Cheat Sheet: State Under International Law

1. Concept and Elements of Statehood

1.1 Definition of State

1.2 Essential Elements of Statehood

1.2.1 Permanent Population

• No minimum number required; population must have intention of permanent residence
• Nationality bonds link individuals to state; population need not be homogeneous
• Nomadic populations can constitute permanent population if habitually residing in territory

1.2.2 Defined Territory

• No minimum size requirement; territory must be reasonably consistent and identifiable
• Precise boundaries need not be finally delimited; unsettled boundary disputes do not negate statehood (Israel example)
• Territory includes land, internal waters, territorial sea, airspace above
• State must exercise effective control over core territory

1.2.3 Government

• Effective government with centralized administrative and legislative organs
• Must exercise effective control and authority over territory and population
• Temporary absence of government does not destroy statehood (Somalia situation)
• Nature of government (democratic/authoritarian) irrelevant to statehood

1.2.4 Capacity to Enter into Relations

• Sovereignty and independence in external affairs
• Legal capacity to engage with other states and international organizations
• Must not be subject to control of another state in international relations
• Distinction from internal sovereignty (control over domestic affairs)

2. Recognition of States

2.1 Nature and Concept

2.2 Theories of Recognition

2.3 Modes of Recognition

2.3.1 De Jure Recognition

• Full, complete, and final recognition of statehood or government
• Implies permanence and legal validity; creates full diplomatic and legal relations
• Cannot be withdrawn except in exceptional circumstances

2.3.2 De Facto Recognition

• Provisional recognition acknowledging effective control without finality
• Granted when situation uncertain or recognizing state wishes to maintain flexibility
• Can be withdrawn; lesser degree of diplomatic relations
• Example: Recognition of insurgent governments during civil wars

2.4 Legal Effects of Recognition

• Capacity to bring claims in courts of recognizing state
• Entitlement to state immunity and diplomatic privileges
• Right to demand property and assets located in recognizing state
• Non-recognition does not nullify statehood but limits practical legal relations

2.5 Collective Recognition and Non-Recognition

• UN membership operates as collective recognition by member states
• Stimson Doctrine: Non-recognition of situations created by illegal use of force
• Duty not to recognize situations resulting from serious breaches of jus cogens (Article 41, ILC Articles on State Responsibility)
• Example: Non-recognition of annexation of Crimea (2014)

3. State Sovereignty and Independence

3.1 Concept of Sovereignty

3.2 Sovereign Equality of States

• Article 2(1) UN Charter: Organization based on sovereign equality of all members
• Each state has one vote in UN General Assembly regardless of size or power
• Equal juridical personality; no state subject to jurisdiction of another without consent
• Equality before international law; same rights and obligations apply to all states

3.3 Limitations on Sovereignty

3.3.1 Consensual Limitations

• Treaties and international agreements voluntarily undertaken
• Membership in international organizations (UN, WTO, regional bodies)
• Customary international law accepted by state practice

3.3.2 Peremptory Norms (Jus Cogens)

• Prohibition of use of force (Article 2(4) UN Charter)
• Prohibition of genocide, slavery, torture
• Principle of self-determination
• No derogation permitted; treaties violating jus cogens void (Article 53, Vienna Convention)

3.4 Non-Intervention Principle

• Corollary of sovereignty; states must not intervene in internal/external affairs of other states
• ICJ Nicaragua case (1986): Intervention prohibited when directed at matters of domestic jurisdiction
• Exceptions: Consent, UN Security Council authorization under Chapter VII, self-defense (Article 51)

4. State Jurisdiction

4.1 Types of Jurisdiction

4.2 Principles of Jurisdiction

4.2.1 Territorial Principle

• State has jurisdiction over all persons and events within its territory
• Subjective territoriality: Offense commenced in state's territory
• Objective territoriality: Offense completed or produced effects in state's territory
• Lotus case (PCIJ 1927): Effects doctrine for territorial jurisdiction

4.2.2 Nationality Principle

• Active nationality: Jurisdiction over nationals wherever located
• Passive personality: Jurisdiction when national is victim of offense abroad (limited acceptance)
• Nottebohm case (ICJ 1955): Genuine link required between state and national

4.2.3 Protective Principle

• Jurisdiction over acts abroad threatening state security or vital interests
• Covers offenses like counterfeiting currency, espionage, immigration violations
• Must involve serious threats to fundamental state interests

4.2.4 Universal Jurisdiction

• Any state may exercise jurisdiction regardless of territorial or national link
• Applies to crimes of universal concern: Piracy, war crimes, crimes against humanity, genocide, torture
• Eichmann case (Israel 1961): Universal jurisdiction for crimes against humanity
• Belgium v. Senegal (ICJ 2012): Obligation to prosecute or extradite (aut dedere aut judicare)

4.3 Immunities from Jurisdiction

4.3.1 State Immunity

• Principle: Par in parem non habet imperium (equal has no authority over equal)
• Absolute immunity theory: Complete immunity from foreign jurisdiction (historical view)
• Restrictive immunity theory: Immunity only for sovereign acts (acta jure imperii), not commercial acts (acta jure gestionis)
• UN Convention on Jurisdictional Immunities of States 2004 codifies restrictive approach

4.3.2 Diplomatic Immunity

• Vienna Convention on Diplomatic Relations 1961
• Complete immunity from criminal jurisdiction for diplomatic agents
• Immunity from civil jurisdiction except private immovable property, succession, and professional/commercial activity cases
• Inviolability of diplomatic premises, archives, correspondence

4.3.3 Sovereign/Head of State Immunity

• Absolute immunity ratione personae for sitting heads of state, foreign ministers
• Arrest Warrant case (ICJ 2002): Foreign minister enjoys full immunity during tenure
• Immunity ratione materiae for official acts continues after leaving office
• Exception: International criminal tribunals can prosecute heads of state (Article 27, Rome Statute)

5. State Responsibility

5.1 Basis of State Responsibility

5.2 Attribution of Conduct

5.2.1 ILC Articles on State Responsibility (2001)

• Article 4: Conduct of state organs (legislative, executive, judicial) attributable regardless of position in hierarchy
• Article 5: Conduct of persons/entities exercising governmental authority
• Article 8: Conduct directed or controlled by state
• Article 9: Conduct in absence of official authorities (revolutionary movements seizing power)
• Article 11: Conduct acknowledged and adopted by state as its own

5.2.2 Acts of Non-State Actors

• Not attributable unless state exercises effective control (Nicaragua case standard)
• Overall control test insufficient (ICJ rejected in Genocide case 2007)
• State responsible for failing to prevent/punish private acts violating international obligations
• Due diligence standard: Corfu Channel case (ICJ 1949) - obligation to prevent use of territory for harmful acts

5.3 Circumstances Precluding Wrongfulness

5.4 Content of Responsibility

5.4.1 Primary Obligations

• Article 30: Cessation of wrongful act if continuing; assurances of non-repetition
• Article 31: Full reparation for injury caused (material and moral damage)

5.4.2 Forms of Reparation

5.5 Serious Breaches of Peremptory Norms

• Article 40: Gross or systematic failure to fulfill peremptory obligation
• Article 41: All states must cooperate to end breach; no recognition as lawful; no aid/assistance
• Examples: Aggression, genocide, apartheid, systematic racial discrimination

6. State Succession

6.1 Concept and Definition

6.2 Vienna Convention on Succession of States (1978 - Treaties; 1983 - Property/Archives/Debts)

6.3 Succession to Treaties

6.3.1 Newly Independent States

• Clean slate doctrine: Not bound by treaties of predecessor (Article 16)
• May opt to continue treaties by notification
• Multilateral treaties: Succession by notification or conduct showing intent

6.3.2 Uniting of States

• Treaties of predecessor states continue for respective territories unless successor decides otherwise
• Other states may object if application would be incompatible with treaty object/purpose

6.3.3 Separation of States

• Continuity principle: Treaties continue for each successor state in respective territory
• Exception: Treaty incompatible with new status or radically changed circumstances

6.3.4 Dissolution of States

• Treaties continue for successor states unless incompatible or modified by agreement
• Yugoslavia dissolution: Complex succession issues; selective approach by successor states

6.4 Succession to Property, Archives, and Debts

6.4.1 State Property

• Passes to successor state in newly independent states cases
• Immovable property in territory passes to successor state
• Movable property connected with activity in territory passes to successor
• Equitable proportion principle for uniting/separation cases

6.4.2 State Archives

• Archives relating to territory pass to successor state
• Necessary for administration of territory must be transferred
• Reproducing archives for both states when indispensable to each

6.4.3 State Debts

• No automatic succession for newly independent states (colonial context)
• Equitable proportion for uniting/separation (agreement between states)
• Consideration of property, archives, and state interests passing to successor

6.5 Succession to Membership in International Organizations

• No automatic succession; must apply for membership (UN practice)
• Exception: Russia continued USSR seat in UN Security Council (1991)
• Dissolution cases: Each successor state applies separately (Czechoslovakia split 1993)

6.6 Nationality Issues in Succession

• Individuals acquire nationality of successor state
• Right to opt for nationality of predecessor or successor (option of nationality)
• Prevention of statelessness - primary consideration
• European Convention on Nationality 1997: Addresses succession context

7. Special Categories

7.1 Federal States

• Federation responsible for international obligations, not constituent units
• Constituent states lack capacity to enter international relations independently
• Exception: Swiss cantons, German Länder have limited treaty-making power in specific areas
• Federal state cannot invoke federal structure to avoid international obligations

7.2 Confederations

• Union of sovereign states for specific purposes (defense, foreign policy)
• Member states retain sovereignty and international personality
• Confederation itself may/may not have international legal personality
• Historical examples: Switzerland (1291-1848), United Arab Republic (1958-1961)

7.3 Dependent and Autonomous Territories

7.4 Micro-States

• Very small states with limited population/territory (Vatican, Monaco, Liechtenstein, San Marino)
• Full international legal personality despite size
• Often rely on larger states for defense and foreign relations by agreement
• UN membership: Some are members (Liechtenstein, Monaco, San Marino), Vatican has observer status

7.5 Contested Entities

7.5.1 Taiwan

• Meets Montevideo criteria but limited recognition
• One-China policy: Most states recognize PRC, not ROC (Taiwan)
• Not UN member; participates in some international organizations as "Chinese Taipei"

7.5.2 Kosovo

• Declared independence from Serbia (2008); recognized by over 100 states
• ICJ Advisory Opinion (2010): Declaration of independence did not violate international law
• Not UN member; Serbia opposes independence

7.5.3 Palestine

• Observer state status at UN (2011); recognized by over 130 states
• International recognition increasing; ICC and treaty participation
• Final status subject to Israeli-Palestinian negotiations

8. Extinction and Dismemberment of States

8.1 Modes of State Extinction

8.2 Legal Consequences

• Loss of international legal personality for extinct state
• Succession issues arise for treaties, property, debts, archives
• Rights and obligations transferred according to succession rules
• Population acquires nationality of successor state(s)

8.3 Illegal Extinction

• Annexation by force prohibited (Article 2(4) UN Charter)
• No recognition of territorial acquisition by force (Stimson Doctrine)
• Duty of non-recognition for all states (Article 41, ILC Articles)
• Examples: Kuwait invasion by Iraq (1990) - reversed; Tibet annexation disputed

9. Key Doctrines and Principles

9.1 Self-Determination

• Common Article 1, ICCPR and ICESCR: All peoples have right to self-determination
• UN Declaration on Friendly Relations (1970): Elaborates self-determination principle
• Colonial context: Right to independence from colonial rule (established)
• Non-colonial context: Right to representative government; secession limited
• East Timor case (ICJ 1995): Self-determination is erga omnes right
• Remedial secession: Possible in cases of serious human rights violations (debated)

9.2 Uti Possidetis

• Colonial boundaries become international boundaries on independence
• Prevents territorial disputes by freezing colonial administrative boundaries
• Frontier Dispute case (ICJ 1986): Applied in Burkina Faso/Mali border
• Extended beyond decolonization to state dissolution (Yugoslavia, USSR)

9.3 Territorial Integrity

• Article 2(4) UN Charter: Prohibition of threat/use of force against territorial integrity
• Right of state to preserve its territory from external interference
• Tension with self-determination in secession contexts
• Generally prevails over secessionist claims absent colonial context or extreme oppression

9.4 Effective Control

• State must exercise actual authority over territory to maintain sovereignty
• Island of Palmas case (1928): Continuous and peaceful display of sovereignty required
• Temporary loss of control does not extinguish title (occupation, invasion)
• Relevant to territorial disputes and boundary determinations

9.5 Continuity and Identity of States

• State identity continues despite governmental changes, revolutions, or constitutional amendments
• Tinoco Arbitration (1923): Changes of government do not affect state identity
• State remains bound by international obligations despite internal changes
• Exception: Total dissolution creating entirely new entities

10. Important Cases