TCW Chapter 8

States

are entities that have rights and responsibilities under international law and which have the capacity to maintain their rights by bringing international claims

Nationality

a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests, and sentiments, together with the existence of reciprocal rights and duties

Refugee

a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/ her nationality, and is unable or, owing to such fear, is unwilling to avail himself/herself of the protection of that country

Elements of States

• permanent population

• defined territory

• government

• capacity to enter into relations with other states

States are created through the following:

• discovery and occupation

• prescription

• cession

• accretion

• conquest

Discovery and occupation

occurs when a territory belonging to any state is placed under the sovereignty of the claiming state

Prescription

when a territory is acquired through continuous and uninterrupted possession over a long period of time

Cession

involves the peaceful transfer of territory from one sovereign to another, with the intention that sovereignty should pass.

Accretion

the increase in the land area of the state, either through natural means, or artificially through human labor

Conquest

• the act of defeating an opponent and occupying all or parts of territory does not of itself constitute a basis of title to the land

• gives the victor certain rights under international law as regards the territory, the rights of belligerent occupation, but the territory remains subject to the legal title of the ousted sovereign

State recognition

an act by which a state acknowledges the existence of another state, government, or belligerent community and indicates its willingness to deal with the entity as such under the rules of international law

State recognition

• A political act and mainly a matter of policy on the part of each state.

• It is discretionary on the part of the recognizing authority.

• It is exercised by the political department of the state.

Principle of State Continuity

Being followed wherein once the identity of a state as an international person has been fixed and its position in the international community established, the State continues to be the same corporate person whatever changes may take place in its integral organization and government.

Wilson/Tobar Doctrine

This doctrine precludes the recognition of governments established by revolution, civil war, coup d'etat, or other forms of internal violence until the freely elected representatives of the people have organized a constitutional government

Betancourt Doctrine

This doctrine pertains to denial of diplomatic recognition to any regime, right or left, which came to power by military force

Lauterpacht Doctrine

• This doctrine precludes the recognition of an entity which is not legally a State as it constitutes an abuse of the power of recognition.

• It acknowledges a community which is not, in law, independent and which does not therefore fulfill the essential conditions of statehood as an independent state

Stimson Doctrine

This doctrine precludes the recognition of any government established as a result of external aggression

Rights of the States

• jurisdiction

• equality

• individual or collective self-defense

• independence

• legation

right to independence

Freedom from control by other state or group of states and not freedom from the restrictions that are binding on all states forming the family of nations and carries with it by necessary implication the correlative duty of non-intervention

Intervention

is an act by which a state interferes with domestic or foreign affairs of another state through the employment of force or threat of force which may be physical, political, or economic

right to equality

is underpinned in the doctrine of equality of states which provides that all states are equal in international law despite of their obvious factual inequalities as to size, population, wealth, strength, and degree of civilization.

Right to existence and self-defense

provides that a state may take measures including the use of force as may be necessary to counteract any danger to its existence

Aggression

Pertains to the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations

For a proper exercise of self-defense, the following must exist:

• An armed attack occurred against a member of the UN

• It must be confined to cases in which the necessity of self-defense is instant, overwhelming and leaving no choice of means and no moment for deliberation

• Measures taken must be limited by that necessity and kept clearly within it

• Must give way to measures that may be taken by the UN Security Council to maintain international peace and security

Collective self-defense

pertains to the rights of states to come to the defense of another state whose situation meets the condition of legitimate individual self-defense

Anticipatory self-defense

is when the use of force in anticipation of an attack is deemed legal if made in good faith, depending on the circumstances of imminent danger

Right to territorial integrity and jurisdiction

encompasses the right of the state to its terrestrial, maritime and fluvial, aerial and space covered by its territory

Right to legation

pertains to the right of the state to send and receive diplomatic missions, which enable states to carry on friendly intercourse

Nationality

is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests, and sentiments, together with the existence of reciprocal rights and duties

Statelessness

• pertains to the status of having no nationality as a consequence of being born without any nationality or as a result of deprivation or loss of nationality

• adversely affects a person's right to exercise rights and privileges usually enjoyed by citizens of a state, such as employment, right to work, right to property, right to education, among others

Damnum absque injuria ("loss or damage without injury")

Any wrong or injury suffered by a stateless person through the act or omission of a state

Refugee

It includes stateless persons who are outside the country of his habitual residence and is unable or, owing to such fear is unwilling, to return to it

Principle of non-refoulement

A principle wherein in addition to not returning the refugee to his/her own state, he/she must not be sent to a third state if his/her life or freedom would there be threatened on account of his/her race, religion, nationality, membership of a particular social group or social opinion

Exemptions for principle of non-refoulement

• when there are reasonable grounds for regarding the refugee as a danger to the security of the state

• having been convicted of a particularly serious crime, constitutes a danger to the community of the state

Salient rights of refugees

• non-discrimination

• wage-earning employment

• free access to courts

• duty of non-refoulement of states

• self- employment

• housing

• freedom of religion