Statehood and Consent

"Despite the developments of recent years, statehood and consent remain at the heart of international law."

Within the complex and developing world of international law, the view that statehood and consent remain at the heart of international law has faced greater scrutiny. Indeed it is this very complexity and the continuing evolution of international law that has allowed for such debate. This essay will examine the view that statehood and consent continue to be at the heart of international law with a particular reference to the areas of sources of international law, international legal personality and the settlement of international disputes. Through this analysis it will be argued that whilst there have been significant developments within international law and it would be wrong to generalise on this subject, the statement is largely validated by the evidence. Within international law there are no formal institutions, as at the national level, that are responsible for law creation. However there still remain recognised and accepted means in which legal rules can come into existence and ways to identify the content of such rules and it is these that form the basis of the sources of international law.[1] The main point of reference for the sources of international law is Article 38 of the Statute of the International Court of Justice.[2] This states that the Court shall apply ‘international conventions, whether general or particular, establishing rules expressly recognised by the contesting States[3]; international custom as evidence of a general practice accepted as law[4]; the general principles of law recognised by civilised nations[5]; subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations as a subsidiary means for the determination of rules of law'[6]. Moreover, it also includes that ‘this provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto'.[7] Art. 38 does not provide a hierarchy of such sources however and is furthermore not an authoritative list of the sources of international law. Significantly however, it is fundamentally focussed upon the activity of states. Moreover, the importance of consent is also highlighted by the fact that the consensual nature of the Court's jurisdiction allows states to decide and select the law relevant to a dispute thus emphasising the continuing centrality of such factors within international law.[8] Treaties or international conventions are the ways in which states are able to directly create international law and remain the most important and significant source of international law that can cover any area of international relations. In the Vienna Convention on the Law of Treaties, a Treaty is defined as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single argument or in two or more related instruments and whatever its particular designation”.[9] This emphasises the importance and centrality of the state in international law and the fact that no state can be bound by a treaty without agreeing to it also emphasises the role of consent. Furthermore, a state is not bound by a treaty in their relations with a state not party to it and treaties are only binding between the parties to it in their relations with each other.[10] Moreover, even if a particular treaty reflects customary law, non-parties can have identical obligations but only as these exist in customary law. Indeed whilst treaties only bind states that are parties to it, they can also promote the development of customary law.[11] Ultimately however, the prominence of statehood and consent remain central to this source of international law. The centrality of statehood and consent is also evident in customary international law that evolves from the practice of states and gives rise to binding law.[12] This customary law is established by general, uniform and consistent state practice though the North Sea Continental Shelf Cases and Anglo-Norwegian Fisheries Case specified that such requirements did not need complete consistency from states before a practice can become law.[13] Significantly however, in order for such practice to constitute law states must recognise it as binding upon themselves as law. In this respect the importance of opinio juris is essential in the formation of customary law and allows for a distinction between state practice leading to law and other state activities. There is difficulty however in identifying how opinio juris can be established with reliance upon state practice alone being largely deemed insufficient.[14] Indeed, in Prosecutor v. Tadic[15], relying upon what states say was criticised on the grounds that what is said and done in practice are not always the same and that such arguments were therefore flawed. Significantly, for new customary law to develop also requires sufficient state practice contrary to an existing rule that is supported by opinio juris. Indeed though initially breaching the law, opinio juris can play a vital role in how such actions are received with third states agreeing with a violating state able to lead to new customary international law thus emphasising the significance of states to which law remains. Indeed the importance of statehood and consent is also evident in persistent objector states that though unable to prevent customary law being formed, can prevent its application and enforcement upon themselves[16] even though the Anglo-Norwegian Fisheries case[17] did highlight the need for such states to have always objected to the law in question. These factors do not apply to a rule of jus cogens however as ‘a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.'[18] Indeed, these cannot even be modified by treaty and any conflicting with it is deemed void.[19] Moreover, conduct contrary to a jus cogens rule is regarded illegal in spite of how often it is repeated and even persistent objector states cannot object to these norms.[20] Yet whilst there is no universal agreement as to which rules of customary law have such status, following Nicaragua v USA[21] an example is the prohibition of armed force, whilst others include the sovereign equality of states, right of self determination and prohibition of genocide. Whilst acknowledging the role of jus cogens however, it is still important to note its limits in respect to statehood and consent. For example, Heads of State have long had immunity even where torture has been evident and perhaps most significantly, the ICJ only hears cases which states consent to that can therefore diminish the significance of such norms. Whilst acknowledging the role of Jus Cogens therefore, there is still much to suggest the continuing importance and centrality of statehood and consent within international law.[22] In respect to General Principles of law, these are not highly technical or prescribed rules but rather general policies and principles that fill the gap when there is no existing international law, treaty or custom.[23] Indeed such is the case as with international environmental law where laws are not fully developed. Moreover, they are also intended to ensure that international law necessarily includes rules and principles common to all legal systems. Significantly, these General Principles are able to have an impact on the development of international law through presenting a reason why a specific norm should be adopted or being a catalyst for state practice that can lead to customary and treaty law. Art. 38 (1)(c) therefore allows the Court to apply principles that do not seem to have their origin in either treaty or custom even if they may later become embodied as such and a lack of agreement in respect to the exact substance of ‘general principles' does not seem to have limited such bodies from using them. Ultimately however, the unbinding nature of general principles and central role of statehood and consent to customary international law still remain the most significant factors.[24] In respect to Judicial decisions, Art. 38[25] describes such as ‘subsidiary' means for the determination of law. They do not make law and as specified in Art. 59, ‘the decision of the Court has no binding force except between the parties and in respect of that particular case'.[26] Indeed though the judgment of such bodies as the ICJ can have political and legal importance and lead to the development of international law this will depend on the nature of the court and logic of its reasoning. Thus, whilst not making law and only being responsible to identify what the law is, judicial decisions can still be persuasive even if not binding.[27] The writings of the ‘most highly qualified publicists' are also ‘subsidiary' means for the determination of rules of law, but again cannot create law. Indeed though they can play a role in the development of international law, in reality this is even less so than judicial decisions. Indeed whilst the nature of both these sources are able to be relevant, clearly the centrality of statehood and consent within international law remains most significant.[28] Whilst analysing these sources however, it is important to note that Art. 38 is not a definitive list and there are other sources of international law to consider. An example of such are General Assembly Resolutions. Whilst these are not binding even if adopted unanimously and states are not obliged to follow the conduct set in a resolution even if having voted for it, ultimately not all resolutions carry the same weight and the nature of the language used, voting pattern of states and repetition in the rate of affirmation of similar resolutions are all significant.[29] Indeed, whilst not amounting to international legislation they are also useful in helping to identify if a rule of custom exists or be persuasive over the formation of customary law as in Nuclear Weapons Advisory Opinion[30] where though not binding, resolutions may have normative values and provide evidence for establishing the existence of a rule or emergence of opinio juris. Again however, statehood and consent are clearly central to this source of international law. It is also important to recognise the role of Soft Law with examples including outcomes of an international negotiation being declarations or guidelines that though not binding are able to be important as with the Universal Declaration of Human Rights that influenced states and gave rise to related treaties. Indeed though tending to be vague and weak, soft law too can have a normative function in the development of international law, though statehood and consent are again the most fundamental factor[31] In addition, it is also possible to consider the role of binding unilateral statements between parties yet whilst these are capable of being important within international law, these too clearly rely upon statehood and consent before having any significant impact.[32] Indeed, whilst developments are clearly evident, the analysis of the sources of international law only confirms the significance of statehood and consent within the field and likelihood that such factors will continue to be the most prominent in the system. In terms of international legal personality, “a subject of international law is a body or entity that is capable of possessing and exercising rights and duties under international law.”[33] Here, the main capacities of an international legal person are the ability to make claims before tribunals, to be subject to some or all of the obligations imposed by international law, to have the power to make valid international agreements and to enjoy some or all of the immunities from the jurisdiction of the national courts of other states. Yet within such considerations, it is important to note that not all legal entities will have the same rights or capacities in international law.[34] In respect to the question at hand, states are the most significant subjects of international law and have the full range of such capacities. With such importance to the functioning of international law however, much attention is inevitably focussed upon when an entity qualifies as a state. Here, Article 1 of the Montevideo Convention on the Rights and Duties or States 1933 specifies that a state as a person of international law should possess a permanent population, a defined territory, a government, and a capacity to enter into relations with other states.[35] In respect to population, this is less focussed on size and rather that there exists a population linked to a territory on a largely permanent basis and a defined area and existence that marks it out clearly from other states. Regarding government, this essentially stipulates a stable political environment where governments are in effective control of a territory, though admittedly such criteria for maintaining a state is less stringent than the original demands. Finally, whilst the capacity to enter into legal relations is harder to define, this largely relates to a state needing legal independence whereby the territory is not under the sovereign authority of another state and thus able to have the legal capacity to enter into relations on its own terms and authority.[36] In respect to other criteria for statehood not in the Montevideo Convention, it is also stressed that this cannot be gained by illegal means with an example being the UN Security Council Resolution 216 (1965) calling upon states to not recognise Rhodesia as an “illegal racist minority regime”.[37] It is important to note here however that whilst significant, non-membership of the UN does not prevent statehood.[38] The role of recognition is also important in respect to determining whether entities claiming to be states are such with other states having the power to reject or accept such claims through means including a formal declaration, official letter or opening of diplomatic relations. Within international law there is much debate as to the effects of recognition on the legal status of an entity resulting in the Declaratory theory and Constitutive theory of recognition.[39] The former outlines the general legal effects of recognition as limited whereby existing states recognising a new state is not decisive in the new entity's claim to statehood because that status is conferred by operation of international law. Thus if satisfying the criteria, regardless of whether a ‘state' is recognised by other states, it is still entitled to the rights and subject to the duties of the system. Thus, in respect to international practice, a number of Arab states have in the past not recognised the state of Israel yet this did not prevent them from making claims against her. In contrast, the Constitutive theory denies that international personality is conferred by the operation of international law and that recognition is indeed a necessary precondition to the existence of the capacities of statehood. Thus, it is put forward that if a ‘state' is not recognised by the international community, it cannot have international personality and also highlights the case that states have no obligation in respect to entering into relations with any other entity or body.[40] Significantly, the European Community also put forward requirements where recognition was related to matters including a respect for human rights and commitments to settle disputes peacefully.[41] Though based more on the quality of political and economic life as opposed to the fulfilment of the Montevideo conditions, the use of such subjective criteria however does indicate a use of recognition for political ends and thus continuing importance of statehood and consent. States are not the only territorial entities as subjects of international law however and the creation by treaty of artificial territories with international personality including Berlin and Danzig that had some capacities of ‘a state' are also significant.[42] Clearly however, the nature of this personality again depends on the terms of the treaty and thus the consent of states. In addition however, following the Palestinian Wall Advisory Opinion[43], the Palestinian Authority was also claimed to have many of the capacities of a state. Thus, it is important to note that the relative nature of international personality leads to each aspiring territorial entity being judged on its own individual merits. The importance of international organisations also needs to be recognised though the extent of any legal personality will vary according to the organisation itself, its objectives and the particular terms of its constitution or constituent treaty.[44] For example, in the creation of the UN in 1945, its founding members had provided it with an objective personality that has since been confirmed as in the Reparations Case where the Court stated that personality was essential to discharge its functions effectively in respect to recovering reparations in its own right following the death of a staff member.[45] Moreover, the Advisory Opinion on Nuclear Weapons[46] stated that such organisations also have implied powers enabling them to achieve their purposes even if these are not outlined in the constituent treaty. As a form of derived personality however, it is still treaties that fundamentally determine the nature of international personality an organisation will have and thus statehood and consent remain most important.[47] Within international law it is also important to recognise the international personality of individuals. Here, the clearest examples are individuals' responsibility for war crimes, crimes against the peace and crimes against humanity where international law can impose personal obligations upon individuals. Indeed an individual is responsible regardless of the laws of their own country and can be tried by an international court as with the Nuremberg Tribunals and more recently bodies including the International Criminal Court. Moreover, crimes of universal jurisdiction such as piracy allow individuals to be tried by any state regardless of nationality and in respect to consent even the national state cannot protest.[48] Indeed, this form of personality has transformed in recent years away from prosecutions in national courts based on international law to permanent international tribunals and bodies such as the ICC formed in 2002 exercising jurisdiction over individuals of the nationality of the state parties to the Statute.[49] Furthermore, as well as duties and responsibilities, there is also personality in the form of rights as most evident in the European Convention on Human Rights 1950[50] and the International Covenant on Civil and Political Rights 1966[51] that allows an individual to petition the Human Rights Committee if their state has signed the Optional Protocol. Yet whilst this legal personality has continued to develop in recent years and it is unlikely that such rights will be withdrawn, the extent of such legal personality continues to depend on the agreement and will of states within international law.[52] The role of corporations is also important though international personality again only exists when relationships are governed by international law. For example, agreements for the extraction of oil have been subject to such rules[53] and states are also able to agree that particular disputes with any companies be settled by a panel of judges as with the establishment of a permanent machinery to settle differences in investment agreements.[54] Yet whilst such companies being judged by international law does necessitate an international personality, the existence and extent of this personality does continue to ultimately depend on the agreement and recognition of states.[55] Furthermore, the legal personality of new subjects including governments in exile, belligerent or insurgent communities or representative organisations also depend on state recognition and can even result in bodies having different degrees of international personality with different states. Indeed this has been the case with the PLO that has experienced varied status according to the political orientation of states[56] as was evident in an Advisory Opinion[57] highlighting the responsibility of the USA for not recognising the limited personality of the PLO. Yet whilst demonstrating the potential difficulty for a state to ignore the personality of emerging subjects of international law irrespective of political standpoint, the legal personality of such entities does ultimately continue to predominantly rely upon statehood and consent within international law.[58] Through analysing personality therefore, it is clear that whilst states have international personality in the fullest measure, the extent of personality experienced by the other subjects of international law depend upon a number of factors including a constituent treaty, a constitution and most significantly recognition by states. In respect to the settlement of international disputes, Art. 2(3) of the United Nations Charter states that all members ‘shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.'[59] This does not require a state to settle its grievances or submit a dispute with another state to a third party for settlement however and consent remains central with the exception of Art. 33 of the Charter to settle disputes likely to endanger international peace and security.[60] Whilst this area does predominantly relate to states however, it is important to note that a dispute is international even if some parties are not states as with the conflict in Sudan between rival ethnic groups. Thus, the obligation to settle disputes peacefully includes all disputes taking place on the international level.[61] In the settlement of disputes the most common method used is direct negotiations between parties where agreements can be legally binding if it is the wish of the parties involved and thus lead to a treaty.[62] Other alternatives are agreements that are recorded but without legal effect even if providing a practical solution to an ongoing dispute, or the option that the states involved; through treaty, bind themselves to continue negotiations if a dispute arises in the future.[63] Indeed, negotiations can also take place before a dispute arises, in the midst of a dispute or even after the conclusion of a case.[64] The role of mediation and ‘good offices' are also important with the latter being preliminary to direct negotiations made available by a neutral party and a mediator continuing this with the approval of the parties when taking part in the negotiations to try and establish a compromise between the disputing sides. The use of commissions of inquiry are also important in establishing the factual basis for a settlement where the parties agree to refer a particular matter to an impartial body that produces an unbiased finding of the facts before a settlement is negotiated on the basis of such facts. Indeed whilst it is rare that such parties agree to be legally bound to accept these findings, in practice the conclusions are rarely ignored. In respect to the settlement of disputes, conciliation is also important with a dispute being referred to a third party such as a commission that produce reports that unlike commissions of inquiry recommend concrete proposals. Ultimately however, despite such proposals again not tending to be ignored, conciliation commission reports are not legally binding on the parties and statehood and consent remain central to their significance.[65] In respect to Arbitration, this is ‘a procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of an undertaking voluntarily accepted'.[66] Significantly however, such proceedings are not only limited to disputes between states even though statehood and consent remain central to its jurisdiction. Indeed, whilst arbitration awards have contributed to the development of international law, this procedure nevertheless remains voluntary and significantly states must consent in advance to the exercise of such jurisdiction by the arbitrators. This is the case even though the Permanent Court of Arbitration has provided an institutionalised system and been an effective method for judicial settlement in recent years. It is important to note however that though such awards are binding only the parties committing themselves, even with no means to enforce such rulings, most are adhered to. Significantly however, parties are able to decide in advance that an award will not be binding and in being able to select the arbitrators can, unlike in the case of the International Court, have a more direct influence and authority over the composition of the panel and its procedure. Thus, in spite of such developments, statehood and consent remain central.[67] The International Court of Justice also exercises a significant jurisdiction within international law but this is again based on the consent of states. Indeed, only states are able to be parties before the Court, yet whilst only a small number of cases are referred each year, it nevertheless remains a highly respected body. Ultimately however, the extent to which the ICJ plays a part in the settlement of disputes is dependent on the states' desire to utilise it and indeed it only exists and operates with the approval of states.[68] Significantly however, whilst ‘only states may be parties in cases before the Court,'[69] such access to the Court does not lead to it automatically having the jurisdiction to settle disputes[70] and depends on state consent that can be given in a variety of ways. Article 36(1) of the Statute specifies that the Court will have jurisdiction over ‘all cases which the parties refer to it.'[71] This can be through an ad hoc consent where parties to a dispute make an agreement to refer it to the Court. Furthermore, many bilateral and multilateral treaties are able to have clauses that grant the Court jurisdiction in advance over the subject matter of a treaty though again this is based on consent and some states will sign treaties without accepting this obligation to refer future disputes to the ICJ.[72] In addition, under Art. 36(2) states can accept jurisdiction by a unilateral Declaration of Acceptance yet this is also optional with states able to be parties to the Statute without making such Declarations.[73] Moreover, though those states accepting jurisdiction through this means are bound in relation to others accepting under this system, due to the Optional System being based on consent, there are a number of reasons why states' potential liability to jurisdiction will be limited in practice.[74] Indeed, many depositing Declarations include some reservations limiting the extent to which the Court may exercise jurisdiction over matters. Moreover, in the case of ‘automatic' or ‘self-judging' reservations, a state is able to reserve competence over domestic matters yet have itself as the judge of what constitutes a domestic matter. Thus, in the Norwegian Loans Case[75], the French Declaration contained the reservation excluding all ‘differences relating to matters which are essentially within the national jurisdiction as understood by the Government of the French Republic' allowing the state to choose what represented a ‘domestic matter' and therefore whether the ICJ was able to hear a case. Furthermore, under Art. 36 states also accept jurisdiction on condition of reciprocity and thus the Optional System only applies between participating states and the Court has jurisdiction only to the extent that the Declarations of parties to a dispute coincide and over those areas common to both states' Declarations.[76] Furthermore, another area relating to the jurisdiction of the Court is also the ability of a third state to intervene in proceedings if a dispute relates to the construction of a treaty that it is party[77] or when it considers itself to have an interest of a legal nature in a dispute taking place before the Court.[78] Thus, statehood and consent continue to remain prominent. Within the settlement of disputes, a further important factor is that the Court is able to give an Advisory Opinion ‘on any legal question' at the request of a body duly authorised by the UN[79] including the General Assembly, the Security Council, ECOSOC and IAEA. Yet whilst states are not able to request Advisory Opinions, along with international organisations they are able to participate in these proceedings before the ICJ. Significantly however, in the Western Sahara Case[80], it was held that Advisory Opinions were not dependent on the consent of interested states and that only compelling reasons should result in a refusal to give an Opinion and stating that any signatory of the Statute and Charter had already approved in advance to the exercise of advisory jurisdiction. Ultimately however, whilst generally accepted and acted upon, Advisory Opinions are not binding and statehood and consent continue to be more authoritative elements. Through examining the settlement of disputes it is clear that the developments which have occurred remain important and relevant within international law. Yet whilst acknowledging such facts, it is evident from the most widely used methods, parties to disputes and nature of bodies such as the ICJ that statehood and consent remain the most significant factors throughout. Within this analysis, it can therefore be argued that despite the developments of recent years, statehood and consent continue to remain at the heart of international law and moreover, that this is likely to continue to be the case in the future. Undoubtedly the complex and evolving nature of international law has increased the role and importance of other factors within the system and thus the future of international law still remains uncertain. Yet in examining the sources of international law, international legal personality and the settlement of disputes, it is evident that statehood and consent continue to be the most profound elements within international law, and indeed that those developments that have occurred and will do so in the future will have at their heart such factors.

Bibliography

Books

Martin Dixon, Textbook on International Law (6th edn OUP, New York 2007). Hugh Thirlway, ‘The Sources of International Law' in Malcolm D Evans (ed) International Law (2nd edn OUP, Oxford 2006). Ian Brownie, Principles of Public International Law (7th edn OUP, Oxford 2008). Malcolm N Shaw, International Law (6th edn Cambridge University Press, Cambridge, 2008). Vaughan Lowe, International Law (OUP, Oxford 2007). Colin Warbrick, ‘States and Recognition in International Law' in Malcolm D Evans (ed) International Law (2nd edn OUP, Oxford 2006). Dapo Akande, ‘International Organizations' in Malcolm D Evans (ed) International Law (2nd edn OUP, Oxford 2006). John Merrills, ‘The Means of Dispute Settlement' in Malcolm D Evans (ed) International Law (2nd edn OUP, Oxford 2006). Robert Jennings, ‘General Introduction' in Andreas Zimmermann et al eds The Statute of the International Court of Justice: A Commentary (OUP, Oxford 2006).

Cases

Prosecutor v. Tadic (Jurisdiction) (1996) 3 Intl Human Rights Rep 578. Anglo Norwegian Fisheries Case (United Kingdom v. Norway), [1951] ICJ Rep 116 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion ICJ Rep 1996 Texaco Overseas Petroleum Company and California Asiatic Oil Company v The Government of the Libyan Arab Republic, [1977], 53 ILR 389. Certain Norwegian Loans (France v Norway), [1957]