Subjects of international law a power-based analysis essay

Subjects Of International Law A Power-based Analysis Essay

Subjects of international law a power-based analysis essay

Mar 23,  · To write your essay, you would need to choose one of the above topics and then write an answer to that question, which would become your thesis. The reasons for the answer would be the body of your essay, and what you thought your reader should think, do, or believe after reading your essay would be the essay2019.pws: The Study of Political Science Essay; public administration, public law, comparative politics and international relations. Political science is the study of people’s behavior as it relates to control the public organizations. such as multinational corporations, the United Nations and with the fundamental realities of power based on. International negotiation is often a process of power-based dialogue intended to achieve certain goals or ends, and which may or may not thoroughly resolve a particular dispute or disputes to the satisfaction of all parties. The goals of this bibliography are to familiarize the reader with books. Review Essay Ositivism And The Power Of International Law Custom, Power and the Power of Rules: International Relations and Customary International Law by Michael Byers (Cambridge: Cambridge University Press, ) pages i–xxii, 1– The essay considers the issue of power based on the Martin place siege, what power means and how uneven power relationships emerge and why they persist. The essay provides a Continue reading “Essay: Power and the Martin place seige” Essay: Poverty in the USA. Poverty in the USA is an increasing problem.

Subjects of international law: Retrieved Jan 05 from https: By analyzing a number of cases that do not fit into the "traditional" model--including the Holy See, Napoleon, and the Confederacy--the Author reaches the conclusion that the only essential element of a subject of international law is its sovereignty.

An entity is sovereign when it is able effectively to assert that it is not subordinate to another authority: The Author also explores the close relationship between the status of an entity as a subject of international law and international responsibility.

The conclusions and analytical approaches employed in the Article are applicable to the study of entities long considered "lesser" subjects than states, such as intergovernmental organizations, insurgents, or belligerents, and even to the analysis of contemporary terrorist networks such as al-Qaeda.

Attempting to Define "State". The Holy See 2. Spain and Turkey 5. The Confederate States of America 6. China and Taiwan 7. Subjects superiorem non recognoscentes B. Intergovernmental Organizations and Other Subjects C. Arguably, this cannot be said for entities such as international organizations, which generally lack a territorial basis, or of belligerents, which are not deemed to possess the quality of a stable authority.

100 Argument or Position Essay Topics with Sample Essays

This Article aims to challenge the idea that since states are the primary subjects of international law, 1 they are qualitatively different from other subjects of international law. If proved, this proposition would entail that non-state actors have, in principle, the same rights and obligations as states under customary international law.

Part II of this Article first addresses the most common definition of "state" under international law. It also identifies a number of borderline cases in which subjects of international law not falling within that definition raise interesting questions as to the propriety of using this definition in deciding whether a certain entity is a subject of international law.

These cases, although admittedly few, are assumed to be representative of a larger number of similar instances. Although these instances vary greatly in nature, they all point to the same conclusion.

Subjects of international law: a power-based analysis.

Also, they are gathered from different time periods, because the assumption is that the fundamental rules of international law relating to the personality and identity of subjects have not changed during the past centuries.

Part III of this Article then proposes a more general definition of subjects of international law, a definition capable of easing the incongruities raised by the examples discussed in Part II.

In particular, it suggests that for an entity to be considered a subject of international law, the entity must be able to assert effectively that it is not subordinate to another authority; in other words, it must have the ability not to recognize any entity as a superior.

Such a status--defined as sovereignty 3 --is established through the analysis of that entity's powers within the entity itself and, under certain circumstances, of its relations with other subjects of international law. Part IV of the Article explores the real basis for this definition and puts forward the view that a close link exists between theories of personality under international law, on the one hand, and international responsibility, on the other.

Finally, the conclusions in Part V address the potential significance of the application of the findings presented in the previous parts to cases that do not apparently harmonize with the traditional view of international subjects. First, part of the definition requires that the entities with which a state engages in formal relations be states themselves. But because they can only be states if they are able to have relations with other such entities, a vicious circle seems unavoidable.

It seems difficult to characterize the capacity to engage in formal relations as an essential element, if only because this would entail the need to pre-define whether the other entities are already states. The Comment to the Restatement further cautions that, although the definition is generally accepted, "each of its elements may present significant problems in unusual situations.

The expression "under the control of its own government" in the Restatement may admittedly refer to this requirement, but it is insufficient to identify properly this feature. In fact, federated states may be said to rule a defined territory and population, and some of them are allowed to enter into relations with other subjects--in certain cases even with other subjects of international law. They are not, however, states within the meaning of international law.

In the case of federated states, it is their lack of independence with regard to the federal state that prevents them from being considered subjects of international law.

This is the case, for example, for the states and territories of the United States, 11 or the republics making up the former Soviet Union until The latter is especially interesting because, notwithstanding the fact that Byelorussia now Belarus and the Ukraine were among the founding members of the United Nations--an organization that is open only to "states" pursuant to a joint reading of articles 3 and 4 of its Charter--none of the republics constituting the U.

But it will be assumed that this definition describes what a state in the sense of international law looks like.

Subjects of international law a power-based analysis essay

Throughout this Article, this description of the state will be identified as the "traditional" way to address the problem of statehood in international law--this being the view widely held in the past decades, especially among U.

Recognition Before introducing the cases, a short explanation of the phenomenon of recognition is also necessary. First, the principle of the sovereign equality of the subjects of international law would be infringed by the possibility that one or more subjects could deny the existence of another subject by refusing to recognize it.

Second, it is illogical--and ultimately impractical--to allow an entity to be considered a subject of international law by some subjects but not by others. Since, for example, it is common that a newly created state is not immediately recognized as a state by the international community as a whole, the absurd result would follow that an effective and independent government over a population and a territory would be considered a state by some subjects, but as nonexistent--within the international realm--by others.

It is not clear with which rules of customary international law an entity lacking unanimous recognition would be bound to comply. To mention only one example, following the Bolshevik revolution in Russia in , the French Minister of Foreign Affairs declared that Le gouvernment francais n'a pas l'intention de reconnaitre le pouvoir des soviets tant que celui-ci n'aura pas donne des garanties de sa volonte de se conformer au droit des gens et de respecter les engagements et les obligations des Gouvernments russes qui l'ont precede a l'egard des gouvernments et des particuliers etrangers.

No state would ask entities that are not already subjects of international law to undertake international legal obligations. An entity has certain rights and obligations only because it already is a subject; others may wish to force compliance under the threat of non-recognition from a political standpoint, and therefore isolation, but this stand does not, and may not, affect the legal personality of those new entities. Such reasoning leads to the absurd result that an entity would only become a subject of international law when it finally complies with those duties, and its conduct is finally acknowledged by others a process that might take considerable time.

Similarly, continued recognition of entities that have ceased to fulfill the requirement of effectiveness and independence shows that sometimes recognition is not based on any consistent set of empirical criteria, but rather on the acceptability of that entity "to current international mythologies of legitimate statehood.

A first critique of the traditional model of the international community relies on the acknowledgement that there are certain actors of international law that are treated like states and are even sometimes defined as states , although they do not meet all the criteria that are traditionally deemed necessary for them to be called states.

The following pages contain an analysis of various such cases. The Roman Pontiff, supreme head of the Catholic Church, has occupied a position of high political authority since the Middle Ages and, through the vicissitudes leading to the end of the "universal" rule of the Holy Roman Empire and the gradual formation of a community of sovereign entities, has acquired a status equal to that of a head of state.

Only for a certain period after , and then again between and , did the Pontiff have no jurisdiction over any territory at all. After the conquest of the Papal States by Napoleon in , a concordat--a real international agreement between sovereign subjects 30 --was signed by Napoleon and the Pope, ensuring the exercise of the activities of the Pontiff "in the same forms of his precedessors," as well as the right to receive and appoint ambassadors.

The Vatican City lacks independence and is an entity governed by the Holy See: It is true that, on some occasions, the Holy See prefers to deal with certain matters of its own through the Vatican state.

Subjects of international law a power-based analysis essay

An example clarifies this apparent confusion. In , the Holy See and Israel signed a treaty which, in addition to mutual recognition and the establishment of diplomatic relations, relates to the regime of the Catholic Church on Israeli territory. The Holy See, in sum, is a subject of international law equal to states, even if it does not possess the traditional elements of statehood. It is the same subject as the Holy See before , the same subject as that which existed between the fall of Napoleon and , and the same subject as that which existed between and Changes in territory and population have not affected its nature as a sovereign subject.

Should the Holy See once again lose its territorial basis, however, it would still remain a subject of international law in its own right. The Boers One case of an entity subject to international law that moved from one territory to another--and therefore cannot be said to have possessed "a stable territory"--is exemplified by the "Great Trek" of the Boers in the first half of the nineteenth century.

It was, however, after the cession of the colony to Great Britain in , and especially after the abolition of slavery in , that almost the entire African-Dutch community moved to form the Free State of Orange, 47 the African-Dutch Republic, 48 and the Colony of Natal.

But the emigrants intended to reestablish their colony on an independent basis, with the privileges and liberties the new British sovereign denied them including that of being a slave-owner.

Leaving aside any moral judgment on the Boers' aims, 51 there is no doubt that other countries recognized these entities as subjects of international law because they effectively discharged state functions in their respective territories until their final annexation by Great Britain.

In fact, the domination by the Netherlands through its East India Company was a nominal one, allowing for a high degree of de facto self-government. The British government recognized that the Transvaal was constituted by the "emigrant farmers beyond the Vaal river. The government--with its legal system and constitutive rules--and the population changed location, but both kept their identity. In response to this reasoning, it might be said that because the Boers were colonists under Dutch rule, they could not be an entity under international law before the Great Trek; therefore, it is impossible to define their migration as a modification of the territory of a subject of international law.

The better view, however, is that Dutch rule was more formal than effective and that subsequent history demonstrates that the Boers left in order to maintain the integrity of their traditions and institutions. Moreover, when the Boer entities formed after the Great Trek ahead of the still-advancing British presence, they began to withdraw beyond the river Vaal.

In this instance, a real migration of an internationally constituted entity, exercising effective authority over its subjects, took place. Czechoslovakia Czechoslovakia, as a subject of international law, was born without any territorial basis and practically without a population, but it developed into a state without losing its identity.

The British Foreign Office heavily financed the recruiting operations of this army; it stated that "[s]ince the beginning of the war, the Czecho-Slovak nation has resisted the common enemy by every means in its power In consideration of its efforts to achieve independence Great Britain regards the Czecho-Slovaks as an allied nation. But when one considers these recognitions together with events unfolding after the end of the Great War, another explanation appears more likely.

But there is no doubt that, at least before November 3, , the date of the armistice of Villa Giusti between the Empire and Italy the last official act of Emperor Karl , 69 neither the National Committee nor the "government in exile" enjoyed effective control over any portion of the territory of what would become Czechoslovakia.

The only logical explanation is that a subject of international law an ally of the Entente existed before the dissolution of the Empire and was able to engage in international relations with other subjects; when the war ended, that same subject was finally able to acquire a territorial basis. The late acquisition of territory by this already existing international subject, however, did not modify its nature and its "essence," for it was considered the same subject which had fought as an "Allied and Associated Power.

In this case, a subject of international law, par inter pares, existed before it was able to exercise effective authority over any territory; when it did acquire this ability, it continued to exist according to its new situation without any essential modification of its personality and identity. The last three cases suggest that entities without a stable territory or population or both are not necessarily different from states. In fact, all these subjects retained their own identity as subjects of international law, with the rights and duties flowing from this position, both in times when they enjoyed effective control over a territory and in times when they were forced by circumstances to survive on some other state's territory--as if in a sort of "artificial lung" that kept them alive Holy See, Sovereign Order of Malta 71 or even assisted them at their birth Czechoslovakia.

In cases of what at the time was regarded as occupation of terra nullius Boers , the transfer of the organized population to an altogether new territory did not alter the personality of the subject. Spain and Turkey In addition to the above-mentioned cases, in which subjects of international law regarded as equal to states or, in certain cases, regarded as states proper do not possess all the attributes set out in the classical definition of the Restatement, there are cases of subjects--insurgents or belligerents 72 --developing into states or being attributed rights and duties typical of states.

There are different views on the legal evaluation of the events surrounding the Spanish Civil War, dating from July 17, to March 28, At that point although the exact time is subject to debate , Nationalist insurgents somehow became an organ of the Spanish state, which did not cease to exist. The Republican government, representing "Spain" until March 27, is said to have disappeared, leaving the territory and population of Spain under the rule of Franco.

How exactly an entity the insurgent community under Franco had become an organ of another entity Spain, the state it was fighting until March 27 is a mystery. How the Republican government of Spain, being an essential element of the state of Spain according to the definition of "state" provided for in the Restatement, could disappear but, at the same time, "leave in inheritance" the "state of Spain" to the next government is an even greater mystery.

If, however, we focus our attention on effective authorities--governments--rather than on "states," the matter can be interpreted in an altogether different light. As time passed and the Nationalist government gained ground through force aided by Italian and German interventions , its sphere of effective jurisdiction expanded with every victory in the field; conversely, the Republican government Spain saw its authority diminished as far as control over territory was concerned.

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These entities were not qualitatively different one from the other. For this reason, the international community saw them as belligerents, qualitatively on the same level, and consequently applied the rules of warfare and neutrality. Many of the diplomats of "Spain" before joined the Franco regime and became "ministers" or charges d'affaires to other countries. This gold was requested, after the beginning of the civil war, both by the Nationalist and by the Republican governments, each of which had, by that time, its own "Spanish National Bank.

In an action before a Norwegian court by a charge d'affaires of the Nationalist government to hold and dispose of the property of the former ambassador to Norway, the plaintiff claimed that the Court should have decided "for itself whether or not the necessary conditions have been fulfilled in order that that Government must be recognized as exercising a lawful authority over Spain or a part thereof. The different examples of competing recognitions by a different group of states only show that recognition is merely a political choice, with no effective bearing on the qualification of an entity as a subject of international law.

In fact, the Republican government-in-exile was recognized as the only legitimate Spanish government by Yugoslavia and Mexico until March , when democracy was restored to the country.

These were the Ottoman Empire, which had declared and lost the war alongside Germany and the Austro-Hungarian Empire, and the Kemalist Republic, which was born out of a group of nationalist insurgents to become present-day Turkey.