ULUSLARARASI KAMU HUKUKU I - Deneme Sınavı - 3

An entity, to be considered a state, must have certain characteristics, such as territory, population, government, and sovereignty. Article 1 of the 1933 Convention on Rights and Duties of States (the Montevideo Convention) provides that “the state as a person of international law should possess the following qualifications:

(a) permanent population

(b) defined territory

(c) a government

(d) capacity to enter into relations with other States.”

States that are subject to the authority of one or more states are known as “dependent states.” The notion of dependence necessarily implies a relation between a superior state (e.g., protector etc.) and an inferior or subject state (e.g., protégé etc.); the relation between the state which can legally impose its will and the state which is legally compelled to submit to that will.

Article 1 of the 1933 Convention on Rights and Duties of States (the Montevideo Convention) provides that “the state as a person of international law should possess the following qualifications:(a) permanent population; (b) defined territory: (c) a government; and (d) capacity to enter into relations with other States.” The correct answer is D.

For the existence of a state, it is enough that this territory has a sufficient consistency, even though its boundaries may not have been precisely defined or delimited.

The status of entities in the form of Bantustans or homelands, created by South Africa, for black Africans from 1976 following its policy of apartheid, was similarly doubtful under international law. They were not granted recognition by any state except South Africa. Although these homelands had full legal control over their internal and external affairs, South Africa exercised major control on economic matters. On 17 November 1993, South Africa decided to abolish these independent homelands and reincorporated them into South Africa.

There are difficulties in applying the essentials of Statehood to non-self-governing territories - colonies, protectorates, trusteeship and mandate territories. The correct answer is C.

There are difficulties in applying the essentials
of Statehood to non-self-governing territories -
colonies, protectorates, trusteeship and mandate
territories. Capacity to conduct international
relations is significant in deciding the international
personality of an entity. This refers to independence
from the authority of any other state.

Class C mandates were the least-developed. Because of their sparse population or small size, or remoteness from the centers of civilization, or their geographical continuity to the territory of the Mandatory, they were administered under the laws of the Mandatory as integral portions of its territory. The correct answer is B.

The mandate system is now a dying species. In none of these cases was sovereignty transferred
to the Mandatory.  The Mandatories under all categories were given only the administrative powers and responsibilities that varied according to the mandate category. 

Class A comprised territories that were
formerly part of the Ottoman Empire and were
sufficiently advanced for their independence to
be “provisionally recognized.” It was subject to
the administrative advice and assistance of the
Mandatory, “until such time as they were able to
stand alone.”

Class B consisted mainly of territories of Central
Africa that were still in the process of economic
and political development. The Mandatory was
responsible for their administration, subject to a
variety of guarantees and was under the obligation
to allow trading opportunities to other League
members.

Class C mandates were the least-developed.
Because of their sparse population or small size,
or remoteness from the centers of civilization, or
their geographical continuity to the territory of the
Mandatory, they were administered under the laws
of the Mandatory as integral portions of its territory.

After the Second World War, there has been a tremendous growth in the number
of international organizations. Such organizations may be either universal (such as the UN and the ILO) or regional (such as the European Union and the African Union). They are established by treaties and their international personality can be ascertained by looking at their constitutions. The correct answer is B.

The treaty-making power of international governmental organizations is well entrenched in the United Nations practice and confirms that governmental organizations have the capacity to enter into treaties. However, their international personality is confined to their constituent instruments, resolutions, and decisions, which determine the limits of their personality. Thus, the legal personality of international organizations is now an accepted fact. However, unlike states, they do not enjoy unlimited power. Their personality, in fact, can be brought to an end by amending or terminating the constituent instruments.

Express recognition may be granted by the conclusion of a bilateral treaty or agreement. A state may convey its decision of recognition to the new entity or government through a formal announcement, which may take the form of public statement or notification or diplomatic note or a personal message sent to the new entity. IMPLIED recognition may be inferred from the conduct of the parties involved. The correct answer is C.

As a general rule, individuals cannot sue
states or be sued by states before an international
tribunal, nor are individuals answerable to states
at the international plane for failing to fulfill their
obligations.

Insurgency is the first stage of rebellion. For the recognition of insurgency, it is essential that:
• insurgents should be in effective occupation of a substantial part of the territory;
• they should enjoy the support from the majority of the population living in that
territory;
• they should have the will and capacity to carry out international obligations.

The correct answer is C.

While de facto recognition is conditional and temporary, de jure recognition is formal and final. The correct answer is A.

Express recognition: A state may convey its decision of recognition to the new entity or government through a formal announcement, which may take the form of public statement or notification or diplomatic note or a personal message sent to the new entity. 

Implied recognition: Recognition may be inferred from the conduct of the parties involved. The act must clearly indicate that a recognizing state has a clear and inescapable intention to recognize. The intention, then, is the crucial aspect of recognition.

According to the constitutive theory, an entitybecomes a state only by virtue of recognition. It is through the act of recognition alone that a new state emerges as an international person or a new government derives the requisite authority or status in the international arena.

In contrast to the constitutive theory, the declaratory theory (also called evidentiary theory) considers that a new state or a new government exists independent of recognition. The recognition is merely an evidence of the fact that the new entity fulfils the essentials of Statehood or of a
government.

International law does not prescribe or prohibit the grant of collective recognition. States may grant recognition collectively. Collective recognition can be granted by states through some collective international act or through the medium of an international institution.

The doctrine of non-recognition, commonly called the Stimson Doctrine of non-recognition, implies the withholding of recognition from new territorial titles or territorial changes brought out by use of force or through any other act of doubtful character. The correct answer is A.

Under de facto recognition, in the opinion of
the recognizing state, the new state or government:
(i) lacks stability and permanency, or (ii) does
not possess all the essentials required under
international law for its effective participation in
international affairs, but, in fact, it fulfils these
requirements. It may grant recognition to the
latter provisionally with all due reservations for the
future.

In case of de jure recognition, in the opinion of
the recognizing state, the new state or government
fulfils all the attributes essential for its effective
participation in the international community, and
it may grant the recognition to the latter formally.

However both, de facto and de jure recognition,
are related to the fact that the recognized authority
should have effective control over a given area
and it should have the semblance of permanence
and stability.

Distinction between the two can
be described as a de jure government is one “which
ought to possess the powers of sovereignty, though
at the time it may be deprived of them. A de facto
government is one which is really in possession of
them although the possession may be wrongful
or precarious”

Before belligerency is accorded recognition, the recognizing state must satisfy that the:
• hostilities must not be local (as in insurgency) but must be of a general character;
• insurgents must be in occupation and control of a considerable portion of the
national territory;
• insurgent forces must be properly commanded and they observe the laws and
customs of war;
• hostilities have reached to such a magnitude that outside powers may be compelled to define their attitude toward belligerency. Recognition of belligerency, in fact, should be followed by a declaration of neutrality.

The correct answer is E.

European States claim to have laid the foundations of the practices and rules to regulate these relations. The body of rules that governed their relations were named the law of nations and subsequently also known as international law. It has also been termed as transnational law. These rules, however, were not confined to European States only. Even in ancient Mesopotamia, Egypt, and ancient India the rulers followed certain well-accepted rules in their mutual relations such as the inviolability of the messengers of another state and rules of warfare. However, the present corpus of international law is primarily Euro-centric.