1.
Constitutive and Declaratory Theories: Is Recognition Essential for
Statehood?
There are two main theories on state recognition in international law: the constitutive and
declaratory theories. The constitutive theory posits that a state exists legally only when
recognized by other states. This theory emphasizes the role of recognition in conferring legal
personality in the international system.
By contrast, the declaratory theory, supported by the Montevideo Convention (1933), holds
that a state exists if it meets four criteria: a permanent population, a defined territory, a
government, and the capacity to enter into relations with other states. Recognition under this
theory is merely declaratory of an already existing statehood, not a requirement.
Most international law scholars and courts favour the declaratory theory, especially in light of
ICJ decisions like Tinoco Arbitration and Kosovo Advisory Opinion (2010), which show that
recognition is not a legal requirement for statehood. However, practical recognition may still
be essential for diplomatic relations and UN membership.
2. How Can Disputes Be Brought to the ICJ?
Disputes can be brought to the International Court of Justice (ICJ) in three primary ways:
1. By Special Agreement (Compromis) – Both parties consent to submit a dispute to the
ICJ. This is a mutual agreement, common in boundary or treaty disputes.
2. Compulsory Jurisdiction under Article 36(2) of the ICJ Statute – States may declare in
advance that they recognize the Court’s jurisdiction as compulsory in legal disputes.
However, both parties must have accepted this clause for the Court to hear the case.
3. Referral by Treaties or Conventions – Many international treaties (e.g., the Genocide
Convention) include clauses that refer disputes to the ICJ.
4. Contentious vs. Advisory Jurisdiction – Only states can be parties in contentious
cases, whereas the UN General Assembly or Security Council may seek advisory
opinions, as seen in the Legality of the Threat or Use of Nuclear Weapons (1996).
Consent remains the cornerstone of ICJ jurisdiction.
3. When is Use of Force Permitted in International Law?
Under Article 2(4) of the UN Charter, the use of force against another state is generally
prohibited. However, there are two main exceptions:
1. Self-Defence (Article 51) – A state may use force if it is the victim of an armed
attack. The response must be necessary and proportionate, as affirmed in the
Nicaragua v. United States (1986) case.
2. Security Council Authorisation (Chapter VII) – The UN Security Council may
authorize the use of force to maintain or restore international peace and security (e.g.,
intervention in Libya, 2011, under Resolution 1973).
A third, controversial category is humanitarian intervention or Responsibility to Protect
(R2P), used without explicit Security Council approval (e.g., NATO in Kosovo, 1999). This
remains legally contentious.
Thus, force is permitted only under strict conditions, and unilateral uses are heavily restricted.
4. Protection of Human Rights in Europe & Absolute vs. Qualified Rights
Human rights in Europe are primarily protected by the European Convention on Human
Rights (ECHR), enforced by the European Court of Human Rights (ECtHR). Individuals can
bring cases against their states after exhausting domestic remedies.
Rights are classified as:
Absolute rights – Cannot be limited under any circumstances (e.g., Article 3:
prohibition of torture; Article 4(1): prohibition of slavery).
Qualified rights – Can be restricted for legitimate aims under prescribed conditions,
such as national security or public safety (e.g., Article 8: right to private and family
life; Article 10: freedom of expression).
The ECtHR applies a proportionality test to assess whether state interference with qualified
rights is justified. Derogation is allowed under Article 15 in times of emergency but only to
the extent strictly required.
Thus, European human rights law ensures robust protection while balancing state interests.
5. Types of Armed Conflicts & Their Differences (International Humanitarian
Law)
International Humanitarian Law (IHL) distinguishes between:
1. International Armed Conflicts (IACs) – Occur between two or more states. Governed
by all four Geneva Conventions (1949) and Additional Protocol I (1977).
2. Non-International Armed Conflicts (NIACs) – Take place within a single state
between government forces and non-state actors, or between such groups. Governed
by Common Article 3 of the Geneva Conventions and Additional Protocol II.
Key differences:
IACs provide broader protection, including for prisoners of war and occupied
populations.
NIACs offer more limited protections, focusing on humane treatment and prohibition
of targeting civilians.
Case law, such as Tadić (ICTY, 1995), helped clarify the threshold for NIACs, requiring
protracted violence and organized armed groups.
Classification determines the applicable legal regime and accountability mechanisms.
🟥 LONG ANSWERS
1. Legal Implications of Pre-emptive Force in International Law and the UN
Charter
The legality of pre-emptive use of force remains one of the most controversial areas in
international law. Under the UN Charter, Article 2(4) prohibits the threat or use of force,
while Article 51 permits self-defence only if an armed attack occurs.
Pre-emptive force refers to striking first when an attack is imminent. This is narrower than
preventive war, which targets potential future threats, often without clear evidence of
imminence.
The Caroline case (1837) established customary law requirements for self-defence: necessity
must be “instant, overwhelming, leaving no choice of means.” The ICJ in Nicaragua v. USA
(1986) reaffirmed that force must be proportionate and necessary.
Post-9/11, the US expanded the notion of pre-emptive self-defence under its National
Security Strategy (2002), particularly regarding terrorism and rogue states. However, the ICJ,
most states, and UN bodies have not accepted this broader interpretation.
The Iraq War (2003) demonstrated the dangers of stretching self-defence beyond imminence.
Lacking explicit Security Council approval, many legal scholars argue it violated
international law.
While some argue customary law is evolving to accommodate threats like WMDs and
terrorism, the prevailing view is that pre-emptive force remains unlawful unless an armed
attack is imminent. The UN Charter provides a collective security system, not one based on
unilateral anticipation.
Thus, pre-emptive strikes are generally illegal unless they satisfy strict Caroline criteria, and
lack of Security Council authorization makes them highly questionable under international
law.
2. Legal Determination of Territorial Sovereignty: Key Factors
Territorial sovereignty refers to a state’s exclusive legal authority over a defined geographic
area. Disputes over sovereignty often arise from colonial history, secession, or competing
claims. International law uses several principles to resolve these claims:
1. Effective Control (Effectivités) – As confirmed in Island of Palmas (1928) and
Minquiers and Ecrehos (1953), actual, continuous, and peaceful exercise of authority
often outweighs historical claims.
2. Uti Possidetis Juris – Former colonial borders become international boundaries upon
independence, as seen in African and Latin American cases (e.g., Burkina Faso v.
Mali, 1986).
3. Treaties and Agreements – Legal instruments such as cession treaties (e.g., Alaska
Purchase Treaty) or boundary agreements are decisive if valid and ratified.
4. Historical Title – Long-standing possession may support a claim, though it is less
persuasive without effective control.
5. Acquiescence and Estoppel – Failure to protest another state’s control may weaken
sovereignty claims, as seen in Temple of Preah Vihear (1962).
6. Self-Determination – In certain contexts, peoples’ right to self-determination (e.g.,
decolonisation) may influence sovereignty, although it is not a universal rule.
The ICJ and arbitral tribunals weigh these factors contextually, focusing heavily on evidence
of authority exercised. Sovereignty is ultimately a question of law and fact.
