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Statehood Notes

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Basic Concepts

International Personality
? Capacity to be the bearer of rights & duties under IL + capacity to maintain rights'(substantive + procedural)
? Distinguish (i) Objective legal personality - erga omnes (arises against the world) (ii) Particular legal personality - binding against consenting states only
? Public International Organisations have legal personality at IL o Reparation for Injuries Case (1949) - Swedish national & Chief UN Truce negotiator Bernadotte killed by private gang of terrorists in Jerusalem (then in possession of Israel). ICJ held that, in the event of its agent being killed in performance of duties, it could seek reparation for damage caused to UN & to the agent/persons entitled through him b/c UN is intended to exercise & enjoy functions & rights which can only be explained on the basis of possession of large measure of int. personality & capacity to operate on int. plane. UN's ability to claim on behalf of B/his family isn't expressed in Charter but can be implied by way of necessary implication of essentiality to performance of its duties + injury may be such that state wouldn't be able to claim dipl. protection or agent could be stateless. Actions of UN aren't based on agent's nationality but on his status as an agent - doesn't contradict nationality claims.
? Individuals - [partial] legal personality at IL
- Lauterpacht - in practice, states are no longer subjects of int. rights & duties
- ICJ Statute - only states can be parties to int. proceedings but a number of other instruments have recognised capacity of others
- There's nothing in IL to prevent individuals from directly acquiring rights under treaty provided this is intended by contracting parties
- Non HR context - foreign investment claims under ICSID & BIT
- Customary IL obligations bind individuals directly regardless of law of their state & any contrary orders received from their superiors - crimes of IL are committed by men, not abstract entities, and that only by punishing individuals IL can be enforced.
? Insurgents, national liberation movements may also have personality at IL

? Totality of int. rights & duties recognised by IL as residing in independent territorial unit
? Not in itself a right/criterion of statehood
? Associated w/'sovereign equality' - a normative term/possibly unobjectionable
? Can't say b/c state is sovereign, its conduct isn't questionable, though!
Notion of Statehood

Evans-misleading to speak of 'creation of states'? not created the same way as cabinet maker creates a piece of furniture but emerge through spontaneous or organised political action on the part of comm. as a whole who articulate their common destiny in terms of political independence. To extent that there's reliance on 'effectiveness' for purposes of determining existence of state, the role of the law is ex post facto.

Crawford - purely empirical notion of statehood? a state isn't a fact in the sense in which a chair is but it has legal status attaching to certain state of affairs by virtue of certain rules & practices? exclusive & gen. characteristics: (a) plenary competence to perform acts, make treaties, in int. spheres (b) exclusive competence re internal affairs (naturally, may be constrained by IL) (c) not subject to compulsory int. process, jurisdiction, settlement w/out consent (d) 'equality' in IL
- Core of statehood but will always be subject to context.
? Statehood = a form of standing, rather than a set of rights (states exist at int. level but this is a concept, not a place = denotes a range of rights/resp. at that level)
? Not having treaty making powers is conclusive against being a state.
? Quest. ?whether there's objective criteria of statehood or open texture of rules enabling states to refuse the status to entities which in fact qualify to be treated as states?
= Evans's critique: C's analysis may work in context of states which emerge through consensual process but where they emerge out of conflict/dispute, the question is how to conceive a moment in which sovereign authority is created out of mere fact of forcible seizure of power.

Higgins: while the concept has an undeniable core, application of component elements will depend upon: a) purpose for which entity is claiming statehood b) circumstances in which the claim is made

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