara, the International Court of Justice (ICJ) held that the territory in question
did not have the necessary characteristics of statehood under international law. In particular, it did not
have a permanent population that was sufficiently stable and substantial.
• In the case of South Sudan, the state was created in 2011 after a referendum was held and the majority of
the population voted for secession from Sudan. The international community recognized South Sudan as
a state shortly thereafter.
• In the case of Palestine, the question of statehood is controversial and disputed. While many states and
international organizations recognize Palestine as a state, others do not, and the issue remains unresolved.
• Creation of Statehood:
• There are two main ways in which statehood can be created:
1. Unilateral declaration of independence
2. Recognition by other states
• Unilateral declaration of independence:
• A political entity can declare itself to be a state, but its statehood will only be recognized by other states if it meets the criteria of
statehood. The most famous example of a unilateral declaration of independence is probably Kosovo, which declared
independence from Serbia in 2008. Kosovo's statehood has been recognized by over 100 states, but not by Serbia, Russia, or
China.
• Recognition by other states:
• A political entity can become a state if it is recognized as such by other states. Recognition can be express or implied, and it can
be unilateral or bilateral. Bilateral recognition occurs when one state recognizes another as a state, while unilateral recognition
occurs when a state recognizes a political entity as a state without any reciprocal recognition. The issue of recognition is
complex, and it is not always clear when a political entity has gained enough recognition to be considered a state.
• Case law:
• In the case of Bangladesh, the new state was recognized by India, which was followed by other states. Bangladesh was admitted
to the United Nations in 1974.
• In the case of Somaliland, the state has not been recognized by any other state, despite its efforts to gain recognition. Somaliland
declared independence from Somalia in 1991, but its statehood remains disputed.
Territory
• A defined territory is a fundamental requirement for statehood in
international law. A state must have a defined territory over which it
exercises exclusive control. The principle of territorial integrity is also
derived from the concept of a defined territory. Territorial integrity requires
that a state's territorial boundaries should be respected by other states.
• A defined territory also has implications for the jurisdiction of a state. A
state has jurisdiction over the people and activities within its defined
territory. This includes the power to regulate and control its borders, natural
resources, and airspace. A state's jurisdiction may extend beyond its
territory in certain circumstances, such as when it exercises extraterritorial
jurisdiction over its nationals or when it conducts military operations
abroad.
• Relevant Case Laws:
Island of Palmas Case (Netherlands v. United States of America) (1928)
• The Island of Palmas Case concerned the sovereignty over the Island of Palmas, located in the Pacific
Ocean. The Netherlands claimed sovereignty over the island based on discovery, occupation, and
effective control. The United States claimed sovereignty over the island based on a treaty with Spain,
which had previously controlled the island.
• The Permanent Court of Arbitration held that sovereignty over the island belonged to the Netherlands,
as they had demonstrated effective control over the island. The case established the principle that
effective control is necessary for a state to claim sovereignty over a territory.
Fisheries Jurisdiction Case (United Kingdom v. Iceland) (1974)
• The Fisheries Jurisdiction Case concerned the jurisdiction over the fishing grounds around Iceland.
Iceland claimed exclusive jurisdiction over a 50 nautical mile fishing zone around its coast. The
United Kingdom challenged Iceland's claim, arguing that it violated international law.
• The International Court of Justice held that Iceland's claim to a 50 nautical mile fishing zone was valid
under international law. The case established the principle that a state has jurisdiction over the natural
resources within its defined territory, including the exclusive economic zone.
Population
• The term "permanent population" is not specifically defined in international
law. However, it is generally understood to refer to a group of people who
have settled in a particular territory and who intend to remain there
indefinitely. This includes both nationals and non-nationals, as well as any
refugees or stateless persons who may be present.
• The presence of a permanent population is an essential element in the
formation and recognition of a state. In order for a territory to be considered
a state, it must have a permanent population, a defined territory, a
government, and the capacity to enter into relations with other states.
Additionally, the presence of a permanent population can have implications
for the exercise of certain rights, such as the right to self-determination.
• Case Law:
• Western Sahara case.
• In this case, the International Court of Justice held that the Western Sahara was not terra
nullius (i.e. unoccupied territory) at the time of Spanish colonization, as it was inhabited
by a population that had distinct social, cultural and economic characteristics. As a result,
the court concluded that the people of Western Sahara had a right to self-determination.
• East Timor case.
• In this case, the United Nations Transitional Administration in East Timor (UNTAET)
was established to oversee the transition to independence following a referendum in
which the majority of the population voted for independence from Indonesia. The
presence of a permanent population in East Timor was a crucial factor in determining the
right to self-determination, as the population had a distinct cultural and historical identity
that justified their claim to statehood
Government
• The role of a government in statehood is central, as it is the primary means by
which a state exercises its authority over its territory and population. The
government is responsible for creating and enforcing laws, managing public
services, maintaining order and security, and representing the state in its relations
with other states. In order for a state to be recognized as such by other states, it
must have a government that is capable of exercising effective control over its
territory and population.
• Caselaw
• International Court of Justice's decision in the Case Concerning the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), in which the Court held that a government must
have the "capacity to enter into relations with other states, and to assume the obligations
arising under international law" in order to be considered a state.
Capacity to enter into relations
• The capacity to enter into relations with other states is often seen as a corollary of
statehood. Montevideo Convention on the Rights and Duties of States, a state must
have the capacity to enter into relations with other states in order to be recognized
as such. This requirement has been affirmed in many international legal
instruments, such as the Vienna Convention on Diplomatic Relations and the
Vienna Convention on the Law of Treaties.
• The capacity to enter into relations with other states can be expressed in a number
of ways. One of the most important is the ability to send and receive diplomatic
representatives. This is a key aspect of international relations, as it allows states to
communicate with each other and negotiate agreements. In addition, states must
have the ability to enter into treaties with each other, to participate in international
organizations, and to engage in other forms of international cooperation.
• Case Law:
• South West Africa (Namibia) 1960s.
• South West Africa was a territory under the control of South Africa, but the United
Nations considered it to be a non-self-governing territory. In order for South West Africa
to become independent, it needed to be recognized as a state. The International Court of
Justice ruled that South West Africa had the capacity to enter into relations with other
states, even though it was not yet independent. This ruling helped pave the way for South
West Africa's eventual independence as Namibia in 1990.
• Rainbow Warrior affair case 1980s.
• In this case, France was found to have violated New Zealand's sovereignty by
conducting a military operation within its territorial waters. The incident highlighted the
importance of respecting a state's capacity to enter into relations with other states, and the
need for states to abide by international law when engaging in such activities
State Succession
Ancy P Anto
State Succession
• State succession refers to the transfer of state rights and obligations from one state to another when a new
state comes into existence or an existing state is transformed. The issue of state succession is of particular
importance in international law as it affects the legal continuity of states and their relationships with other
states. State succession is provided under the Vienna Convention on Succession of States on Treaties 1978
and the Vienna Convention 1983 Article 2 on Succession in respect of State Property Archives and Debts
• I. Vienna Convention on Succession of States on Treaties 1978
• The Vienna Convention on Succession of States on Treaties 1978 provides rules on how the rights and obligations of
a state under a treaty are transferred to a new state or an existing state that has undergone transformation. The key
provisions of the convention are as follows:
• Succession of States: Under the convention, succession of states refers to the replacement of one state by another in the responsibility
for the international relations of territory. This may occur as a result of the emergence of a new state, the reunification of previously
separate territories, or the transformation of an existing state.
• Application of Treaties: The convention provides that a treaty remains in force even if there is a change in the state party to the treaty.
The new state or the transformed state becomes a party to the treaty and assumes the rights and obligations of the previous state.
• Treaty Provisions: The Vienna Convention provides that the provisions of a treaty continue to apply to the new state or the transformed
state unless the treaty itself provides otherwise or the parties to the treaty agree otherwise.
• Multilateral Treaties: In the case of multilateral treaties, the convention provides that the new state or the transformed state becomes a
party to the treaty if the treaty is still in force and if the majority of the parties to the treaty agree to the succession.
Case study
The Maritime Delimitation in the Black Sea (Romania v. Ukraine) 2009:
This case concerned the delimitation of the maritime boundary between Romania and Ukraine
following the dissolution of the Soviet Union. The Court applied the Vienna Convention on
Succession of States in Respect of Treaties 1978 and held that the bilateral treaties between the
Soviet Union and Romania continued to apply to Romania and Ukraine as successor states.
The Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
2002:
This case concerned the delimitation of the land and maritime boundary between Cameroon
and Nigeria following the independence of Cameroon and the British Cameroons. The Court
applied the Vienna Convention on Succession of States in Respect of Treaties 1978 and held
that Cameroon succeeded to the treaties to which the British Cameroons were a party,
including the Anglo-German Agreement of 1913 which had determined the land boundary
between Cameroon and Nigeria.
• II. Vienna Convention 1983 Article 2 on Succession in respect of State
Property Archives and Debts
• The Vienna Convention 1983 Article 2 on Succession in respect of State Property
Archives and Debts provides rules on how state property, archives, and debts are
transferred to a new state or an existing state that has undergone transformation. The
key provisions of the convention are as follows:
• State Property, Archives, and Debts:
• Article 2 of the Vienna Convention provides that in the event of a succession of states,
the successor state assumes the rights and obligations of the predecessor state in respect
of state property, archives, and debts. This means that the successor state acquires all
property, archives, and debts that were owned by the predecessor state. The successor
state also assumes all the obligations that the predecessor state had in relation to these
assets. This principle is based on the concept of continuity of the state.
• Customary Rights relating to Territory:
• In addition to state property, archives, and debts, the Vienna Convention also provides for
the succession of customary rights relating to the territory. This means that the successor
state inherits the rights and obligations that the predecessor state had with respect to the
territory. These customary rights can include fishing rights, grazing rights, and other
customary practices that were recognized by the predecessor state. The successor state
must respect these customary rights, and any changes to them must be made in accordance
with international law.
• Public Funds and Public Property:
• The Vienna Convention also provides for the succession of public funds and public
property. This means that the successor state assumes the obligations and responsibilities
of the predecessor state in relation to public funds and public property. The successor state
must use these funds and property for the benefit of the people and must ensure that they
are not misused or misappropriated.
• Private and Municipal Law Rights:
• State succession also affects private and municipal law rights. The successor
state is required to recognize and respect these rights, including property rights
and contractual obligations. This means that individuals and entities that had
rights under the predecessor state continue to have those rights under the
successor state.
• Contracts:
• Finally, the Vienna Convention also provides for the succession of contracts.
This means that the successor state is bound by contracts that the predecessor
state had entered into, and must perform the obligations that were set out in
those contracts. The successor state can also benefit from the rights that were
granted to the predecessor state under those contracts.
Case study
• Federal Republic of Germany v. Kingdom of Denmark (1990).
• In this case, the dispute arose over the ownership of a building in Copenhagen that had
been confiscated by the Danish authorities during the Second World War. The building had
originally belonged to a German national, but it was later transferred to the German
government as part of a debt settlement agreement between Germany and Denmark. After
the war, the Danish authorities confiscated the building, and the German government
claimed that it was entitled to the property under the principle of state succession.
• The ICJ held that the principle of state succession under Article 2 of the Vienna Convention
applied to the building and that the German government was entitled to the property. The
ICJ stated that the obligation of a successor state to assume the rights and obligations of the
predecessor state is a fundamental principle of international law and that it is based on the
concept of continuity of the state. The ICJ also noted that the principle of state succession
applies to all types of property, including property that has been transferred as part of a debt
settlement agreement.
• Republic of Croatia v. Federal Republic of Yugoslavia (2009).
• In this case, the dispute arose over the ownership of a number of artworks that had
been taken from Croatia by the Yugoslav authorities during the Second World War.
After the war, the artworks were transferred to a museum in Serbia, and the Croatian
government claimed that it was entitled to the artworks under the principle of state
succession.
• The ICJ held that the principle of state succession applied to the artworks and that
the Croatian government was entitled to them. The ICJ stated that the principle of
state succession is a fundamental principle of international law and that it applies to
all types of property, including cultural property. The ICJ also noted that the
principle of state succession is based on the idea of continuity of the state and that it
ensures that the successor state assumes the rights and obligations of the predecessor
state.
 Question
• The Republic of Veridian, a small island nation in the Pacific Ocean, has been experiencing economic and political instability for
several years. In an effort to stabilize the country, the government of Veridian has agreed to a merger with the 8 Republic of Pacifica.
However, the proposed merger has sparked controversy among the citizens of Veridian, with some groups arguing that it will result in a
loss of national identity and sovereignty.
• After several rounds of negotiations, the governments of Veridian and Pacifica have agreed on the terms of the merger, which include
the transfer of all of Veridian's assets and liabilities to Pacifica. The two countries have also agreed to a new constitution, which will
establish a federal system of government with Pacifica as the dominant partner.
• The merger is scheduled to take place on January 1, 2024. However, on December 15, 2023, a group of Veridian citizens files a petition
with the International Court of Justice, challenging the legality of the merger under international law. The group argues that the merger
violates Veridian's right to self-determination and that it is illegal under the Vienna Convention on Succession of States in Respect of
Treaties.
• The government of Pacifica denies these allegations and argues that the merger is a lawful exercise of Veridian's right to self-
determination, as it was approved by the majority of Veridian's elected representatives. Pacifica also contends that the Vienna
Convention on Succession of States in Respect of Treaties does not apply to the merger, as Veridian is not succeeding to the treaty
obligations of another state.
• You have been appointed as a judge on the International Court of Justice, and the case has been assigned to your bench. As a judge, you
are tasked with resolving the legal issues raised by the petitioners and Pacifica.
• What is your ruling on the legality of the merger under international law? Does it violate Veridian's right to self-determination? Does
the Vienna Convention on Succession of States in Respect of Treaties apply to the merger?
Assignment Question

• India gained independence from British rule on August 15, 1947. Apply the
principles of state succession under the Vienna Convention on Succession of States
in respect of State Property, Archives and Debts of 1983 to India after the departure
of the British colonial authorities. In your analysis, consider how India's succession
affected state property, archives, and debts, as well as customary rights relating to
the territory, public funds and public property, and private and municipal law rights.
Also, discuss the challenges that India faced in assuming the rights and obligations
of the predecessor state, and how India's succession was viewed by the international
community. Finally, provide your own conclusions on the effectiveness of the
Vienna Convention in regulating state succession and resolving disputes arising
from it.
• Word limit: 2000 words.
State Recognition
I. The Concept of De Jure State Recognition
• The recognition of a state as a subject of international law is a complex
process that involves political, legal, and practical considerations. The
recognition of a state can be de facto or de jure. De facto recognition refers to
the recognition of the existence of a state, while de jure recognition refers to
the recognition of a state's legal personality and sovereignty.
• De jure recognition implies acceptance of the legal personality of the state, its
territorial integrity, and the legitimacy of its government. It also implies a
commitment to respect the rights and obligations arising from the state's
membership in the international community. De jure recognition is a formal
act, usually expressed through a diplomatic note, and is subject to certain
conditions, such as the absence of coercion or fraud.
State Recognition
II. Legal Implications of De Jure State Recognition
• De jure state recognition has several legal implications, including:
1. Establishment of Diplomatic Relations: De jure recognition is a necessary condition
for the establishment of formal diplomatic relations between two states. Diplomatic
relations include the exchange of ambassadors, the opening of embassies, and the
negotiation of treaties.
2. Treaty Obligations: De jure recognition implies a commitment to respect the rights
and obligations arising from the state's membership in the international community,
including the obligations under international treaties.
3. Jurisdictional Immunity: De jure recognition implies acceptance of the jurisdictional
immunity of the recognized state and its agents from the jurisdiction of other states.
4. Recognition of Nationality: De jure recognition implies recognition of the nationality
of the recognized state and its citizens
Namibia Advisory Opinion (1971)
• F - Facts:
• The Namibia Advisory Opinion (1971) was a case before the International Court of Justice (ICJ)
concerning the legal status of South West Africa (now Namibia). South West Africa had been under
the control of South Africa since the end of World War I, and there was a dispute as to whether
South Africa had the legal right to govern the territory.
• I - Issue:
• Whether there had been a de jure state succession in which South West Africa had become a
separate legal entity from South Africa.
• L - Law:
• In international law, de jure state succession refers to a situation where a territory becomes a
separate legal entity from the state that previously governed it. De jure succession can occur in a
number of ways, such as through independence, annexation, or merger. De jure succession has
important legal implications for the rights and obligations of the newly-formed state, including its
membership in the international community and its ability to enter into treaties.
• A - Analysis:
• In the Namibia Advisory Opinion, the ICJ examined the legal status of South West Africa and whether there had
been a de jure state succession. The Court found that South Africa did not have the legal right to govern South
West Africa and that there had been a de jure state succession in which South West Africa had become a separate
legal entity.
• The Court based its decision on several factors, including the historical and legal status of South West Africa, the
views of other states and international organizations, and the principle of self-determination. The Court noted that
South West Africa had been placed under South African administration as a mandate of the League of Nations,
but that this mandate had been terminated by the United Nations in 1966. The Court also noted that the
international community had recognized the right of the people of South West Africa to self-determination and
independence.
• C - Conclusion:
• In conclusion, the Namibia Advisory Opinion (1971) is an important case in the development of international law
concerning de jure state succession. The ICJ's decision in this case recognized that South West Africa had become
a separate legal entity from South Africa, with important legal implications for the rights and obligations of the
newly-formed state. The decision was based on a careful analysis of the historical and legal status of South West
Africa, the views of other states and international organizations, and the principle of self-determination
The Tinoco Arbitration (1923) Case
• F - Facts:
• The Tinoco Arbitration (1923) was a case brought before an arbitral tribunal to determine whether the
government of Costa Rica was a de jure or de facto government. In 1917, Federico Tinoco had seized
power in a coup d'état and established a new government in Costa Rica. The legitimacy of this government
was contested by other states, including the United States, which refused to recognize Tinoco's government
as legitimate. In 1921, Tinoco was overthrown, and a new government was established in Costa Rica. The
issue before the tribunal was whether the new government was the de jure successor to the Tinoco
government.
• I - Issue:
• Whether the new government of Costa Rica was the de jure successor to the Tinoco government.
• L - Law:
• The concept of de jure succession refers to the legal continuity of a state despite changes in government or
territory. De jure succession can occur in several ways, including through peaceful transfer of power,
constitutional succession, or recognition by other states. De jure succession is important because it
determines the legal rights and obligations of a state, including its membership in the international
community and its ability to enter into treaties.
• A - Analysis:
• In The Tinoco Arbitration, the tribunal had to determine whether the new government of Costa Rica was the
de jure successor to the Tinoco government. The tribunal considered several factors, including whether the
new government had been established in accordance with the constitution, whether it had been recognized
by other states, and whether it had the support of the Costa Rican people.
• The tribunal ultimately found that the new government was the de jure successor to the Tinoco government.
The tribunal noted that the new government had been established in accordance with the constitution, that it
had been recognized by a number of states, and that it had the support of the Costa Rican people. The
tribunal also noted that the Tinoco government had come to power through a coup d'état and had not been
recognized by a sufficient number of states.
• C - Conclusion:
• In conclusion, The Tinoco Arbitration (1923) provides an example of the application of the concept of de
jure succession in international law. The tribunal in this case determined that the new government of Costa
Rica was the de jure successor to the Tinoco government, based on factors such as the establishment of the
government in accordance with the constitution, recognition by other states, and support of the people. This
decision had significant legal implications for the rights and obligations of Costa Rica as a member of the
international community
Let’s Discuss
• "Should the international community recognize the Taliban as the de
jure government of Afghanistan, despite their rise to power through
military means, and what legal and policy considerations should
inform such recognition?"
Taliban issue
• F - Facts:
• The Taliban is a militant group that took control of Afghanistan in August 2021 after the withdrawal of
US and NATO forces. The Taliban's rise to power has led to questions about the international
community's recognition of the Taliban as the legitimate government of Afghanistan. Several countries
have already recognized the Taliban as the legitimate government, while others have refused to do so.
• I - Issue:
• The issue is whether the international community should recognize the Taliban as the legitimate
government of Afghanistan.
• L - Law:
• In international law, recognition of a state is an important concept that determines a state's legal status
and rights in the international community. There are two types of recognition: de facto recognition and
de jure recognition. De facto recognition refers to the recognition of a state as a matter of fact, without
any formal recognition by other states. De jure recognition, on the other hand, refers to the formal
recognition of a state by other states.
• A - Analysis:
• In the case of the Taliban, the issue of state recognition is particularly complex. The Taliban's rise to power was
not the result of a peaceful transfer of power or constitutional succession, but rather the result of a military
takeover. This has led some countries to refuse to recognize the Taliban as the legitimate government of
Afghanistan.
• However, other countries have recognized the Taliban as the legitimate government of Afghanistan, arguing that
the Taliban now controls the country and that recognition is necessary for engagement and diplomatic relations.
• It is also worth noting that recognition of a state is not only a matter of legality, but also of policy and politics.
The decision to recognize a state is often influenced by a variety of factors, including strategic interests, regional
stability, and human rights concerns.
• C - Conclusion:
• In conclusion, the issue of state recognition in the case of the Taliban is a complex one that involves legal,
political, and policy considerations. While some countries have already recognized the Taliban as the legitimate
government of Afghanistan, others have refused to do so, citing concerns about the legitimacy of the Taliban's rise
to power and their record on human rights. Ultimately, the decision to recognize the Taliban as the legitimate
government of Afghanistan will have significant implications for Afghanistan's legal status and rights in the
international community
De facto recognition

• De facto recognition refers to a situation where a state or government is recognized by other states despite
not meeting the formal criteria for statehood, such as having a permanent population, a defined territory,
and a government that is capable of exercising effective control over that territory.
• De facto recognition can arise in a number of contexts. For example, a state may come into existence through
secession from an existing state, but other states may not formally recognize it as a new state due to political
or strategic considerations. In such cases, the new state may still be recognized de facto by other states,
meaning that they treat it as if it were a fully sovereign state for most practical purposes.
• De facto recognition can be implicit or explicit. Implicit recognition occurs when states engage in diplomatic
relations or other official contacts with the government of the unrecognized state, without formally
acknowledging its statehood. Explicit recognition, on the other hand, involves a formal statement or act by a
state indicating that it recognizes the existence and sovereignty of the unrecognized state.
• It is important to note that de facto recognition does not confer the same legal status as formal recognition.
In particular, an unrecognized state does not enjoy the same rights and privileges under international law as a
recognized state, and may be subject to various forms of legal and political pressure from other states.
However, de facto recognition can still have important practical consequences, such as enabling the
unrecognized state to participate in international organizations or engage in economic or diplomatic relations
with other states.
The Bank of Ethiopia v National Bank of
Egypt
• Bank of Ethiopia v National Bank of Egypt case concerns a dispute over the ownership of
certain funds that were deposited in a bank account in Egypt by the Ethiopian government in
the 1930s. In 1936, Ethiopia was invaded and occupied by Italy, and the Ethiopian government
was forced into exile. During this period, the Egyptian government recognized the Italian-
backed regime in Ethiopia as the legitimate government of Ethiopia, and transferred the funds
in question to the Italian-backed regime.
• Issues:
whether the transfer of funds by the Egyptian government to the Italian-backed regime in
Ethiopia constituted de facto recognition of the regime as the legitimate government of Ethiopia.
• Law:Under international law, de facto recognition occurs when one state recognizes another
state that does not meet the formal criteria for statehood, such as having a defined territory
and a government that is capable of exercising effective control over that territory. De facto
recognition can be implicit or explicit, and it can have practical consequences for unrecognized
states, even if it does not confer the same legal status as formal recognition.
• Analysis: In the case of the Bank of Ethiopia v National Bank of Egypt, it could be
argued that the transfer of funds by the Egyptian government to the Italian-backed
regime in Ethiopia constituted de facto recognition of the regime as the legitimate
government of Ethiopia. By recognizing the Italian-backed regime as the legitimate
government of Ethiopia, the Egyptian government implicitly acknowledged that the
regime had effective control over the territory of Ethiopia, and that it was capable
of engaging in international transactions on behalf of the Ethiopian government
• Conclusion: Based on the analysis, it appears that the transfer of funds by the
Egyptian government to the Italian-backed regime in Ethiopia in the Bank of
Ethiopia v National Bank of Egypt case constituted de facto recognition of the
regime as the legitimate government of Ethiopia. While this recognition may not
have had the same legal status as formal recognition, it did have practical
consequences for the ownership of the funds in question
A.M. Luther v James Sagor
• The A.M. Luther v James Sagor case involves a dispute over ownership of a ship. The
ship was originally owned by a Chinese company, but during the Chinese Civil War, it was
seized by the Nationalist government and subsequently sold to the plaintiff, A.M. Luther.
The defendant, James Sagor, claimed that he had purchased the ship from the
Communist government that controlled the region where the ship was located.
• Issues:
• whether the Communist government should be considered a de facto government, and
whether the sale of the ship to Sagor should be recognized as valid.
• Law: Under international law, a de facto government is one that exercises effective
control over a territory and population, even if it does not have formal recognition from
other states. De facto recognition can have practical consequences for unrecognized
governments, such as the ability to enter into contracts or engage in diplomatic relations
with other states.
• Analysis: In the case of A.M. Luther v James Sagor, it could be argued that the Communist
government in control of the region where the ship was located exercised effective control
over that territory, and that its authority was recognized by some states. However, it is
also relevant that the Chinese Nationalist government, which was recognized as the
legitimate government of China by many states, had initially seized the ship and sold it to
the plaintiff. Furthermore, the court in this case ultimately held that the sale of the ship to
Sagor was invalid, which suggests that the court did not view the Communist government
as a de facto government with the legal authority to sell the ship.
• Conclusion: Based on the analysis, it appears that the Communist government in the A.M.
Luther v James Sagor case would not be considered a de facto government under
international law, since its authority was not recognized by the court or by many other
states. While the government may have exercised effective control over the territory
where the ship was located, this control was not acknowledged by the court, which
ultimately held that the sale of the ship to Sagor was invalid.
Arantzazu Mendi case
• The Arantzazu Mendi case concerns the status of an area in the Basque Country of Spain
that was controlled by the Basque separatist group ETA. In 1999, ETA declared a unilateral
ceasefire, and in 2002, the Spanish government passed a law granting amnesty to ETA
members who renounced violence. However, some ETA members continued to control the
area, which they referred to as the "liberated zone," and maintained a separate legal and
political system.
• Issues:
• whether the "liberated zone" should be considered a de facto state, and if so, whether it
should be recognized as such by other states.
• Law: Under international law, a de facto state is one that exercises effective control over a
defined territory and population, and that is recognized as a state by other states, even if it
does not meet the formal criteria for statehood. De facto recognition can be implicit or
explicit, and it can have practical consequences for unrecognized states, even if it does not
confer the same legal status as formal recognition.
• Analysis:In the case of the "liberated zone," it could be argued that ETA exercised
effective control over the area, and that it maintained a separate legal and
political system that was recognized by some Basque nationalist groups. However,
the Spanish government did not recognize the "liberated zone" as a separate
state, and no other states recognized it as such. Therefore, it is unlikely that the
"liberated zone" would be considered a de facto state under international law.
• Conclusion:Based on the analysis, it appears that the "liberated zone" in the
Arantzazu Mendi case would not be considered a de facto state under
international law, since it was not recognized as such by other states. While the
separatist group ETA may have exercised effective control over the area, this
control was not acknowledged by the Spanish government or other states, and
therefore it did not meet the criteria for de facto statehood
Legal Effects of State Recognition
• Recognition confers international personality on a state:
Recognition is an essential element in determining the international legal personality of a state. In
other words, recognition is the act that endows a state with the capacity to enter into international
agreements and relations with other states. Therefore, until a state is recognized by other states, it
does not have international legal personality.
• Recognition establishes the existence of a state:
• Recognition is also an act that confirms the existence of a state. When a state is recognized, it
means that the recognizing state accepts the legitimacy of the government and the territory over
which it exercises control. Hence, recognition serves as an endorsement of the state's sovereignty
and independence.
• Recognition determines the rights and obligations of a state:
• Recognition has several legal consequences, including the determination of the rights and
obligations of the recognized state. The recognized state is entitled to exercise all the rights and
privileges conferred upon it by international law. Furthermore, the state is also bound by the duties
and obligations that come with its recognition.
• Recognition affects the status of the government:
• Recognition can also affect the status of the government of a recognized
state. For instance, if a government is recognized as legitimate, it means that
the government can exercise its powers and functions in accordance with
international law. However, if a government is not recognized, it may face
limitations on its activities, including restrictions on its ability to enter into
international agreements.
• Recognition affects the rights of individuals:
• Recognition can also have an impact on the rights of individuals. When a state
is recognized, its citizens can benefit from the protection and assistance of
the recognizing state, including consular services. Conversely, when a state is
not recognized, its citizens may face difficulties in obtaining such services.
Gdynia America Linie v. Boguslawski
• Facts:
• The case arose from a dispute between Gdynia America Linie, a Polish shipping company, and
Boguslawski, the captain of one of its ships. The ship in question had been seized by the Soviet
authorities in 1946 during the post-World War II occupation of Poland. In 1950, the ship was returned to
Gdynia America Linie by the Soviet authorities. However, the ship was not allowed to leave a Soviet port
because it had not been re-registered with the British authorities, who were responsible for ship
registration at the time.
• Issues:
• The main issue in the case was whether the ship, which had been returned to Gdynia America Linie by
the Soviet authorities, was entitled to fly the Polish flag and be registered as a Polish ship.
• Law:
• The court looked at the principle of legal recognition of a state, which is the process by which one state
acknowledges the existence and sovereignty of another state. The court noted that the recognition of a
state by another state is a political act, and that the recognition is not automatic. The court also
considered the principle of effective control, which means that a state has the ability to exercise control
over its territory and its vessels.
• Analysis:
• The court held that the ship was not entitled to fly the Polish flag and be registered
as a Polish ship because Poland had not been legally recognized as a sovereign state
at the time the ship was returned by the Soviet authorities. The court noted that the
recognition of a state is a political act and that the onus is on the party claiming
recognition to establish that it has been recognized by other states. In this case,
Gdynia America Linie had not provided sufficient evidence to prove that Poland had
been legally recognized by the British authorities at the time the ship was returned.
• Conclusion:
• The court ruled in favor of Boguslawski, holding that the ship was not entitled to fly
the Polish flag and be registered as a Polish ship because Poland had not been
legally recognized as a sovereign state at the time the ship was returned by the
Soviet authorities.
Russian Socialist Federated Soviet Republic
(RSFSR) v. Cibrario
• Facts: The case arose from a dispute between the Russian Socialist Federated Soviet Republic (RSFSR), an
unrecognised state at the time, and Italy, a recognised state. RSFSR claimed that Italy had violated the rights
of its citizens by detaining and expelling them from Italian territory. Italy argued that RSFSR had no legal
standing to bring the claim because it was not a recognised state.
• Issues: Whether an unrecognised state had the legal capacity to bring a claim before an international court.
• Law:The court looked at the principle of sovereignty, which is a fundamental principle of international law.
Sovereignty means that states have the exclusive right to govern their own territory without interference
from other states. The court also considered the principle of recognition, which is the process by which one
state acknowledges the existence of another state. The court noted that recognition is a political act and is
not required for a state to exist under international law.
• Analysis:The court held that an unrecognised state could bring a claim before an international court if the
dispute concerned a legal right that was independent of the state's recognition. In this case, RSFSR was
claiming a violation of the rights of its citizens, which was independent of its recognition as a state.
Therefore, the court found that RSFSR had the legal capacity to bring the claim.
• Conclusion: The court ruled in favor of RSFSR, holding that Italy had violated the rights of RSFSR's citizens.
The court also held that RSFSR had the legal capacity to bring the claim, despite not being a recognised state.
 Taiwan Issue and State
Recognition- A case study
Let’s Discuss
This Photo by Unknown Author is licensed under CC BY
Taiwan Issue and State Recognition- A case
study
• Early recognition: After the Republic of China (ROC) was established in 1912, it was recognized
as the legitimate government of China by many countries, including the United States and most
Western powers. However, after the Communist Party of China (CPC) took power in 1949, the
ROC government fled to Taiwan and established its capital in Taipei. The CPC claimed that it was
the legitimate government of all of China, including Taiwan, and began to exert pressure on
countries to withdraw their recognition of the ROC.
• Shift in recognition: In the 1970s, many countries began to shift their recognition from the ROC
to the People's Republic of China (PRC), which had become more influential on the world stage.
This shift was partly due to the perception that the ROC was losing its legitimacy as the
government of China and partly due to pressure from the PRC.
• Limited recognition: Despite this shift, a small number of countries continued to recognize the
ROC as the legitimate government of China, including the United States and several Latin
American countries. However, over time, even these countries have shifted their recognition to
the PRC, and currently only 15 countries and the Vatican City maintain formal diplomatic
relations with Taiwan.
• China's position: China continues to claim Taiwan as a part of its territory and has not
ruled out the use of force to reunify with Taiwan. The Chinese government views
Taiwan as a "renegade province" that must eventually be brought under mainland
Chinese control. As a result, China has consistently exerted pressure on countries to
not recognize Taiwan as a sovereign state and has threatened to sever diplomatic and
economic ties with countries that do.
• International response: Despite the lack of formal recognition, many countries
maintain unofficial relations with Taiwan, including trade and cultural exchanges. In
recent years, there has been growing support for Taiwan's participation in
international organizations and its recognition as a sovereign state. The United States
has been particularly vocal in its support for Taiwan, passing legislation to strengthen
its ties with Taiwan and provide it with military support. However, the international
community remains divided on the issue of Taiwan's state recognition, and it is unlikely
to be resolved in the near future
• Challenges to recognition: Taiwan's lack of recognition as a sovereign state has posed
many challenges for the country, particularly in terms of its ability to participate in
international organizations and negotiate treaties and agreements. For example,
Taiwan is not a member of the United Nations and has been excluded from other
international organizations such as the World Health Organization. This has also
made it difficult for Taiwan to establish formal diplomatic relations with other
countries and has limited its economic and political influence on the world stage.
• Current status: Taiwan continues to assert its sovereignty and has its own
government, military, and constitution. However, its status as a sovereign state
remains disputed, and it is not recognized by many countries around the world.
Despite this, Taiwan has become a prosperous and democratic society and has
established itself as a key player in the global economy, particularly in the high-tech
industry
India’s Stand on Taiwan
• India does not formally recognize Taiwan as a sovereign state, and as a result, it does not accept
Taiwan passports. Instead, Indian immigration authorities treat Taiwanese passport holders as
Chinese citizens and require them to obtain a Chinese visa to enter India.
• This is in line with India's One China policy, which recognizes the People's Republic of China (PRC) as
the sole legal government of China and does not recognize Taiwan as a separate country. As a result,
Indian immigration authorities consider Taiwanese passport holders to be Chinese citizens and
require them to follow the same visa requirements as Chinese citizens.
• It is worth noting that Indian citizens are also required to obtain a visa to enter Taiwan, and the
Taiwanese government does not provide visa-free entry or visa-on-arrival facilities for Indian citizens.
However, the two countries have been working to strengthen their ties in recent years, particularly in
the areas of trade and investment, and there have been discussions about the possibility of easing
visa requirements for each other's citizens in the future.
• India does not accept Taiwan passports due to its One China policy, which recognizes the People's
Republic of China as the sole legal government of China. As a result, Taiwanese passport holders are
treated as Chinese citizens and required to obtain a Chinese visa to enter India.
US stands on Taiwan
• The United States has not formally recognized Taiwan as a sovereign state since it switched diplomatic recognition from
Taipei to Beijing in 1979. However, the United States maintains unofficial relations with Taiwan and provides it with
diplomatic, economic, and military support. The reasons for the United States' support for Taiwan are complex and
have evolved over time. One reason is strategic. Taiwan is a key partner for the United States in the Indo-Pacific region
and a key player in maintaining stability and security in the region. The United States has provided Taiwan with military
support, including the sale of arms, to help it maintain its security and deter potential aggression from China.
• Another reason for the United States' support for Taiwan is ideological. Taiwan is a democratic country that shares
many of the values and principles of the United States, including human rights, freedom of speech, and the rule of law.
The United States has long viewed Taiwan as a model for democracy in Asia and as an important ally in promoting these
values in the region.
• Finally, the United States' support for Taiwan can also be seen as a reflection of its broader strategic competition with
China. The United States has been increasingly concerned about China's growing influence in the region and its
assertiveness in territorial disputes. By supporting Taiwan, the United States is sending a message to China that it will
not tolerate any attempts to change the status quo by force and that it will stand by its allies and partners in the region.
• The United States has not formally recognized Taiwan as a sovereign state, but it maintains unofficial relations with
Taiwan and provides it with diplomatic, economic, and military support. The reasons for the United States' support for
Taiwan are complex and include strategic, ideological, and geopolitical factors, including concerns about China's
growing influence in the region.
"One China Policy"
• The "One China Policy" is a political framework that emerged in the 1970s and has since been
endorsed by many countries, including the United States. It is not a legally binding agreement or
principle under international law.
• The One China Policy acknowledges the Chinese government's position that there is only one
sovereign state of China, including Taiwan and other territories claimed by the government of the
People's Republic of China (PRC). This policy asserts that Taiwan is a part of China and that the
government of the PRC is the only legitimate representative of China on the international stage.
• However, this policy does not change the legal status of Taiwan under international law. Taiwan is
recognized as a sovereign state by a number of countries, including the United States and many
European nations. The PRC is also recognized as a sovereign state by most of the international
community. The status of Taiwan remains a complex and contentious issue in international law and
politics.
• Some countries, including the United States, have adopted a "One China Policy" for the purposes of
diplomatic relations with the PRC, but continue to maintain unofficial relations with Taiwan. This is
commonly referred to as "One China, Two Systems."
Indo- Pacific Regional Agreement and
Taiwan’s Participation
• Taiwan, officially known as the Republic of China, has been increasingly involved in the Indo-Pacific region in
recent years. Despite not being recognized as a sovereign state by several countries, including China, Taiwan
has been actively engaging with other nations in the Indo-Pacific region on various fronts, including
economic, security, and diplomatic.
• In terms of economic engagement, Taiwan has been actively participating in the Indo-Pacific region by
promoting its New Southbound Policy (NSP). The NSP aims to enhance economic ties and people-to-people
exchanges between Taiwan and countries in Southeast Asia, South Asia, and Oceania. Taiwan has been
promoting investments in infrastructure, technology, and education in these countries to strengthen
economic ties and increase mutual benefits.
• In the security realm, Taiwan has been working closely with other countries in the Indo-Pacific region to
enhance maritime security and counter-terrorism efforts. Taiwan has also been increasing its military
cooperation with the United States and other countries in the region to bolster its own defense capabilities.
• Diplomatically, Taiwan has been actively seeking to expand its international presence and recognition. It has
been participating in international organizations and forums, including the World Health Assembly, where it
has received support from other countries. Taiwan has also been building relationships with countries in the
Indo-Pacific region, including India, Japan, and Australia, to strengthen its diplomatic standing in the region.
Recognition of Insurgency in International Law

• I. Definition of Insurgency:
• Insurgency can be defined as a situation where a group of people within a state challenge the established
government's authority by using armed force. Insurgents are often seeking political, social, or economic change
and may have support from within the population.
• II. Recognition of Insurgency:
• Recognition of insurgency is a controversial issue in international law. There is no clear legal definition of what
constitutes an insurgency, and no universally agreed criteria for the recognition of an insurgency.
• A. The Traditional Approach:
• The traditional approach to the recognition of insurgency was based on the idea that a government's legitimacy
is determined by its ability to control its territory. Insurgents were not recognized as legitimate actors and were
considered as rebels or terrorists.
• B. The Modern Approach:
• The modern approach recognizes the legitimacy of insurgent movements that seek to challenge an established
government's authority through peaceful means or through the use of force. The recognition of an insurgency is
based on the principles of self-determination and democracy.
• C. Criteria for Recognition:
• The criteria for the recognition of an insurgency are not clear-cut and may vary depending on the
circumstances. However, the following factors may be taken into consideration:
• 1. Control of Territory: The insurgents must have control over a significant portion of the territory of the
state in question.
• 2. Legitimacy: The insurgent movement must have a legitimate political objective, such as self-
determination, democracy, or the protection of human rights.
• 3. Support: The insurgents must have significant support from the local population.
• 4. Use of Force: The insurgents must use force as a last resort and adhere to the principles of
international humanitarian law.
• III. Consequences of Recognition:
• The recognition of an insurgency can have significant legal consequences. Insurgents that are
recognized as legitimate actors may be entitled to diplomatic recognition, which can lead to
political and economic benefits. In addition, recognized insurgent movements may be
entitled to participate in peace negotiations and other diplomatic activities.
• Facts:
• The Spanish Civil War was a conflict that took place from 1936 to 1939 between the Republican
government and a coalition of Nationalist forces led by General Francisco Franco. The Nationalist forces
were supported by fascist Italy and Nazi Germany, while the Republican government was supported by
the Soviet Union and volunteers from other countries.During the conflict, a number of insurgent
movements emerged, including anarchist and communist militias. These movements were often fighting
against the established Republican government and sought to establish their own political agendas.
• Issue.
• Whether a established legitimate Government was by the Republican government
• Whether the support provided by foreign powers to the Nationalist and Republican forces, as well as to various
insurgent movements, complicated the recognition of the conflict and the legitimacy of different actors.
• Law:
• The recognition of insurgency in international law is not clear-cut and may depend on various factors,
including control of territory, legitimacy of political objectives, support from the local population, and
adherence to international humanitarian law.
• Analysis:
• In the case of the Spanish Civil War, the legitimacy of the Republican government could
be seen as a factor that would make recognition of insurgent movements challenging.
Insurgent movements that sought to overthrow the established government may be
seen as lacking legitimacy under international law.
• However, the role of foreign actors in the conflict could also complicate the recognition
of insurgency. Foreign support for different actors could influence the legitimacy of
different political agendas and the recognition of different insurgent movements.
• Conclusion:
• In conclusion, the recognition of insurgency in the Spanish Civil War was a complex
issue that depended on various factors, including the legitimacy of the established
government and the role of foreign actors in the conflict.
Taliban insurgency
• The Taliban insurgency in Afghanistan began in the early 2000s and involved a group of militants who
sought to overthrow the Afghan government and establish their own regime based on their
interpretation of Islamic law. The Taliban controlled significant parts of Afghanistan until their regime
was ousted by a U.S.-led military coalition in 2001. However, the Taliban insurgency continued, and the
group regained control over parts of Afghanistan in recent years.
• In terms of the criteria for recognition of an insurgency, the Taliban controlled a significant portion of
Afghan territory, including rural areas and some major cities. However, the legitimacy of the Taliban's
political objective has been a subject of debate, with some arguing that their regime would be based on
an extreme interpretation of Islamic law and would undermine human rights and democracy. The Taliban
has also been accused of using violence and terrorism against civilians, including women and children,
and has been listed as a terrorist organization by many countries and international organizations.
• Therefore, while the Taliban insurgency may meet the criterion of control of territory, its legitimacy and
adherence to international humanitarian law are contested, which may impact the recognition of the
Taliban as a legitimate insurgency under international law. It is important to note that the recognition of
an insurgency is a complex issue and may depend on the stance of different governments and
international organizations.
• Definition of Belligerency:
• Belligerency refers to the state of being in an armed conflict or war. When a state engages in a military
conflict, it is considered a belligerent party. Belligerency is recognized when a state is engaged in an armed
conflict that is not considered an international or non-international armed conflict.
• Recognition of Belligerency:
• The recognition of belligerency is a legal concept that refers to the acknowledgment by one or more states
of the existence of an armed conflict between two or more parties. Recognition of belligerency does not
imply that the recognizing state(s) support(s) the belligerent party; it is simply an acknowledgment of the
situation on the ground.
• The recognition of belligerency has significant legal implications for the belligerent parties and the
recognizing states. First, it grants belligerent parties certain legal rights, such as the right to conduct
hostilities, the right to capture and detain enemy combatants, and the right to establish military courts to
try war crimes.
• Second, recognition of belligerency provides legal protection for the recognizing states, as they are no
longer liable for any damage caused by their nationals who may be involved in the conflict. This is because
the belligerent parties are recognized as having equal legal status as states in the conduct of hostilities.
• Conditions for Recognition of Belligerency:
• The recognition of belligerency is not automatic and requires the 8 of certain
conditions.
1. The existence of an armed conflict: The conflict must be a military one, and not a
domestic or political dispute.
2. The parties to the conflict must be able to maintain an organized military force: The
parties must have a military force that can be distinguished from the civilian population.
3. The conflict must involve a significant portion of the state's territory: The conflict
must not be limited to a small area or group of individuals.
4. The conflict must be of sufficient duration: The conflict must have been ongoing for a
significant period to show that it is not a short-lived rebellion.
5. The conflict must be serious and not a minor incident: The conflict must be significant
enough to justify international recognition.
Non-recognition
• Non-recognition plays a crucial role in responding to unlawful territorial changes and
maintaining the principles of international law. By refusing to recognize the legitimacy of such
changes, states aim to invalidate the legal effects and rights resulting from these acts. This
denial of legal consequences serves as a powerful tool in challenging the occupying state's
control and authority over the disputed territory.
• Moreover, non-recognition extends beyond mere symbolic gesture. It entails the refusal to
establish diplomatic relations with the entity responsible for the unlawful territorial change.
This includes withholding recognition of governments or authorities associated with the
disputed territory. By doing so, states can convey their disapproval and non-acceptance of the
unlawful situation.
• For instance, in response to the annexation of Crimea by Russia in 2014, several states declared
non-recognition of the annexation, refusing to accept its legality and condemning the violation
of international law. Similarly, in the case of Israel's occupation of Palestinian territories, non-
recognition has been a key element in expressing opposition to the occupation and advocating
for the rights of the affected population.
• The Stimson Doctrine, also known as the Policy of Non-Recognition, was a significant declaration made by the
United States in response to Japan's invasion of Manchuria in 1931. It was named after Henry L. Stimson, who
served as the U.S. Secretary of State at the time. The doctrine represented a shift in U.S. foreign policy towards
non-recognition of territorial changes achieved through aggressive means or in violation of international law.
• The Stimson Doctrine emphasized the principle of non-recognition as a response to unlawful territorial changes.
It asserted that the United States would not recognize any situation, treaty, or agreement arising from acts of
aggression or conquest. The doctrine was based on the belief that the international community should not
condone or reward acts that violated the principles of peace and the sanctity of treaties.
• The key elements of the Stimson Doctrine can be summarized as follows:
• Non-Recognition: The doctrine stated that the United States would refuse to recognize any territorial changes resulting from
aggressive actions or violations of international law. This meant that the U.S. government would not accept the legitimacy of
such changes and would treat the status quo ante (the previous state of affairs) as still in force.
• Peaceful Settlement: The doctrine emphasized the importance of resolving international disputes through peaceful means,
such as diplomatic negotiations, rather than resorting to force. It aimed to discourage acts of aggression and promote the
peaceful settlement of conflicts.
• Promotion of International Law: The Stimson Doctrine sought to uphold and strengthen the principles of international law. It
condemned acts that violated the principles of sovereignty, territorial integrity, and the prohibition of the use of force, which
are fundamental tenets of international law.
• The Stimson Doctrine had significant implications for U.S. foreign policy and the
international community. It set a precedent for the principle of non-recognition as
a response to unlawful territorial changes and established a moral and legal
stance against aggression. While the doctrine did not have immediate practical
consequences for the situation in Manchuria, it influenced subsequent U.S. policy
and played a role in shaping international norms regarding territorial disputes.
• The Stimson Doctrine represented a commitment to the principles of
international law and the rejection of territorial acquisitions achieved through
force or aggression. It reflected a broader international consensus that unlawful
territorial changes should not be accepted and that non-recognition could be
used as a diplomatic tool to express disapproval and discourage further acts of
aggression
International Conventions
• Bogota Charter of the Organisation of American States, 30 April, 1948-
Article 17- territorial acquisition by coercion – non recognisable
• Draft Declarations of the rights and Duties of the States- ILC- 1949- Article
11-duty of states- to refrain from recognising the act of states affecting the
territorial integrity and political independence.
• Article 52- Vienna Convention Law of Treaties, 1969- threat or force-
violation of international law- non recognition
• The Declaration on principles of International law concerning the friendly
relation and coorperation among states- General Assembly Resolution, 1970
• Definition of Aggression Resolution, 1974- adopted by GA- Para 3 of Article
5- Territorial acquisition by aggression – non lawful
Nationality
.I. Convention on the Reduction of Statelessness (1961):-
Adopted by the United Nations, this convention aims to prevent and reduce statelessness by establishing
rules for the acquisition and loss of nationality
Key provisions include:
a) Article 1: Defines a stateless person as an individual who is not considered a national by any state under its laws.
b) Article 5: Requires states to grant nationality to individuals born on their territory who would otherwise be stateless.
c) Article 8: Prohibits the arbitrary deprivation of nationality.
d) Article 9: Facilitates the acquisition of nationality for stateless persons who have a genuine and effective link with the state.
II. European Convention on Nationality (1997):-
Adopted by the Council of Europe, this convention aims to promote common standards and principles
regarding nationality among European states
Key provisions include:
a) Article 1: Emphasizes the importance of nationality in facilitating the exercise of human rights and fundamental freedoms.
b) Article 4: Recognizes the principles of non-discrimination and equal treatment in nationality matters.
c) Article 6: Protects against arbitrary deprivation of nationality.
d) Article 7: Promotes the reduction of statelessness and facilitates the acquisition of nationality for stateless persons.
III. Convention on the Nationality of Married Women (1957):-
Adopted by the United Nations, this convention addresses gender discrimination in nationality laws.-
Key provisions include:
a) Article 1: Ensures that marriage does not automatically affect a woman's nationality, allowing her to retain or
acquire her own nationality.
b) Article 3: Prohibits the automatic loss of nationality by a woman due to her marriage with a foreign national.
c) Article 4: Allows a woman to acquire her spouse's nationality through a voluntary and formal declaration.
IV. African Charter on the Rights and Welfare of the Child (1990):-
Adopted by the African Union, this charter recognizes the rights of children, including the right to a
nationality.- Key provisions include:
a) Article 6: Guarantees the right of every child to acquire a nationality and prohibits the arbitrary deprivation of
nationality.
b) Article 7: Ensures the registration of every child immediately after birth, including the right to be registered
without discrimination.
c) Article 20: Addresses the protection of stateless children and the prevention of statelessness.
V. International Convention on the Elimination of All Forms of Racial
Discrimination (1965):-
Adopted by the United Nations, this convention addresses racial
discrimination in various fields, including nationality.- Key provisions
include:
a) Article 5: Prohibits racial discrimination in the enjoyment of rights, including
nationality rights.
b) Article 6: Recognizes the right to an effective remedy for acts of racial
discrimination, including nationality-related discrimination.
• F: Facts
• Carlos Nottebohm, a German businessman, emigrated to Guatemala in the late 1930s. In 1943, he acquired
Guatemalan nationality through naturalization. However, during the Guatemalan revolution in 1944, Nottebohm's
businesses and property were confiscated, and he was expelled from the country. Nottebohm sought diplomatic
protection from the government of Liechtenstein, claiming that he was a Liechtenstein national by birth, and that
his Guatemalan nationality was not genuine or effective. The case was brought before the International Court of
Justice (ICJ).
• I: Issues
• 1. The validity and recognition of Nottebohm's acquired Guatemalan nationality.
• 2. The standing of Liechtenstein to assert diplomatic protection on behalf of Nottebohm.
• 3. The rights and obligations of states in providing diplomatic protection to their nationals.
• 4. The responsibility of Guatemala for its actions during the revolution and the potential forms of reparation or compensation
owed to Nottebohm.
• L: Law1. Customary International Law: - Principle of nationality: A state has the sovereign right to determine who
its nationals are. - Genuine and effective nationality: For a nationality to be recognized internationally, it must be
genuine and effective.2. International Conventions: - Convention on the Nationality of Married Women (1957):
Prohibits the automatic loss of nationality for women upon marriage. - Vienna Convention on Diplomatic Relations
(1961): Regulates the rights and obligations of states in providing diplomatic protection.
• A: Analysis
Validity and Recognition of Nottebohm's Acquired Guatemalan Nationality: The ICJ should assess whether Nottebohm's Guatemalan
nationality is genuine and effective. Factors to consider may include the duration of his residence in Guatemala, his integration into
Guatemalan society, the motivations behind acquiring Guatemalan nationality, and any evidence of fraudulent or nominal
naturalization.
Standing of Liechtenstein to Assert Diplomatic Protection: Liechtenstein must demonstrate a genuine and effective link between
Nottebohm and itself. The ICJ may examine Nottebohm's connections to Liechtenstein, such as his birth, nationality of his parents,
and other significant ties, to determine if a valid claim for diplomatic protection exists.
Rights and Obligations of States in Providing Diplomatic Protection: The ICJ should consider the Vienna Convention on Diplomatic
Relations, which outlines the rights and obligations of states regarding diplomatic protection. It should determine if Liechtenstein
fulfilled its obligations in providing diplomatic protection to Nottebohm and whether Guatemala violated any rights owed to him as a
result.
Responsibility of Guatemala and Forms of Reparation or Compensation: If Guatemala is found responsible for violating its
obligations towards Nottebohm, the ICJ should identify the appropriate forms of reparation or compensation. This could include
restitution of confiscated property, compensation for losses suffered, and any other necessary measures to restore Nottebohm's
rights and position.
C: Conclusion
In the Nottebohm case, the ICJ must carefully evaluate the validity and recognition of Nottebohm's Guatemalan nationality,
Liechtenstein's standing to assert diplomatic protection, the rights and obligations of states in providing diplomatic protection, and
the responsibility of Guatemala for its actions during the revolution. The decision will have implications for the development of
international law concerning nationality, diplomatic protection, and the rights of individuals in cases of nationality disputes.
Rights and Duties of States with Regards to Aliens

• https://youtu.be/zyWx4pn4hiaY
• Aliens, refer to individuals whore not citizens or nationals of a particular state but are present within its territory or subject
to its jurisdiction. These rights and duties are aimed at promoting fairness, equality, and protection for aliens, while also
safeguarding the interests and sovereignty of the host state.
• I. Rights of Aliens:
• Principle of Equality: One of the fundamental principles governing the treatment of aliens is the principle of equality. States are generally
obligated to treat aliens in a non-discriminatory manner, affording them the same legal protections and rights as their own citizens. This
principle is reflected in various international conventions and customary international law.
• Right to Life and Personal Security: Aliens, like any individuals present within a state's territory, have the right to life and personal security.
This includes protection against arbitrary detention, torture, cruel or inhumane treatment, and other violations of their physical integrity.
States are obliged to ensure the safety and well-being of aliens within their jurisdiction.
• Property Rights: Aliens are entitled to property rights, which encompass both movable and immovable property. States should protect
these rights and ensure that aliens can freely acquire, possess, and transfer property in accordance with domestic laws and international
obligations.
• Freedom of Movement and Residence: States are responsible for regulating the entry, stay, and departure of aliens within their territory.
While they have the discretion to control immigration, states must also respect certain rights of aliens, such as freedom of movement
within the territory, the right to choose a place of residence, and the right to leave the country. Restrictions on these rights should be
lawful, reasonable, and proportionate.
• Right to Fair Trial and Due Process: Aliens, when subjected to criminal or administrative proceedings, are entitled to the right to a fair trial
and due process of law. This includes the right to legal representation, access to evidence, impartial adjudication, and protection against
arbitrary or discriminatory treatment.
• II. Duties of States:
• Duty to Protect: States have a duty to protect aliens within their jurisdiction from any harm,
including acts committed by state authorities or private individuals. This duty encompasses both
physical protection and protection from discriminatory treatment, ensuring that aliens are not
subjected to violence, harassment, or other forms of harm.
• Duty to Respect Human Rights: States must respect the human rights of aliens and refrain from
violating their rights arbitrarily or discriminately. This duty arises from various international human
rights instruments, such as the Universal Declaration of Human Rights, and is applicable to all
individuals within a state's territory or subject to its jurisdiction.
• Duty to Provide Consular Assistance: States have an obligation to provide consular assistance to
aliens who are nationals of another state. This includes facilitating access to consular officials,
ensuring fair treatment under the law, and assisting in the protection of their rights and welfare.
• Duty to Facilitate Peaceful Relations: States should endeavor to maintain peaceful relations with
other states in matters concerning aliens. This may involve cooperation and coordination in areas
such as immigration, extradition, and the resolution of disputes to ensure the rights and interests of
aliens are respected and protected
Legal Position of Aliens when Admitted
• I. Nationality and Admission of Aliens:-
• The issue of nationality is crucial in determining the legal position of aliens upon admission to a state
• States have the sovereign right to determine their own nationality laws and criteria for acquiring citizenship.-
• The admission of aliens is subject to the domestic laws and regulations of the receiving state, which vary from
country to country
• .The legal rights and protections afforded to aliens upon admission are often influenced by bilateral or
multilateral agreements between states.
• II. Rights and Protections of Aliens:- Aliens, upon admission, are entitled to certain fundamental
rights and protections, even if they do not possess citizenship.
• Basic human rights, such as the right to life, liberty, and security of person, should be guaranteed to all
individuals, regardless of their nationality.
• States are generally required to treat aliens in a non-discriminatory manner, providing them with equal
protection under the law.
• The principle of non-refoulement prohibits states from returning aliens to a country where they would face
persecution or serious harm.
• Aliens may also enjoy certain economic, social, and cultural rights, depending on the domestic laws of the
receiving state.
• III. Duties and Obligations of Aliens:-
• Alongside rights, aliens also have certain duties and obligations when admitted into a state.
• Aliens are expected to abide by the laws and regulations of the receiving state, including respecting its public
order and security.
• Compliance with immigration procedures, such as visa requirements and registration, is often mandatory for
aliens.
• States may impose certain restrictions on the activities and rights of aliens for reasons of public interest,
national security, or public health.
• IV. Legal Remedies and Protections for Aliens:-
• Aliens, like any individuals, have the right to seek legal remedies and protections when their rights are violated.
• The legal framework for such remedies may vary depending on the domestic legal system of the receiving state.
• Some international and regional human rights instruments also provide mechanisms for the protection of
alien's rights.
• Diplomatic protection may be available to aliens through their home state, which can intervene on their behalf
in certain situations
Expulsion: Expulsion refers to the act of compelling a foreign individual to leave a host state
and return to their country of nationality or habitual residence. It involves a coercive measure
exercised by the host state to terminate the individual's presence on its territory.
Reconduction: Reconduction, also known as refoulement, entails the return of an alien to a
state where they may face persecution, torture, or other serious human rights violations. It
violates the principle of non-refoulement, which prohibits such actions.
• II. Sources of International Law:
• Treaties and Conventions:
• International Covenant on Civil and Political Rights (ICCPR): Article 13 of the ICCPR recognizes the right to freedom of
movement and the prohibition of arbitrary expulsion.
• European Convention on Human Rights (ECHR): Article 3 of the ECHR prohibits inhuman or degrading treatment, including
refoulement.
• Customary International Law:
• The prohibition of arbitrary expulsion has attained the status of customary international law.
• Non-refoulement, particularly the principle of non-refoulement under the Convention relating to the Status of Refugees, has
achieved customary status.
• III. Principles and Exceptions:
• Principle of Sovereignty: States have the inherent right to control entry, stay, and expulsion of aliens on their territory.
• Principle of Non-Arbitrary Expulsion: Expulsion must not be arbitrary and should comply with due process and fair procedures.
• Prohibition of Refoulement: The principle of non-refoulement prohibits returning individuals to a state where they face a well-
founded fear of persecution, torture, or other serious human rights violations.
• IV. Limitations and Safeguards:
• Non-Discrimination: Expulsion must not be based on race, religion, nationality, or any other discriminatory grounds.
• Procedural Safeguards:
a. Right to Be Informed: Aliens must be informed of the reasons for their expulsion and provided an opportunity to challenge the decision.
b. Right to Legal Assistance: Aliens should have access to legal representation during expulsion proceedings.
c. Right to Effective Remedy: Aliens should have the right to seek judicial review or appeal against expulsion decisions.
• V. State Responsibility and Remedies:
• State Responsibility: States may be held responsible for wrongful expulsion or refoulement if they breach their international
obligations.
• Remedies:
a. Diplomatic Protection: The home state of an expelled alien may seek diplomatic remedies, such as negotiation or arbitration, on their behalf.
b. Individual Petitions: Individuals can file complaints with regional or international human rights bodies if their rights are violated.
c. Compensation: Compensation may be awarded to individuals for harm suffered due to unlawful expulsion or refoulement.