International Law

States and Governments

States and Governments

A State must possess: A permanent population A defined territory A Government A capacity to enter into relations with

other States

States and Governments

Permanent Population Some, not all, must be permanent Size not important States decide who is a citizen

But must be a true relationship Jus cogens

States and Governments

Territory Control Exclusive legally and factually Defined [?]

“consistently controls a sufficiently identifiable core of territory”

States and Governments

States and Governments

Government Effective Control

Establish and maintain order De facto vs de jure War occupation Civil war Free from interference [?]

Any type of government is fine Legality of State not important

States and Governments

A capacity to enter into relations Not required by all An indicator of independence from

‘other’ control

States and Governments

Other Requirements??? Self-determination

Really??? Recognition by others

Evidence or proof of requirements?? More important if one or more of first

three elements are weak

States and Governments

Federal States Individual States rarely have the right

to be involved in international relations

If do, limited [e.g., cultural, economic]

States and Governments

Recognition of a State Legal requirements: Objective Test Political considerations Recognizing State or Government????

State: has all three (four) requirements Government: Is the third requirement

States and Governments Recognition: Legal Effects

Constitutive Theory: A State does not exist until recognized by most other States

Declaratory Theory: A question of fact: are the requirements met?

Recognition is just an acknowledgement that the facts are met.

OAS: Political existence of a State is independent of recognition by other States

States and Governments

Recognition: Other Effects Trade, Aid, Recognition of rights and

responsibilities Evidence that requirements are met May bring other treaties/rules into effect Establishing diplomatic relations still a

matter left to individual States Recognition of legal matters from State

States and Governments

Recognition of Governments Often a sign of approval Evidence that in control (Elements

3/4) Not required when new government

‘arrives’ by lawful means Very political when new government

‘arrives by force/war/coup

States and Governments

Recognition of Governments (Cont) Move to implied rather than

expressed recognition De facto vs de jure recognition of

governments EU’s attempt to revitalize the idea of

recognition