【正文】 e pensation is ―adequate, effective, and prompt‖ o ―not ultimate standards but an important step in the evolution of generally acceptable international standards which plement, but do not substitute for, bilateral investment treaties‖ o . unhappy b/c this is not definitive (and US sticks PAE into all its BITs)… BUT most countries use PAE n ow to encourage investment III. STATE FORMATION A. STATEHOOD 8 1. Montevideo Convention 4 Requirements for Statehood: a. Determined population (no minimum size。 promote development) b. Secession – one territory breaks off from a nonimperial state to form a new state, either peacefully or as a result of armed conflict c. Dissolution – a state dissolves into two or more states, with the former state ceasing to exist (Yugoslavia, USSR, Czechoslovakia) d. Merger – creation of one state by the union of two states (Yemen – entirely new entity。 emerging into a period of independence), then int’l law would apply, and Islands would belong to Finland. Under IL there is no right to secede (unless selfdetermination applies). ? IL tells us what to do before and after, but NOT during, a process of separation (until it sees a stable oute) o Opinion of the Committee of Rapporteurs ? Aalanders amp。 ―Minorities‖ do not (though do have rights to their own language, culture, etc). See Aalanders. ? FRD amp。 the former is a right exercised through the appropriate political process, while the latter is only available in extreme situations—namely: ? Foreign conquest ? Colonialism ? [Maybe] Blocked from meaningful exercise of internal selfdetermination – unclear whether this is established as international law o See also James Bay Crees for the definition of ―a people‖ c. EXAMPLE 3: EU approach to former Soviet states (Declaration on the ―Guidelines on the Recognition of new States in Eastern Europe and in the Soviet Union‖) o Criteria for recognition as a state (none of which are in Montevideo Convention) = respect for UN Charter。 mitment to settle by agreement all regional disputes o If these are lacking, won‘t get trade/aid/diplomatic relations C. SUCCESSION [case study = Former Soviet Union] 1. TREATIES a. Vienna Convention on Succession of States in Respect of Treaties (1978) ? DRAFTED BY STATES (default rules) ? Article 11: ―Moving boundary rule‖ – If A ceded a chunk to B, both boundary would be moved ? If absorption ? Article 15 (new state‘s treaty obligations control unless inpatible with object amp。 enforce all treaties… really concerned with knowing status of disarmament treaty relations。 no other p。 foreign embassies amp。 210 (1987)… [pp14041] ? DRAFTED BY ACADEMICS ? If merger ? Treaties of absorbing state (the new state) apply to whole new territory (successor state) ? If separated ? ―Clean Slate‖ approach wholly adopted。 respect for inviolability of all frontiers。 not worried about homegrown oppression. Serbs certainly not a colony. ? Don‘t want every minority to form own state! ? Right of selfdetermination (in ICCPR and Cov on Econ Rights) has been limited primarily to decolonization o Q 3: Borders. Can internal boundaries b/t Croatia and Serbia and b/t BosniaHercegovinia and Serbia be regarded as frontiers in terms of PIL? ? A: Internal boundaries will remain as external boundaries. Uti possedetis – you shall possess what you have by law. o Slovenia and Croatia are instantly approved for EU o Q 4: Bosnia’s admission – ―will of the state‖ was not adequately proven (puzzling b/c BC said earlier Serbs not a ―people‖) ? Serbs hadn‘t manifested their will to be part of this new state. ? EC ended up recognizing Bosnia o Q 5: Macedonia’s admission – BC requires assurance they will refrain from hostile acts against another country (this is to satisfy Greece) ? Greece requested new name and flag to dissociate itself o Update: ? Feb 4, 2020: FRY adopted new Constitutional Charter, changing name to Serbia and Montenegro. Still divided。 transition phase like Finland, above... until then, ―effects of recognition by other States are purely declaratory‖). ? Once dissolution is recognized, violates IL to try to keep country together—you’re acting against a new state! Thus, premature recognition can be viewed as a violation of the nonintervention principle. ? Federal / nonfederal distinction: BC/EU uses this legal vehicle to recognize all FRY entities, while not setting too broad a precedent (most states are unitary, and federal are not likely to dissolve) o Q 2: Selfdetermination. Do Serbs in Croatia amp。 Aaland Islands say they‘d like to leave Finland and affiliate with Sweden o League of Nations creates ―International Committee of Jurists‖ – issue is whether dispute is within the jurisdiction of LON or entirely up to Finland ? Finland – territory of nations – domestic jurisdiction (whether state decides to split up or not) ? Aaland – state sovereignty – int‘l jd (period of transition。 not at the behest of larger state) 2. Possible Formation Processes: a. Decolonization – states bee independent from selfidentified colonial empire o See UN Charter, Article 73 (members of UN responsible for peoples who have not yet attained a full measure of selfgovernment must… ensure polit/soc/econ advancement。 Basic Structure agreement. Here parties left it intentionally ambiguous b/c they couldn’t agree!!! c. DENOUNCING / TERMINATING A TREATY ? VC Art 56—Denunciation of or Withdrawal from a Treaty Containing No Provision Regarding Termination, Denunciation or Withdrawal No denunciation/withdrawal allowed UNLESS: o Parties intend to admit this possibility [not here] o Right is implied by nature of treaty [again, no] No less than 12 mo notice ? VC Art 60—Termination or Suspension of the Operation o