1. LAW 221: INTERNATIONAL LAW
Dr. Başak Çalı

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

3. 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

4. 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?

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

6. 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

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

8. 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

9. 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

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

12. 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

13. 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

14. 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

15. 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

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

17. 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)

18. 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

19. 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

20. 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?

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

22. 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

23. 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?