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International Law

International Law (3rd edn)

Anders Henriksen
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date: 27 September 2022

p. 574. The actors in the international legal systemfree

p. 574. The actors in the international legal systemfree

  • Anders Henriksen

Abstract

International society is first and foremost a society of individual sovereign states. However, states are by no means the only relevant actors in international law. In fact, one of the consequences of the post-1945 expansion of international law into areas that had traditionally been of limited international interest has been the increasing legal importance of a variety of non-state actors, most notably international organizations and individuals. This chapter introduces the various actors in the international legal system that possess rights, powers and obligations in international law. It provides a thorough presentation of statehood and the criteria for the creation of new states, and briefly discusses the (limited) legal significance of recognition. It discusses the modes by which a state can acquire title to new territory; the issues of state succession and state extinction; and the legal personality of territorial entities other than states, international organizations, individuals and additional actors in the international legal system.

Central Issues

1.

This chapter introduces the various actors in the international legal system that possess rights, powers and obligations in international law.

2.

It presents statehood and the criteria for the creation of new states, and discusses the (limited) legal significance of recognition.

3.

The chapter also discusses the modes by which a state can acquire title to new territory and provides an overview of the main issues of state succession and state extinction.

4.

The chapter presents an overview of the legal personality of non-state actors, most notably international organizations and individuals.

4.1 Introduction

We saw in Chapter 1 that international society is first and foremost a society of individual sovereign states. But while states remain centre stage, they are by no means the only actors in international law. In fact, one of the consequences of the post-1945 expansion of international law into areas that had up until then been of limited international interest has been the increasing legal importance of a variety of non-state actors, most notably international organizations and individuals. The answer to the question of who international law actually applies to is often found in the concept of ‘legal subjectivity’ or ‘legal personality’.1 The subjects of international law are those to whom the international legal system gives the capacity to hold rights, powers and/or obligations. Importantly, though, legal subjectivity/personality is relative. As the International Court of Justice (ICJ) stated in Reparations, legal subjects ‘are not necessarily identical p. 58in their nature or in the extent of their rights, and their nature depends upon the needs of the community’.2 The principal features of international legal personality include the capacity to bring claims in respect of breaches of international law, the capacity to conclude treaties and the enjoyment of privileges and immunities from the exercise of national jurisdiction. While states have all these capacities, other actors only possess the rights and obligations given to them. Non-state actors thus derive their legal personality from states. In Unilateral Declaration of Independence in Respect of Kosovo, the ICJ noted that it is not uncommon for the Security Council to make demands on actors other than states and international organizations and that it would require a case-by-case evaluation to determine ‘for whom the Security Council intended to create legal obligations’.3

This chapter presents the different actors in the international legal system. It begins in Section 4.2 with an analysis of the state. Sections 4.3 and 4.4 provide an overview of the legal personality of, respectively, international organizations and individuals. Section 4.5 discusses other actors with some form of legal personality.

4.2 The state

4.2.1 Introduction

States are by far the most important international legal actors and the only actors that can create international law. One of the major developments of the 20th century was the emergence of a large number of new states. From around 50 states at the beginning of the century to about 75 immediately after the Second World War, the number of states skyrocketed with the decolonialization process in the 1960s and 1970s. By November 2020, the number of states registered as members of the UN stood at 193.4 The most recent additions to the club of states were South Sudan (2011) and Montenegro (2006). In 2012, Palestine was given status as a ‘non-member observer state’5 by the UN General Assembly. This section concerns the state as a legal actor in international law. First, we discuss the (limited) role played by recognition (Section 4.2.2) before we examine the criteria for statehood in the 1933 Montevideo Convention (Section 4.2.3). Attention then turns to the question of illegality in the creation of a state (Section 4.2.4), the relationship between the right to self-determination and statehood (Section 4.2.5), acquisition of new territory (Section 4.2.6), state succession (Section 4.2.7) and finally state extinction (Section 4.2.8).

4.2.2p. 59 Recognition

The special status afforded to states makes it all the more important to identify the rules and principles that govern the creation of states. It is therefore somewhat unfortunate that the issue is fraught with contention, primarily due to diverging opinions about the significance of recognition by other states. Here, it is important to initially distinguish between recognition of a state and of a government. Since the state is the legal entity and the government (merely) represents and acts on behalf of the state, there are greater practical effects associated with a lack of recognition of a state than a government. Not recognizing a government is not the same as not recognizing the state. The widespread lack of recognition of the Taleban as the Afghan government in the 1990s, for example, did not signify a lack of recognition that Afghanistan was a state.

Traditionally, the doctrinal debate about the effects of recognition is dominated by two competing approaches. The declaratory view holds that the creation of states is primarily a matter of law and the fulfilment of legal criteria. Thus, when an entity satisfies certain predetermined requirements it is a state in international law. Here, the important criterion is essentially the entity’s effectiveness. In contrast, under the constitutive view, recognition is a precondition for statehood so unless an entity that appears to bear the hallmarks of a ‘state’ is recognized as such by other states, it is not a state in international law.6 The emergence of the constitutive view was tied to the rise of positivism and the pre-eminence of state consent in the 19th century. It subsequently served as a useful tool for the established (primarily Western) states to deny ‘non-civilized’ nations inclusion in the society of nations.

In practice, the constitutive approach is highly problematic. First, there is the issue of relativism. If a state only exists in relation to recognizing states, its absolute existence is seemingly not possible. That seems hard to accept. Another difficulty is quantity. If recognition is indeed required, how many states must recognize an entity for it to become a ‘state’? Also, is the recognition of some states more important than that of other states?

Contemporary international law is generally based on the declaratory approach. Article 3 of the 1933 Montevideo Convention on the Rights and Duties of States stipulates that ‘political existence of the State is independent of recognition by other States’.7 This is also supported by practice. In a 1920 advisory opinion, an International Committee of Jurists found that the recognition by a number of states of a new state of Finland did not in itself ‘suffice to show that Finland, from this time onwards, p. 60became a sovereign state’. Instead, the Committee relied on the ‘conditions required for the formation of a sovereign State’.8 Also, in 1991 an Arbitration Commission on the situation regarding the disintegration of Yugoslavia noted that ‘the existence or disappearance of the state is a question of fact’ and ‘that the effects of recognition by other states are purely declaratory’.9 It bears noting that non-recognized states are routinely the object of legal claims by non-recognizing states. An example is Israel, which is repeatedly accused of violating international law by the same Arab states that refuse to recognize Israel’s existence as a state. On 15 September 2020, the United Arab Emirates (UAE) and Israel signed a peace agreement making the UAE the third Arab state to recognize the State of Israel. The other two Arab states are Egypt (1979) and Jordan (1994). Later in the fall of 2020, the Bahrein and Sudan also took steps to recognize Israel.

Several points must be noted, however. First, as we shall return to in Section 4.2.4, the principle that legal rights cannot arise from wrongful conduct (ex injuria jus non oritur) sometimes leads to a denial of statehood to entities that fulfil the formal criteria. Secondly, rejecting the constitutive theory does not mean that acts of recognition are entirely irrelevant. Such acts have evidentiary value because they reflect that other states believe that an entity fulfils the conditions for statehood. Here, a reference should be made to the significance of UN membership. Since membership is only open to states,10 membership acceptance will effectively resolve the question of statehood under international law. As already noted, Palestine has been granted membership as a ‘non-member observer State’, and it therefore now seems to be a ‘state’.11 In 2015, Palestine acceded to the Rome Statute of the International Criminal Court. But UN membership is not a requirement for statehood and Switzerland did not join the UN until 2002. A third point to note about recognition is its practical importance in interstate relations. Often, recognition is a precondition for the establishment of bilateral relations, including the initiation of diplomatic and treaty relations. In that regard, it is worth noting that nothing precludes a state from conditioning its recognition of an emerging state and the initiation of bilateral relations on conditions that are stricter than those found in the Montevideo Convention (see Section 4.2.3). After the end of the Cold War, the United States and the European Community (EC) conditioned their recognition of the new states that emerged with the disintegration of the Soviet Union and Yugoslavia on these states’ adherence to democracy and the rule of law.12 p. 61The US and the EC thereby used the political act of recognition as an incentive for the emerging states to commit to policies that served the interests of the potentially recognizing actors.

4.2.3 The Montevideo criteria

The 1933 Montevideo Convention on the Rights and Duties of States contains the most authoritative and accepted criteria/requirements for statehood. Under article 1, a ‘state’ possesses:

(a)

a permanent population;

(b)

a defined territory;

(c)

a government; and

(d)

a capacity to enter into relations with other states.

The criteria are founded on notions of effectiveness.

The first requirement—the existence of a permanent population—simply means that someone lives on the territory. That population does not have to be of a certain size; for example, small island states like Tuvalu and Nauru only have populations of, respectively, around 10,000 and 11,000 inhabitants. In Europe, ‘microstates’ include Liechtenstein and San Marino. Since a population must be ‘permanent’, it is unclear if a population composed entirely of nomadic tribes suffices.13

The second requirement is a defined territory. There is no minimum size, and entities with tiny landmasses can fulfil the requirement. As we have just seen, small states such as Tuvalu and San Marino are ‘states’ under international law. In addition, the entity’s boundaries need not be precisely demarcated and settled.14 As long as the authorities control a consistent area of undisputed territory, an entity fulfils the requirement of territory. The lack of a definite territorial delineation of Israel, for example, did not prevent it from becoming a state. The political uncertainties about the exact drawing of territorial borders between Israel and Palestine are similarly not decisive for the issue of Palestinian statehood.

The third requirement is that the entity must have a government. Someone must exercise control over the territory and be able to run its affairs and ensure that it can comply with its international obligations. In the 1920 advisory opinion on the Aalands Islands referred to previously, the International Committee of Jurists did not find that Finland fulfilled the conditions for statehood until ‘a stable political organisation had been created and until the public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops’.15 The form of the government is immaterial and it need not be democratically elected or otherwise govern according to the wishes of the population. It just has to be p. 62able to exercise its authority over the territory. With regard to the level of effectiveness, there may be a distinction between situations where the entity seeks to secede from a ‘mother-state’, in which case the secession will often be contested, and where statehood is derived from a grant of independence by a former sovereign. While the requirement of effectiveness is applied strictly in the former situation, the standard appears to be less stringent in the second. It should also be noted that the government does not have to be able to exercise its authority throughout the entire territory. Importantly, the requirement of effective government ceases to be relevant when a state has been established. So although Somalia has been without an effective government for decades, no one disputes that it is a state in international law. Similar considerations apply to the situations in Yemen and Libya that for years have been embroiled in civil war.

The last of the four Montevideo requirements is that an entity must have the capacity to enter into relations with other states. What is important is legal and not political or economic independence. Statehood requires an ability to act without legal interference from other states.16 Importantly, commitments and obligations undertaken or imposed under international law are not an impediment to statehood. As Judge Anzilotti stated in Austro-German Customs Union, the conception of independence has:

nothing to do with a State’s subordination to international law or with the numerous and constantly increasing States of de facto dependence which characterize the relation of one country to other countries … As long as … restrictions do not place the State under the legal authority of another State, the former remains an independent State however extensive and burdensome those obligations may be.17

It is often the lack of legal independence that prevents an otherwise ‘state-like’ entity from qualifying as a state. Scotland, for example, has a permanent population, a defined territory and extensive home rule through a parliament in Edinburgh. It is still, however, formally part of the UK with the UK Parliament in London retaining important powers.18 A somewhat similar situation is that of Greenland. Despite the existence of a permanent population in Greenland, a clearly defined territory and widespread self-rule, Greenland remains part of the Kingdom of Denmark with important competences, including substantial treaty-making authority, vested in Copenhagen.19

Temporary interference with an established state’s independence and ability to enter into relations with other states—for example, belligerent occupation such as Iraq’s unlawful occupation of Kuwait in 1990–1991—does not alter statehood.

4.2.4 Illegality in the creation of a ‘state’

There are examples where an entity that would appear to fulfil the Montevideo requirements has been met with such widespread rejection by other states that one cannot reasonably argue that the entity qualifies as a state. While, as we shall see, state p. 63practice is not entirely consistent, an entity may appear to be denied statehood if it has been created in flagrant violation of basic norms of international law, potentially of a jus cogens nature. Practice thus seems to confirm the principle of ex injuria jus non oritur whereby no legal rights can arise from wrongful conduct.

Two cases support this conclusion. The first was the creation of Rhodesia in violation of the local population’s right of self-determination.20 On 11 November 1965, a white minority government declared its independence in the British colony of (South) Rhodesia, but while the entity appeared to fulfil the formal criteria for statehood it was met with overall rejection of its claim to statehood. In a series of resolutions, the Security Council called upon all states to refrain from recognizing the ‘illegal racist minority regime’ and explicitly referred to the new government as an ‘illegal authority’.21 The second case is the Turkish Republic of Northern Cyprus (TRNC), which was established through the unlawful use of force. The TRNC was established in 1974 by Turkish forces in the northern part of Cyprus following the ousting of the president of Cyprus. To date, only Turkey has recognized the TRNC.

As already noted, however, state practice is not entirely consistent with the ex injuria jus non oritur principle. Circumstances surrounding the creation of Bangladesh illustrate that unlawful force in the creation of a state may not always be an insurmountable obstacle to achieving statehood. In 1971, after massive internal tension and disturbances, India invaded what was then part of Pakistan (East Pakistan) and paved the way for the subsequent creation—and international recognition—of an independent Bangladeshi state. Why were the TRNC and Bangladesh treated differently? Aside from pure real politics, it seems to have played a role that the population in the seceding territory in Pakistan had been subjected to massive human rights violations at the hands of the Pakistanis. The two cases could indicate that while a territorial entity created through the use of illegal force in violation of the right to self-determination of the population of the territory is unlikely to be accepted as a state, the result may be different if the unlawful force is used in order to advance the realization of the right to self-determination of the population.

4.2.5 The right to self-determination

One of the most debated issues in international law is the relationship between the right to self-determination and statehood. The right to self-determination stipulates that all peoples have a right to freely determine their political status and pursue their economic, social and cultural development. But while the right was touched upon prior to 1945,22 it did not emerge as a fundamental principle of international law until the decolonization process after the end of the Second World War. Today, the right is found in a number of important instruments, including article 1 of the UN Charter23 p. 64and resolutions from the General Assembly.24 It is also mentioned in article 1 in the two 1966 UN Covenants on Human Rights. In East Timor, the ICJ stated that the right to self-determination is an essential principle of international law that has an erga omnes character.25 In 2019, in Chagos the ICJ relied upon the right when it found that the UK’s separation of the Chagos Archipelago from Mauritius at a time when Mauritius was a colony administered by the UK was unlawful.26

The most controversial aspect of the right to self-determination concerns the extent to which it gives a section of a population a right to secede from an existing state and create a new state in the absence of acceptance by the government of the ‘mother-state’. In the 1920 advisory opinion on the Aalands Islands, the International Committee of Jurists found that international law did not ‘recognise the right for national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish’.27 But this was before 1945, and in the decolonialization process in the 1960s and 1970s a large number of former colonies successfully relied on the right to self-determination in order to acquire their own independent states. A key document was the 1960 General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples28 that reflects customary international law.29 The relationship between the right to self-determination and statehood resurfaced after the end of the Cold War following the collapse of the Soviet Union and the chaotic disintegration of the Socialist Federal Republic of Yugoslavia.30 It also emerged in relation to Kosovo’s 2018 decision to declare its independence from Serbia. While the ICJ in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo had the opportunity to state its position on whether Kosovo was entitled to secede, it only stated that there are ‘radically different views’ on whether the right to self-determination offers a right to secession for other peoples than those in ‘non-self-governing territories and peoples subject to alien subjugation, domination and exploitation’31 but that international law does not preclude Kosovo from issuing a declaration of independence.32

The most authoritative statement on the law remains an advisory opinion from 1998 from the Canadian Supreme Court on whether the Canadian province of Quebec could secede from Canada. In Reference re Secession of Quebec, the Court p. 65distinguished between an ‘internal’ and an ‘external’ right to self-determination and found that the right to self-determination is normally fulfilled by internal self-determination—autonomy—whereby a people pursue their political, economic, social and cultural development within the framework of an existing state. A right to external self-determination—with the option of seceding—arises ‘only in the most extreme of cases’.33 According to the Court, it is undisputed that colonial people under imperial rule and other people who find themselves subject to alien subjugation, domination or exploitation have a right to external self-determination that may entitle them to create their own independent state.34 With regard to the claim that a right to secede also exists, as a last resort, for other peoples who are blocked from meaningful exercise of their right to self-determination internally within a state, the Court merely noted that international law is ‘unclear’ on this point and that this potential exception was nevertheless not relevant to the question of Quebec as it ‘cannot plausibly be said to be denied access to government’.35

It is very doubtful whether a people who are neither colonized nor subject to alien subjugation, domination or exploitation can claim a right to external self-determination and thus be entitled to secede. While some argue for the existence of an additional right to secede for peoples in cases of extreme oppression and the almost total denial of meaningful internal self-determination—also referred to as ‘remedial secession’—accepting such a right requires truly exceptional circumstances. International stability speaks clearly in favour of keeping the territorial integrity of a ‘mother-state’ intact and requiring people to pursue their right to self-determination within their existing state.36 This is also reflected in the ‘safeguard clause’ in the 1970 GA Declaration on Friendly Relations whereby there can be no question of remedial secession in a state where the government represents the whole of the people or peoples within its territory on a basis of equality and without discrimination.37

In October 2017, the Parliament of Catalonia in Barcelona sought to arrange a local referendum on the region’s potential independence from Spain. The Spanish Constitutional Court, however, found the referendum unlawful under Spain’s Constitution. It is hard to see how the right to self-determination can support a Catalonian claim to secede from Spain, especially in the light of Catalonia’s widespread internal self-determination within Spain.

Two final points must be made. First, an affirmed right to external self-determination need not lead to a claim for secession and the creation of a new independent state. A people with a right to statehood may decide that their interests are best served by remaining within an existing state. In 1953, on the basis of an amendment to the Danish Constitution, Greenland became an integral part of the Kingdom p. 66of Denmark. The amendment was approved by the National Council of Greenland.38 A more recent example is that of New Caledonia—a territory in the Pacific annexed by France in 1853. Under an agreement with France, the population of New Caledonia is allowed up to three referendums on independence from France. The first of these referendums was held in November 2018 where a majority voted to remain a part of France. The second was held on 4 October 2020 where a majority in New Caledonia yet again chose to keep the status quo. A third (and so far final) referendum can be held in 2022.

Secondly, a ‘mother-state’ can always consent to the secession of part of its territory whereby the seceding entity can seek to create an independent state. An example is Scotland. In a 2014 referendum, a majority of the population of Scotland (55 per cent) decided not to seek formal independence from the UK. The British government had consented to the 2014 referendum and promised to allow Scotland to leave the United Kingdom if they so desired. In the aftermath of the UK’s decision to leave the European Union (‘Brexit’), the Scottish government requested the British government to hold another independence referendum, but that request has been denied by London. In December 2019, UK Prime Minister Boris Johnson stated that the 2014 referendum was a ‘once in a generation opportunity’ for the Scottish.39 Denmark recognizes that ‘the people of Greenland is a people pursuant to international law with the right of self-determination’40 and that Denmark will not stand in the way of Greenlandic independence if the people of Greenland may one day desire to create their own state. Up until now, however, Greenland has preferred to remain part of the Kingdom of Denmark albeit with extensive self-rule.41 In a 2005 peace agreement that sought to end decades of civil war, Sudan accepted that South Sudan could secede. On that basis, in a January 2011 referendum, a majority of the population in South Sudan voted for secession from Sudan. In July 2011, South Sudan gained its independence and became the 193rd member state of the UN.

4.2.6 The acquisition of new territory

An issue somewhat related to conditions for the creation of new states is that of acquisition of new territory. A state can acquire title to new territory in a number of ways. First, it can purchase territory from another state through cession and there are many historical examples of ‘land purchases’. Among the well-known are the US purchase of Alaska from Russia in 1867 and the 1917 US acquisition of the Danish West Indies from Denmark. Cession of territory was also the primary method by which European states acquired territory in Africa and Asia during the period of colonialization. In the Cold War, the US indicated an interest in purchasing Greenland from Denmark,42 and p. 67in August 2019 US President Trump confirmed that the US was yet again considering making Denmark an offer for buying Greenland.43 Acquisition of territory by cession may also result from an agreement to resolve a border dispute between two or more states. The mutual transfer of territory—‘land swap’—is, for example, likely to be an important element in a future final peace agreement between Israel and Palestine. Whatever its exact form, the transfer of territory is governed by certain basic ‘contract law’ principles. The acquiring state cannot obtain more rights to the territory than those possessed by the ceding state. The acquiring state must also respect the potential rights of third states.44 Furthermore, any present-day purchase must take account of the evolution of the right to self-determination. So, unlike what President Trump noted in 2019, a potential American purchase of Greenland is not comparable to ‘a large real estate deal’.45 As mentioned earlier, Denmark has recognized that the people of Greenland have a right to self-determination, and a Danish ‘sale’ of Greenland and its population to the US would require the acceptance of the people of Greenland.46 Furthermore, in its 2019 advisory opinion in Chagos, the ICJ stated that the right to self-determination refers to ‘the entirety of a non-self-governing territory’ and that ‘any detachment by the administering Power of part of a non-self-governing territory’ must be ‘based on the freely expressed and genuine will of the people of the territory concerned’.47

The second way whereby a state can acquire new territory is by accretion where new land is created by nature. On rare occasions, new islands are formed by volcanic eruption. In 1963, for example, volcanic eruptions off the coast of Iceland created the—new—island of Surtsey. Importantly, man-made additions—‘artificial accretion’—are not covered and such additions therefore require that the new territory does not infringe on the rights of other states or that such states give their consent. For years, China has constructed artificial ‘islands’ on already existing maritime features, such as reefs and low-tide elevations in the South China Sea. In South China Sea Arbitration, a court of arbitration in 2016 concluded that the artificial constructions and installation entities cannot form the basis of Chinese claims to title. According to the Court, the status of a maritime feature should ‘be ascertained on the basis of its earlier, natural condition, prior to the onset of significant human modification’.48 Erosion is the opposite of accretion and refers to the gradual disappearance of territory by natural forces. Accretion does not cover sudden or violent changes to territory, for example as a result of storms or natural disasters. Such changes are instead referred to as avulsion. The distinction between accretion and avulsion is relevant for alterations of rivers that form the territorial boundary between two states. It is only when a p. 68change to the course of the river is caused by accretion that it will move the boundary line between the two states.49

The third and fourth means of acquiring additional territory bear certain similarities. The principles of occupation stipulate that a state can obtain title to territory that has never been the subject of any state—also known as terra nullius or simply ‘no-man’s land’.50 The concept of terra nullius is different from that of ‘res communis’, which refers to an area that is not subject to the legal title of any state, most notably the high seas.51 Title is acquired through occupation when a state exercises effective control over a territory of ‘no-man’s land’ and intends to obtain title. Occupation is of limited relevance today but it was the basis for numerous historical claims to territory ‘discovered’ by European explorers, including Australia and the South Island of New Zealand. Another historical example of occupation of terra nullius is that of Svalbard (formerly known as Spitsbergen), an archipelago to the north of continental Europe in the Arctic Ocean. Under a 1920 treaty, Svalbard is part of Norway but Norwegian exercise of sovereignty is limited in a number of respects.52 While occupation is the means whereby a state acquires territory that does not belong to anyone, it is through prescription that it obtains title to territory previously under the sovereignty of another state. Unlike occupation, the acquisition of territory by prescription is derived from some form of implied consent from the state whose rights are being displaced. The element of consent means that the acts of the acquiring state must be peaceful and that sustained protests and objections by the ‘old’ state will prevent prescription.53

In practice, it can be difficult to determine if a state’s attempt to acquire territory should be considered a case of occupation or of prescription. Most territorial disputes involve contesting claims by states that have performed a series of more or less ‘sovereign’ acts. Often, title over the disputed territory will not be awarded because one of the states has proven beyond any doubt that it holds title but, rather, because it has a claim that is superior to that of competing states. Regardless of whether a claim to title is based in occupation or prescription, it rests on the effective possession of the territory. The leading case remains Judge Huber’s 1928 arbitral award in the Island of Palmas case that originated in Spain’s 1898 cession of the Philippines to the United States. The Netherlands and the United States disagreed about whether the cession included the Island of Palmas—an isolated island located around halfway between the outermost island in the Philippines and the closest island in a group of islands that belonged at that time to the Netherlands. Judge Huber ruled in favour of the Netherlands and articulated the principle that ‘the continuous and peaceful display of territorial sovereignty is as good as title’.54 While the initial discovery of an as yet unknown territory could establish ‘inchoate’ title, the initial act of discovery must be p. 69followed up by effective occupation of the territory within a reasonable time.55 If not, it will be displaced by ‘a definite title founded on continuous and peaceful display of sovereignty’.56

The requirement that a state ‘display territorial sovereignty’ means it must behave as a state in the disputed territory. How much sovereignty is required varies, and even limited exercises of sovereignty may suffice in isolated and sparsely populated territory, such as remote islands or in areas of inhospitable terrain.57 In Eastern Greenland, Denmark’s display of sovereignty mainly consisted of minimal acts of administration and the granting of concession rights in the area. Since what is decisive is the display of sovereignty, acts performed by private citizens or private companies without the assistance of state authorities do not qualify. Also, the public acts must reflect an intention on the part of the state to acquire title.

A few more points must be made about acquiring title to contested territory. Geographical contiguity/proximity is not in itself decisive, and it may be that a contested island is not awarded to the state whose mainland is in closest proximity.58 Also, resolving cases about disputed territory often requires the determination of a so-called ‘critical date’ which is the moment when the potential rights of the parties manifested themselves to such an extent that subsequent acts could not alter the legal positions of the parties. In the Pulau Ligitan case, the ICJ stated that it could not:

take into consideration acts having taken place after the date on which the dispute between the Parties crystallized unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them.59

In the Island of Palmas case, the critical date was the date of Spain’s cession of the Philippines to the United States. The identification of the critical date is important because the doctrine of ‘intertemporal law’ stipulates that the law to be applied in a concrete case is that which existed at the critical date. Thus, when Judge Huber decided who had title to the Island of Palmas in 1923, he relied on the law as it existed at the critical date in 1898.60

When acquiring territory by prescription, an apparent display of sovereignty will not prevail and secure a state’s title to territory if another state can prove the existence of a pre-existing legal right to the territory, such as a treaty-based title; and the conduct of the latter cannot be interpreted as acquiescence in the establishment of a change in treaty title. Thus, as the ICJ has stated, while a display of sovereignty may confirm legal title, it cannot by itself alter it. In the Frontier Dispute case, the Court stated that if the p. 70disputed territory ‘is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title’.61

A final point to note about acquisitions of territory concerns conquest. For most of history, conquering territory by force was a well-recognized means of acquiring new territory. Since 1945, however, a state can no longer obtain title through conquest and, as we shall return to in Chapter 14, a state’s military occupation of the territory of another state activates the international legal regime on belligerent occupation. Legally, the presence of the foreign state is temporary and does not transfer any sovereignty.62 So while the displaced sovereign loses de facto possession of the territory, it does not lose de jure possession. As Oppenheim famously stated, there ‘is not an atom of sovereignty in the authority of the occupant’.63 The prohibition against forceful territorial acquisitions is reflected in the 1945 UN Charter and the 1970 GA Resolution on Friendly Relations.64 It is also supported by state practice. Thus, Iraq’s attempt to annex Kuwait following its invasion in 1990 was unanimously rejected as having no legal validity.65 The same has been the case for Russia’s 2014 annexation of the Crimean Peninsula in Ukraine. The GA responded to Russia’s annexation by reaffirming that state territory shall not be the object of acquisition by force and that attempts to disrupt the territorial integrity of a state are incompatible with the purposes and principles of the Charter.66 The prohibition against forceful territorial acquisitions is also relevant to the conflict in the Middle East between Israel and Palestine. Without an agreement between the parties, under international law Israel cannot obtain title over those parts of Palestine that it occupies.67 With the exception of East Jerusalem and the Golan Heights, the latter of which has been annexed by Israel, this is also acknowledged by the Israeli Supreme Court.68 In both 2019 and 2020, Israeli Prime Minister Benjamin Netanyahu signalled an intention to begin annexation of parts of the West Bank. Following the 2020 UAE and Israel peace agreement, the Israeli government stated that its annexation plans have been put on hold. Regardless, without consent from Palestine, such annexations are illegal under international law.

4.2.7 State succession

Maintaining international stability and predictability requires that the international society can manage the disappearance of old states or the emergence of new states in a stable and predictable manner. In international law, ‘state succession’ concerns ‘the p. 71replacement of one state by another in the responsibility for the international relations of territory’.69 Issues of state succession arises in many circumstances and regulation of successions is among the most complicated and disputed in international law. Two conventions on state succession exist: the 1978 Vienna Convention on Succession of States in Respect of Treaties and the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts. Although only the 1978 Convention is in force, many of the provisions of the 1983 Convention reflect customary international law.

Changes of statehood always raise important legal questions, including concerning the status of existing treaties, membership of international organizations and nationality. The practical manner in which succession is dealt with varies from case to case and often the ‘old’ and the ‘new’ states will settle the most important issues in a bilateral treaty. But whenever a new territorial entity emerges it is necessary to initially determine if it is considered a continuation of a pre-existing state or a new and separate entity. When the Soviet Union disintegrated, the Russian Federation generally continued that state, albeit, of course, with a smaller territory. Thus, Russia took over the membership of the Soviet Union in relevant international organizations, including the UN and the Security Council. When Yugoslavia collapsed, however, its disintegration was so profound that it ceased to exist as a ‘state’.70 Thus, Serbia and Montenegro was not considered as the continuation of the now dissolved Yugoslavian ‘mother-state’.71 Among other things, Serbia was denied the right to continue Yugoslavia’s membership of the UN.72 Issues of state succession also arise when two states merge and form a single state. In the case of the 1990 German unification, the German Democratic Republic (East Germany) was technically assimilated into the Federal Republic of Germany (West Germany).73

The rules on succession to treaties are complex and largely depend on the subject matter at hand. In general, however, international law adopts a so-called clean slate approach whereby the emerging state is not bound by the agreements concluded by its predecessor and is thus free to decide if it wants to become a party to such agreements. Certain exceptions exists, however. The principle of uti possidetis juris posits that geographical boundaries created by treaties remain in force regardless of whether the boundaries coincide with (new) ethnic, tribal, religious or political affiliations.74 Predictability and stability would be greatly jeopardized if territorial boundaries were subject to negotiation whenever a state changed its legal status. In Frontier Dispute, the ICJ applied the uti possidetis principle to an old colonial border and noted its ‘exceptional importance for the African continent’.75 The principle has also been applied in p. 72non-colonial settings and to internal boundaries. In Territorial Dispute, the ICJ noted that a boundary agreed upon in a treaty, ‘achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary.’76

Another—possible—exception to the clean-slate approach relates to obligations under human rights and humanitarian law conventions. A clean-slate approach means that the population of a new territory is not protected by such conventions until the emerging state (maybe) decides to become a party. According to the UN Human Rights Committee, protection under the UN Covenant on Civil and Political Rights continues ‘notwithstanding change in government of the State party, including dismemberment in more than one State or State succession’.77 In Genocide, two of the ICJ judges concluded that the Genocide Convention ‘does not come to an end with the dismemberment of the original State, as it transcends the concept of State sovereignty’.78 And in Delalić et al., the Appeals Chamber for the International Criminal Tribunal for the former Yugoslavia (ICTY) concluded that there is ‘automatic State succession to multilateral humanitarian treaties in the broad sense, i.e., treaties of universal character which express fundamental human rights’79 and that state succession did not impact obligations arising from ‘fundamental humanitarian conventions’.80

4.2.8 Extinction

Once a state has been established, it is almost impossible for it to lose its statehood involuntarily. As we have already seen, the absence of an effective government, as is presently the case in Somalia, Yemen and Libya, will not cause a state to cease being a state, and a state will similarly not be extinguished through the unlawful use of force and subsequent efforts of annexation by another state, as was the case with Iraq’s invasion of Kuwait in 1990.81 As the disintegration of Yugoslavia illustrates, however, a state may cease to exist if it disintegrates and subsequently splinters into a range of new states. A state may also decide to alter its legal status and voluntarily dissolve itself.

Two or more states may decide to merge into a single state as occurred in 1990 with the unification of the German Democratic Republic (GDR, East Germany) and the Federal Republic of Germany (FRG, West Germany). Another example was the merger in the same year of North Yemen and South Yemen into a unified Republic p. 73of Yemen. A state may also cease to exist on a voluntary basis if it decides to split into two or more independent states. This took place in 1993 when the Czech Republic and Slovakia were created from the former state of Czechoslovakia.

4.3 International organizations

International organizations play an increasing role in international law. The International Law Commission defines an international organization as:

an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.82

International organizations are created by treaty and are thus different from so-called non-governmental organizations (NGOs) that are private entities which, as we return to in Section 4.5.4, do not generally have international legal personality. Organizations such as the UN, the North Atlantic Treaty Organization (NATO) and the institutions of the EU are international organizations whereas entities like Amnesty International, Human Rights Watch and the World Wildlife Federation (WWF) are NGOs.

As the historical overview in Chapter 1 illustrated, the first international organizations were created in the 19th century but it was not until after the turn of century that states began to set up organizations to deal with more contentious political matters, including issues relating to peace and security. The first such organization was the League of Nations, which was created after the end of the First World War to maintain world peace. After the end of the Second World War, the League was replaced with the UN, which quickly established itself as an umbrella organization for a myriad of international organizations. That period also saw the birth of a variety of regional organizations of great importance, including NATO, and the European Coal and Steel Community that would eventually develop into the EU and the Council of Europe.83 The UN remains by the far most important global international organization. Its membership is practically universal and, as we shall see throughout this book, it covers a wide range of activities of vital importance to the effective functioning of international society. In addition, as noted in Chapter 2, it is generally presumed that obligations undertaken under the UN Charter must prevail over potentially competing international obligations.84

Since most of the important features of the UN are dealt with elsewhere in this book, only a few of its characteristics will be noted here. It is composed of six principal organs. The General Assembly has the competence to discuss and make recommendations on all matters that fall within the UN Charter.85 All 193 members of the UN p. 74have a seat in the Assembly. As discussed in more detail in Chapter 13, the Security Council has primary responsibility for maintaining international peace and security and is composed of 15 members, including five permanent members who retain a veto power. The Secretariat, headed by the Secretary-General who is usually selected for a term of five years, services the different UN organs. The Economic and Social Council (ECOSOC) holds the primary responsibility for economic and social matters within the UN and is composed of 54 members. Over the years, it has established a wide range of subsidiary organs. The International Court of Justice is the principal judicial organ of the UN. Its competences are dealt with in Chapter 12. The final principal organ of the UN is the now suspended Trustee Council, which was set up to administer the trustee system.

International organizations have the rights and obligations accorded to them by states.86 This generally includes a power to conclude necessary agreements governed by international law87 and immunity from the exercise of jurisdiction by national courts.88 In Reparations, the ICJ clarified that the UN is a legal subject under international law capable of possessing international rights and duties and with a capacity to protect its rights by bringing international claims for injury to its personnel.89 An international organization’s rights and obligations depend on ‘its purposes and functions as specified or implied in its constituent documents and developed in practice’.90 In Chapter 7 we shall briefly see that international organizations may also incur international responsibility.

4.4 Individuals

Like international organizations, individuals possess those rights and obligations that states bestow on them.91 In the LaGrand case, the ICJ concluded that the United States had violated its obligations not only to Germany but also to two German nationals when it brought criminal proceedings against the German nationals without informing them of their rights under the (1963) Vienna Convention on Consular Relations. The Court noted that the clarity of the relevant provisions of the Vienna Convention, viewed in their context, ‘admits of no doubt’. They created individual rights which ‘may be invoked in this Court by the national State of the detained person’.92 It is, p. 75however, primarily in human rights law that international law grants rights to individuals. As we shall discuss in more detail in Chapter 9, up until the middle of the 20th century the manner in which states dealt with their own citizens was generally of no concern to international law. Things began to change after the end of the Second World War when states adopted conventions bestowing rights on individuals under international law. As we return to in Chapter 15, states have also imposed obligations under international law on individuals. In 1946, the International Military Tribunal (IMT) at Nuremberg rejected the argument that international law cannot serve as the basis for the criminal prosecution of individuals.

4.5 Other actors in international law

4.5.1 Territorial entities other than states

States are not the only territorial entities with international legal personality. In fact, there are numerous historical examples of territorial entities other than states that have been created and managed by treaty, as was the case with Berlin from the end of the Second World War to the unification of Germany in 1990. Another example was the post-First World War mandate system created by the League of Nations for the administration of territories that had belonged to the defeated states in the war.93 The mandate system was replaced by a trustee system after the dissolution of the League of Nations and the creation of the UN.94 More recent examples of international administration of territories include the different UN regimes established to prepare East Timor for independence after decades of Indonesian occupation95 and the administration of Kosovo after the civil war in the former Yugoslavia.96 Taiwan is a special case in international law. While it appears to fulfil the formal requirements for statehood in the Montevideo Convention, under its ‘One China’ approach, China insists that Taiwan is a Chinese province. Thus, Taiwan finds itself in a delicate situation and it has never formally proclaimed its independence. While China continues to block Taiwan’s membership of all UN organizations, and still refuses to let Taiwan participate in the WHO despite the territory’s impressive handling of the Covid-19 pandemic, Taiwan does possess separate legal personality on certain issues, including in the area of the law of the sea. It also has relations with a number of (non-UN) organizations. Hong Kong is another territorial entity that is formally part of China but nevertheless has a degree of international legal personality. Since China took over the territory in 1997 from the UK, it has officially adopted a ‘one Country, two systems’ framework and Hong Kong’s status has been one of a ‘Special Administrative Region’ of China with the competence to enter into international agreements and participate p. 76in some international organizations. In 2020, following a long period of civil unrest and demonstrations, China introduced new national security legislation in the territory that has led to sharp responses from other states. The US reacted by stating it no longer considers Hong Kong to be separate from China and that it will therefore end its preferential economic treatment of the territory.97 Reference should also be made to the Holy See, which functions as the central government of the Roman Catholic Church. Italy has recognized the Holy See as the holder of exclusive sovereignty and jurisdiction over the Vatican City in Rome, Italy.98 As a legal person, the Holy See is a sui generis entity. It is, for example, a party to many treaties and has diplomatic relations with a substantial number of states. It also has status as a permanent observer to the UN.

4.5.2 Groups of individuals

As collective entities, groups of individuals may also have legal personality. As we saw in Section 4.2.5, the right to self-determination is based on the notion that peoples possess certain rights under international law. As we shall see in Chapter 9, indigenous groups, such as the Sami and Inuit, are another example. In 2007, the GA adopted a Declaration on the Rights of Indigenous Peoples that, among other things, stipulates that indigenous people have a right to the full enjoyment as a collective or as individuals of all human rights and fundamental freedoms and have the right to be free from any kind of discrimination.99 Insurgent groups and national liberation movements are also endowed with certain rights and obligations in international law, most notably within the laws of armed conflict. For example, the 1977 Additional Protocol I to the 1949 Geneva Conventions specifies that national liberation movements may under certain circumstances have rights and obligations under the Protocol.

4.5.3 Private corporations

A focus of increasing attention has been whether private corporations have rights and—in particular—obligations under international law. In practice, rights may under certain circumstances be bestowed on private corporations under international human rights law and particularly in international investment law. With regard to obligations, there is a booming literature in the area of so-called ‘Corporate Social Responsibility’ (CSR) and in 2011 the UN Human Rights Council adopted a number of non-legally binding Guiding Principles on Business and Human Rights that stress the obligations of states to respect, protect and fulfil human rights and fundamental freedoms.100 In 2014, the Council established an open-ended intergovernmental p. 77working group with the mandate ‘to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’.101 Since then, a number of draft treaties have been put forward. At present, however, the obligations that corporations undertake in that area remain voluntary. International law does not, for example, recognize ‘international corporate crimes’. Interestingly, in a case concerning claim for damages against a Canadian mining company by three Eritreans, a narrow majority in the Canadian Supreme Court in February 2020 held that it is not ‘plain and obvious that corporations today enjoy a blanket exclusion under customary international law from direct liability for violations of obligatory, definable, and universal norms of international law’.102 In some circumstances a contractual relationship between a state and a corporation will be governed by international law. For example, concession agreements for the extraction of oil are often ‘internationalized’.103

4.5.4 Non-governmental organizations

Non-governmental organizations, including such organizations as Amnesty International, Human Rights Watch and environmental organizations, have a growing influence on the processes that lead to the creation of international law. In many cases, they enhance enforcement of international law by providing vital information to monitoring bodies. They also contribute to better transparency in international decision-making. Their increasing role is reflected in the 1991 European Convention on the Recognition of the Legal Personality of International NGOs and in the 1998 UN Declaration on the Rights of Human Rights Defenders. Currently, however, NGOs do not as such possess rights or obligations under international law. A notable exception, however, is the International Committee of the Red Cross (ICRC), which, although it is a private organization, has a mandate (the provision of protection and assistance to victims in times of armed conflict) grounded in international conventions.

4.5.5 Nature as a legal subject?

An interesting development is discernible in international environmental law with regard to the question of whether nature—or parts thereof—can possess certain rights under international law. In a February 2018 advisory opinion on the environment and human rights, the Inter-American Court of Human Rights stressed the existence of an autonomous right to a healthy environment under the American Convention on Human Rights’ protection of progressive development that ‘unlike other rights, protects the components of the environment, such as forests, rivers and seas, as legal interests in themselves, even in the absence of the certainty or evidence p. 78of a risk to individuals’.104 According to the Court, the right protects nature and the environment ‘not only because of the benefits they provide to humanity or the effects that their degradation may have on other human rights’ but ‘because of their importance to the other living organisms with which we share the planet that also merit protection in their own right’. The Court in this regard noted a tendency in both court cases and in national constitutions to ‘recognize legal personality and, consequently, rights to nature’.105 In 2016 and 2018, the Constitutional Court of Colombia recognized that, respectively, the Rio Atrato and the ecosystem of the Amazon River system have legal rights.106

Summary

The answer to the question of who international law actually applies to is traditionally found in the concepts of ‘legal subjectivity’ or ‘legal personality’. Since being a subject or having ‘personality’ in a legal system means having the capacity to hold rights, powers and obligations that can be enforced in that system, the subjects of international law are those to whom the international legal system gives exercisable rights, powers and obligations. Importantly, though, not all participants in the international legal system hold the same rights and obligations and legal personality is a relative concept. International society is first and foremost a society of individual states and states remain the most central actor possessing those capacities in international law. States are not the only actors in international law, however, and other actors with rights and obligations under international law have been created. Such actors will possess the powers they are given by states. Apart from states, the primary actors are international organizations and individuals.

Recommended reading

On the issue of legal personality, see Roland Portmann, Legal Personality in International Law (Cambridge University Press, 2010);Find it in your libraryGoogle PreviewWorldCat Rosalyn Higgins, Problems & Process (Oxford University Press, 1994) ch. 3;Find it in your libraryGoogle PreviewWorldCat Jean d’Aspremont (ed.), Participants in the International Legal System (Routledge, 2011).Find it in your libraryGoogle PreviewWorldCat

On statehood, see the seminal work by James Crawford, The Creation of States in International Law (2nd edn, Oxford University Press, 2006)Find it in your libraryGoogle PreviewWorldCat. See also Matthew Craven, ‘Statehood, Self-Determination, and Recognition’ in Malcolm D. Evans (ed.), International Law (4th edn, Oxford University Press, 2014).Find it in your libraryGoogle PreviewWorldCat

p. 79A classic work on the role of recognition is Sir Hersch Lauterpacht, Recognition in International Law (Cambridge University Press, 1947)Find it in your libraryGoogle PreviewWorldCat. See also Stefan Talmon, Recognition of Government in International Law: With Particular Reference to Governments in Exile (Oxford University Press, 2001);Find it in your libraryGoogle PreviewWorldCat John Dugard, Recognition and the United Nations (Grotius, 1987).Find it in your libraryGoogle PreviewWorldCat

For a presentation and discussion of the right to self-determination, see Antonio Cassese, Self-Determination of Peoples (Cambridge University Press, 1995).Find it in your libraryGoogle PreviewWorldCat

On international organizations under international law, see C. F. Amerasinghe, Principles of the International Law of International Organizations (2nd edn, Cambridge University Press, 2005);Find it in your libraryGoogle PreviewWorldCat Jan Klabbers, An Introduction to International Institutional Law (Cambridge University Press, 2009);Find it in your libraryGoogle PreviewWorldCat Dapo Akande, ‘International Organizations’ in Malcolm D. Evans (ed.), International Law (4th edn, Oxford University Press, 2014).Find it in your libraryGoogle PreviewWorldCat

A convincing discussion of the individual as a legal person is Astrid Kjeldgaard-Pedersen, The International Legal Personality of the Individual (Oxford University Press, 2018)Find it in your libraryGoogle PreviewWorldCat. See also Robert McCorquodale, ‘The Individual and the International Legal System’ in Malcolm D. Evans (ed.), International Law (4th edn, Oxford University Press, 2014).Find it in your libraryGoogle PreviewWorldCat

Questions for discussion

1.

Why is legal personality a relative concept?

2.

What is the problem with the two approaches to the role of recognition (the declaratory and the constitutive)?

3.

What is the difference between an internal and an external right to self-determination? Why is the distinction important?

4.

Does Kosovo have a right to secede from Serbia?

5.

What did Judge Huber mean when he stated that ‘the continuous and peaceful display of territorial sovereignty is as good as title’?

6.

Does Palestine fulfil the four Montevideo criteria for being considered a state under international law?

7.

From where do international organizations derive their legal personality? How do you determine the extent of an international organization’s rights and obligations under international law?

8.

When it comes to the issue of statehood, can you provide some examples of where there might be a tension between, on the one hand, notions of justice and, on the other, international stability?

For outline answers to these questions please visit the online resource. You can also listen to a podcast for further discussion on this topic.

Notes

  • 1 See Roland Portmann, Legal Personality in International Law (Cambridge University Press, 2010) and Astrid Kjeldgaard-Pedersen, The International Legal Personality of the Individual (Oxford University Press, 2018).

  • 2 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] ICJ Rep 174, 178.

  • 3 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] ICJ Rep 403, paras 116–117.

  • 4 See http://www.un.org/en/member-states/.

  • 5 GA Res. 67/19 (4 December 2012), UN Doc. A/RES/67/19, para. 2.

  • 6 A pragmatic version of the constitutive view was proposed by Sir Hersch Lauterpacht who noted that someone has to ascertain if/when an emerging community fulfils the requirements for statehood and, in the absence of an impartial international organ, that task must be fulfilled by states. To him, the valid objection was not against the constitutive view as such, but instead that states treat recognition as a matter of policy and not of legal duty. See Sir Hersch Lauterpacht, Recognition in International Law (Cambridge University Press, 1947) 55.

  • 7 Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1934), 165 LNTS 19, art. 3.

  • 8 International Committee of Jurists, ‘Report of the International Committee of Jurists entrusted by the Council of the League of Nations with the task of giving an advisory opinion upon the legal aspects of the Aaland Islands Question’, League of Nations Official Journal, Special Supplement No. 3, October 1920, 8.

  • 9 See the Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. 1 (20 November 1991). See also Opinion Nos 8 and 10 (both 4 July 1992).

  • 10 Charter of the United Nations (adopted 26 May 1945, entered into force 24 October 1945), art. 4(1).

  • 11 GA Res. 67/19 (n 6). See also Report by the Secretary-General, ‘Status of Palestine in the United Nations’ (2013), UN Doc. A/67/738; UN Office of Legal Affairs, ‘Issues related to General Assembly resolution 67/19 on the status of Palestine in the United Nations’ (21 December 2012).

  • 12 See ‘Testimony by Ralph Johnson, Deputy Assistant Secretary of State for European and Canadian Affairs, 17 Oct 1991’ (1991) 2(3) Foreign Policy Bulletin 42; the European Community, ‘Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ (16 December 1991).

  • 13 Western Sahara, Advisory Opinion [1975] ICJ Rep 12, para. 152.

  • 14 See also Monastery of Saint-Naoum, Advisory Opinion, 1924, PCIJ, Series B, No. 9.

  • 15 See Aaland Islands (n 8) 9.

  • 16 See also Island of Palmas (Netherlands v United States) (1928) II RIAA 829, 838.

  • 17 Customs Regime Between Germany and Austria, Individual Opinion by M. Anzilotti, 1931, PCIJ, Series A/B, No. 41, 58.

  • 18 See Scotland Act 1998 and Scotland Act 2012.

  • 19 See Act of Greenland Self-Government (Act No. 473 of 12 June 2009).

  • 20 For more on the right to self-determination, see Section 4.2.5.

  • 21 See, respectively, SC Res. 216 (12 November 1965), UN Doc. S/RES/216 and SC Res. 217 (20 November 1965), UN Doc. S/RES/217.

  • 22 See Aaland Islands (n 8) 5–6.

  • 23 See also UN Charter art. 73.

  • 24 See, inter alia, GA Res. 2625 (XXV) Declaration concerning Friendly Relations (24 October 1970), UN Doc. A/25/2625.

  • 25 Case Concerning East Timor (Portugal v Australia) [1995] ICJ Rep 90, para. 29. See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] ICJ Rep 16, 31; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, para. 88.

  • 26 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion [2019] ICJ Rep 95.

  • 27 Aaland Islands (n 8) 5.

  • 28 See, inter alia, GA Res. 1514 (XV) Declaration on the Granting of Independence to Colonial Countries and Peoples (14 December 1960), UN Doc. A/RES/1514(XV).

  • 29 Chagos (n 26) 150.

  • 30 See, inter alia, Alain Pellet, ‘The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples’ (1992) 3 European Journal of International Law 178.

  • 31 Kosovo (n 3) para. 82.

  • 32 Ibid, para. 83.

  • 33 Reference re Secession of Quebec [1998] 2 SCR 217, para. 126. On the distinction between internal and external self-determination, see also Committee on the Elimination of Racial Discrimination, ‘General Recommendation 21: The right to self-determination’ (8 March 1996), UN Doc. A/51/18, para. 4.

  • 34 Reference re Secession of Quebec (n 33) paras 131–133.

  • 35 Ibid, paras 134–138.

  • 36 See also Aaland Islands (n 8) 5.

  • 37 Declaration concerning Friendly Relations (n 24) para. 5(7).

  • 38 See also GA Res. 849 (IX) (22 November 1954), UN Doc. A/RES/849(IX).

  • 39 Letter from PM Boris Johnson to First Minister Nicola Sturgeon, 14 January 2020.

  • 40 Preamble to Act of Greenland Self-Government (n 19).

  • 41 For the latest grant of devolution, see n 19.

  • 42 Dansk Udenrigspolitisk Institut, ‘Danmark under Den Kolde Krig’ (1997).

  • 43 ‘Trump confirms he is considering attempt to buy Greenland’, The Guardian (18 August 2019) https://www.theguardian.com/world/2019/aug/18/trump-considering-buying-greenland (accessed 1 November 2020).

  • 44 Island of Palmas (n 16) 842.

  • 45 See n 43.

  • 46 The Danish Prime Minister referred to Trump’s considerations as ‘absurd’, see n 43.

  • 47 Chagos (n 26) para. 160.

  • 48 The Republic of the Philippines and the People’s Republic of China, Award PCA Case No. 2013-19, 12 July 2016, para. 306. See also para. 511.

  • 49 The Chamizal Case (Mexico v United States) (1911) XI RIAA 309.

  • 50 Western Sahara (n 13) para. 79.

  • 51 See also Chapter 8.

  • 52 See also Geir Ulfstein, The Svalbard Treaty: From Terra Nullius to Norwegian Sovereignty (Aschehoug, 1995).

  • 53 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment [2002] ICJ Rep 303, paras 67, 70.

  • 54 Island of Palmas (n 16) 839.

  • 55 Ibid, 845–846.

  • 56 Ibid, 869.

  • 57 Ibid, 840; Legal Status of Eastern Greenland, 1933, PCIJ, Series A/B, No. 53, 50–51/32–33.

  • 58 Island of Palmas (n 16) 854–855. See also Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), Judgment [2007] ICJ Rep 659, para. 161.

  • 59 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia), Judgment [2002] ICJ Rep 625, para. 135.

  • 60 Island of Palmas (n 16) 845–846.

  • 61 Frontier Dispute (Burkina Faso v Mali), Judgment [1986] ICJ Rep 554, para. 63. See also Land and Maritime Boundary (n 53) paras 67–70.

  • 62 See also SC Res. 252 (21 May 1968), UN Doc. S/RES/252.

  • 63 Lassa Oppenheim, ‘The Legal Relations between an Occupying Power and Its Inhabitants’ (1917) 33 Law Quarterly Review 363, 364. See also The Wall (n 25).

  • 64 Declaration concerning Friendly Relations (n 24).

  • 65 See, inter alia, SC Res. 662 (9 August 1990), UN Doc. S/RES/662.

  • 66 See the Preamble to GA Res. 68/262 (27 March 2014), UN Doc. A/68/L.39 and Add. 1.

  • 67 SC Res. 252 (21 May 1968), UN Doc. S/RES/252. See also SC Res. 478 (20 August 1980), UN Doc. S/RES/478; The Wall (n 25) para. 78.

  • 68 CA 1432/03, Yinon Production and Marketing of Food Products Ltd v Qaraan et al. [2004] 59(1) PD 345, 355–356.

  • 69 Vienna Convention on Succession of States in Respect to Treaties (adopted 23 August 1978, entered into force 6 November 1996), 1946 UNTS 3, art. 2(1)(b).

  • 70 See the Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. 8.

  • 71 Ibid, Opinion No. 10.

  • 72 See, inter alia, SC Res. 757 (30 May 1992), UN Doc. S/RES/757 and SC Res. 777 (19 September 1992), UN Doc. S/RES/777.

  • 73 Treaty on the Final Settlement with Respect to Germany (12 September 1990).

  • 74 Vienna Convention on Succession of States in Respect to Treaties (n 69) art. 11.

  • 75 Frontier Dispute (n 61) 20.

  • 76 Territorial Dispute (Libyan Arab Jamahiriya v Chad), Judgment [1994] 1CJ Rep 6, para. 73.

  • 77 Human Rights Committee, ‘CCPR General Comment No. 26: Continuity of Obligations’ (8 December 1997), UN Doc. CCPR/C/21/Rev.1/Add.8/Rev.1, para. 4.

  • 78 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Separate Opinion of Judge Weeramantry [1996] ICJ Rep 595, 646. See also Separate Opinion of Judge Shahabuddeen, 636.

  • 79 Prosecutor v Zejnil Delalić et al., Judgment, ICTY-96-21-A (20 February 2001), para. 111.

  • 80 Ibid, para. 113. As we saw in Section 2.4.1, if a human rights obligation is customary international law, it is also binding on newly emerging states.

  • 81 On the rare cases of so-called debellation, see Michael N. Schmitt, ‘Debellation’ in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2009).

  • 82 ILC, Draft Articles on the Responsibility of International Organizations (2011), UN Doc. A/66/10, art. 2(a).

  • 83 See also Chapter 1. For a treatment of the Council of Europe, see Chapter 9.

  • 84 UN Charter art. 103.

  • 85 Ibid, art. 10. On the legal status of the resolutions by the General Assembly, see Chapter 2.

  • 86 Legality of the Use of Nuclear Weapons in Times of Armed Conflict, Advisory Opinion [1996] ICJ Rep 226, para. 25.

  • 87 See Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986).

  • 88 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion [1999] ICJ Rep 62.

  • 89 Reparations (n 2) 179.

  • 90 Ibid, 180, 182. See also Jurisdiction of the European Commission of the Danube between Galatz and Braila, Advisory Opinion, 1927, PCIJ, Series B, No. 14, 64.

  • 91 See the thorough overview in Kjeldgaard-Pedersen (n 1). For early jurisprudence, see Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928, PCIJ, Series B, No. 15, 17–18.

  • 92 LaGrand (Germany v United States), Judgment [2001] ICJ Rep 466, para. 77.

  • 93 Covenant of the League of Nations (adopted 28 June 1919, entered into force 10 January 1920) art. 22.

  • 94 See Chapters XII and XIII of the UN Charter.

  • 95 See SC Res. 1272 (25 October 1999), UN Doc. S/RES/1272.

  • 96 SC Res. 1244 (10 June 1999), UN Doc. S/RES/1244.

  • 97 US Department of State, Press Statement, On Beijing’s Imposition of National Security Legislation on Hong Kong, 30 June 2020.

  • 98 Lateran Treaty (adopted 11 February 1929) art. 3.

  • 99 GA Res. 61/295 Declaration on the Rights of Indigenous Peoples (13 September 2007), UN Doc. A/RES/295, arts 1–2.

  • 100 See UNHRC Res. 17/4 (16 June 2011).

  • 101 UNHRC Res. 26/9 (24 July 2014).

  • 102 Nevsun Resources Ltd v Araya, 2020 SCC 5 (CanLII), 28 February 2020.

  • 103 See, inter alia, Texaco Overseas Petroleum Co. v The Government of the Libyan Arab Republic (1979) Yearbook of Commercial Arbitration 177ff.

  • 104 The Environment and Human Rights, Advisory Opinion OC-23, Inter-American Court of Human Rights (15 November, 2017), para. 62. See also Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v Argentina, Judgment of 6 February, 2020, para. 203.

  • 105 The Environment and Human Rights, Advisory Opinion OC-23 (n 104).

  • 106 See Constitutional Court of Colombia, Judgment T-622-16 of 10 November 2016, and Judgment STC-4360-2018 of 5 April 2018.

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