SUBJECTS OF

INTERNATIONAL LAW
 SUBJECTS OF INTERNATIONAL
LAW
Why is it important to ask who the subjects of
international law are?
Legal personality
possession of rights and duties

important for any legal system to function

connected to status, capacity, competence; scope of
rights and duties.
 INTRODUCTION
▣ A subject of international law is “an entity capable of
possessing international rights and duties and endowed with
the capacity to take legal action in the international plane”.
▣ In the past, States were considered the only subjects of
international law and the only legal persons, possessing the
totality of rights and duties recognized by international law.
▣ With developments in international law especially the
establishment of the UN, other non-state actors like
international organizations have emerged and it has become
clear that States are not the only subjects of international law.
To what extent do these international organizations possess
international legal personality?
 The concept of legal personality

▣ . The concept of legal personality exists in both

municipal and international law. Generally, it is the
“means by which a particular legal system attributes
rights and obligations to an entity separate from and
independent of those who created it or are part of
it”.
▣ The extent of these rights and duties vary with each
legal entity thus all legal persons are not equal and
do not necessarily possess the same rights and
obligations.
▣ Before the advisory opinion of the ICJ in the Reparations
case, there existed a lot of controversy on whether
international organizations are subjects of international law
possessing international legal personality.
▣ In 1948, the question arose on whether the UN was a subject
of international law possessing the capacity to bring an
international claim for reparation of injuries suffered. The
General Assembly by Resolution 258 (III) submitted this
question to the ICJ for an advisory opinion on the status and
capacity of the United Nations under international law.
▣ To answer this question, the ICJ had to first establish
whether the UN had international legal personality.
▣ After considering the characteristics of the UN under the UN
Charter, the ICJ came to the conclusion that although the
Charter did not expressly confer international legal personality
on the UN, “the organization was intended to exercise and
enjoy, and is in fact exercising and enjoying functions and
rights which can only be explained on the basis of possession
of a large measure of international personality, and the
capacity to operate upon an international plane … its
Members, by entrusting certain functions to it, with the
attendant duties and responsibilities, have clothed it with the
competence required to enable those functions to be effectively
discharged”.

▣ The ICJ thus concluded that the UN is “an international

person”; it is a “subject of international law capable of
possessing international rights and duties, and has the capacity
to maintain its rights by bringing international claims”.
 Extent of legal personality.
▣ As established, international organizations have
international legal personality. What then is the extent of
this legal personality, do they have the same capacity as
States or are they limited by their constituent treaties?
▣ In the Reparations case, the ICJ dealing with the extent
of the personality of international organizations stated
that “whereas a State possesses the totality of
international rights and duties recognized by
international law, the rights and duties of an entity such
as the Organization must depend upon its purposes and
functions as specified or implied in its constituent
documents and developed in practice.
 Subjects of international law are:

Entities capable of possessing international rights and

duties

Full subjects: only states

Partial subjects: International Organizations,

individuals, NSAGs, NGOs?, transnational
corporations?
 S t a t e s (and state-like entities)

• Remain by far the most important subjects of

international law
• What makes a state a state?
– Today: creation of new states is more of a political
process regulated by international law
▣ According to Phillip Jessup, recognition means that an existing State
acknowledges the political entity of another State, by overt or covert act. Fenwick
is of the view that through recognition the members of the international
community formally acknowledge that the new State has acquired international
personality
▣ Oppenheim lays down that the grant of recognition establishes that the new State,
in the opinion of existing recognising States, fulfills the » conditions of Statehood
required by international law, so that the new State I can be regarded, quoad the
recognising States, as an international person possessing the rights and duties
which international law attributes to States.
▣ Problem of recognition of a State arises when a State disintegrates into several
States, a former colonial territory gains Statehood, or when two or more States
merges to form a new State
 Montevideo Convention on the Rights
and Duties of States
Art. 1 •
A State should possess: •
a) A permanent population (stable community, settled but not homogenous, inhabit a
specific territory on a permanent basis
(b) A defined territory (stable and permanent physical control over territory, but no
precise delimitations needed, ICJ North Sea Continental Shelf, Nicaragua case,
Namibia Case) •
c) A government (effective control of the territory, coercive, centralized legal order,
coherent, stable and effective political organization •
d) A capacity to enter into relations with other states
When possession of these attributes (of Statehood) in a State is acknowledged by
other existing States, it is known as recognition of a State .
 Recognition of State
▣ Theories of Recognition
1. Constitutive theory - According to this theory, an entity does not become a State by
possessing essential attributes of Statehood, it becomes so, when it is recognized by
other States. It implies that other States constitute the personality of a State by
granting recognition. Thus a new entity cannot become a State ipso facto, it has to be
recognized by other States so as to become an international person (and thus acquire
rights and duties under international law). This theory has been advocated by Hegel,
Anzilloti, Oppenheim, etc.

The exponents of constitutive theory want the institution of recognition to be under a

system of law and that is why, Lauterpacht, posits a legal duty on the part of existing
States to recognize any community that has in fact acquired the characteristics of
Statehood. The act of recognition is thereby defined as a clearly legal act, with new
States having the legal right to be recognized and established States having the legal
duty to recognize them.
Example- Vatican City : As a result of the Lateran Pacts 1929 between the
Holy See and Italy, and recognition and acquiescence by States, the Vatican
City (albeit tiny in area and with a resident population of papal functionaries)
would seem to be regarded as a State even though its sole purpose is to
support the Holy See. It has permanent observer status in the United Nations,
is a full member of some other interna- tional organisations, and is a party to
certain multilateral and bilateral treaties.
▣ (b) Declaratory Theory - According to this theory, Statehood or the authority of
the new government exists as such prior to and independently of recognition.
Recognition is merely a formal acknowledgement through which established
facts are accepted. The act of recognition is merely declaratory or evidence of an
existing fact that a particular State or government possesses the essential
attributes as required under international law. Recognition is necessary only
because it enables new State to enter into official intercourse with other States.
This theory has been advocated by Hall, Wagner, Brierly, Fisher, etc.
In practice, most of the States accept the declaratory theory. Recognition frequently
been withheld for political reasons. The theory also finds support in the fact that
recognition has retrospective effec
 FORMS OF RECOGNITION
▣ Express recognition - When an existing State recognizes the new State by a notification
or declaration (public statement), announcing the intention of recognition, the
recognition is said to be express. In other words, it is granted in express terms. In 1991,
three Baltic republics (Lithuania, Estonia and Latvia) were expressly recognized by
India viz. the Indian Prime Minister sent the messages to this effect to the Presidents of
these States. Express recognition may also be granted by the conclusion of a treaty.
▣ Implied recognition - The tacit or implied recognition results from any act which implies
the intention of recognizing the new State. The intention may be indicated by the States
unilaterally or collectively.
1. (a) Unilateral acts - When a State enters into a bilateral treaty, or establishes diplomatic
relations with an unrecognized State, it may be inferred that the former has granted
recognition to the latter. Similarly, intention may also be inferred by sending
representatives to attend ceremonial functions in an unrecognized State. The exchange
of consuls also indicates an intention to recognize the new State.
2. (b) Collective action - A new State may be recognized collectively by the existing
States. It occurs when an unrecognized State participates in a multilateral
conference/treaty, the other participants or parties are regarded to have recognized the
new State if the intention has been indicated. It cannot be said that participation in a
treaty itself is sufficient to regard as a presumption of recognition, the intention to
recognize is a determining factor.
 MODES OF RECOGNITION
▣ De facto recognition
When an existing State considers that the new State has not acquired sufficient stability,
it may grant recognition to the latter provisionally which is termed de facto recognition.
It is granted normally when the recognizing State considers that the new State although
has a legitimate government, its effectiveness and continuance to govern the territory is
doubtful. De facto recognition means that the State recognized possesses the essential
elements of statehood and is fit to be a subject of international law, but it is doubted that
it may be able and willing to fulfil its obligations under international law.
▣ De jure recognition
When an existing State considers that the new State is capable of possessing all the essential
attributes of statehood with stability and permanency, the recognition granted is known as de
jure recognition. As pointed out by Prof. H.A. Smith, the British practice shows that three
conditions precedent are required for the grant of de jure recognition : (i) a reasonable
assurance of stability and permanence, (ii) the government should command the general
support of the population, and (iii) it should be able and willing to fulfil its international
obligations.

Recognition de jure results from an expressed declaration or from a positive act indicating
clearly the intention to grant this recognition, such as the establishment of diplomatic
relations. De jure recognition is final, and once given cannot be withdrawn
 Why seek recognition as a State?/ Legal
Consequence of recognition of state
• Exert sovereign control over territory
• Right to non-intervention and interference from foreign states
• Can pursue treaties on trade and investment with other States
• Can receive foreign aid
• Can join IOs and pursue cases in international tribunals

UN Charter Article 4 •
[Link] 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.
[Link] 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.
 Withdrawal of Recognition
▣ Although the act of granting recognition is political, recognition de jure once
granted is, generally speaking, irrevocable. Art. 6 of the Montevideo Convention,
1933, also declared that de jure recognition is ‘unconditional and irrevocable’.
▣ If States would start withdrawing recognition of a State on political grounds, they
would find a number of occasions for doing so. Such acts of States are likely to
affect international peace and co-operation amongst the States. If a State does not
have cordial relations with another State it may take other steps, including the
rupture of diplomatic relations which does not result in withdrawal of
recognition. Even recognition de facto cannot be withdrawn so easily despite of
the fact that revocability is inherent in its concept.
▣ However, recognition de jure ceases to have effect in case of a definite
disappearance of one of the essential elements of Statehood or ineffectiveness of
the government. It may happen that a State may lose its independence or a
government may cease to be effective. In such cases, withdrawal of de jure
recognition is permissible but most stringent proof is required of the final
disappearance of the essential elements of Statehood or the governmental
capacity.
▣ It is significant to note that it is the recognition of new authority which operates
as withdrawal of recognition from the defunct State. Perhaps, there is no instance
in which recognition has been withdrawn from a State without a corresponding
measure of recognition being granted to the successor.
 State responsibility
▣ The State as a sovereign person can have no legal responsibility for some of its acts
towards its subjects. But the position is different with respect to external responsibility
of a State, State responsibility is a fundamental principle of international law, arising out
of the nature of the international legal system and the doctrines of State sovereignty and
equality of States. It provides that whenever one State commits an internationally
unlawful act against another State, international responsibility is established between the
two. State responsibility means the responsibility of States for internationally wrongful
acts.
▣ The wrongs or injuries which give rise to State responsibility may be of various kinds,
viz. for breach of treaty; in respect of contractual obligations; regarding expropriation of
property; for international delinquency; acts endangering enforcement, international
peace (aggression); denial of national independence; violation of other norms of
international law (viz. damage to State property). Thus, State responsibility may incur
during the time of war as well as during the time of peace.

▣ Corfu Channel case, ICJ Reports, 1949, p. 23, the International Court of Justice held
Albania liable for certain omissions, in particular the absence of a warning of the danger
of mines laid in her territorial waters. It stated that Albania is responsible under
international law for the explosions which occurred, and for the damage and loss of
human life which resulted from them and that there is a duty upon Albania to pay
compensation to the United Kingdom.
▣ Kinds of State Responsibility :
State responsibility may incur in two ways, that is, either by the act of a State or
by the act of its individuals. When an act which constitutes a breach of an
international obligation is committed by the Government of a State, or by any
person at the Government's command or with its authorisation, the act is called
the act of State, and it is held responsible for such wrongful acts. A State may be
held responsible for acts other than of its own : namely, certain unauthorized
injurious acts of its agents, of their subjects, and even of such aliens as are for the
time being living within their territory. Responsibility of a State of the former
kind, has been termed by Oppenheim as 'Original' responsibility and to the latter
'vicarious' responsibility.
A) Direct State Responsibility :
When the breach of an international obligation is caused by a State, it becomes
responsible to that State whose right has been infringed. Since State is a juristic
person, a question arises as to whose acts may be regarded as to an act of State.
- Executive and Administrative Organs : When injury to another State is committed
by the Head of the Government of a State, or an official or other individuals
commanded or authorised by the Head of the Government, a State becomes
responsible for their acts. Such acts are called 'international deliquency’.
- Acts of Diplomatic Envoys :
B) Indirect State Responsibility :
It is an obligation of a State to prevent its own subjects as well as foreign subjects
living within its territory from committing such acts which may cause injury to other
States. However, if any wrongful act is done by an individual or a group of
individuals, a State to which they belong is held responsible for their acts. Such
responsibility is called 'indirect' responsibility because a State is responsible not only
for the wrongful acts of its own organs but also for the acts of its individuals.
Oppenheim has rightly stated that if 'a State has not exercised due diligence it can be
made responsible and held liable to pay damages."
▣ For instance, the crime against foreign sovereigns or ambassadors; offences to the
flag of a foreign State;
▣ Consequences of States Responsibility :
When a State causes injury to another State, it has to discharge responsibility
incumbent upon it for breach of an international obligations. In International
Law, responsibility is discharged normally by reparation.
▣ (a) Restitution :Restitution in kind means to re-establish the situation which
would have existed if the wrongful act or omission had not taken place.
▣ (b) Indemnity :Indemnity takes place only when restitution, the normal form of
reparation is not possible. The Permanent Court of International Justice in the
Chorzow Factory case stated that "it is a principle of International Law that the
reparation of a wrong may consist of an indemnity.... this is even the most usual
form of reparation.'" Extent of indemnity depends upon the merit of the case.