Analysis of Public International Law and Self-Determination

This essay provides a comprehensive overview of public international law, examining key concepts such as the legal status of states, individuals, and organizations. It delves into the principle of self-determination, analyzing its application and implications, particularly in the context of Western Sahara and national liberation movements. The essay discusses the role of the African Union and customary international law. It highlights the importance of human rights within the framework of international law and the potential risks associated with the application of self-determination. The analysis includes examples of treaties and agreements, emphasizing the interplay between legal status, rights, and duties in the international arena. The essay further explores the legal status of Western Sahara and the role of national liberation movements in the context of international law.

Public 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 nations1. 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
law2.
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 law3. 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
1 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.
2 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.
3 Curtis Bradley and Mitu Gulati. Withdrawing from international custom [2010] The Yale Law Journal pp.202-
275.

international law. In this context, it is important to know whether Western Sahara possess any
legal status or not4.
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 nation5. 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 country6. 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
4 Stephen Brammer and Helen Walker. Sustainable procurement in the public sector: an international comparative
study [2011] International Journal of Operations & Production Management 31(4) pp.452-476.
5 James Crawford. Brownlie's principles of public international law [2012] Oxford University Press.
6 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.

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
Council7. 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 activity8.
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 nation9. Such movements shall possess value
for nations which are dependent on the government of any other state. Such movements can
7 Kuan-Chung Chen and Syh-Jong Jang. Motivation in online learning: Testing a model of self-determination
theory [2010] Computers in Human Behavior 26(4) pp.741-752.
8 Ori Eyal and Guy Roth. Principals' leadership and teachers' motivation: Self-determination theory analysis
[2011] Journal of Educational Administration 49(3) pp.256-275.
9 Joseph P.H. Fan, Sheridan Titman, Garry Twite. An international comparison of capital structure and debt
maturity choices [2012] Journal of Financial and quantitative Analysis 47(01) pp.23-56.

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 statehood10. 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 area11. 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
10 John Forrer, James Kee and Kathryn E. Newcomer. Public–private partnerships and the public accountability
question [2010] Public Administration Review 70(3) pp.475-484.
11 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.

in such12. 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 country13. 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 law14. 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
12 Jürgen Habermas. The concept of human dignity and the realistic utopia of human rights [2010]. Metaphilosophy
41(4) pp.464-480.
13 Rainer Haselmann, Katharina Pistor and Vikrant Vig. How law affects lending [2010] Review of Financial
Studies 23(2) pp.549-580.
14 Rob Lawa, Shanshan Qia and Dimitrios Buhalis. Progress in tourism management: A review of website
evaluation in tourism research [2010] Tourism management 31(3) pp.297-313.

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 rights15.
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
rights16.
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-
determination17.
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 it18. 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
15 Kalina Manova. Credit constraints, heterogeneous firms, and international trade [2013] The Review of Economic
Studies 80(2) pp.711-744.
16 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.
17 Wojciech Sadurski. Judicial Review and Protection of Constitutional Rights [2014] In Rights Before Courts (pp.
145-166). Springer Netherlands.
18 Jochen von Bernstorff. The public international law theory of Hans Kelsen: believing in universal law (Vol. 68)
[2010] Cambridge University Press.

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 case19.
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 protected20.
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.
19 Gerhard von Glahn and James Larry Taulbee. Law among nations: an introduction to public international law
[2015] Routledge.
20 Rolf H. Weber. Internet of Things–New security and privacy challenges [2010] Computer Law & Security
Review 26(1) pp.23-30.

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 country21. 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.
21 Rudiger Wolfrum. The Max Planck Encyclopedia of Public International Law: Index and Tables (Vol. 11)
[2013] Oxford University Press.

REFERENCES
Books and Journals
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.
Gerhard von Glahn and James Larry Taulbee. Law among nations: an introduction to public
international law [2015] Routledge.
James Crawford. Brownlie's principles of public international law [2012] Oxford University
Press.
John Forrer, James Kee and Kathryn E. Newcomer. Public–private partnerships and the public
accountability question [2010] Public Administration Review 70(3) pp.475-484.
Joseph P.H. Fan, Sheridan Titman, Garry Twite. An international comparison of capital structure
and debt maturity choices [2012] Journal of Financial and quantitative Analysis 47(01)
pp.23-56.
Jürgen Habermas. The concept of human dignity and the realistic utopia of human rights [2010].
Metaphilosophy 41(4) pp.464-480.
Kalina Manova. Credit constraints, heterogeneous firms, and international trade [2013] The
Review of Economic Studies 80(2) pp.711-744.
Kuan-Chung Chen and Syh-Jong Jang. Motivation in online learning: Testing a model of self-
determination theory [2010] Computers in Human Behavior 26(4) pp.741-752.
Ori Eyal and Guy Roth. Principals' leadership and teachers' motivation: Self-determination
theory analysis [2011] Journal of Educational Administration 49(3) pp.256-275.
Rainer Haselmann, Katharina Pistor and Vikrant Vig. How law affects lending [2010] Review of
Financial Studies 23(2) pp.549-580.

Rob Lawa, Shanshan Qia and Dimitrios Buhalis. Progress in tourism management: A review of
website evaluation in tourism research [2010] Tourism management 31(3) pp.297-313.
Rolf H. Weber. Internet of Things–New security and privacy challenges [2010] Computer Law
& Security Review 26(1) pp.23-30.
Rudiger Wolfrum. The Max Planck Encyclopedia of Public International Law: Index and Tables
(Vol. 11) [2013] Oxford University Press.
Stephen Brammer and Helen Walker. Sustainable procurement in the public sector: an
international comparative study [2011] International Journal of Operations & Production
Management 31(4) pp.452-476.
Wojciech Sadurski. Judicial Review and Protection of Constitutional Rights [2014] In Rights
Before Courts (pp. 145-166). Springer Netherlands.