Lesson 8

• States - are entities that have rights and responsibilities under international law and which have the capacity to  maintain their rights by bringing international claims.
• Nationality - a legal bond having as its basis a social fact of attachment, a genuine connection of existence,  interests, and sentiments, together with the existence of reciprocal rights and duties (Nottebohm Case  Liechtenstein v. Guatemala, 1955 ICJ 4) 
• Refugee - a person who, owing to a well-founded fear of being persecuted for reasons of race, religion,  nationality, membership of a particular social group or political opinion, is outside the country of his/ her  nationality, and is unable or, owing to such fear, is unwilling to avail himself/herself of the protection of that  country.
• States are created through

  • Discovery and occupation
  • Prescription
  • Cession
  • Accretion
  • Conquest
• Discovery and occupation - occurs when a territory belonging to any state is  placed under the sovereignty of the claiming state
• Prescription - when a territory is acquired through continuous and uninterrupted
• Cession - involves the peaceful transfer of territory from one sovereign to another, with the intention that sovereignty should pass.
• Accretion - the increase in the land area of the state, either through natural means, or artificially  through human labor.
• Conquest - the act of defeating an opponent and occupying all or parts of territory does not of itself  constitute a basis of title to the land. It gives the victor certain rights under international law as regards the  territory, the rights of belligerent occupation, but the territory remains subject to the legal title of the ousted  sovereign.
• State Recognition

  • is an act by which a state acknowledges the existence of another state, government, or belligerent  community and indicates its willingness to deal with the entity as such under the rules of international law 
  • a political act and mainly a matter of policy on the part of each state. It is discretionary  on the part of the recognizing authority. It is exercised by the political department of the state.
• Landmark Doctrine in State Recognition

  • Wilson/Tobar Doctrine
  • Betancourt Doctrine
  • Lauterpacht Doctrine
  • Stimson Doctrine
• Wilson/Tobar Doctrine - This doctrine precludes the recognition of governments established by revolution,  civil war, coup d'etat, or other forms of internal violence until the freely elected representatives of the people  have organized a constitutional government (Sarmiento, 2009).
• Betancourt Doctrine - This doctrine pertains to denial of diplomatic recognition to any regime, right or left,  which came to power by military force (Sarmiento, 2009).
• Lauterpacht Doctrine - This doctrine precludes the recognition of an entity which is not legally a State as it  constitutes an abuse of the power of recognition. It acknowledges the community which is not, in law, i  independent recognition. It acknowledges a community which is and which does not therefore fulfill the  essential conditions of statehood as an independent state (Sarmiento, 2009).
• Stimson Doctrine - This doctrine precludes the recognition of any government established as a result of  external aggression (Nachura, 2016)
• Rights of States

  • The right to independence
  • The right to equality
  • The right to existence and self-defense
  • The right to territorial integrity and jurisdiction
  • The right to legation
• The right to independence - means freedom from control by other state or group of states and not freedom  from the restrictions that are binding on all states forming the family of nations and carries with it by necessary  implication the correlative duty of non-intervention (Nachura, 2016). Intervention is an act by which a state  interferes with domestic or foreign affairs of another state through the employment of force or threat of force  which may be physical, political, or economic (Nachura, 2016)
• The right to equality - is underpinned in the doctrine of equality of states which provides that all states are  equal in international law despite of their obvious factual inequalities as to size, population, wealth,  strength, and degree of civilization. 
• The right to existence and self-defense - provides that a state may take measures including the use of force  as may be necessary to counteract any danger to its existence (Article 51, UN Charter). Aggression pertains  to the use of armed force by a state against the sovereignty, territorial integrity, or political independence of  another state, or in any other manne
• The right to territorial integrity and jurisdiction - encompasses the right of the state to its  terrestrial, maritime and fluvial, aerial and space covered by its territory.
• The right to legation - pertains to the right of the state to send and receive diplomatic missions, which  enable states to carry on friendly intercourse.
• Nationality - is a legal bond having as its bases a social fact of attachment, a genuine connection of existence, interests,  and sentiments, together with the existence of reciprocal rights and duties pertains to the status of having no  nationality as a consequence of being born without any nationality or as a result of deprivation or loss of  nationality (Nachura, 2016).
• Refugees -  is a person who, owing to a well-founded fear of being persecuted for reasons of race, religion,  nationality, membership of a particular social group or political opinion, is outside the country of his nationality  and is unable or, owing to such fear, is unwillingly to avail himself of the protection of that country.
• The principle of non-refoulment - is a principle wherein addition to not returning the refugee to his or  her own state he or she must not be sent to a third state if his or her life or freedom would there be threatened  on account of his or her race, religion, nationality, membership of a particular social group, or social opinion  (Par. 1 Article 33 Convention Relating to the Status of Refugees).