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Home Archive for category "States and Statehood" (Page 13)

The Relationship between National Law and International Law in the Report of the Georgia Fact-Finding Mission: A Rejoinder

Published on January 23, 2010        Author: 

Editor’s Note: This post is a continuation of a discussion engendered by a previous post by André de Hoogh. Readers will benefit from reading that previous post and the comments made in response to it. The previous post is available here

Earlier this month, I posted some thoughts on the aspects of the Report of the Georgia Fact-Finding Mission dealing with the relationship between international law and national law. That post generated some interesting questions and comments from Dapo Akande, John Dehn and Tobias Thienel. Somewhat belatedly, I am taking the opportunity to respond and to make some observations on some of the issues raised by that discussion.

First of all, Dapo, I would answer that I both reject the justification of rescuing nationals as an exercise of the right of self-defence, and the application of the suggested justification to that effect to the facts of the situation. Population as an essential ingredient of statehood cannot be taken to refer to the population (or citizens) of a State wherever located, but only to the population resident or present on the territory of a State (article 1 of the Montevideo Convention refers to a permanent population). Additionally, I have my doubts as to whether a self-standing justification to rescue nationals exists under customary international law.

Secondly, John, your reference to an international obligation that would relate solely to a matter of internal governance, and the possibility for a State to invoke its own foundational constitutional requirements, does not clarify why an appeal to that State’s constitutional law would be required at all. If the matter refers to an area within the domestic jurisdiction of States, there will be no need for a State to invoke its constitutional law since all it needs to do is to invoke the absence of any rule of international law regulating the topic. Where an international obligation does exist, whether under a treaty or a rule of customary international law, a State is barred from invoking its internal law including its constitution. Read the rest of this entry…

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Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia

Published on December 8, 2009        Author: 

Dr Tarcisio Gazzini is Associate Professor at the VU University Amsterdam. He has previously taught at the Universities of Padova (Italy) and Glasgow (UK_. He is an alternate member of the ILA Committee on Non-State actors and a member of the editorial board of the Leiden Journal of International Law. His publications include The Changing Rules on the Use of Force in International Law, Manchester University Press (2005).   

The recently published Report of the EU’s Independent Fact-Finding mission on the conflict(s) in Georgia can be considered in many respects as a successful experiment and a significant contribution to the establishment of the causes of the conflict(s) and the violations of jus ad bellum and of jus in bello.

Although the report offers several elements for reflection to international lawyers, this short comment focuses on the legal status of South Ossetia and Abkhazia which is crucial for the purpose of attributing international responsibility for violations of international law committed by these entities and their forces; qualifying the armed conflicts between Georgia and these entities, and identifying the applicable law, including the rules governing the use of military force and humanitarian law.

Legal Status of South Ossetia and Abkhazia

The question is discussed essentially in the first two sections of Chapter 3. The report seems to accept the view – clearly predominant in State practice and literature – that recognition is not a constitutive element of statehood. (see for eg, the Arbitral Commission of the Peace Conference in Yugoslavia, Opinion No. 1, 31 ILM (1992) 1494, ‘the existence and disappearance of the state is a question of fact’.) As a result, statehood needs to be determined on the basis of factual elements or criteria, although these criteria, according to the report, have not authoritatively been defined yet.

The report continues by listing three ‘minimal pre-conditions’ for statehood: (1) defined territory; (2) permanent population and (3) effective government. It then refers to the respect of legal principles of international law, notably self-determination and the prohibition to use force, as ‘additional standards’ for the qualification of an entity as a State (pages 127-8). The reader may have the impression that an entity must satisfy cumulatively ‘minimal pre-conditions’ and ‘additional standards’ before claiming statehood.

The report introduces three categories of entities: (1) (full) states fulfilling the relevant criteria for statehood and universally recognised; (2) state-like entities fulfilling the relevant criteria, but which are not, or not universally, recognised; and (3) entities short of statehood not fulfilling the relevant criteria, or only some of them, or only in a weak form, but eventually recognised by one or more states (page 128). Read the rest of this entry…

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The Honduran Crisis and the Turn to Constitutional Legitimism, Part I: The Place of Domestic Constitutional Orders in the International Legal Framework

Published on September 23, 2009        Author: 

Who is the current President of Honduras?  Far from the stuff of quiz shows, this question bears on the very foundations of international law.  The international reaction to the June 28, 2009 ouster of President Manuel Zelaya, though superficially similar to earlier repudiations of coups, is in important respects unprecedented.  Its implications have a profundity that few international actors – least of all, President Zelaya’s strongest international political allies – seem to have considered.

A decade ago, I explored at length the question of Governmental Illegitimacy in International Law.  The title was initially intended as a provocation, since the legitimacy of governments had ordinarily not been considered a proper object of international law.  It had largely been taken as a given that a ruling apparatus exercising “effective control through internal processes” – whether or not formally “recognized” – would be acknowledged to have legal standing to assert rights, incur obligations, exercise powers, and confer immunities on behalf of the underlying sovereign entity that enjoyed membership in the international legal order.

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Comment on Benvenisti & Downs’, ‘National Courts, Domestic Democracy, and the Evolution of International Law’

Published on June 23, 2009        Author: 

Alison MacDonald is an English Barrister at Matrix Chambers and was a Fellow at All Souls College, Oxford from 1999 to 2006. She has acted as counsel before a range of international tribunals including the European Court of Human Rights, the Special Court for Sierra Leone, the International Tribunal for the Law of the Sea, and in ICSID arbitrations. She has also appeared in cases raising international law issues in English courts, including before the House of Lords.

 In this comment on Benvenisti and Downs’ fascinating article, I set out some thoughts from the perspective of an English legal practitioner.

The English courts have been creative in developing legal rules and principles to avoid adjudicating on what have traditionally been considered to be core executive functions. Benvenisti and Downs describe such rules as ‘avoidance doctrines’, either ‘doctrines which were specifically devised for such matters, like the act of state doctrine, or general doctrines like standing and justiciability’. As they say, such doctrines ‘provided the executive with an effective shield against judicial review under international law.’ The doctrines of justiciability and act of state have fulfilled this function in English law, though their justification has been framed in terms of the courts’ competence to adjudicate on those issues, rather than in terms of protecting the executive from scrutiny, or protecting the courts themselves from difficult decisions or political criticism.

Certainly before the English courts, these ‘avoidance doctrines’ have been significantly eroded in recent years. Benvenisti and Downs’ article suggests that this erosion is part of a broader international trend, at least among ‘national courts from prominent democratic states’. English law continues to recognise an area of non-reviewable executive power, but it is shrinking.

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