Introduction in antagonism with others- through the drafting of

Introduction

The purposes of
this paper are for the advice of the Foreign Affairs Minister regarding the
recognition of Omega as an independent State and why it should be admitted to
the United Nations. Based on the facts of the case Omega should be recognized
as an independent State and afterwards as it will be held on this paper it can
be admitted to the United Nations.

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First
Part

1.  Independence

One of the
essential attributes of a state under International Law is external
sovereignty—that is, the right to exercise freely the full range of power a
state possesses under international law. Recognition of a state as independent
necessarily implies that the recognizing states have no legal authority over
the independent state. The status of a fully independent state should be
contrasted with that of dependent or vassal states, where a superior state has
the legal authority to impose its will over the subject, or inferior, state.1

2.   The
Criteria for Statehood

The Montevideo
Convention on the Rights and Duties of the State, that was signed on 1993 and
has been recognized as a customary international law, which means that is a
legitimate source to be used, has stated out in article 1, the criteria for
statehood.

More
specifically, the state as a person of international law should possess the
following qualifications:

a)   
permanent
population

b)   
a
defined territory

c)   
government

d)   
capacity
to enter into legal relations with other States2

     2.1 The Permanent Population

The number of
the population required is not specified, there are numerous States such as
Tuvalu, Nauru, Palau and Vatican City (with less than 10,000 population), which
are called ‘micro states’, since they have a small number of population. The
most important is that the population needs to be regarded to the territory of
the State that want to be acknowledged. 3

The population is
not only used as an instrument for determining the reaches and influence of the
sovereign, or one by which the States had the possibility, to secure themselves
in antagonism with others- through the drafting of troops and the ‘cooption of
labor’ for the establishment of wealth. Additionally, it gave the coherence for
governments itself: the ambition of governments was between other things, the advancement
of the happiness and prosperity of the people. 4

In the Western
Sahara Case is stated that the term permanent it is not related with the
minimum period that the population has to stay in a specific place. Moreover,
territories populated by meandering wanderers are comprehended to having a
permanent population and they are not ‘terra nullius’ (an area belonging to
anybody), which itself can be legitimately seized by existing states.5

Since the
requirement of the permanent population is not specified with a specific
minimum number, Omega is satisfying it. Nonetheless, the majority of its population
are basically from a different ethnic, linguistic and religious background from
the rest of the population of Alpha.

      2.2 A Defined Territory

The requirement
of a defined territory is linked with that of the permanent population, since
it is a brink for the existence of population, with result to be difficult to
ascertain a particular condition concerning ownership of an adequate part of
land. Also, this requirement has to do with the capacity of legitimacy
regarding the guarantee of the territory as land of absolute rule. 6

On the other
hand, there is not always a need for excellent clarity for the boundaries,
since sometimes could expand beyond the geographic ones, as happens with Monaco
which has a territory smaller than 1.95 km2. 7

Moreover, the
disputes with another State for the borders, is not causing issues for the
independence of a State as was shown by the Israel’s statehood.

The ‘de facto’
entities, such as Northern Cyprus, can be linked to our case, since Omega has
the de facto authorities, the ones that declared its independence8.

2.3       
Effective
Government

The term
‘government’ in the Montevideo Convention is stated simply but it can be
thought that is related with its effectiveness. This requirement does not mean
that there should be control at the maximum, as it is shown from the Chinese
Communist Party, which is the recognized part of China, although it cannot
control Taiwan. The most important is to show that can be interacting on a
sufficient manner in order to represent its population when is dealing with
other States.9

It is proved
that Omega has its own effective government, which had been seeking for
independence and since it had been an autonomous region means that it is acting
on the behalf of its own population only.

2.4       
Capacity
to Enter into Legal Relations with Other States

This
requirement is regarded with the “would be’ State, that must delineate
that it is fit for going into concurrences with different States without
depending on other States and having the capacity to go into internationally
perceived concurrences.10 John Duggard stated that
if there is an entity belonging to another state for matters of its foreign
affairs then it does not meet this criteria with result not to be an
independent state.11

In Netherlands v United States, it was held
that independence is showed through the sovereignty in the relations between
States. Furthermore, independence of a specific place of the world, is regarded
with the right of exercising it, to the ‘exclusion’ of any other State, the
power of a State. Nevertheless, this is linked with the territory of the State.12

Omega, fulfils
this criterion, since it had been recognized as an autonomous region, meaning
that it should dealt on its own with other States.

3.  Recognition of State

Recognition has
to do with the acceptance of a State by another and create relation with it. It
is mainly a political act, that can be decided by States.13

Alain Turaine
states out that people, states, minorities and groups, want to be recognized by
the international law as ‘equal but different’. They are asserting the legal
recognition of specific contrasts that sustain their characteristic. They need
to be considered as being unique, having a place with societies or gatherings being
themselves perceived as being particular and that shape the premise of their
personality, and which may infer various rights.14   

The recognition
is based on two theories, declaratory and constitutive, each of them will be
analyzed below.15

     3.1 Declaratory Theory

The declaratory
theory considers recognition as ‘merely a political act recognizing a pre-
existing state of affairs’.16 More specifically, a
state is existing based on law and fact and the recognition is just a confirmation
of this.17

Taf CJ, in the
Tinoco Arbitration, ruled that it is meaningless if a state does not recognize
the government of another one, when the latter meets some of the fundamental
criteria related with the statehood. 18

Moreover, the
Arbitration Commission of the European Communities Conference on Yugoslavia,
which had been directed by Robert had supported it during the consideration of
the independence and the status of states of the successor related to the
S.F.R. Yugoslavia.19

This theory is
based on the criteria stated by the Montevideo Convention for statehood,
analyzed above and since it basically states that for a State to be independent
has to be held the decision upon and as was above, Omega has met all the
criteria regarding the Montevideo Convention.

     3.2 Constitutive Theory

Depending on
this theory a state does not exist ‘automatically’ but only if it is recognized
by other states.

The Permanent
Court of International Justice, the ancestor to the International Court of
Justice, seems to have approved it, in the Lighthouses case, in which
efficiency had been disobeyed for the fiction of continued sovereignty of the
Turkish Sultan.20

Another example
that shows the supporting of this theory is the International Criminal Tribunal
for the former Yugoslavia, the International Court of Justice’s neighbor The
Hague. In the Celebici case, was held that what happened in the Yugoslavia was
only of an international nature after the state recognition of Croatia and
Bosnia and Herzegovina.21

Since, this
theory does not give further explanation, for the number of the States that
needs to recognize the independence of another, Omega is capable of being
independent, from the moment that had been recognized by various States, as are
the UK, France and other numerous member States of the European Union and the
United States of America.

4.  Self- Determination

The UN Charter,
Article 1 (2) states that the purposes of the Nations are:

To develop
friendly relations among nations based on respect for the principle of equal rights
and self- determination of people, and to take further appropriate measures to
strengthen universal peace;22

The term
‘people’, is not defined under international law. But, usually there are four types
of groups that are entitled to this right, – colonial people, the people under
foreign domination and States’ people and finally the ethnic a and national
minorities within a State, with the latter being more questionable.23

Furthermore, in
the article 55, refers to the prospective of the ”creation of conditions of
stability and well-being which are necessary for peaceful and friendly
relations among nations based on respect for the principle of equal rights and
self- determination of people.” 24

Also, the
common Article 1 of the two International Human Rights Covenants, which are
accepted as customary international law, provides that ‘all people have the
right of self- determination. By virtue of the right they freely determine
their political status and freely pursue their economic, social and cultural
development’.25

Self-
determination is applicable to all people that are in colonial position. After
what was held by the International Court of Justice in the case of Namibia, it
was upheld universally that decolonization had been a right of self- determination. 

Finally, Weller
alludes to the “possibility” of such a privilege and probably
recommends that the instance of Kosovo “may” be contributing “to
the working of another branch of the privilege to self-determination”.
Later in the book Weller is all the blunter, when he recommends that “it
cannot be denied that the Kosovo case will, as independence merges, help
reinforce this contention’. Despite the fact that the conclusion of the ICJ in
the Kosovo Advisory Opinion shied far from deciding “regardless of whether
worldwide law by and large gives a privilege on substances arranged inside a
State singularly to split far from it” at, this was in no way, shape or
form the consistent perspective of the court. In this way, from one viewpoint,
Judge Yusuf expressed that a therapeutic right of severance existed in
extraordinary conditions. On the other hand, Judge Abdul Koroma decided that
there was no privilege of one-sided withdrawal in worldwide law and this was so
despite the privilege of people groups to self-determination.26

The right is
exercised in two ways: a) internal and external. Further explanation will be
found below.

Depending on
the Article 1, Omega has given the freedom needed to its people, since the
majority of its population is different on terms of ethnic, linguistic and
religious background when combined with this of Alpha’s.

     4.1 The Internal Aspect of the
Right

This has to do
with the right of decision that the people within the State have for their
political status, the point that they want to engage with the political issues
and finally for their government. In order for the internal aspect to be
exercised, the Declaration on Principles of International Law stated that there
needs to be a government that is representing all the people of its territory,
without excluding depending on ‘race, creed, or color’ is meeting with the
right of self- determination.27

The Canadian
Supreme Court, held at the Quebec case, that usually the right of self-
determination is exercised internally. 28

    4.2 The External Aspect

The external
method was mainly applied on colonial situations, because it has to do directly
with the territory of a State and the relations that will follow afterwards
with other States. This application has three main methods, for exercising it
an all are provided by the General Assembly Resolution 1541 (XV):

’emergence as a
sovereign independent State; … free association with an independent State; or …
integration with an independent State”.29

It should be
noticed that in this Resolution nowhere is referred, that the right to exercise
self-determination of independence, or secession from an independent State, is
the only, or even the necessary or appropriate, means of exercising the right.
Moreover, there is a requirement that all people within a territory must be
consulted before any change in sovereignty over that territory can occur,
particularly if it is a colonial territory.30

5.  Remedial Secessionam1 am2 

Secession is an
internationally ‘neutral act’. There is no prohibition related to the becoming
of a territorial entity a state, albeit singularly; The issue is that there
will be no right of statehood, even if all the criteria of the Montevideo
Convention are satisfied. A territorial entity is not prohibited from turning
into a state, yet singularly; yet there is no privilege to statehood,
regardless of whether the Montevideo criteria have been met. Considering that
there is no positive privilege, international law puts the burden of
differentiating the territorial status quo on the independence- searching
substance. This makes achievement of singularly proclaimed independence
improbable and, in this sense, the standards of international law support the
presence of states inside their present borders. The standards of international
law, in any circumstances do not prohibit the development of another state
inside the territory of an existing one.31

The remedial
secession, is linked with the right of self- determination, since the right for
the remedial secession becomes active, when the right of the internal self-
determination had been rejected.32

 A definitive accomplishment of a secession
would be subject to acknowledgment by the international community, which is
probably having to consider the lawfulness and authenticity of secession
regarding, different certainties, the policy of Quebec and Canada, in deciding
if to concede or to withhold recognition.33

 

Second
Part

1.  Being Admitted to the United Nations

The recognition
of a State or a government from the United Nations is depended on the already
existed States and Governments, since the United Nations  is neither of the two and for this reason does
not have this ability. 34

The Charter of
the United Nations, which was signed on 1945 by 50 out 51-member countries, and
its main concern was regarded with the human rights of the citizens and defined
many ethics on the accomplishment of ‘better standards of living’ based on
health, economic and social issues. In addition, it has established respect and
compliance globally, for the human rights and the basic freedoms, to everybody
without any exception being related to sex, race, religion or language. 35

In the United
Nations Charter, Chapter 2, article 4 (1-2) is stated that:

1. ‘Membership
in the United Nations is open to all other peace-loving states which accept the
obligations contained in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations’.

2. The
admission of any such state to membership in the United Nations will be
effected by a decision of the General Assembly upon the recommendation of the
Security Council’.36

Considering the
first part of the requirements for the UN Membership, Omega falls in the
category of a ‘peace loving state’, because after the war, the UN send some
peacekeepers, in order to protect Omega’s people from ethnic cleansing and
different other abuses that could be done by the military and paramilitary
forces, that are connected with Alpha.

    1.1 The procedure in order to be admitted
in the United Nations

Initially, the
state has to submit an application to the Secretary- General and a letter formally
stating the obligations that were mentioned above. Afterwards, the Security
Council goes through the application. If there is a recommendation for
admission it needs to be voted positively by 9 out 15 votes of the total
members of the Council, with the principle that none of the 5 permanent
members- United States of America, China, the Russian Federation, France, the
United Kingdom of Great Britain and Northern Ireland-  has not voted negatively. Also, it needs to
be shown to the General Assembly, in order to be reviewed and then to be voted
by the two-thirds of the total. Finally, membership is activated when the
affirmation is concluded.37

Conclusion

In sum, the
Foreign Minister is advised regarding the independence of Omega, that Omega
fulfill all the criteria which could result to its independency. Finally, as it
was proved above, it has also the ability to be admitted in the United Nations.