Outline International Law I Outline

International Law I

1. What is a Nation-State?

   1. The Sovereign State

      1. Definition - SPLIT

         1. Every Nation which governs itself, under whatever form, and which does not depend on any other nation. (E. De Vattel, The Law of Nations - pg. 474)

         2. Sovereignty is the totality of international rights and duties recognized by international law. (pg. 475)

      2. General Law: (1) [E]ach Nation should contribute as far as it can to the happiness and advancement of other nations, and (2) [E]ach Nation should be left to the peaceable enjoyment of that liberty which belongs to it by nature. (E. De Vattel, The Law of Nations - pg. 473)

      3. Equality of Nations

         1. Nations are by nature equal and hold from nature the same obligations and the same rights. (pg. 473)

         2. What is lawful of unlawful for one Nation is equally lawful or unlawful for every other nation. (pg. 474)

         3. "No principle of general law is more universally acknowledged than the perfect equality of nations." The Antelope, 23 U.S. 66, 122 (1825).

         4. The organization is based on the principle of the sovereign equality of all its Members. (Article 2, Charter of the United Nations - pg. 961)

      4. Marks of Sovereignty: The rights, subject to "the lawes of God and nature" to:

         1. Make laws

         2. Name magistrates

         3. Hear final appeals

         4. Grant pardons

         5. Coin money

         6. Set weights and measures

         7. Impose taxes

         8. Wage war

         9. Exact "liege fealtie and homage"

   2. Recognition and Succession

      1. When does a State exist?

         1. Constitutive Theory vs. Declaratory Theory - SPLIT

            • Declaratory Theory: The political existence of the state is independent of recognition by other states. (Article 3, The Montevideo Convention - pg. 477)

              • "The state as a person of international law should possess (a) a permanent population, (b) a defined territory, (c) government, and (d) capacity to enter into relations with the other states." (Article 1, The Montevideo Convention - pg. 477)

              • The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. (Article 6, The Montevideo Convention - pg. 477)

            • Constitutive Theory: "[A] new State before its recognition cannot claim any right which a member of the Family of Nations has towards other members. . . . Through recognition only and exclusively a State becomes an International Person and a subject of International Law" (pg. 478)

         2. TEST re existence of a state (Notes): (1) Identifiable Territory, (2) Effective Control of Government, (3) Regular Population of Human Beings, and (4) Governing Body is conducting or endeavoring to conduct foreign relations.

      2. The principle of the continuity of states

         1. "Changes in the government or the international policy of a state do not as a rule affect its position in international law. . . . [T]hough the government changes, the nation remains with rights and obligations unimpaired. (The Tinoco Arbitration - pg. 484-85)

         2. "The state is bound by engagements entered into by governments that have ceased to exist; the restored government is generally liable for the acts of the usurper." (The Tinoco Arbitration - pg. 485)

         3. Applies to:

            • De jure governments: Legal government (concerning law)

            • De facto governments: (1) Government established itself and (2) maintains a peaceful administration with the acquiescence of the people for a substantial period of time. (See The Tinoco Arbitration - pg. 487)

      3. U.S. courts will generally not give effect to acts by states that the U.S. does not recognize. (See Cyprus Case - pg. 497-98) ("[W]ho is the sovereign of a territory is not a judicial question, but one the determination of which by the political departments conclusively binds the courts[.]")

         1. Restatement (Third) of the Foreign Relations Law of the United States § 205(1): "[A]n entity not recognized as a state, or a regime not recognized as the government of a state, is ordinarily denied access to courts in the United States[.]" (Supp. I - pg. 1)

            • Acts of Recognition (Notes):

              • Sending and receiving ambassadors

              • Making agreements (e.g. treaties/contracts)

            • US POLICY: It is not the policy of the government of the United States to recognize other governments, EXCEPT when it is...

         2. Restatement (Third) of the Foreign Relations Law of the United States § 205(2): "[A] regime not recognized as the government of a state is not entitled to property belonging to that state located in the United States[.]" (Supp. I - pg. 1)

         3. BUT, in some instances, courts in the United States can give effect to the acts of nonrecognized but "de facto" regimes if the acts relate to purely logical matters. (Cyprus Case - pg. 497)

            • Restatement (Third) of the Foreign Relations Law of the United States § 205(3): "[C]ourts in the United States ordinarily give effect to acts of a regime representing an entity not recognized as a state, or of a regime not recognized as the government of a state, if those acts apply to territory under the control of that regime and relate to domestic matters only." (pg. 497 n.15/Supp. I - pg. 1)

            • Distinction: Two types of de facto governments (Cyprus Case - pg. 499)

              • (1) Such as exists after it has expelled the regularly constituted authorities from the seats of power and the public offices, and established its own functionaries in their places, so as to represent in fact the sovereignty of the nation.

                • Acts of State generally recognized

                  • ". . . treated as in most respects possessing rightful authority, . . . [and] its legislation is in general recognized." (pg. 499)

              • (2) Such as exists where a portion of the inhabitants of a country have separated themselves from the parent State and established an independent government.

                • Whether acts recognized or not recognized depends on its ultimate success as a government

                  • "The validity of its acts, both against the parent State and its citizens or subjects, depends entirely upon its ultimate success. . . . If it succeed, and become recognized, its acts from commencement of its existence are upheld...

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