The Legal Regulation of Space, Between Sovereignty and Community Interests

The int’l legal regulation of territory and other space shows most clearly the conflict between traditional, state sovereignty approach and modern, community-oriented outlook.

In this area, state sovereignty and self-interest / individualism has dominated (even in the legal realm). The legal regulation of space has been governed by ‘each for himself’ principle.

The ‘common heritage of mankind’ concept was advocated by developing countries, but at the same time they were trying to gain control over exclusive economic zones on their coast-lines, and furthermore, they were unlikely to develop technology to exploit ocean bed resources, whereas developed states were.

а Could infer that developing countries were themselves acting out self-interest, rather than out of ‘common humanity.’

BUT, 1982 Convention on the Law of the Sea and 1979 Treaty on the Moon still contain the concept of ‘common heritage of mankind,’ so it may not have lost all relevance at international level.

Other International Legal Subjects

Insurgents

· Political and military dissidence within a sovereign state results in large-scale armed conflict, with rebels succeeding in controlling some territory and setting up an operational structure capable of wielding authority over individuals who live there (minimum characteristics of states).

· When this happens, insurrectional party normally gains some measure of recognition as an int’l legal subject.

· Insurgents either fail and get crushed by state or succeed and become states themselves with international legal personality. There is a grey area between when they are trying not to get crushed.

· States have traditionally been very hostile to insurgents, because insurgents want to topple them.

· States thus tend to regard insurgents as common criminals.

· They also resist any interference from int’l community.

· Reasons for even greater reluctance to recognise insurgents in modern times:

o Spread of tribal feuds or other conflicts in developing states, due to arbitrary borders drawn by colonial powers

o Growing influence of nationalist or religious groups, particularly in states born from collapse or break up of bigger state.

· Therefore, growing tendency to deny int’l legal standings to rebels.

Evidence of this:

· Current regulation of conditions for insurgents to acquire int’l legal personality is confused and rudimentary

o Rebels should prove they have effective control over territory

o Civil commotion should reach a certain degree of intensity and duration.

· States (both attacked state and third parties) can decide whether these conditions have been met.

· Rebels are automatically upgraded to international subjects engaged in war if:

o State they are rebelling against recognizes them and admits it is an int’l armed conflict

o Third states recognise them

Few examples of this – US Civil War, naval blockade of South, recognition of belligerency

· Therefore, existence of rebels as int’l legal persons may depend on attitudes of other subjects – in theory, world community could deny int’l legal personality to any rebel group, no matter how effective its control of territory, government, and population.

· Things in practice not as bleak for rebels wanting int’l standing:

o Int’l community has various political and ideological alignments – someone is bound to recognize the rebels

o Even other states may find it useful to recognize rebels as independent legal subject, for example, in order to address claims for protection of foreign nationals to authority that has effective control over territory and population

· Rebels also have a hard time because third state are authorized to provide assistance of any kind to the lawful government (including sending military reinforcements), but they are duty bound to refrain from providing any assistance other than humanitarian to rebels.

а this is different if rebels qualify as a national liberation movement

Furthermore, int’l rules don’t generally address themselves equally to rebels and states

· Same Obligations:

o Rebels are empowered to enter into agreements with those states that are willing to establish rapport with them

o Rebels are to grant foreigners the treatment provided for under international law

· BUT Different rights

o can’t claim respect for the lives and property of their ‘nationals’ (ppl who owe them allegiance)

o If a national from insurgent territory lives in another state, other state’s duty to protect exists only in relation to ‘lawful government’ that individual is a citizen of, not to rebels

o Persons acting as state officials for rebels are treated as individuals, can only be granted international protection by states which grant them recognition

o Do not possess any right of sovereignty over territory they control а they cannot cede the territory or part of it to another state, they merely have de facto not de jure authority

· Insurgents are state-like subjects, but they are transient and have limited international capacity.

· They have only a few international rights and duties.

· They are associated with a limited number of existing states that grant them recognition.

Дата добавления: 2015-11-16