LAW 221: INTERNATIONAL LAW Dr. Başak Çalı

Outline Enforcement of international law What is a state? What differentiates states from other legal personalities? Recognition of states Outline

IL: A horizontal system There is no enforcement body There is no centralised coercion mechanism IL does not often come in the form of court judgments. States need to enforce treaties, custom as well as court judgments and arbitration pronouncements (also called secondary compliance/enforcement) IL: A horizontal system

Who enforces international law? Executive organs of states (e.g. by not deporting a terrorist suspect, by allowing a diplomat in the country) Legislative organs of states (e.g. by enacting, or repealing legislation, e.g. legislation on diplomatic immunity) Judicial organs of states (e.g. by refusing to have jurisdiction or by actively pursuing jurisdiction) Who enforces international law?

Enforcement of international law There are four central modes of enforcement in IL Enforcement of international law

Self-enforcement (when it is in a state’s self interest to enforce international law or when the IL norm conforms with a state’s own set of norms/identity) Persuasion (when a state is persuaded by other states/international actors to enforce IL) Acculturation (when a state enforces IL when others around it does so) Coercion (when a state is forced to enforce IL by another state) Four modes

‘Most states respect most of international law most of the time’ HENKIN Self-enforcement

Why self-enforce? Self interest – economic, or non-material Concerns that non-enforcement may lead to reprisals by other states, i.e. counter-measures concerning diplomatic immunity Concerns that non-enforcement may harm reputation of states in the long term, i.e. bilateral investment treaties

Persuasion, acculturation, coercion Persuasion: assumes that the state actors are open to revisiting their points of view, e.g. banning of child soldiers Acculturation: assumes that states like to be seen to act in certain ways by other states, e.g. non-discrimination clauses in most Constitutions Coercion: assumes that by force a state can change its course of actions, i.e. S.C. supported action in Afghanistan in 2001. Persuasion, acculturation, coercion

The most important actor in IL What is a state? States make IL States enforce IL The most important actor in IL

Territory People Government Capacity to enter into relations with other states What is a state? Article 1 of the Montevideo Convention on the Rights and Duties of States

Capacity to enter into relations with other states Two aspects: Internal sovereignty: the final authority at home External sovereignty: equal sovereignty with all other states plus a guarantee in non-interference in internal affairs (United Nations Charter Articles 2(1) and 2(7) Capacity to enter into relations with other states

Montevideo Convention only offers a benchmark Territory: Holy Sea is a state Population: Nauru is a state, Taiwan is not. Government: Somalia is a state Capacity to enter into relations with other states: Palestinian Authority is not a state Montevideo Convention only offers a benchmark

Montevideo clauses are necessary, but not always sufficient conditions Recognition of states by other states is an important aspect of effective statehood, in particular to claim external sovereignty. Recognition of other states is at once a political and a legal act. Montevideo clauses are necessary, but not always sufficient conditions

Two theories of recognition The declaratory theory The constitutitve theory Two theories of recognition

EU Guidelines on Recognition (1991) “'The Community and its member States adopt a common position on the process of recognition of these new States, which requires: - respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights; - guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE - respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement; - acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability; - commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes. The Community and its member States will not recognise entities which are the result of aggression.” EU Guidelines on Recognition (1991)

Non-recognised states Non recognised states are entities that meet the qualifications in the Montevideo Convention, but their CAPACITY to govern and enter into relations with other states officially is not recognised by other states. Non-recognised states

Recognition, Non-recognition KKTC is recognised only by Turkey South Osetia is recognised by Russia Kosovo: a case of mixed recognition Taiwan: recognised by a small number of states Sahrabi Arab Democratic Republic Recognition, Non-recognition

What consequences flow from non-recognition? The validity of nationality documents and travel documents would be contested Cannot have diplomatic representation in other states Cannot become a member of international organisations Cannot have its own international airlines Cannot benefit from international aid What consequences flow from non-recognition?

Entities short of statehood Some entities have territory, people and government, but are not states. What are these? Entities short of statehood

Entities short of full statehood Non self-governing territories States that have ceded their powers of statehood to a federal or confederative entity Indigenous peoples Entities short of full statehood

How can new states emerge in the IL system? Dissolution of federations, confederations, union of states (i.e. the USSR, Czechoslovakia) Remnants of decolonisation, mandate systems (i.e. Timor Leste, Western Sahara) Secession by way of constitutional referendum (ongoing discussions in Scotland and Catalunya) Creation of new states by peace treaties (i.e. South Sudan) How can new states emerge in the IL system?