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Introduction of International Law

International law is one of the important factors which deals with the agreement signed between countries. It is considered as the set of rules and regulations which will be governing relations between the state and between nations. There are many treaties which have been established to promote rights and duties of the state. Such agreements are also formed for developing a relation between many states or nations.

There are many types of international laws such as private and public international law which will deal with either by the private person or by the entity established on an international level. There are some standards of behaviour which are to be accepted globally by the state so that it will be easy to govern the relation between them. Such standard form of behaviour is covered into the public international law. The following essay shall create a focus on different areas governed in public international law. Main aim of the essay is to create a better understanding about all aspects of international law.

Legal Status of an Individual or Organisation

A legal status of an individual or organisation or a state is referred as the entity that must be recognised by law along with having rights and duties which are established by law. Any person or any entity can possess a legal status, all requirements are required to be fulfilled to get recognised by law to confer the rights and duties arising from it. In private international law, it has been seen that there are many states and nations which pursue an interest to form agreement of convention with another state. To do so, it is necessary that the state must have a legal status, that is, it must be recognised by law and should confer rights and duties to be arising out of application of public international law.

For example, it has been seen that an agreement has been formed between EU and Morocco by which both these states are able to carry out an activity of fishing in the territorial waters of Western Sahara. It was claimed by Frente Polisario who said in the court of UK that an administration shall be there over tarrifs applied and second measure was about fishing in territorial waters have violated human rights which are present globally in public international law. In this context, it is important to know whether Western Sahara possess any legal status or not.

Legal Status of Western Sahara

States are always considered as the major subject of international law. With the application of equality in sovereign, all states have the right to enjoy international legal personality. There are certain rights which are given to a particular state. These rights and duties are important so that an agreement shall be formed by the nation-binding another country to form a convention. When rights are given to a state then only, it shall possess a power to make relation or to form convention with another nation.

For an example, there are certain human rights present in Western Sahara which are initiated by its government after difficult times and due to these human rights, another country is able to make an arrangement or a contract with different nation. A state can be recognised by another state with the operation of law they shall possess a power or right to make an agreement or treaty by another state so it can be said very clearly that Western Sahara I constituted as legal personality.

Another reason by which Western Sahara has recognised as legal personality is that nation is the member of African Union. It is known as continental union which will comprise of 54 nations of Africa. Main purpose of establishing AU is that there shall be a greater amount of unity among all countries which are residing in Africa. By the means of AU, a form of peace, integrity and security shall be maintained. The most important part of AU will be some means of democratic principle that shall be set within country which will promote effective governance in the country.

AU also helps in providing human rights to people who are residing in country that is there are certain human rights that are necessary to be recognized and according to the Charter of African Charter on Human Rights and people's right, several nations are able to enjoy the same. Out of 54 countries, comprising in AU Western Sahara is one of them which will comprise of human and legal rights as well. On the other hand, it can be said that Western Sahara is one of the legal personality as it shall govern the rights which were given by the African Union to its countries. It has been further seen in the union that an executive council is being set by the union which will comprise of ministers designated by government of member state. The matter related to trade in foreign, social security, food and agriculture are generally decided by Executive Council.

Hence, it can be taken on a very clear context that Western Sahara is considered as one of the legal personalities as it has been recognised as state by another state due to several rights and duties present in nation and such rights and duties will empower Western Sahara to make agreement with other countries. On the other hand, it is a member of African Union which will give human rights to the state and shall look for the policies and affairs which are present globally.

It has been further seen in the legal status of Western Sahara that it is listed among the Non-self-governing territory with the right to self-determination by UN Decolonisation Committee. The committee declared support of government to those countries which are not able to establish control of itself and need UN support but Western Sahara is the nation with self-determination, that is, it has the capability to carry out control and all the activities by own. Hence, it shall possess the power to enter into an agreement with another state regarding any kind of foreign trade or any business activity.

Legal Status of National Liberation Movement

Advocate general, Melchior Wathelet has mentioned his opinion against the case which is being instituted in ECG regarding the breach of self-determination right of Western Sahara. The court has made an opinion that Western Sahara is not a part of Morocco's territory, so neither the agreement related to liberalisation nor EU- Morocco association shall be applied in the country. According to several researchers, a national liberation movement is considered as the legal personality as they are the organisations having a rebellion nature against colonial rule. They are the movement which will establish an interdependence in the country that is dependent upon the identity of a nation. It is very clear from the fact that such movements are recognised by law as they help in making interdependence within nation.

Such movements shall possess value for nations which are dependent on the government of any other state. Such movements can maintain a self-determination in the state. It is national liberation movement which possesses value in the cases of treaties formed in a context of Western Sahara as it has been directly administered by ECG that EU has not taken any precautionary measure regarding violation of human rights and these movements shall help the country to retrain rights and spread an interdependence.

They do possess a legal personality which can be directly reflected from the opinion of Advocate General as he has clearly mentioned an agreement regarding liberation. It is clear from the fact that these movements have legal personality as they will raise rights and duties over the nation. They do possess value in considering the legal personality on judgement of EGC as such movements shall derive the concept of statehood.

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The application of such movements shall enable to go against the rule of colonial power and to establish its own government which is ultimately the concept of statehood. In the operation of statehood, a self-government is being established in the country which will take care of all rights and duties within country and a liberation movement shall help a nation to form a self-independent government.

Hence, it can be seen from the above discussion that the liberation movements are considered as a legal personality as they protect the rights and duties of state which shall be violated by the application of colonial power. Colonial power is basically when a colony is being set in a territory and kind of exploitation occur in that area. Any exploitation is considered as an illegal practice regarding rights that is why there are several kind movements arise which will ensure that such right and duties of a country, as well as an individual, shall not get infringed with any treaty or convention and there shall be an interdependence among the country.

Right of Self-Determination

Concept of self-determination is considered as an important principle in the area of international law as there are many countries which have been adopting the culture of self-determination. The right to self-determination states that a nation must have power to choose its equal right and opportunity which shall be presented by law. Any state must have the right to choose its sovereign body with international political status and then there shall no interference in such. On the other hand, it can be said that when a country exercises the right of self-determination, then it shall not entertain any interference on they making of right on equality an other political background.

In the right of self-determination, a country may possess power to pursue cultural, social and economic background on a free term and no interference shall be there. Right of self-determination is considered as an important right but there is the branch of self-determination which has been implemented for the organisation or on an international level that will not be compatible with acts of organisation. For example: customary law.

A customary law can be defined as the law which is established by observing some kind of custom and culture in the country. In other words, it can be explained that there are certain culture which prevail in a country and are necessary to follow. Taking the importance of such customs in account, several kinds of laws are made in order to protect the same. Such laws are known as customary law. Such customary laws are made on the observation of a particular kind of behaviour prevailing in the country. Customary law takes existence based on basically 2 things, that is, when a certain form of legal practice shall be going and observed by the authorities and 2nd thing which need to be considered is the behavious with regard to relevant law.

The concept of customary law can be applied to the area of international law also because there are certain standards and behaviours which are present at global level and such behaviours are being practised by every single country which is the reason that authority is able to establish such practices as customary law. With reference to international law, customary law can be defined as the exchange of customs between states over a time and such exchange shall be based on either diplomacy or aggression.

As a customary law is considered as unofficial law so the acceptance and rejections which are going to take place on an international level can be changed. Right to self-determination can be classified into customary law because such right has gained a universal acceptance and there are many treaties which are forming in between the nation who are working on the concept of right to self-determination. But it can be said that such rights and customary laws are not compatible to the acts which have been implemented for organisation and that are compulsory to be recognized by every nation. Discussion in context of right to self-determination, it shall increase the risk of violation of human rights.

Human right is the principal and norm which is being governed by every single country. It is mandatory on the part of any nation that these rights are needed to be followed as they safeguard the basic interest and make a protection layer for country as well as its citizens. But with the application of right to self-determination, there is a probability of violation in the human rights.

Another international agreement or any act passed for an organisation which may be incompatible with self-determination is the judicial decision which may be passed by the court of law. Along with that, there are several kinds of agreement which may form in between the country and does not comply with the right to self-determination. For example, it has been seen in the above case that an agreement has been made by EU with Morocco. The agreement was made regarding trade agreement in which the treaty also applied on Western Sahara.

According to the right of self-determination, such agreement has breached the measure of Western Sahara and so, it can be said that there is agreement which shall form between the nations or there are certain types of treaties formed, must comply with some compatible act of organisation or any international agreements but these kinds of agreement are not compatible with right to self-determination.

Another matter which shall be incompatible with right to self-determination is an advisory opinion which will be generated in international court. An advisory opinion can be explained as an opinion which will be established by the court that will not affect the adjudication of case but slightly understand the constitutionality of it. In advisory opinion, an interpretation of law can take place when the case has been instituted in a court. Such opinion is practised by the international as well as the national court.

It has been seen that the international court has power to give advice on the matter which is instituted in court. But it is very clear that this opinion shall not disturb the legal effect of any law present in the case, and the concept of self-determination is to make laws on equality by own. Hence, it can be concluded on a very clear basis that advisory opinion shall not be compatible with self-determination. For example, it has been in the case of Western Sahara that when the case was instituted in EGC, it has created an advisory opinion which will either interpreted the law or will change the constitutionality. But no right of self-determination can be established in the case.

The aim which is planned by advisory opinion is that a court must give its opinion on the basic laws or on cases which shall be instituted in the tribunals of international level which can be done by interpretation laws and establishing several other rights. For example, it has been seen that no advisory opinion is given in the matter of Western Sahara by which the case is still pending for its final verdict. Aim of advisory opinion is to remove the complexity of laws in case and to safeguard the interest of a country.

Such advisory opinion can be made with the help of several kinds of judicial decisions which have been passed by any court of law in the previous case. There are certain acts like UN SEC, UN GA Res which are implemented for the international organisation to ensure that the rights of such organisation shall get protected.

Regarding the self-determination in Western Sahara, it can be said that such clause was added in Article 1(2) of UN Charter which states that there shall be a friendly relation and equal rights among the citizen. It can be seen that the right of self-determination is being recognised at every international level. There was the participation of people which is free from any undue influence of outside actor.

Therefore, it is very clear from the above discussion that self-determination is considered as one of the most important rights which is being exercised by several countries. It is important that there shall be participation of people of the country in governance of self-determination so that the goal will be achieved. Self-determination will offer rights and duties which will promote a friendly environment and then there shall be many laws based on equality. With the application of self-determination, a nation can make an agreement on an equality with other nation.

Conclusion

Therefore, it can be concluded from the above essay that a legal personality shall play an important role while making or forming any kind of treaty with other organisation. If any country is not being the part of a Union or shall not be legally recognised then it will be difficult to retrain legal personality. It is clear from the above essay that an agreement has been made between EU and Morocco which has indirectly affected the right of Western Sahara or in other words, it can be explained that they have breached the right of held determination which was present in the Western country.

The case has been taken to EGC which has constituted that EU had tried to violet the right indirectly. The allegations which have been made in an appeal are not right as Western Sahara is recognised by African Union and referred as a legal personality. Thus, it has the right to make an agreement with other nation. Though there are many acts which are not compatible to self-determination, it will not create a restriction from forming any agreement with another state. Hence, it can be said that Western Sahara is a legal personality and does possess the right to enter into a treaty and any kind of agreement with the application of law.

References

  • Jochen von Bernstorff. The public international law theory of Hans Kelsen: believing in universal law (Vol. 68) [2010] Cambridge University Press.
  • Andreas von Staden and William W. Burke-White. Private Litigation in a Public Law Sphere: The Standard of Review in Investor-State Arbitrations [2010] Yale Journal of International Law 35 p.283.
  • Azman-Saini, Ahmad Zubaidi Baharumshah andSiong Hook Law. Foreign direct investment, economic freedom and economic growth: International evidence [2010]. Economic Modelling. 27(5). pp.1079-1089.
  • Curtis Bradley and Mitu Gulati. Withdrawing from international custom [2010] The Yale Law Journal pp.202-275.
  • Dirk Ulrich Gilbert, Andreas Rasche and Sandra Waddock. Accountability in a global economy: The emergence of international accountability standards [2011] Business Ethics Quarterly 21(01) pp.23-44.
  • Eric A. Posner and Alan O. Sykes. Economic Foundations of the Law of the Sea [2010] American Journal of International Law 104(4) pp.569-596.
  • Frank Biermann and Ingrid Boas. Preparing for a warmer world: Towards a global governance system to protect climate refugees [2010]. Global environmental politics 10(1). pp.60-88.
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