PUBLIC INT’L LAW

CLASS FOUR

INT’L PERSONALITY, GOVTS & RECOGNITION

Prof David K. Linnan

USC LAW # 783

09/09/03

STATE ELEMENTS

WHAT DOES A STATE REQUIRE:1. PERMANENT POPULATION2. DEFINED TERRITORY3. EFFECTIVE GOVERNMENT4. CAPACITY TO ENTER INTO RELATIONS WITH OTHER STATES

STATES ARE TRADITIONAL PERSONALITY MEASURE

PERMANENT POPULATION

PERMANENT POPULATION NOT USUALLY AN ISSUE, EXAMPLES:1. NO PERMANENT POPULATION IN ANTARTICA OR ON MOON, SO ASIDE

FROM OTHER ISSUES DIFFICULT TO CLAIM STATE STATUS

2. WHAT OF DISPLACED POPULATIONS (E.G., PALENSTINEAN REFUGEES) OR PROBLEM OF ETHNIC DEFINITION

(LINKED TO SELF-DETERMINATION ISSUES & DOES A PEOPLE HAVE A RIGHT TO

OWN STATE)

DEFINED TERRITORY

QUERY:

CAN YOU HAVE A STATE WITHOUT DEFINED BOUNDARIES?

EXAMPLES IN ISRAEL INDICATING NO, WHAT OF THE PALESTINEANS CURRENTLY?

EFFECTIVE GOV’T

ARE RULES THE SAME FOR1. ESTABLISHING ORDER IN FIRST

PLACE (E.G., FINLAND FROM RUSSIA)2. LOSING ORDER PREVIOUSLY ESTABLISHED (SOMALIA & FAILED STATES)3. SECESSIONS (E.G., AFRICAN SECESSIONS LASTING YEARS WHERE CENTRAL GOVT LOSES CONTROL OF PROVINCE)

STATE RELATIONS & CAPACITY

CAPACITY TO ENTER INTO RELATIONS WITH OTHER STATES

TWO VIEWS:1. CONSTITUTIVE (REQUIRES FOREIGN STATES TO ACT, BUT ARGUABLE DUTY TO ACT)2. OBJECTIVE (BASED ON INDEPENDENT STATUS, IDEA THAT FAILURE TO RECOGNIZE NOT EFFECTIVE, EXAMPLE PRC PRE-1970 (US DID NOT RECOGNIZE) & ISRAEL PRE-1990s (SOME ARAB STATES IN PARTICULAR)

STATE RELATIONS & CAPACITY

PROBLEMS:

WHAT TO DO IN CONJUNCTION WITH BREAK-UP OF THE FORMER YUGOSLAVIA (EU & GERMANY PRESSED RECOGNITION)?

WHAT TO DO WITH PALESTINEANS CURRENTLY?

RECOGNIZING WHEN THERE IS NO STATE PRESENTS AN INTERNAL INTERFERENCE QUESTION WITH SECESSIONS, ETC.

STATES VS GOVERNMENTS

ISSUE WHETHER RECOGNIZING STATES SAME THING AS RECOGNIZING GOVERNMENTS?

IS RECOGNITION OF A GOVERNMENT THE SAME THING AS MAINTAINING DIPLOMATIC RELATIONS WITH IT?

IS RECOGNITION OF A GOVERNMENT EVEN NECESSARY, ASSUMING THE FORM OF GOVERNMENT IS A CHOICE SOLELY FOR LOCALS?

STATES VS GOVERNMENTS

HISTORICAL VIEWS:1. JEFFERSON SAID IF FRENCH WANTED MONARCHY OR REPUBLIC, US SHOULD DEAL WITH THE FRENCH PEOPLE’S CHOICE2. WILSON & BETANCOURT VIEWS CIRCA WWI, REQUIRED CONSTITUTIONAL SUCCESSION UNLESS ELECTION3. US WITH SOVIET UNION & PRC CONDITIONED RECOGNITION ON EFFECTIVE CONTROL PLUS WILLINGNESS TO LIVE UP TO INT’L COMMITMENTS4. TRUMAN & COLD WAR LIMITATIONS ON RECOGNIZING GOVT OF “COMMUNIST SUBVERSION” (BALTIC COUNTRIES)5. EU CONDITIONED RECOGNITION OF FORMER YUGOSLAVIA STATES ON DEMOCRACY & RESPECT FOR BOUNDARIES

STATES VS GOVERNMENTS

MOST CURRENT (US) VIEW OF RECOGNITION IS PROBABLY ESTRADA DOCTRINE (1930)

NOT NECESSARY TO RECOGNIZE GOVERNMENT ONCE A STATE IS RECOGNIZED, REDUCING TO EFFECTIVE CONTROL TEST

UNRECOGNIZED GOVERNMENTS

PROBLEMS:

CAN THEY BIND THE STATE?

WHAT ABOUT THE ACT OF AN INSURGENT AUTHORITY IN CONTROL OF TERRITORY?

WHAT OF UNRECOGNIZED GOVERNMENTS IN MUNICIPAL LAW?

UNRECOGNIZED GOVERNMENTS

TINOCO ARBITRATION (GT BRITAIN V COSTA RICA 1923)

REGIME CAME TO POWER IN A COUP AND REMAINED TWO YEARS, DURING WHICH TIME IT GRANTED OIL CONCESSION TO BRITISH COMPANY. AFTER COUP REGIME REPLACED, NEW GOVT REPUDIATED CONTRACT. BRITISH HAD NOT RECOGNIZED COUP REGIME, BUT SAID CONTRACT VALID. HELD A DE FACTO GOVERNMENT EXERCISING AUTHORITY CAN BIND STATE.

UNRECOGNIZED GOVERNMENTS

PROBLEM OF INSURGENCY AND WHEN ITS AUTHORITY BECOMES DE FACTO GOVERNMENT?

1. ISSUE RE BELLIGERENT RIGHTS FOR INSURGENTS2. INSURGENTS IN CONTROL OF TERRITORY MAY BE DE FACTO GOVERNMENTS WHICH CAN BIND THE STATE (SOME ISSUE RE ORDINARY GOVT FUNCTIONS VS OTHERS SUCH AS CONTRACTS WITH TEST IN SIZE OF TERRITORY & POPULATION CONTROLLED)

UNRECOGNIZED GOVERNMENTS

PROBLEM OF UNRECOGNIZED GOVT IN MUNICIPAL LAW

NORMALLY RECOGNIZED ON A PASSIVE BASIS AS AT LEAST DE FACTO AND SO CAN AFFECT PRIVATE RIGHTS (PROBLEM IS USUALLY NATIONALIZATION, ETC.)

TRADITIONAL RULE (INCLUDING US) IS THAT UNRECOGNIZED GOVTS CANNOT MAINTAIN ACTION IN US COURTS

ACTORS IN INT’L LAW OTHER THAN STATES

Public international organization

1. Eg, UN itself & constitutive suborganisations created under treaty like FAO & WHO, or organs like UNICEF & High Commission for Refugees

2. Typically, general assembly, smaller executive council & permanent staff

Non-governmental international organisations (NGOs)1. Eg, Red Cross/Paling Merah (with functions under Geneva

War Conventions) or environmental/labor organizations

2. But most NGOs have not been accorded status of international legal persons

ACTORS (CONT’D)

Multinational public enterprises

1. Bank for International Settlements in Basel as central banker’s bank with mixed international and municipal law application2. INTELSAT agreement w/o municipal law application, rather arbitration & generally accepted principles of law

INTERNATIONAL PERSONALITY & INTERNATIONAL ORGANISATIONS

1. Is “personality” an inherent (or objective) attribute of international organizations, or does it depend on constitutent instrument & powers expressly/implicitly granted to it

2. Does “personality” imply certain fixed or minimal rights & duties, or doe they derive from int’l organization’s powers & duties

3. Whether denial of international persoinality by members states means entity cannot be regarded as an international organization under international law

TRANSNATIONAL CORPORATIONS AS PLAYERS?

1. Traditional bugaboo as “exploitive” neocolonialism & idea idea of private entities more powerful than countries

2. Concerns about economic & political power (FCPA background), labor groups due to concerns about “exporting jobs,” consumers due to concerns over goods like GMO, now generically anti-globalisation folks

3. Traditional analysis, corporations have nationality of incorporation state and rely on it for diplomatic protection (Barcelona Traction infra)

TRANSNATIONAL CORPORATIONS, EFFORTS TO CONTROL

1. Idea of special “international charter” approach

2. Idea of “code of conduct” approach (TNCs wanted eventually, since responsibilities & external influence under # 1)

 3. Violent anti-globalization protests

indirectly anti-TNC

INDIVIDUALS AS PLAYERS?

1. Traditional view only states are players, individuals covered by “diplomatic protection” (Eg, Mavromatis Case, PCIJ 1924), with distinction of in who or what resides the right

2. But traditional view of individual responsibility under laws of war

3. Anti-terrorism Conventions with applicability to individuals (analogy to “piracy” as offense against law of nations)

4. Now modern issues re “human rights” as law (natural rights? UN Charter creation?)

NATIONALITY CONCEPT

1. Traditional link between individual & State (inclusive/exclusive)

2. 1930 Hague Convention view that States must determine own nationals subject to broad principles (possibility of conflicts)

3. Nationalisation by waiver concepts such as purchase of real estate, marriage or residence

4. Rules differ, but basic pattern of parentage or birth location

NATIONALITY CONCEPT

Relative concept with consequences in other spheres

1. Right of residence

2. Right to work

3. Right to state of nationality protection

4. Right to 3-P country treatment as national (eg, neutrality in conflicts, etc.)

5. Practical effects of deprivation & limitations

NATIONALITY CONCEPT

• Nottebohm Case (Lichtenstein v Guatamala, ICJ 1955)

• German national in residence in Guatamala since 1905 except vacation & business trips to Europe, in 1939 was nationalised in neutral Lichtenstein with residency waiver; 1941 US goes to war against Germany, Nottebohm deported & interned as enemy alien in US with later Guatamalan confiscation of property & refusal to readmit

• Does Guatamala have a duty to recognize Lichtenstein nationality?

NATIONALITY CONCEPT

• Nottebohm (cont’d)

• State cannot assert its protection for a person deemed a national unless person has a genuine connection

• “Juridical expression of a social fact,” tenuous connection here

NATIONALITY CONCEPT

Dual nationality concept

US ex rel Merge v Italian Republic (Concil. Comm’n 1955)

US-born person married Italian national & under Italian law acquired Italian nationality; she went to Japan with spouse, where she was registered as US citizen with US consulate, later brought claim for war damages on loss of Italian property based on claim was American citizen

What is test with dual nationalities in apparent conflict?

NATIONALITY CONCEPT

• US ex rel Merge (cont’d)

• 1930 Hague Convention dual nationality view that a State could not assert diplomatic protection against another State claiming the affected individual as its own national

• 1930 Hague Convention 3-P country rule determining “effective nationality” based on habitual and principal residence, or where closest connection

• State of predominant nationality can assert protection against state with inferior nationality claim, “dominant nationality” ultimately physical residency & professional life for head of family

NATIONALITY CONCEPT

What is the nationality of juristic persons?

Barcelona Traction (Belgium v Spain, ICJ 1970)

Barcelona Traction was incorporated in Canada with project in Spain, owned by Belgian shareholders; Spain allegedly violated Barcelona Traction’s concession but Canada did not wish to assert diplomatic protection so Spain wanted to do so: only State of incorporation not State of shareholders entitled

NATIONALITY CONCEPT

Protection of Economic Interests of Foreigners

1. Foreign investment problem of countries requiring investment to be in locally incorporated subsidiary

2. Rich countries reject Barcelona Traction rule, often seek to overturn it in FCN treaties

3. Problem within regional groupings such as NAFTA or AFTA guaranteeing national treatment to other member countries’ citizens; do you go by state of incorporation, or by state of ultimate beneficial ownership in conflict with Barcelona Traction?

BIG OIL & ZAZACHSTAN

HOW TO ANALYZE, BASED UPON PRIOR MATERIAL?

SELF-DETERMINATION

WHAT IS THE RELATIONSHIP BETWEEN A PEOPLE AS DISTINCT ETHNIC GROUP AND THEIR RIGHT, IF ANY, TO THEIR OWN STATE?

THE ISSUE IS ULTIMATELY WHERE YOU DRAW THE LINE BETWEEN MINORITY RIGHTS IN A LARGER STATE VERSUS OWN STATE?

INDONESIANS AS ACUTELY CONSCIOUS OF PROBLEM SINCE TWO SIMMERING INSURGENCIES PRESENTLY (ACEH & PAPUA)

HISTORY & SELF-DETERMINATION

PRE-WWI 19TH CENTURY COLONIAL INDEPENDENCE IN SOUTH AMERICA

HOWEVER, COLONIAL ADMINISTRATIVE BOUNDARIES PRESERVED IN SOUTH AMERICA (SAME PATTERN FOLLOWED IN AFRICAN DECOLONIZATION POST-WWII)

EFFECTIVELY, NO RECOGNITION OF ETHNIC SELF-DETERMINATION RATHER ONLY COLONIAL INDEPENDENCE

HISTORY & SELF-DETERMINATION

WILSON & TREATY OF VERSAILLES ENDING WWI1. BREAK-UP OF AUSTRO-HUNGARIAN EMPIRE, PROBLEM RE BALKANS & SMALL NATIONALITIES (OLD ABSENTEE MONARCH APPROACH,NOW DEMOCRACIES)2. PROBLEM OF LEAGUE OF NATIONS MANDATORY TERRITORIES HEADED FOR INDEPENDENCE (E.G., MIDDLE EAST AS OTTOMAN EMPIRE BREAK-UP)

HISTORY & SELF-DETERMINATION

POST WWII1. NATIONALITY DETERMINED BY LANGUAGE (DISPLACED PERSONS & GERMANS FROM EASTERN EUROPE)2. DECOLONIZATION WAVE LATE 1940s-1960s (MOSTLY RESPECTING EX-COLONIAL ADMINISTRATIVE BOUNDARIES)3. 1970s-1980s AND CONTINUING SECESSIONS IN EX-COLONIES, EXAMPLE OF EAST & WEST PAKISTAN SPLITITNG INTO PAKISTAN & BANGLADESH4. 1990s FORMER YUGOSLAVIA SPLIT UP5. AMONG MOST RECENT SPLITS TIMOR LOROSAE SECEDING FROM INDONESIA (FORMER EAST TIMOR)6. HELSINKI ACCORDS EMPHASIS ON MINORITY PROTECTION

SELF-DETERMINATION

WHAT IS THE TEST OF SUCCESSFUL SELF-DETERMINATION/SECESSION?1. ESTABLISHING ELEMENTS OF STATE UNDER TRADITIONAL TEST BY FORCE OF ARMS (EFFECTIVE GOVERNMENT, BUT FOR HOW LONG & EXTERNAL INTERFERENCE ISSUES)

2. PLEBESCITE OF POPULATION SOMETIMES (ISSUE WHO IS POPULATION, EXAMPLE IN ISRAEL DOES IT INCLUDE PALESTINEAN REFUGEES NOW 50 YEARS OUTSIDE COUNTRY’S BORDERS)

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