Equality before Law and Equal Protection of Law
|Written by Hanumant's Law Journal|
|Tuesday, 08 September 2009 01:50|
Q. 1 Explain the relationship between International Law and Municipal Law.
Q. 3 What are the peaceful means of settlement of international disputes? Describe the constitution, function, and jurisdiction of Internation Court of Justice. How does it differ from permanent court of Arbitration and Permanent court of International Justice? Evaluate the role of ICJ in establishment of World Peace. What is Advisory Jurisdiction of ICJ?
Q.4 What do you understand by Recognition. Explain its importance in International Law. Examine various theories of Recognition. Distinguish between de-facto and de jure recognition. Explain the statement, "a state is and becomes an international person through recognition only and exclusively.". What conditions are are to be fulfilled by a community to be recognized as an international person? Explain- Recognition is not a constitutive but a declaratory act. What is the Stimson's doctrine of recognition?
Q.5 Define war. How is it different from armed conflict and hostile relations. Define war crime. What are its major kinds? What is meant by Rules of Warfare? Explain its objects.
Q.6 What is the right of legation? Who are diplomats? What are their categories? What are their priviledges, immunities, and duties? How can they be removed?
Q.7 Define blockade. Describe the valid grounds of blockade. Describe the conditions where blockade is lifted.
Q.8 Define Intervention. What may be the grounds on Intervention?
Q.9 What is the importance of WTO in the present time.
Q.10 Short Notes - ILO, Extradition - Essentional conditions, what is political crime, Prize Courts.
The following answer is provided by a reader Sunil, who posted this answer as a comment. Thank you, Sunil!
The discretionary function exercised unilaterally by the govt of a state, officially acknowledging the existence of another state or government or belligerent state is known as recognition.The sovereign entities of international community have been used to justify the existence of state even in the absence of recognition by other state. This criteria was derived from 1933 Montevideo inter America convention on rights and duties of states.In 1936 prestigious institute de droit stated, “the existence of a new state with al the legal consequences attaching to this existence is not affected by the refusal of recognition by one or more states”. Recognition of states is the requirement of having part of world community.
The sovereign entities of international community have been used to justify the existence of state even in the absence of recognition by other state. This criteria was derived from 1933 Montevideo inter America convention on rights and duties of states.
In 1936prestigious institute de droit stated, “the existence of a new state with al the legal consequences attaching to this existence is not affected by the refusal of recognition by one or more states”. Recognition of states is the requirement of having part of world community.
ACTS OF RECOGNITION:
Recognition is a matter of intention and it may be expressed or implied. So the act of recognition may be affected expressly, by formal announcement or by bilateral treaty of recognition. Also in some circumstances through an act indicating an intention to affect recognition e.g. U.K government recognized government of Burma by a treaty in 1947; they recognized them as fully independent and sovereign state.
There are two theories, which have effect on the recognition of a state.
1: Constitutive theory
2: Declaratory theory
This theory asserts that the act of recognition by other states confer international responsibility on an entity purporting to be a state. It means if that state exists this is because of international community, as they have admitted that state into the community of nations.
So we can say that a state may possess all the attributes and qualifications of state hood but unless or until recognition is accorded there will be no international personality. If we apply this theory on Israel and Palestine, for Pakistan Israel is not a state. Similarly before 1974 Bangladesh was not a state for Pakistan.
The theory asserts that the existence of states depend upon the facts whether these facts meet with the criteria of statehood laid down in international law. According to this theory a state may exist without being recognized. Recognition is merely declaratory and the function of recognition is to acknowledge the fact of states political existence and the willingness of recognizing states to treat that state as an international entity.
According to American law institute restatement, they accept it but also indicate that although a state is not required to accord formal recognition to any other state, but it is required to be treated as international entity that meets with the requirement of statehood.
In contemporary practice it is clear that an entity meets the conditions of statehood as defined in s201 OF RESTATEMENT, can neither be denied the rights conferred on the states by international law? States like Taiwan, New Caledonia, Serbia, Western Sahara, Palestine; they still have to get the membership of UNO.
POLITICAL NATURE OF RECOGNITION:
This kind of recognition is based upon political expediency. Some members of international community recognize the entity and the recognition is denied by others.e.g. European community announced that it would recognize those republics that would give assurance of five points.
1: Continued respect for UN charter.
2: Guarantee for the rights of national and ethnic groups.
3: Respect for inviolability of all frontiers
4: Acceptance of international obligations.
5: Under taking to settle all questions concerning state succession and regional disputes peacefully.
By accepting these rules Croatia, Bosnia and Slovenia got recognition from European community. So we can say that recognition is political tool in the hands of international community.
RECOGNITION OF GOVERNMENT
If a state acquires all the elements of statehood and if it is recognized by other states then occasionally states does not recognize government of state. State practice suggest that there is no legal duty upon states to extend recognition to new government
Afghanistan is recognized by many states but Taliban government was not recognized by majority of states. States may suspend the recognition of state e.g. in Pakistan in eras of 70s due to martial law many states suspended their relations with Pakistan. Similarly the relations between Libya and USA remain suspended for 24 long years. In the same way Palestinian state does not exist but Pakistan and Saudi a recognize it as a state. Other examples included non-recognition USA and allies of Costa Rica between 1917-1919, non-recognition by Britain of Russia between 1919-1921, non-recognition of USA by Britain till 1933.
If non-recognition can be expression of disapproval of new government then it can be applied where no such approval is intended. States have adopted the policy of never recognizing the government but instead of granting or withholding recognition only in respect of states. This doctrine originates in Mexico and has been adopted several states.
MODES OF RECOGNITION:
There are two modes of recognition:
This term reflect the quality of government rather than that of act of recognition. Defacto recognition is temporary kind of recognition. When a state wants to delay the Dejure recognition of an any state it may grant Defacto recognition. The reason is that it is doubted that state going to be recognized may have all the attributes to fulfill international responsibility, or the state is willing to fulfill international obligations.
As mentioned earlier that Defacto recognition is a temporary recognition and it means that state recognized possesses the essential characters of statehood and it is fit to be subject of international law.
According to Oppenheim “the Defacto recognition of state or government takes place when in view of recognizing state the new authority has not acquired sufficient ability” (although effective power in territory is there). By recognizing that state as Defacto means that some characters are missing and now by recognizing them Defacto they are compelling that state to fulfill those requirements.
According to lauterpatch “Defacto recognition shows that recognizing state wants to establish its relations with the recognized state without establishing diplomatic relations.
General Franco’s government in Spain was recognized Defacto by Britain. Similarly in 1936 United Kingdom recognized Italy sovereignty over Abyssinia.
This recognition is granted when in the opinion of recognizing state or its government the other state possesses all the characteristics and essential requirements of statehood, also it is capable of being member of international community.
Dejure recognition is final and once given cannot be taken back, or with drawn. This is permanent kind of recognition.
United Kingdom recognized Italy’s sovereignty over Abyssinia as dejure in 1938 Soviet government to United Kingdom in 1924.
DIFFERENCE BETWEEN TWO RECOGNITIONS:
In Defacto recognition diplomatic relations are not established formally. They are established only by granting dejure recognition. According to jurists there is hardly any difference between the two and if at all there is any difference it is political rather than legal. Prof. Keelson states that the distinction between two recognitions is not important .Any codification of international law relating to recognition can ignore it.
But according to lauterpatch there are certain differences between the two, they have pointed out that in case of succession only the state, which has been granted dejure recognition will be deemed to be the successor state.
Defacto recognition is provisional and Dejure is final recognition. Defacto government enjoys same immunities as a dejure state does. However diplomatic courtesies and representation are usually not accorded to Defacto government except in extraordinary circumstances occurring in times of war.
There is no difference for the present purpose between a government recognized as dejure and one recognized as Defacto.
LEGAL EFFECTS OF RECOGNITION:
Recognition produces legal consequences affecting the rights powers privileges of recognized states or government. Recognized states have following consequences of their recognition.
Right of suing in law courts of recognized states.
Recognized states may claim immunity from suit to its property or diplomatic representative.
They may acquire the capacity to enter in to diplomatic relations with other states and may conclude treaties with them.
Prof Oppenheim:--Intervention is dictatorial interference by the state in the affairs of another state for the purpose of maintaining or altering the actual condition of things. The term intervention has been used by some writers in the expression of subversive intervention to denote propaganda or other activity by one state with intention of fomenting for its own purpose, revolt or civil strike in another state.
Intervention involves the unsolicited interference of one nation in the affairs of another. It may be directed against a single state, factions within that state, or interactions among a group of states. It does not necessarily take the form of military action but may involve economic or social pressure. When applied to international law, the concept can be elusive. Because many relations between states involve elements of coercion, it is difficult to determine at which point pressure becomes sufficiently coercive as to be deemed intervention. Although states always claim the right to intervene on the basis of \"vital interests,\" they never agree as to what this term involves.
A group of writers prohibit intervention in all circumstances. According to their point of view when one state intervenes in the affairs of another state through force then as reaction against his violation international law permits intervention.
CONCEPT OF INTERVENTION AND UNITED NATIONS CHARTER:
Article 2, paragraph 4, of the Charter provides: \"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.\"
The North Atlantic Treaty Organization (NATO) intervention in Kosovo in 1999 was said to be justified on the grounds of such a humanitarian crisis coupled with non-compliance by the parties with Security Council Resolutions. Similarly whatever is happening in Palestine …is that not a human crises.
Kinds of Intervention:--Winfield refers to three kinds of interventions:--
1.Internal Intervention:-- This is intervention by a state in a civil war going on with the territory of another state. The intervening state in such case may side with insurgents or legitimate govt. the intervention of number of states in civil war in spain in 1936 was typical of internal intervention.
2. External Intervention:-- it is an intervention by a state in the foreign affairs of other states. As a general rule, an external intervention is directed against hostile relations of other states. While there is a war going on between two states, a third state can make an external intervention by entering the war on behalf of either of two states.
3. Punitive Intervention:--It is resorted to by a state when it has suffered an injury by some action state and may be stated as an act of retaliation against the state. The punitive intervention may take the form of pacific blockade.
GROUNDS OF INTERVENTION:
1: SELF DEFENSE:
Use of force in self defense is justified where it is necessary for self preservation. The right of self defense under article 51 is subject to following conditions: 1: There should be an armed attack. 2: Right exist until security council has taken any action. 3: It should be reported to security council. 4: The right shall not effect security councils responsibility for peace and security. 5: Right is not available for non member states.
2: INTERVENTION ON HUMANITARIAN GROUNDS:
Intervention was permitted in the past on humanitarian grounds. When human rights were openly violated in a state and the people were openly persecuted then other states can intervene in the affair of such a state in order to check such persecution and violation of human rights. E.g. England, France and Russia jointly intervened in the conflict of Greece and turkey in 1827to check violation of human rights, other examples include: Bulgaria 1877 Cuba 1898 Haiti 1915
3: TO ENFORCE TREATY RIGHTS:---Intervention was also permitted in the past under international law to enforce treaty rigts. There are several examples of intervention on this ground e.g. when Germany attacked Belgium in 1831 England intervened because it had a treaty eith Belgium whereby it was commited to maintain the neutrality of Belgium. Similarly USA intervened Cuba in 1962. Now after the enforcement of united nations charter this kind of intervention is not allowed as states have undertaken not to intervene in the external or internal affairs of another state. But again question arises is that what was wrong with USA when they first intervened Afghanistan and then Iraq.
4: INTERVENTION TO PREVENT ILLEGAL INTERVENTION:---In the past there have been several cases of intervention by states in order to prevent illegal intervention by other states. It was on this ground that England helped Protugal in 1926. The united nations charter has affected this right. Intervention by one state in the affairs of another state is no more permissable.
INTERVENTION FOR PROTECTION OF PROPERTY AND PERSONS: In the past international law permited the intervention in order to protect the property and persons of a state citizens. The growth in international relations and interdependence of states neccesitated the intercourse of citizens of one state with other. So whenever there is a danger to the persons or property of citizeens it become natural for a state to to take action. During india pakistan war in 1971 America sent its 7th fleet to the bay of bengal on the ground of protection of property and persons. But united nations charter does not allow this kind of intervention.
COLLECTIVE INTERVENTION: Under united nations charter colletive intervention can be made to check an agression on the breach of international peace and security. Security council has empowered to take collective action if there exist a threat or a breach of international peace. In its first stage security council take such collective measures and do not involve the use of force. Abaut if such an action does not prove to be adequate the security council is empowered to employ armed forces. The united natins took such actions in Korea 1950, congo 1961, in bosnia 1995-96
DOCTRINE ON PRINCIPLE OF NON INTERVENION:
President Monroe of United States propounded this doctrine. I t was reaction of the treaty which napoleon had entered in to with European states. The European states wanted to re establish their colonies in America and wanted to help Spain. In the background of these events president Monroe made a declaration in 1923, the important points of this doctrine are as followed.
1: The states of American continent would not more be made subject to colonization in future.---2: America would not interfere in the European wars.---3: If European states interfered in the affairs of American continent then America would consider it unfriendly act.
DRAGO DOCTRINE:--This doctrine was presented by drago of Argentina. According to the doctrine European states could not intervene in the affairs of states of American continent on the ground of claiming public debts. Actually European states had started using military force to enforce the claims of their citizens e.g. England, Germany and Italy had enforced blockade against Venezuela because they had failed to fulfill its financial obligations.
MODREN DOCTRINE:---More recently, an alternative approach to humanitarian intervention known as \'Responsibility to protect R2P has emerged. Responsibility to Protect is the name of a report produced in 2001 by the International Commission on Intervention and State Sovereignty ICISS which was established by the Canadian government in response to the history of unsatisfactory humanitarian interventions. The report sought to establish a set of clear guidelines for determining when intervention is appropriate, what the appropriate channels for approving an intervention are and how the intervention itself should be carried out.
Responsibility to protect seeks to establish a clearer code of conduct for humanitarian interventions and also advocates a greater reliance on non-military measures. The report also criticizes and attempts to change the discourse and terminology surrounding the issue of humanitarian intervention. It argues that the notion of a \'right to intervene\' is problematic and should be replaced with the \'responsibility to protect\'. Under Responsibility to Protect doctrine, rather than having a right to intervene in the conduct of other states, states are said to have a responsibility to intervene and protect the citizens of another state where that other state has failed in its obligation to protect its own citizens.
There are few limitations on intervention which are:
|Last Updated on Tuesday, 13 September 2011 01:11|
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