Recognition of States Immigrants Refugees Idps Extradition and Asylum

Table of Contents
1. Introduction
2. Recognition Of State
3. Treaty
4. Asylum
5. Extradition
6. Statelessness
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Introduction

The topic "Recognition of States, Immigrants, Refugees, IDPs, Extradition and Asylum" under the chapter "Definition and Sources of International Law" explains the concept of state recognition, its theories, modes, and legal effects. It also elaborates on the role of treaties, their binding force under the Vienna Convention of 1969, and fundamental principles like pacta sunt servanda and rebus sic stantibus. This topic is significant in understanding how states gain legal status in the international community, how treaties function as sources of international law, and the legal doctrines that govern their enforcement, modification, and termination.

Recognition Of State

• Recognition of state under the International Legal System can be defined as "the formal acknowledgment or acceptance of a new state as an international personality by the existing States of the International community".
• It is the acknowledgment by the existing state that a political entity has the characteristics of statehood.

Essentials For Recognition As A State

• Article 1 of the Montevideo Conference, 1933 defines the state as a person and lays down the following essentials for recognition:
• It should have a permanent population.
• A definite territory should be controlled by it.
• There should be a government of that particular territory.
• That entity should have the capacity to enter into relations with other states.

Legal Effects Of Such Recognition

• It acquires the capacity to enter into diplomatic relations with other states.
• It acquires the capacity to enter into treaties with other states.
• The state enjoys the rights and privileges of international statehood.
• The state can undergo state succession.
• Recognition grants the right to sue and to be sued.
• The state can become a member of the United Nations Organization.

Theories Of Recognition

• The recognition of a new entity as a sovereign state is based on two main theories:
• Constitutive Theory
• Declaratory Theory

Constitutive Theory

• Exponents: Oppenheim, Hegal, and Anziloti.
• According to this theory, for a state to be considered an international person, recognition by existing states is required.
• Only after recognition does a state become a subject of international law with exclusive rights and obligations.
• Even if an entity possesses all characteristics of a state, it does not become an international person unless recognized.

Criticism Of The Theory

• It denies international rights and obligations until recognition, which is considered unfair.
• It causes confusion when some states recognize a new state and others do not.

Declaratory Theory

• Exponents: Wigner, Hall, Fisher, and Brierly.
• This theory asserts that the existence of a state is independent of recognition by other states.
• Article 3 of the Montevideo Conference, 1933 supports this theory.
• The new state has the right to defend its integrity and independence even before recognition.
• Recognition is seen as a formal acknowledgment, not a condition for existence.

Criticism Of The Theory

• It is criticized as being incomplete since legal rights come into full effect only after recognition.
• Both theories are complementary: declaratory applies initially, and constitutive applies after acknowledgment.

Modes Of Recognition

• De Facto Recognition
• De Jure Recognition

De Facto Recognition

• It is a provisional and temporary recognition of statehood.
• Granted when a new state has control but lacks stability.
• It may be conditional or unconditional.
• It serves as a test of control for new states.
• Example: Israel, Taiwan, Bangladesh.

De Jure Recognition

• It is the full and legal recognition of a new state when all conditions of statehood are fulfilled.
• It grants permanent sovereign status.
• Example: The Soviet Union (de facto recognized in 1921, de jure in 1924).
• Bangladesh (recognized by India and Bhutan in 1971; USA in 1972).

Distinction Between De Facto And De Jure Recognition

• Nature: De facto is provisional; De jure is legal and permanent.
• Criteria: De facto for essential conditions; De jure for full control and permanency.
• Precedence: De facto precedes De jure recognition.
• Conditionality: De facto may be conditional; De jure is unconditional.
• Revocability: De facto is revocable; De jure is not.
• Rights: De facto recognition gives limited rights; De jure gives full rights and obligations.
• State Succession: Not allowed under De facto; allowed under De jure.
• Diplomatic Immunities: Not enjoyed under De facto; fully enjoyed under De jure.

Forms Of Recognition

• Expressed Recognition
• Implied Recognition
• Conditional Recognition

Expressed Recognition

• Recognition through official declaration or notification.
• Usually considered De jure recognition unless stated otherwise.

Implied Recognition

• Recognition inferred through acts indicating acceptance of statehood.
• Granted without formal declaration and varies case by case.

Conditional Recognition

• Recognition with certain attached conditions like democracy, rule of law, or human rights.
• Criticized as recognition should be purely legal and unconditional once granted.

Withdrawal Of Recognition

Withdrawal Of De Facto Recognition

• May occur when the recognized state fails to maintain essential conditions of statehood.
• Can be withdrawn through declaration or public statement.

Withdrawal Of De Jure Recognition

• Rare and exceptional under international law.
• May occur if the state loses essential characteristics or in exceptional cases.
• Can be done by issuing a public statement by the recognizing state.

Recognition Of Government

• A government may need recognition when it changes through revolution, not through normal political transition.
• Conditions for recognition:
  • The new government must have effective control over its territory and people.
  • It must be willing to fulfill international duties and obligations.

Doctrines For State Recognition Of Government

• Tobar Doctrine: No recognition for unconstitutional governments. Recognition only for governments established through legitimate democratic means (1907).
• Estrada Doctrine: Recognition based on de facto existence, not legitimacy (1930). Promotes non-intervention and self-determination.
• Stimson Doctrine (1932): Non-recognition of territorial changes due to aggression. Embodies the principle "ex injuria jus non oritur" meaning an illegal act cannot create law.

Treaty

• A treaty is an agreement under international law between states or international organizations.
• It includes agreements, conventions, covenants, pacts, protocols, or exchange of letters.
• Treaties function like contracts creating legal obligations among parties.
• They are written documents containing a preamble and numbered articles outlining rights, obligations, and procedures for dispute resolution.
• Treaties can be bilateral (between two entities) or multilateral (among several states).
• They can be amended or supplemented through reservations, protocols, or formal amendments.
• Treaties may require implementing legislation or be self-executing.
• Interpretation follows the "ordinary meaning" in the context of the treaty's purpose.
• Treaties can end through withdrawal, suspension, or termination under defined conditions.
• Invalid treaties due to ultra vires acts or violations of peremptory norms are void.
• UN mandates registration of treaties and gives priority to UN obligations.

The Binding Force Of Treaties: Vienna Convention On The Law Of Treaties, 1969

• Adopted on May 23, 1969; came into force on January 27, 1980.
• Regulates treaties between states; applies only to written treaties.
• Divided into parts governing adoption, interpretation, modification, withdrawal, and invalidation of treaties.
• Includes provisions for ICJ jurisdiction over disputes.
• Under Article 26, "pacta sunt servanda" mandates that treaties must be performed in good faith.
• The USA has not ratified it but adheres to its principles.

General Principles

• Article 1: Convention applies to treaties between states and international organizations.
• Article 2: Defines key terms like ratification, approval, and reservation.
• Article 3: Agreements between international bodies and states are valid but not governed by the Convention's rules.

Treaties In International Law

• Treaties are a fundamental source of international law promoting peace, security, and cooperation.
• They have existed since ancient times, evolving from informal pacts to formal written agreements.
• Modern treaties are essential for maintaining global order and legal obligations among states.

Pacta Sunt Servanda

• Means "agreements must be kept".
• States must fulfill treaty obligations in good faith (Article 26, Vienna Convention).
• Ensures stability and reliability in international relations.
• Prevents states from disregarding obligations arbitrarily.
• Exceptions exist under mutual consent, subsequent treaties, or fundamental changes in circumstances.

Rebus Sic Stantibus

• Means treaties may be terminated due to fundamental change in circumstances.
• Recognized under Article 62 of the Vienna Convention on the Law of Treaties, 1969.
• Applies when unforeseeable changes alter the basis of obligations under the treaty.
• Ensures state interests are safeguarded while maintaining legal discipline.
• Subject to judicial scrutiny to prevent misuse and uphold international stability.

Asylum

The term Asylum comes from the Greek term and the Latin Asylon, meaning "immunity from capture." It refers to the legal protection given to individuals fleeing their countries due to war, conflict, persecution, or fear of persecution. Those seeking asylum are called Asylees. If granted, they may stay temporarily or permanently in a foreign country.

Process

• Application to a chosen country.
• Possible detention during evaluation.
• If approved, recognized as refugees with associated rights.

Legal Framework

• Universal Declaration of Human Rights (UDHR)
• Vienna Declaration on Human Rights and Programme of Action
• Convention on Political Asylum (1933)

Types of Asylum

A. Territorial Asylum

Granted within a state's territory under its sovereignty. Key points:

• State has discretion; no obligation to grant asylum.
• 1959 General Assembly call for codification.
• 1967 Declaration of Territorial Asylum: excludes serious international criminals and forbids activities against UN principles.

B. Extra-territorial Asylum
Protection outside a state's territory (diplomatic premises, warships, international institutions, merchant vessels) but subject to limitations.

• Diplomatic/legations: Exceptional circumstances (immediate danger, local custom, treaties).
• Consular premises: Same principles as diplomatic asylum.
• International institutions: Temporary asylum in imminent danger; not recognized by international law.
• Warships: May grant asylum for political offenders in extreme danger.
• Merchant vessels: Generally cannot grant asylum unless treaties allow.

Notable Cases

• Julian Assange: Granted asylum by Ecuador in 2012; later jailed for bail breaches; US seeks extradition.
• Colombia v. Peru (1950): Diplomatic asylum requires explicit agreement; mainly for political offenders.
• Dalai Lama in India (1955): India granted asylum despite absence of specific law.
• Australia, 1997: Asylum rejected for Chinese nationals fearing one-child policy persecution.

Extradition

Extradition is the process of returning an accused or convicted person to the country where the offense was committed. Origin: Latin "ex" (out) + "tradium" (give up); based on aut dedere aut judicare ("either extradite or prosecute").

States Involved

• Territorial state: Where accused fled.
• Requesting state: Where offense occurred; requests surrender diplomatically.

Principles of Extradition

• Reciprocity: Mutual cooperation between states.
• Double criminality: Offense must be a crime in both states.
• Double jeopardy (non-bis in-idem): No extradition if already tried/punished for same offense.
• Speciality: Accused can only be tried for the extradited offense (e.g., US v. Rauscher, 1886).

Prerequisites

• Extraditable persons: Non-nationals, non-political offenders, not previously punished for same offense.
• Extraditable crimes: Must be crimes in both states; excludes religious and military offenses.

International Model Laws

• Geneva Conventions (1949): Early cooperation on extradition.
• UN Model Treaty on Extradition (1990): 18 Articles; discretion of territorial state.
• UN Model Law on Extradition (2004): Supplements cases without treaties; prevents extradition for persecution based on caste, race, or ethnicity.

Challenges

• Misuse of double criminality by fugitives.
• Political offenders often avoid extradition.
• Procedures are time-consuming.
• India has treaties with limited countries.

Extradition under Indian Law

Governed by Extradition Act, 1962. Extradition may follow treaties or conventions in absence of a treaty. No explicit restriction on Indian nationals; depends on specific treaty.

Landmark Cases

• Savarkar (1910): Irregular capture from France; case rejected by Permanent Court of Arbitration.
• Vijay Mallya (2016-2018): UK court ordered extradition for financial crimes.
• Nirav Modi (2018-2021): UK court issued arrest warrant; extradition ordered.
• Re Castioni (1891): Political murder; UK refused extradition.
• Re Meunier (1894): Non-political crime; UK accepted extradition.

Jus Cogens

Peremptory norms of international law that cannot be derogated. Examples: slavery, torture, genocide, war crimes. All jus cogens are customary law, but not all customary law is jus cogens.

Statelessness

Globally, over 70 million displaced people exist: 24.9 million refugees, 41.3 million internally displaced, 3.5 million asylum seekers. Stateless persons lack nationality recognition under any country's law (1954 Convention). Example: Merhan Karimi Nasseri lived 18 years in Charles de Gaulle Airport.

Causes

• Discrimination based on ethnicity, gender, descent (27 countries restrict maternal nationality).
• Conflicts in nationality laws (birthplace, descent, marriage).
• State succession changes.
• Voluntary renunciation (rare).

UN and Other Efforts

• 1951 Refugee Convention
• 1954 Stateless Persons Convention
• 1961 Convention on Reduction of Statelessness
• UNHCR measures: prevent child statelessness, resolve existing cases, remove gender discrimination, facilitate naturalization, ensure birth registration.
• Organizations: Institute on Statelessness and Inclusion, European Network on Statelessness.

Consequences
Lack of access to basic, civil, social, economic, and political rights: voting, employment, education, marriage registration, medical care.

Statelessness in India
National Register of Citizens (Assam, 2019) excluded 19 lakh people, causing detention risks for those unable to prove citizenship.