Bernas Public International Law – SUBJECTS OF INTERNATIONAL LAW STATES Part 2

CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW STATES Part 2

Recognition of Government—act of acknowledging the capacity of an entity to exercise powers of government of a state

If a change in government in an existing state comes about through ordinary constitutional procedure = recognition by others comes as a matter of course

Consequence of Recognition or Non-Recognition

A government, once recognized, gains increased prestige and stability

a. Doors of funding agencies are opened
b. Loans are facilitated
c. Access to foreign courts and immunity from suit are gained
d. Military and financial assistance also come within reach

Absence of formal recognition bars an entity from all these benefits or, at least, access to them may be suspended
Admission of a government to the UN does not mean recognition by all members but only to the extent of the activities of the organization
Recognition of a regime is terminated when another regime is recognized

Succession of States

Views on Succession

A. The new state succeeds to no rights or obligations of the predecessor state but begins with a tabula rasa
B. Successor state assumes all obligations and enjoys all the rights of the predecessor

Issues on Succession of States

1. Succession to territory—when a state succeeds another state with particular territory, the capacities, rights and duties of the predecessor state with respect to that territory terminate and are assumed by the successor state

2. Succession to state property—this is subject to agreement between predecessor and successor states

3. Succession to contracts—this is subject to agreement between the states concerned

Responsibility for the public debt of the predecessor, and rights and obligations under its contracts remain with the predecessor state but is subject to certain exceptions

4. Succession to treaties

a. Moving Treaty Rule / Moving Boundaries Rule—when part of the territory of a state becomes territory of another state, the international agreements of the predecessor state cease to have effect in respect of the territory

Relief from treaty obligation is rebus sic stantibus

b. When a state is absorbed by another state, international agreements of the absorbed states are terminated

c. Clean Slate Theory—when part of a state becomes a new state, the new state does not succeed to the international agreements to which the predecessor state was a party unless, expressly or impliedly, it accepts such agreements

d. Uti possidetis Rule— pre-existing boundary and other territorial agreements continue to be binding notwithstanding

Fundamental Rights of States

1. Independence—capacity of a state to provide for its own well-being and development free from the domination of other states

Right to exercise within its portion of the globe, to the exclusion of others, the functions of a state
Restrictions upon a state’s liberty either from customary law or from treaties do not deprive a state of independence
There is duty not to interfere in the internal affairs of other states
Rights flowing from independence:

a. Jurisdiction over its territory and permanent population
b. Right to self-defense
c. Right of legation

2. Equality—equality of legal rights irrespective of size or power of the state

Within the General Assembly, the doctrine means one state, one vote

3. Peaceful Co-Existence—mutual respect for each other’s territorial integrity and sovereignty, mutual non-aggression, non-interference in each other’s affairs and the principle of equality

Some Incomplete Subjects

1. Protectorates—dependent states which have control over their internal affairs but whose external affairs are controlled by another state; referred to as

a. Autonomous states
b. Vassal states
c. Semi-sovereign
d. Dependent sates

2. Federal state—a union of previously autonomous entities