CHAPTER 5 :

SUBJECTS OF INTERNATIONAL LAW:

LEGAL PERSONALITY

 Participation + Community Acceptance

→International Personality

 different entities will possess different rights and

duties enforceable at law

 Individuals & companies become ‘legal persons’

possessing the certain rights and duties.

 Having a Legal personality is crucial.

EACH POSSESSING A DISTINCT LEGAL

PERSONALITY

 The law determines the scope and nature of

personality

 The status

 determinative of your powers and

obligations

 capacity

 link together the status of a person with

certain rights and duties.

LEGAL PERSONALITY IN INTERNATIONAL

LAW  A range of factors need to be examined

 International personality =

 participation + some form of community

acceptance.

 Wide range of participants:

 States

 international organizations

 regional organizations

 non-governmental organizations

 public companies

 private companies

 Individuals

STATES

 the most important legal persons

 maintain the primary focus for the social activity of

humankind → international law.

 positivist:

 only states are subjects of international law.

CREATION OF STATEHOOD:

 Montevideo Convention on Rights and Duties of States,

1933:

 provides the most widely accepted formulation of the

criteria of statehood in international law

 state as an international person should possess the

following qualifications:

 a permanent population:

 a defined territory:

 government;

 Capacity to enter into relations with other states’.

SELF-DETERMINATION AND THE CRITERIA

OF STATEHOOD

 The evolution of self-determination has affected

the standard necessary as far as the actual

exercise of authority.

 New Guidelines for recognition of new states

requiring:

 the need to respect Rule of law

 Democracy

 Respect for human rights

 Guarantees of minority rights

RECOGNITION

 Recognition may be viewed as:

 Constitutive or Declaratory:

 The constitutive theory of statehood :

 a state exists exclusively via recognition by other states

 requires "diplomatic recognition" or merely "recognition of existence"

 The declaratory theory of statehood:

 an entity becomes a state as soon as it meets the minimal criteria for statehood.

 Question: "can an entity become a state without depending on the actions [i.e., recognitions] of existing states.?

EXTINCTION OF STATEHOOD

 Merger

 Absorption

 Dismemberment of an existing state

 Annexation (historical)

 Usually governments disappear, BUT it is

rather rarer for states to become extinct.

THE FUNDAMENTAL RIGHTS OF STATES

 Draft Declaration on the Rights and Duties of

States prepared in 1949 by the International Law

Commission

 1-Independence: or sovereignty

 the capacity of a state to provide for its own well-

being and development free from the domination

of other states, providing it does not impair or

violate their legitimate rights.

 international law dictates the scope and content

of the independence of states and not the states

themselves individually and unilaterally.

 Declaration on Principles of International Law

Concerning Friendly Relations and Co-operation

among States adopted in October 1970 by the

United Nations General Assembly emphasized that:

 [n]o state or group of states has the right to

intervene, directly or indirectly, for any reason

whatever, in the internal or external affairs of any

other state. Consequently, armed intervention and

all other forms of interference or attempted threats

against the personality of the state or against its

political, economic and cultural elements, are in

violation of international law.

 2-Equality

 States, irrespective of size or power, have the same juridical

capacities and functions, and are likewise entitled to one vote

in the United Nations General Assembly.

 1970 Declaration on Principles of International Law:

(P155)

 States are juridically equal:

 States enjoy rights inherent in full sovereignty

 Territorial integrity and political independence are

sacred

 Can freely choose/develop its

political/social/economic/cultural systems

 3-Peaceful co-existence

 mutual respect for each other’s territorial

integrity and sovereignty

 mutual non-aggression and non-interference in

each other’s affairs

 the principle of equality.

 This idea was expanded in various resolutions of

the United Nations.

 Principles as execution of international

obligations in good faith with non-aggression

PROTECTORATES AND PROTECTED

STATES

 Protectorate: entity enters into relationship

with a state that results in separate

international personality, but NOT

statehood

 Protected state: Where two states retaining

their status as separate states but enter into

a treaty relationship that may give one state

the right to act on another’s territory

FEDERAL STATES

 There are various forms of federation or

confederation

 According to the relative distribution of

power between the central and local

organs.

 degree of authority and competence with

the component units

 division of powers

SUI GENERIS TERRITORIAL

ENTITIES/MANDATED AND TRUST

TERRITORIES

 UN Trusteeship Council / mandate system

 Condominium

 International administration of territories

 Taiwan

 The ‘Turkish Republic of Northern Cyprus’

(TRNC)

 The Saharan Arab Democratic Republic

 Various secessionist claimants:

 Somaliland: 17 may 1991

 Moldova: Moldavian Republic of Transdniestria’

23 June 1990

 Associations of states

INTERNATIONAL LAW FOR INTERNATIONAL RELATIONS

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1

INTERNATIONAL LAW FOR INTERNATIONAL

RELATIONS

Baş ak Çalı

3 Great Clarendon Street, Oxford ox2 6dp

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You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer

British Library Cataloguing in Publication Data Data available

Library of Congress Cataloging in Publication Data

International law for international relations / Başak Çali. p. cm. ISBN 978-0-19-955842-1 1. International law. 2. International relations. I. Çali, Başak, 1974– KZ3410.I5794 2010 341–dc22

2009042108

Typeset by MPS Limited, A Macmillan Company Printed in Great Britain on acid-free paper by

CPI Antony Rowe

ISBN 978–0–19–955842–1

1 3 5 7 9 10 8 6 4 2

Contents—Summary

Preface xvi

Guided tour of Learning Features xviii

Guided tour of the Online Resource Centre xx

Contributors xxii

Abbreviations xxv

List of boxes xxviii

List of tables xxxi

List of case studies xxxii

PART I STUDYING INTERNATIONAL LAW

1 International law and international relations: foundations for interdisciplinary study 3

Başak Çalı

2 Perspectives on international law in international relations 25

Fiona B. Adamson and Chandra Lekha Sriram

3 Basic principles of international law: a historical perspective 46

Antony Anghie

4 Perspectives on international relations in international law 71

Başak Çalı

PART II IDENTIFYING INTERNATIONAL LAW

5 International treaties 99

Emmanuel Voyiakis

6 Customary international law 122

Jason Beckett

7 Non- governmental organizations and international law 141

Meghna Abraham

8 International courts and tribunals 165

Juan M. Amaya-Castro

vi Contents

PART III TOPIC S IN INTERNATIONAL LAW

9 States and international law: the problems of self- determination, secession, and recognition 191

Christopher J. Borgen

10 Use of force in international law 213

Nigel Rodley and Başak Çalı

11 International humanitarian law 234

Elizabeth Griffi n and Başak Çalı

12 International criminal law 258

Paola Gaeta

13 International human rights law 281

Başak Çalı

14 International law for environmental protection 306

David M. Ong

15 World trade and international law 330

Thomas Sebastian

16 Global social justice and international law 351

Saladin Meckled-Garcia

CONCLUSION

17 International law in international relations: what are the prospects for the future? 379

Başak Çalı

Table of cases 395

Table of major multilateral international treaties and documents 397

Glossary 399

References 409

Index 421

Detailed contents

Preface xvi

Guided tour of Learning Features xviii

Guided tour of the Online Resource Centre xx

Contributors xxii

Abbreviations xxv

List of boxes xxviii

List of tables xxxi

List of case studies xxxii

PART I STUDYING INTERNATIONAL LAW

1 International law and international relations: foundations for interdisciplinary study 3

Introduction 4

What is international law? 5

The relationship between international law and international relations 7

Are international relations and international law two separate disciplines? 7

How does the knowledge produced in international relations and international law overlap, confl ict, and co-depend? 12

At what point and in what way does international law enter into international relations research? 16

Why study international law? 20

Conclusion 23

2 Perspectives on international law in international relations 25

Introduction 26

Realism 27

Theory 27

Actors 28

Processes 29

Liberalism 30

Theory 30

Actors 32

Processes 33

viii Detailed contents

Institutionalism 34

Theory 34

Actors 34

Processes 36

Constructivism 37

Theory 37

Actors 38

Processes 39

Marxism, Feminism, and Critical Theory 41

Theory 41

Actors 42

Processes 42

Conclusion 43

3 Basic principles of international law: a historical perspective 46

Introduction 47

The subject matter of a history of international law 47

The birth of modern international law: the sixteenth century 50

The beginnings of Empire 50

The Peace of Westphalia and Westphalian sovereignty: 1648 52

The Congress of Vienna: international law from 1815–1914 54

The League of Nations: international law from 1919–1939 57

The United Nations: 1945 to the present 60

The end of the Cold War: international law from 1989 64

Conclusion 68

4 Perspectives on international relations in international law 71

Introduction 71

What is international law? 73

Positivism about international law 74

Natural law descriptions of international law 77

International law as a process 79

Critical legal studies and international law 80

The purpose of international law 82

The relevance of theories of international law in international relations 86

The empirical relevance of international law 87

Detailed contents ix

The relevance of international law in the contemporary world 88

Conclusion 89

PART II IDENTIFYING INTERNATIONAL LAW

5 International treaties 99

Introduction 100

Why do states make treaties? 101

The relationship between treaties, customary international law, and the concept of ius cogens 103

Is there a hierarchy of sources in international law? 103

The concept of ius cogens in the Vienna Convention on the Law of the Treaties 104

The making of treaties 105

Negotiation 106

Representation and ‘full powers’ 107

Adoption, authentication, and expression of consent to be bound 107

Entry into force 108

Universality or integrity? Reservations to treaties 108

What are reservations? 110

Application, interpretation, and the position of third states 112

Third states 113

Temporal and territorial application of treaties 113

The interpretation of treaties 114

Amending a treaty 114

Ending international treaties 115

Invalidity 116

Termination and suspension 117

Settling disputes 118

Conclusion 119

6 Customary international law 122

Introduction 122

What rules govern the formation of CIL? The conduct- centred model 124

The CIL approach to state behaviour: states as agents with legal motivations 125

What are the material sources of CIL? 129

x Detailed contents

State actions 129

United Nations General Assembly Resolutions 130

Treaties and other texts 131

Identifying particular rules of CIL: the tipping point 132

CIL in the real world 134

The compatibility of CIL with ius cogens norms 135

(Why) do states comply with CIL? 136

Factors contributing to compliance with CIL: state identity and systemic benefi ts 136

Conclusion 138

7 Non- governmental organizations and international law 141

Introduction: non- governmental organizations in a terrain occupied by states 142

Motivations for NGO involvement in international law 143

Overcoming domestic politics or barriers 144

Economies of scale 145

Better forum for negotiations 145

Opportunities to gradually increase the scope or level of the commitment 145

Enhancing the legitimacy of NGOs 145

Mechanisms for international enforcement 146

NGOs and sources of international law 146

NGO participation in intergovernmental organizations and processes 149

The role of NGOs in the development of international law 151

Initiating new standards 151

NGO participation in negotiations, drafting, and entry into force of treaties 154

How can we explain NGOs’ ability to infl uence the process? 156

The role of NGOs in the enforcement of international law 157

Publicize non-compliance 158

Clarifi cation of what is non-compliance 158

Lobby for action in response to non-compliance 159

Evaluating NGO involvement in the development of international law 159

Redressing a democratic defi cit? 159

How do we gauge how effective NGOs have been? 161

Conclusion 161

Detailed contents xi

8 International courts and tribunals 165

Introduction: international courts in contemporary life 166

What are international courts? 166 Types of international courts 167

How international courts are formed 171

Who can bring a case to an international court? 171

What is the effect of international judicial decisions? 176

What are the functions of international courts? 178

Dispute settlement 178

Enforcing international law 179

Identifying and developing international law 180

When are international courts successful? 182

The future of international courts and tribunals 183

Conclusion 184

PART III TOPIC S IN INTERNATIONAL LAW

9 States and international law: the problems of self- determination, secession, and recognition 191

Introduction 192

International law and statehood 193

Statehood and sovereignty 193

What is the recognition of statehood? 195

International law of self-determination 197

Self- determination: from political rhetoric to legal right 197

Applying self- determination to international relations: who or what has a right of self-determination? 199

Applying self- determination to international relations: the territorial integrity of states 200

The problem of secession in international law and international relations 200

The majority view: no right of secession 201

The reply: the ‘extreme cases’ argument 203

Secession and state practice 204

Recognition and secession 205

Conclusion 207

xii Detailed contents

10 Use of force in international law 213

Introduction 213

The general framework on the use of force in international law 215

Self-defence 217

When can states resort to the right of self-defence? 218

What circumstances justify self-defence? 219

The conduct question 220

The use of force, self- defence, and non- state actors 221

Unilateral humanitarian intervention? 222

The collective security system under the United Nations Charter 224

The power of international law on the use of force: rhetoric or controlling? 228

Conclusion 231

11 International humanitarian law 234

Introduction 234

What is international humanitarian law and how is it made? 236

IHL treaties 238

Customary IHL 239

The nature of international humanitarian law 240

IHL and actor-centricism 240

International and internal armed confl icts 241

IHL and the International Committee of the Red Cross (ICRC) 242

Purposes of international humanitarian law and its basic principles 242

Compliance with international humanitarian law 249

Motivations of states and IHL: why do states agree to rules that govern armed confl ict? 249

Indicators of compliance 251

Non- compliance and accountability 252

Non- state actors and compliance with international humanitarian law 253

Conclusion 254

12 International criminal law 258

Introduction 258

The birth and evolution of international criminal law 260

The fi rst phase: the Nuremberg and Tokyo Tribunals 260

The second phase: the adoption of treaties for the repression of international crimes by states 262

Detailed contents xiii

The turning point: the establishment of international criminal courts 263

The core crimes and the rationale behind their international criminalization 265

War crimes 265

Crimes against humanity and genocide 267

The reasons for the different path of the international criminalization of war crimes with respect to crimes against humanity and genocide 270

The enforcement of international criminal law at the international level 271

The ad hoc criminal tribunals and the ICC: an overview 271

The United Nations Security Council and the International Criminal Court 272

The pros and cons of international criminal proceedings 274

The relationship betw

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