International Legal Personality and Statehood in International Law - Essay Example

Heading:  International Legal Personality and statehood in International Law Your name: Course name: Professors’ name: Date Introduction There are several fundamental requirements for a community or an entity to be considered as an international legal personality and thus able to conduct international business and other forms of agreements and consular. This makes it possible for international bodies such as the United Nations to operate independently and be in a position to significant impact in the world affairs. A state is usually considered an international legal personality by the international law. There are several requirements that a community must meet in order to be declared as a state. Some of the common qualities include sovereignty, independence, territory control and population control. It is also required that the community be recognised by other states. This analysis focuses on the situation of Independent State of Moon and Republic of Star in their quest for independence from their parent states and obtaining of international legal personality. Question 1 The international legal personality of the Republic of Star in international law One of the most fundamental and traditional requirement for recognition as an independent legal personality in international law is statehood with sovereignty, independence of decision and ability to enter into agreements as an entity, have a government, recognition from other states, permanent population and land1. There are however different qualifications of international personality as recognised by the international legal system. There is the state only, the recognition qualification, the individualistic qualification, the formal qualification and even the actor qualification. These qualification criteria recognize varying entities as legal persons2. It is however worth noting that recognition as a legal entity in the current world is undergoing changes as a result of the emergence of many corporation and individual persons that fully meet the criteria and can thus be considered as legal entities. There has been a challenge to international lawyers regarding the concept of legal entity because of these variations. The traditional statehood qualification cannot be considered adequate for a state to be a legal entity alone because of the emergence of differing concepts of legal international personality. In the case of the Republic of Star, it was recognized by five states as a state after a bloody war that saw majority of its population wiped out and later conceding military defeat to the parent state after a period of six years. The international law no longer recognizes the Republic of Star as a state after being absorbed by the parent state3. This makes the Republic of Star be jointly identified as a state with its parent state that it tried to break away from. This situation presents unclear situation about the extent of independence that the Republic of Star enjoys after being absorbed back by the parent state. Traditionally from the basis of being automatically a legal personality as a result of being a state is ruled out. The rationale for this is because Republic of Star does not enjoy sovereignty and independence of a state and thus cannot sign treaties or enter into other contracts or agreements as Republic of Star since it was absorbed by its parent state and in this sense no longer a state. In order to fully comprehend a situation where a section of a state which is still under its parent country can be considered as a state, the case of Hong Kong presents a clear picture of the situation4. It is worth noting that the concept of statehood and sovereignty is no longer adequate consideration for international legal personality status to be achieved. This is because of the increasing changes in international relations and the proliferations of new forms of identity as a result of the increasing rate of transnational interactions on the part of non-independent sections of the state considered state actors. Some of the qualifications that are exhibited by considering Honk Kong case include state attributes like Sui generis qualities together with defined territory, permanent population and system of governance, legitimacy through recognition by international community, the ability to self determination and membership in international civil society5. With these analysis and case consideration, Republic of Star does not meet any foundational threshold to be considered by the international law as an international legal personality and competence. The first reason for this is because it is not a state because it lacks features of a state and therefore does not automatically qualify after being reabsorbed by its parent state. Other qualifications such as recognition by international law, permanent population, government and defined territory are not well presented and hence cannot be considered to have international legal personality and competence. Unlike the case of Hong Kong, it is not a member of international civil society, it does not meet the sui generis qualities and it does also not meet any stately attributes that can be a foundational basis for claiming international legal personality. Since there is absolutely not any form of political organization or a system of independent governance of its affairs that can qualify it under international organization or corporate organization like other forms of independent international organization which enjoys a percentage of international legal personality, Republic of Star cannot be considered as an international legal personality. The fundamental rationale for this decision is because Republic of Star does not meet any threshold under statehood or corporate organization as clearly elaborated. The international legal personality Independent State of Moon in international law According to international law, automatic qualification to international legal personality is the statehood and sovereignty. These qualifications are considered fundamental to achieve international legal personality and competence according to the international law provisions6. The fundamentals of becoming a state and hence an international legal personality and competence requires, permanent population, defined government with self independence, international recognition and the qualities of sui generis It is also important to mention that international corporations and organizations enjoy some percentage of international legal personality and competence. Entities are usually required to fulfil the fundamentals requirements which a state automatically fulfils in order to be regarded as a legal personality with full competence. The concept of international legal personality has however provided challenges to the international community because of the increasing concern that statehood qualification should not limit other entities such as international organizations, individual persons and sections of the state to have international legal personality and competence7. The rationale for this proposal and argument by many scholars is because of the increasing proliferation of new forms of identity that requires recognition as international legal personality. The driving force is essentially the changes in economic trends and the need to increase global economy through formation of numerous independent and acknowledged competent legal personalities around the globe. The case of Hong Kong presents a perfect example of the need to look at international personality concept insightfully. The case of Hong Kong presented the international community with challenges of its status as an international legal personality which is competent. In this case, The Independent State of Moon struggles to be recognized as an independent state through international community. The parent state has however hampered this undertaking by suppressing its ambitions through a wide international campaign not to recognise the Independent State of Moon as sovereign and an independent state. Thankfully the parent state accomplished this mission without using military force but rather through a persuasion of the international community who seemed to agree with the parent state. Notable, the Independent State of Moon despite its failed recognition as a state, it survives and enjoys its operation as entity with all features of a state that is clearly independent from its parent state. According to8 containing the feature of state and the capability to operate as a separate entity from its parent state is one of the qualification of attaining competence and international legal personality state. The case of Hong Kong is a good example if independent and autonomous region with the ability to conduct business, enter into treaties with other international states and bodies including its parent state China. The court system of Hong Kong is independent from China and there are some cases that are legally binding internationally that cannot be heard in the Mainland. Such cases include arbitrations that involve international countries such as an American company and Chinese company or other company operating in Hong Kong. This is a clear statehood independence from the parent state despite not being recognised as a state. The case of Hong Kong and the needs to qualify an entity into an international legal personality and competence has been discussed in order to shade more light on the situation of Independent State of Moon. Based on the current changes which have been necessitated by the ever increasing proliferation of identity qualifications, the increasing number of transnational relations and the changes occurring in international court justice are adequate to consider Independent State of Moon as an international legal entity with competence. The other rationale for this assertion is because of the fundamental fact that the Independent State of Moon carries out international business and other forms of interactions with the outside world because of its features as a state hence the need to be accountable as an entity and be held responsible by the international community separate from its parent state. Despite the controversy and the increasing changes of an entity to qualify as an entity, this concern has been fostered by the fact of increasing globalization and hence the need to depart from the traditional qualifications of statehood and sovereignty, and international organization are necessary in order to enjoy International legal personality. Considering these factual analyses that are of weight in the eyes of the international community, the Independent State of Moon qualifies to have competent and international legal personality. Question 2 Significance of recognition of the Republic of Star in international law In order to comprehensively answer this question, some fundamental understanding on the international law is necessary. Firstly the conditions that makes a community a state in the eyes of the international law. Secondly what are the essential elements of a community that needs to be fully fulfilled in order to be granted statehood? What are the implications of recognition and non-recognition of a state by other states and what is the stand of the parent state in regard to this issue. What rights does the parent state have in regard to other states decision making process? Answering these foundational questions will be important in determining of how one can consider as state fully recognised or not. To facilitate a community to be declared a state under international law, it must meet the following essential qualifications. It must be independent and sovereign; it must have the capacity to control a population and its territory and promote equality among other general perspective of the international law9. It must also be noted that the international law is dynamic and general in many respects because of the dynamism and the ever changing perception of states and other legal entities that can participate in international relations. In the eyes of international law, a community also need to be recognised by one or more states for it to be declared a state and thus participate in international relations and treaties. Since other states ought to declare a give community as a state and thus binds itself to its declaration judgement and other international relations between the two states, the statement of the declaring state has to be accurate in the eyes of the international law because such declaration is legally binding10. This implies that any misjudgement by the declaring state will be illegal and hence infringements of the international law since there are fundamental requirements for such declaration. Premature declaration is also legally binding to the declaring state. As an example, France declared the US as a state in 1778 attracted a sharp reaction by the United Kingdom that such declaration was immature and France had indeed misjudged its declaration and thus infringed on international law. Non-recognition of a community by other states and thus international law implies that the state has not met these fundamental requirements. However if one state refuses to recognise a state as a state despite recognition by other nations and international law, such two states cannot enter into any consular relations, treaties or even diplomatic relations. It is only in the event of a criminal activity that requires international criminal justice that such assumptions will be overruled. The significance or implications of recognition of the Republic of Star as explained by the practical and theoretical framework discussed above will therefore lead to the following consequences. After being reabsorbed by the parent state, the Republic of Star failed a number of fundamental qualifications to become a state in the eyes of the international law. For instance, it lacked independence, sovereignty, control of its population and territory after it was militarily defeated by its parent state. The international law ceased to recognize it as a state. The other five states that had recognised the Republic of Star as a state were obliged by their misjudgement in respect to the international law since the Republic of Star no longer met the general threshold of statehood. The five states infringes on the provisions of the international law since their judgement were premature and given the clear indication of legal responsibility of such misjudgement, the international law ought to be applied against these sates. The other significance of recognition of Republic of Star is the legal position of its parent state against the five states that prematurely declared the Republic of Star as a state. As for the example provided, France prematurely declared the US as a state and they were legally bound by their inaccurate judgment in the eyes of England with the support of the provisions of the international law. This implies that since there was not valid ground based on the foundation principles of a community to qualify as a state, the parent state of the Republic of Star had legal rights against these five states for their wrongful and premature recognition. Significance of Non-recognition of the Independent State of Moon in international law The scenario of Independent State of Moon presents a complex situation with regard to the international law and can thus be argued in different perspectives. The fundamental qualifications of being a state which primarily includes complete control of internal affairs such as population and territory through an effective system of government. The Independent State of Moon has all the qualifications of a state but not recognised as a result of its parent state diplomatic campaigns against its independence. Because of this circumstance of Independent State of Moon, a more insightful and comprehensive understanding of the international law is required to give the significance of the non-recognition of the Independent State of Moon. Notably, there are not legal implications of other states not recognizing the Independent State of Moon as a sovereign state. This alone however does not imply that the Independent State of Moon is not a state11. It is only that through recognition by other states can the Independent State of Moon enter into diplomatic agreements, treaties and other forms of international consular. Since the Independent State of Moon is not recognised by any state and the international law has not stated its position with regard to this situation, the Independent State of Moon cannot be automatically declared as a state and hence cannot act like an independent state in the eyes of international community. However, since it is an entity with state like features, it can successfully acquire international legal personality and thus be in a position to conduct business with other international bodies and sue or be sued. This is similar to the case of Hong Kong and its pursuit to be considered an international legal personality. The major challenge in this case is however accurately determining the circumstance of the Independent State of Moon because of the dynamism of international law. Increasing proliferation of new identities that are independent is growing fast and the international law may at some point consider the Independent State of Moon as a state12. The current implications are that the Independent State of Moon cannot act like a state despite its independence until such time that the international community within the continent of the Earth and outside recognizes it as a state. The international law must also recognise this recognition and hence establish a legal binding effect to the countries that commit to their declaration. The non- recognition of the Independent State of Moon as a state in their quest for statehood has an added implication on the qualifications and the significance of the fundamental requirements of achieving statehood with respect to the international law. It opens a valid point of contention in that the diplomatic persuasion of the parent state should not be adequate not to declare the Independent State of Moon as a state13. This element reveals the legal loopholes and political influence that the parent state has on the outside world. Under the general principles of statehood qualification in international law, Independent State of Moon meets the threshold. The major implication of the failure of this quest can thus be pointed to political influence and not fulfilment of fundamental requirements. Conclusion This analysis has focused on international legal personality of the Independent State of Moon and Republic of Star. Both scenarios have been analysed with respect to the provisions of the international law and an assertion of the situation in both cases discussed insightfully with consideration of the situation and the legal limits. It was also noted that the international law is dynamic in nature because of the proliferation of new forms of identities of different entities and hence the need to be open minded when asserting different factors and conclusions. The other second section of this paper critically analysed the implications of recognition of a state and non-recognition of a state. This applied to the situations of Independent State of Moon and Republic of Star respectively. Bibliographies Aust, A, Handbook of International Law (Cambridge University Press, 2010). Barbara, C, International Legal Personality: Panacea Or Pandemonium? 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