Chapter 4 Guidance on Answering the Questions in the Book

Question 1:
Why is legal personality a relative concept?

Guidance:
The question concerns the issue of legal personality or legal subjectivity in international law. At the outset it can be noted that the book states that subjects of international law are those that are given the capacity to hold rights, powers and obligations by international law. The reason why legal personality is a relative concept is because not all actors in the international legal system possess the same rights and obligations. While states have all the rights and obligations, other actors only possess those rights and obligations provided by states.

Question 2:
What is the problem with the two approaches to the role of recognition (the declaratory and the constitutive)?

Guidance:
The question asks the students to engage with the two competing approaches to the legal effects of recognition of new states. The book notes that, while a declaratory view holds that the creation of states is a matter of fulfillment of legal criteria and in practice one of effectiveness, the constitutive view holds that recognition by other states is a precondition for statehood. The book argues that the constitutive approach is problematic because it essentially means that the existence of a state is inherently relative. In addition, the constitutive approach raises a host of complex issues regarding what level of recognition is required before an entity can be said to constitute a “state”. Although contemporary international law (as reflected in the Montevideo Convention) is based on the declaratory approach, there are a few cases where statehood has been denied to entities that seem to fulfill the formalized legal criteria.

Question 3:
What is the difference between an internal and an external right to self-determination? Why is the distinction important?

Guidance:
The question concerns the contentious issue of self-determination and statehood. The book initially notes that the right to self-determination stipulates that all peoples have a right to freely determine their political status and pursue their economic, social and cultural development and that it became an important principle after the end of the Second World War. The extent of the right is particularly controversial in relation to the question of statehood where there is merit to a conceptual distinction between internal self-determination or autonomy and external self-determination or statehood. A right to internal self-determination refers to a people’s political, economic, social, and cultural development within the framework of an existing state while external self-determination refers to the entitlement to statehood. The book notes that it is well-established that colonial people and other people subject to alien subjugation, domination, or exploitation have a right to external self-determination and thus statehood if they so desire. It also notes, however, that it is very doubtful if a similar right can be relied upon by other peoples. To that end the book refers the students to the 1998 decision by the Canadian Supreme Court in Reference re Secession of Quebec where the Court noted that a right to external self-determination or statehood only arises in the most extreme of cases and that it must require a situation of extreme oppression and the almost total denial of meaningful internal self-determination for a people.

Question 4:
Does Kosovo have a right to secede from Serbia?

Guidance:
The question essentially follows up on the previous question and asks the students to apply the right to self-determination to the question of the province of Kosovo. The book notes that the Assembly of Kosovo in 2008 declared Kosovo’s independence from Serbia and that the ICJ in 2010 issued an advisory opinion on the legality of that declaration. However, the Court refrained from discussing whether Kosovo had the right to secede. While the population in Kosovo does not fulfill the established criteria for possessing a right to external self-determination/statehood (see Question 3), there is room for discussion about the extent to which the suppression of the local population may exceptionally make the province qualify. Students may well disagree about this issue. In addition, the case of Kosovo illustrates the practical effects of recognition. Although the book argues that recognition is not a precondition for statehood it also notes that the importance of recognition for the establishment of bilateral relations, including the initiation of diplomatic representations and treaty relations. So even if one were to conclude that Kosovo should be entitled to statehood despite the lack of recognition by some states, there would still be practical implications associated with a lack of recognition.

Question 5:
What did Judge Huber mean when he stated that ‘the continuous and peaceful display of territorial sovereignty is as good as title’?

Guidance:
The question concerns the issue of acquisition of new territory and asks the student to discuss the complicated issue of occupation and prescription. The quote from Huber is from his 1928 arbitral award in the Island of Palmas case concerning the dispute that related to Spain’s cession of the Philippines to the United States in 1898. The parties – the Netherlands and the United States – disagreed about title to an island located between the Philippines (the United States) and a string of islands then belonging to the Netherlands. Judge Huber noted that ‘the continuous and peaceful display of territorial sovereignty is as good as title’ to illustrate that what is decisive is who effectively occupies a contested territory. The book notes that the important issue is which state actually behaves most like a state in the contested territory in question.

Question 6:
Is Palestine a state for the purposes of international law?

Guidance:
The question engages with the controversial and highly politicized issue of Palestinian statehood and asks the student to apply the criteria in the Montevideo Convention to the Palestine. The book notes that the UN General Assembly in November 2012 granted Palestine status as a ‘non-member observer State’ and that Palestine on that basis may now be referred to as a state within the United Nations. In 2015, Palestine also acceded to the Rome Statue of the International Criminal Court. With regard to the Montevideo-criteria, the students should conclude that Palestine appears to fulfil the first three conditions. It is more uncertain with regard to the final condition – a capacity to enter into relations with other states - since Palestine is under foreign occupation and Israel controls the international borders and maintains external security.

Question 7:
From where do international organizations derive their legal personality? How do you determine the extent of an international organization’s rights and obligations under international law?

Guidance:
The question forces the student to engage with the issue of relative subjectivity referred to in Question 1. The book notes that international organizations are established on the basis of treaties and therefore derive their legal personality from states. The extent of an organization’s rights and obligations therefore depend on what the states intend and what rights they have afforded them. The book notes that the rights and obligations usually include the authority to conclude necessary agreements governed by international law as well as immunity from the exercise of jurisdiction by national courts. They may generally also be held responsible for violating their obligations. Question 1 in Chapter also referred to the fact that constituent treaties that create international organizations are traditionally interpreted in a manner that ensures that the organization possesses the powers and authority required for it to effective fulfill the functions it has been provided.

Question 8:
When it comes to the issue of statehood, can you provide some examples of where there might be a tension between, on the one hand, notions of justice and, on the other, international stability?

Guidance:
The question asks the student to consider the importance of the principles of statehood for the overall stability and order in the international society briefly discussed in Chapter 1. At the outset it may be noted that the declaratory approach with its emphasis of effectiveness illustrate the importance of stability and predictability. Question 3 also raised the issue of a right to self-determination and statehood and noted that it is highly doubtful if international law recognizes a right to external self-determination or secession outside those instances of colonial domination or similar alien subjugation, domination, or exploitation. As the book notes, there is an obvious tension between the rights of the people who want their own state and the maintenance of international peace and stability. International stability clearly speaks in favor of keeping the territorial integrity of existing states and therefore requires people to pursue their right to self-determination within their existing state. In general, reference could be made to Question 6 in Chapter 1 on the tradeoffs between justice and order and stability in international law.