The Legal Relations of Collectives: Belated Insights from Hohfeld

2009 ◽  
Vol 22 (2) ◽  
pp. 289-305 ◽  
Author(s):  
JOHN R. MORSS

AbstractCollectives and their interrelations are central to international law. Legal relations between collectives can be analysed with reference to the classic account of Hohfeld without reducing those collectives to mere aggregates of individuals and without recourse to the legal fiction of treating the collective, for example the state, as a quasi-individual. The rights of collectives have been widely if not conclusively explored within international law, but Hohfeld's ‘field’ approach to legal relations enables the scrutiny of the range of relations, including immunities, liberties, powers, and disabilities, as well as claim-rights and the corresponding obligations in others. The main substantive topics for discussion are the legal relations of collective entities such as peoples and minorities, and closely related matters such as self-determination. Applying Hohfeldian analysis to international law highlights the centrality of international collective entities of which the state represents only one variety. The approach described here therefore takes account of the dethroning of the state within contemporary international law and contributes to the theorization of that development. Nearly one hundred years after its first appearance, Hohfeld's analytic scheme continues to generate insights for international law.

Author(s):  
Anna Stilz

This book offers a qualified defense of a territorial states system. It argues that three core values—occupancy, basic justice, and collective self-determination—are served by an international system made up of self-governing, spatially defined political units. The defense is qualified because the book does not actually justify all of the sovereignty rights states currently claim and that are recognized in international law. Instead, the book proposes important changes to states’ sovereign prerogatives, particularly with respect to internal autonomy for political minorities, immigration, and natural resources. Part I of the book argues for a right of occupancy, holding that a legitimate function of the international system is to specify and protect people’s preinstitutional claims to specific geographical places. Part II turns to the question of how a state might acquire legitimate jurisdiction over a population of occupants. It argues that the state will have a right to rule a population and its territory if it satisfies conditions of basic justice and facilitates its people’s collective self-determination. Finally, Parts III and IV of this book argue that the exclusionary sovereignty rights to control over borders and natural resources that can plausibly be justified on the basis of the three core values are more limited than has traditionally been thought.


Author(s):  
Yinka Olomojobi

Abstract There has been recent agitation for self-determination in the south-east of Nigeria for the state known as Biafra (a pro-secessionist group). The principle of self-determination is a well-debated discourse since it connects with the right to secede and create a sovereign state. Like a marriage at gunpoint, a reluctant partner will always want a way out of the marriage, and will take a hike at the first opportunity. Given this political inheritance, Nigeria has fallen prey to several attempts to undermine state sovereignty originating in ethnic and regional differences. The controversy has concerned both the principle’s status in international law and its charter. This principle has played a prominent part in the emergence of former colonies as independent states. The aim of this article is to explore the ongoing agitation for a Biafran Republic and to assess whether it is in conformity with the right to self-determination.


2020 ◽  
Vol 36 (1) ◽  
Author(s):  
Tristam Pascal Moeliono

Two issues shall be discussed: what is meant by people’s right to self determination and how has it been realized, also in the context of indigenous-tribal peoples. Analysis shall be done, by using a juridical doctrinal method. The purpose would go beyond explaining but also induce understanding of people’s right to self determination in the context of nation states. One determining faktor in the construction of a nation state is the emergence of an imagined solidarity between peoples from different races, tribes, or religious beliefs, being the result of suffering under colonialism. Notwithstanding that indigenous or tribal peoples may and in fact experience similar suffering under the state they are considered to be part of, international law, while recognizing their right to self determination, does not fully extend the same scope of rights to them.


1987 ◽  
Vol 15 ◽  
pp. 3-8
Author(s):  
Luis B. Serapiao

Writing about the Eritrean conflict in the Horn of Africa is a difficult task, because it involves the issue of dismembership of a state. From the Greek Empire to the Roman, from the feudal era to the colonial times, and now in the post-colonial era, dismembership of the state has been a highly controversial and emotional issue. From the colonial era to decolonization, Africans did not have to face this problem. In fact, not only did they applaud the dismembership of the colonial empire, they worked hard to insure the disintegration of the colonies. In their optimism for the future of Africa, they developed a rhetoric that went beyond cooperation among future independent states to continental political unity. “Africa must unite” said the vibrant and dynamic leader of Ghana, Nkrumah.


2021 ◽  
Author(s):  
◽  
Ashleigh Bennett

<p>Secession claims are not sufficiently dealt with at international law. Similarly theoretical analyses of the moral justifications for secession widely differ, with little scholarly agreement on, for example, whether there is a primary right to secede, a remedial right only, or no right to secede at all. This paper reviews the scholarly debate on legal, moral and constitutional legitimacy of secession, and develops five criteria for assessing the overall legitimacy of a secession claim: (1) nationhood and claim to territory; (2) self-determination and autonomy; (3) treatment at the hands of the state; (4) viability of the proposed state ; and (5) position of the existing state. Applying these criteria to three very different but equally topical possible secession claims - Scotland from the United Kingdom, Catalonia from Spain, and Novorossiya from Ukraine - the interplay between these criteria is demonstrated.</p>


2020 ◽  
Vol 7 (2) ◽  
pp. 28-34
Author(s):  
Alexey Yu. Novoseltsev ◽  
Konstantin V. Stepanyugin

The article discusses the concept of a fictitious state, which can be defined as an international legal fiction that is created or consciously supported by real actors in international relations to legitimize illegal actions, such as annexation, evasion of obligations, seizing the assets of other states, creating a buffer zone, etc. The main feature of a fictitious state is the absence of real sovereignty in the presence of only external attributes of the state. The authors believe that fictitious states are a facet of neocolonialism. Although the number of states in the world has increased from 70 to 197 since 1945, this figure has no relation to the self-determination of peoples. The authors conclude that at present there are no legal requirements for the legal capacity of subjects of international law. Condemnation or recognition of fictitious states, as before, is determined solely by the interests of foreign policy. The authors propose to continue work on strengthening the sovereignty of the Russian Federation at the level of national legislation.


Author(s):  
Zeynep Kıvılcım

Narratives of the crisis in Syria seem unable to envisage a process for the construction of a space for radical democracy in Rojava (Syrian Kurdistan). The Constitution of Rojava, as well as the Women’s Law adopted in 2014, establish the legal framework for gender equality within every administrative structure. ‘Democratic confederalism’ for Rojava provides us with a novel conception of the internal legitimacy of the state which differs considerably from that adopted by public international law, the latter being rooted in liberal social contract theory. It is also difficult to adapt the international law theory of sovereignty to the radical democracy without a state in the case of Rojava. This chapter sets out a novel conception of the internal legitimacy of the state in the cantons of Rojava from a gender perspective. The aim is to provide a gendered analysis of the realization of the principle of self-determination and to interrogate the new modes of sovereignty offered by radical democracy.


Author(s):  
Malik Dahlan

The Hashemite Kingdom of Hijaz attracted little notice in the Western international legal history during its brief lifetime, and has not been much covered in the historical literature since. However, the Hijazi state is critical for international law because it stands at the intersection of Arab self-determination and Islamic statehood. Its birth in 1916 was, understandably perhaps, overshadowed by the military significance of the Arab Revolt against the Ottomans, and the role played in it by Colonel T.E. Lawrence. Its demise, formally declared in 1932 but inevitable after the Saudi invasion of 1924–1925, was met by silence from the members of the League of Nations despite the fact The Hijaz was one of its founding members. This neglect of the Hijazi state is unfortunate for a number of reasons. Firstly, it was the earliest attempt at Arab statehood in modern international legal history, the first ethnocentric expression of Arab self-determination to be recognized by the European powers after the Great War and, as home to the holy cities of Mecca and Medina, it had significance for Islamic governance that is disproportionate to its economic or geopolitical value. Secondly, it presents a test for one of the most fiercely contested areas of international law: how to understand and apply national self-determination to the formation and recognition of states. In this case, the claim for self-determination is bound up with the ethnocentric awakening of Arabs, the struggle over the political and institutional forms that a collectivity should take, and what balance could be struck between Western, Westphalian views of the state and Islamic governance traditions and principles. Thirdly, it provided an early example of how small states would fare in the new international order, and the extent to which they could expect great powers to abide by international law, as it emerged from the Great War. As it turned out, Sharif Hussein’s refusal to acquiesce in the League of Nations’ mandate system, itself based on the Sykes–Picot agreement between Britain and France, coupled with his support for Arab aspirations to control Jerusalem, made the fledgling state vulnerable to imperial Realpolitik. Fourthly, the fall of The Hijaz was bound up with the fall of the Caliphate in 1924, with repercussions that are still being felt. Finally, the historical events, which did much to determine the map of the Middle East today, present a telling example of how international law functions in regions where great powers are actively competing for influence and control. This bibliography collects readings that cast light on how ideas of the nation and the state have been understood and applied, with particular reference to the Islamic collectivity, the Arabs, and The Hijaz. It is divided into two general areas. The first looks at the national aspects of self-determination and the second looks at the state as understood by international law and by Islamic jurisprudence, again with special reference to The Hijaz.


Author(s):  
Matthew Craven ◽  
Rose Parfitt

This chapter, which examines various theoretical arguments about recognition, statehood, or sovereignty, discusses the elusiveness of the actual place occupied by the State in legal international thought and practice. In one direction, the existence of a society of independent States appears to be a necessary presupposition for the discipline—something that has to precede the identification of those rules or principles which might be regarded as forming the substance of international law. In another direction, however, statehood is something that appears to be produced through international law following from a need to determine which political communities can rightfully claim to enjoy the prerogatives of sovereignty.


AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 302-306
Author(s):  
Eyal Benvenisti

In “Are There ‘Inherently Sovereign Functions’ in International Law?”, Frédéric Mégret provides a deeply insightful reflection on “the essence of the state” from the point of view of international law, outlining a theory about the inherently sovereign functions in international law. He carefully identifies existing norms of international law that articulate certain public functions to be performed solely by the state rather than delegating them to private actors. Mégret offers functional and intrinsic rationales, suggesting that individuals have a right to benefit from certain public functions exercised by state authority, such as legislation and adjudication, what perhaps could be termed “the human right to the state.” In this essay, I suggest that it is indeed possible to derive such demands from the requirements of stable and sustainable governance that are embedded in the concept of sovereign responsibility, as well as from the rights associated with democracy and self-determination. I further argue that Mégret's inquiry can and must be extended also to explore the other side of the coin: the role of international law in facilitating (and possibly limiting) the delegation of public authority to unaccountable international organizations and other global governance bodies.


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