The Subjects of

Int. Law
Chapter Four
 International Legal Personality
• In any legal system, certain entities, whether they be individuals or
companies, will be regarded as possessing rights and duties
enforceable at law.
• We are talking about the law’s recognition of some actors as ‘legal
persons’ possessing the capacity to have and to maintain certain
rights, and being subject to perform specific duties.
• The law apportions such rights and duties to such entities as it sees
fit. Personality is crucial under municipal legal system.
• The law will determine the scope and nature of personality.
• The Concept of personality in int. law
• A subject of int law is a body or entity that is capable of exercising and possessing rights and duties
under int. law.
• Int personality denotes the ability to act within the system of int. law as distinct from nat law
• The main attributes of int personality are: capacity to bring claim before nat/int bodies, the power to
make int agreements, to be subject to int law obligations, to enjoy some or all of immunities from the
jurisdiction of states

• One of the distinguishing characteristics of contemporary international law has been the wide range of
participants. These include states, international organisations, regional organisations, non-
governmental organisations, public companies, private companies and individuals. To these may be
added groups engaging in international terrorism.
• The Orthodox Positivists View maintain states are the only subjects but this does not bode well with the
reality
• One needs to have close regard to the rules of
international law in order to determine the precise nature
of the capacity of the entity in question.
• There are varying degrees of personality
• Despite the increasing range of actors and
participants in the international legal system, states
remain by far the most important legal persons
• Original vs derived personality
• How is personality acquired by states?
Int law lays down criteria for acquiring personality by states
• When the requirements are met, a state comes in to existence and will have all the
capacities
• But other subjects seem to acquire personality because their personalities are
conferred, accepted or recognized by states.
• ORIGINAL PERSONALTIY: which belongs to states ipso facto once they satisfy the
criteria of statehood
• DERIVED PERSONALITY: which flows from the recognition by states that other
entities may have some competence in the filed of int law.
• Personality, therefore, is a relative concept
• States are subjects of int law par excellenece
• Only states have all attributes of personality to the fullest
• States have all the capacities –other subjects have
personality in such measure and for such purposes as are
necessary for the achievement of their roles.
 States
• states remain by far the most important legal persons and
despite the rise of globalization and all that this entails,
states retain their attraction as the primary focus for the
social activity of humankind and thus for international law.
 Creation of statehood
• CRITERIA OF STATEHOOD
• When does an entity qualify as a state?
• Membership of UN is not synonymous with statehood.
• Ex: Switzerland became member only in 2002
• Membership, however, may be seen as a sign that an entity has
achieved statehood.
• The starting point for discussion of criteria of statehood is Art 1 of
the Montevideo Convention on the Rights & Duties of States, 1933
 Article 1
• The state as a person of international law should possess
the following qualifications:
• A) a permanent population
• B) a defined territory
• Government and
• Capacity to enter in to relations with other states
• The Convention provides:
• A state as a person of int law should possess the following
qualifications:
• A) permanent population
• B) defined territory
• C) government
• D) capacity to enter in to relations with others
 Permanent Population
• Not very clear: No migration across boundaries? No!
• Does not imply fixed number of inhabitants either
• There must be some population linked to a specific piece
of territory on a more or less permanent basis.
• It is not clear if the population has to be indigenous ex:
Falkland
• Ex: nomads
• VATICAN- 451
• TUVALU- 9893
• PALAU- 21097
• SAN MARINO- 31,595
 Defined Territory
• For a state to exist, defined territory is necessary
• It must have some definite physical existence that marks it clearly different from its
neighbors
• There must be a certain core of territory
• It is not required, however, that there must be complete certainty over the extent of
territory
• Example: Kashmir border dispute.
• There must be some territory which undoubtedly is of that country’s
• Similarly, an existing or emerging state’s territory subsumed by another does not make
the state less a state
• Kuwait
• Size is not an issue- microstate
• Maldives
• Lichtenstein, Tuvalu, Nauru, Monaco
 Government
• In order for a state to function, it must have a government
• Effective government
• The executive authorities must be effective over a defined
territory and permanent population
• Not required to be ENTIRELY DOMINANT
• It must however be able to control the affairs of the state
in the int community
• While effective Government is a requirement to establish
statehood, the absence of effective government does not
result in loss of statehood
 Capacity to enter in to legal
relations
• This is often understood as independence
• But this does not imply economic/factual independence –
rather legal independence
• Hong Kong is under the legal authority of China and
therefore not a state
 Additional Criteria
• Self-determination and recognition as additional criteria
• Some authors refer to other additional factors that may be relevant as
criteria for statehood.
• RECOGNITION
• Granting formal recognition to another state is a unilateral act which is
in fact left to the political discretion of states, mostly to the executive
branches
• Is a political action with legal consequences
• It is a confusing mixture of politics, international law and municipal law
• Recognition deals with a wide variety of factual situations;
in addition to recognition of states and governments, there
can also be recognition of territorial claims, the recognition
of belligerency or of insurgents, the recognition of national
liberation movements, such as the Palestine Liberation
Organization
• the legal effects of recognition in international law are very
different from the legal effects of recognition in municipal
law
• recognition of a state Vs recognition of a government
• recognition of a state acknowledges that the entity fulfils the criteria of
statehood.
• The recognition of a government implies that the regime in question is
in effective control of a state
• The basic difference is that the recognition of a government
necessarily has the consequence of accepting the statehood of the
entity which the regime is governing, while the recognition of a state
can be accorded without also accepting that a particular regime is the
government of that state
 Recognition of states
• Recognition means a willingness to deal with the new state as
a member of the international community
• Legal effects of recognition in international law
• constitutive theory states that a state or government does not
exist for the purposes of international law until it is
recognized; recognition thus has a constitutive effect in the
sense that it is a necessary condition for the ‘constitution’
(that is, establishment or creation) of the state or government
concerned.
 Theories of Recognition
• Declaratory theory holds that recognition has no legal effects;
the existence of a state or government is a question of pure fact,
and recognition is merely an acknowledgment of the facts.
• If an entity satisfies the requirements of a state objectively, it is a
state with all international rights and duties and other states are
obliged to treat it as such
• Historically, the constitutive theory had an impact.
• Even today, recognition can sometimes have a constitutive effect,
although state practice is not always consistent
• If the establishment of a state or government is a breach of international
law, the state or government is often regarded as having no legal
existence until it is recognized.
• EX: GDR,
• recognition can play a crucial role when it is uncertain whether a body
claiming to be a state fulfils the factual requirements of statehood.
• Declaratory Theory: recognition does not create a state and it merely
approves/declares one existing under int law
• recognition is merely an acceptance by states of an already existing
situation.
• In the Tinoco case, Chief Justice Taft, the arbitrator, held that Tinoco’s
regime was the government of Costa Rica because it was clearly in
effective control of Costa Rica, and the fact that it had not been
recognized by several states, including the United Kingdom, made no
difference
• Where the facts are clear, as in the Tinoco case, the evidential
value of recognition or non-recognition is not strong enough to
affect the outcome; in such circumstances recognition is
declaratory. But in borderline cases, where the facts are unclear,
the evidential value of recognition can have a decisive effect; in
such circumstances recognition is semi-constitutive
• The prevailing view today is that recognition is
declaratory and does not create a state. This was
already laid down in the Montevideo Convention
• Art 3 of 1933 on the Rights and Duties of States which
provides: “The political existence of the State is
independent of recognition by other States. Even before
being recognized, the State has the right to defend its
integrity and independence”
 Pitfalls of the Theories
• Under the Constitutive theory, it is in fact left to other states to decide whether an entity
satisfies the criteria of statehood
• Constitutive Theory’s problem is the acceptance of the obligation of other states to treat an
entity with the elements of statehood as a state. In practice, states would like to take time to
see if a state is viable or established in violation of Article 2(4) of the UN Charter prohibiting
the use of force
• The other problem is that if we follow Constitutive Theory, there is a risk that the non-
recognized state by other states is entirely outside the realm of international law. In reality,
many rules are applicable in spite of non-recognition, such as the prohibition of the use of
force
• Though the US did not recognize North Korea, it concluded an armistice with it in 1953
• In the Pueblo incident, United States contended that North Korea had violated international
law by attacking a US ship
• Recognition of another state does not lead to any
obligation to establish full diplomatic relations or any
other specific links with that state. This remains a matter
of political discretion. Nor does the termination of
diplomatic relations automatically lead to de-recognition.
 Recognition of governments
• When a new government comes into power in an existing state by violent means
the question of recognition arises.
• When governments succeed each other by lawful means, recognition will not be
an issue.
• States have often used recognition as an instrument of policy; for instance, the
United States has often regarded recognition as a mark of approval
• A refusal to recognize is sometimes based on a belief that the new state or
government is not in effective control of the territory which it claims.
• But refusal can also be based on other factors; for instance, the United States at
one time refused to recognize foreign governments simply because it
disapproved of them
• Because non-recognition of foreign governments has often been used as a mark of
disapproval, recognition of a foreign government has sometimes been
misinterpreted as implying approval, even in cases where no approval was intended.
• To avoid such misinterpretations, some states adopted the policy of never
recognizing governments (although they continue to grant or withhold
recognition to foreign states).
• The policy of NON-RECOGNITION originated in Mexico, where it is known as the
Estrada Doctrine.
• In 1930, the Secretary of Foreign Relations of Mexico declared that: ‘the Mexican
Government was issuing no declarations in the sense of grants of recognition, since
that nation considers that such course is an insulting practice.’
• The Estrada doctrine reflects the view that the change of government in a state is
legally an internal matter, whether in conformity with the national constitution or not,
and does not concern international law or other states.
• According to this Doctrine, states deemphasize the question of recognition of
Governments and concern themselves with the question of whether they wish to
establish diplomatic relations with the new government.
• Estrada Doctrine appears to abolish the entire system of recognition of governments.
In practice, however, it probably merely substitutes implied recognition for
express recognition; recognition is not announced expressly, but can be implied
from the existence of diplomatic relations or other dealings with a foreign government
• recognition of a government has no relevance to the establishment of new persons in
international law.
Express vs Implied Recognition
• EXPRESS: When states formally and expressly extend
recognition
• IMPLIED: When recognition is implied/deduced from acts
of a state
• Implied recognition is a long accepted practice but it is
difficult to ascertain when there is implied recognition
• recognition should only be deduced from acts which
clearly show an intention to that effect
• The establishment of full diplomatic relations is
probably the only one unequivocal act from which full
recognition can be inferred
• Entering to a bilateral treaty/ Multilateral treaty??
• Establishing commerce??
 De jure and de facto
recognition
• The distinction between de jure and de facto recognition usually arises in
the case of governments
• Recognition de facto implies that there is some doubt as to the long-term
viability of the government in question.
• De facto recognition involves a hesitant assessment of the situation, an
attitude of wait and see, to be succeeded by de jure recognition when the
doubts are sufficiently overcome to extend formal acceptance.
• Recognition de jure usually follows where the recognizing state accepts
that the effective control displayed by the government is permanent and
firmly rooted
• There are in reality few meaningful distinctions between a de facto and a de jure
recognition, although only a government recognized de jure may enter a claim
to property located in the recognizing state.
• In theory, a state can be recognized only de jure, but there are a few
examples of states granted a de facto recognition:
• Indonesia was recognized de facto by several states while it was fighting for its
independence against the Dutch
• Territorial claims being given only de facto recognition; the United Kingdom, for
example, granted only de facto recognition to the Italian occupation of Ethiopia
De facto 1936 but later de jure
• When recognition is granted by an express statement, it
should probably always be treated as de jure recognition,
unless the recognizing state announces that it is granting
only de facto recognition.
• When recognition is not express, but implied, there will
often be uncertainty as to the intentions of the recognizing
state: did it intend to grant de jure recognition, or did it
intend to grant de facto recognition?
 Premature recognition
• Exact timing of recognition?
• as a result of secession, and intervention in the domestic affairs of another
State by way of premature or precipitate recognition, the exact time for
recognition is very important
• Biafra’ by five states
• Recognition may also be overdue, in the sense that it occurs long after it
is clear as a matter of fact that the criteria of statehood have been
satisfied,
• but in such cases, different considerations apply since recognition is not
compulsory and remains a political decision by states
 Conditional recognition
• refers to the practice of making the recognition subject to
fulfilment of certain conditions, for example, the good
treatment of religious minorities as occurred with regard to
the independence of some Balkan countries in the late
nineteenth century, or the granting of most-favoured-nation
status to the recognized state
• breach of the particular condition does not invalidate
the recognition. It may give rise to a breach of
international law
 Collective recognition
• recognition by means of an international decision
• member states of int organizations often reserve the right to extend recognition to their
own executive authorities and do not wish to delegate it to any international institution
• The most that could be said is that membership of the United Nations constitutes powerful
evidence of statehood.
• Member states are free to refuse to recognize any other member state or government of the
UN.
• separate matter altogether that has become more important since 1945 is the impact of the
United Nations and other international organizations on the recognition of states and
governments
• EU countries came up with a common recognition criteria but that was not collective
recognition- Badinter Arb Commission
• The developments in Eastern Europe, the Soviet Union
and in the former Yugoslavia induced the European
Community and its member states to adopt a common
position on guidelines for the formal recognition of new
states in these areas on 16 December 1
• Respect for HRs, respect of ethnic/religious minorities,
respecting preexisting boundaries commitments with
regard to disarmament and nuclear non-proliferation etc
 Withdrawal of recognition
• Recognition given may in certain circumstances be withdrawn
• Applies in the case of recognition of governments and not states.
• Easily in the case of de facto recognition
• Where a de facto government loses effective control
• De jure recognition, on the other hand, is intended to be more of a
definitive step and is more difficult to withdraw.
• where a government recognized de jure is overthrown, withdrawal of
recognition of the previous administration is assumed and does not
have to be expressly stated
• The usual method of expressing disapproval with the
actions of a particular government is to break diplomatic
relations without entailing the legal consequences and
problems that a withdrawal of recognition would initiate
 Concluding Points on Recogn
• In general, the political existence of a state is independent
of recognition by other states, and thus an
unrecognized state must be deemed subject to the
rules of international law.
• It cannot consider itself free from restraints as to
aggressive behavior, nor can its territory be regarded as
terra nullius.
 Self-Determination
• The Question here is Does it matter how a state gains its separate
existence?
• Should legal independence be presumed from factual independence-
HOWEVER ACHIEVED?
• Or, any illegality in achieving independence prevents legal capacity from
arising?
What happens when the factual criteria (territory for ex) of states is
achieved through a manner regarded as unlawful under int law?
• This shows, once again, that Montevideo Convention criteria might be
necessary but not sufficient by themselves
• If the territory attaining factual independence is able to claim the right of
self determination, it seems it is sufficient to attain legal independence
• External vs internal self-determination- Quebec Session Case, ACHPR- Ktanga
Case,
• International law seems to support external self determination only in exceptional
circumstances
• Self-determination in the context of decolonization was widely accepted
• A former colonial territory has the right to achieve independence even if it is done
against the will of the colonial Power
• The debate surrounds the question of whether self-
determination is available beyond the colonial situations
• Eritrea? Self-determination in the context of
decolonization?
• Int law seems to accept lawful self-determination only!!!
because it is founded on the pple of territorial integrity of
states.
What happens when the factual criteria (territory for ex) of states is
achieved through a manner regarded as unlawful under int law?
• This shows, once again, that Montevideo Convention criteria might be
necessary but not sufficient by themselves
• There are general ppls in int law which suggest that states must
achieve their statehood lawfully.
• Prohibition on the use of armed force, prohibition against discrimination
of racial minorities etc
• If a state fulfills the criteria by violating one of these ppls, there is a
chance it may not qualify as a state.
• Examples:

• Turkish Republic of Northern Cyprus (1974) – born out of an illegal use of force- but has
population, territory etc- not regarded as a state
• Southern Rhodesia was not regarded as a state because it violated pple of self-determination
• BUT, there are different cases
• Bangladesh, 1971- Inida invaded East Pakistan – created by unlawful means/armed force but
in three months Bangladesh was recognized by more than 90 countries and admitted to UN
• Principles can sometimes give way to pragmatism?
• Importance of recognition in dubious cases
 Extinction of statehood

• Involuntary loss of statehood is a near practical impossibility- but govts

can disappear.
• If an entity ceases to fulfill any of the criteria of statehood, that does
not lead to loss of statehood. Ex- loss of an effective govt- Yemen
• Likewise if a state is ‘extinguished’ through an illegal action of another,
it will still remain state in int law- territory gained in such manner does
not belong to the conqueror- Palestine wall advisory opinion ICJ
• Suspension of membership by the UN does not also entail loss of
statehood either
• Usually it is governments that cease to exist
• States can cease to be independent state through a lawful
means
• Ex- voluntary submission into the sovereign of another-
merger of 2 states to form a new entity
• Ex- UNITED ARAB REPUBLIC, YEMEN etc
 Contentious cases
• PALESTINE
• KOSOVO
• TAIWAN
• Biafra and Anglophone Cameroon
• Kurds
• Catalonia
• Somaliland
Special cases, The Holy See and the Sovereign order of Malta, hong kong,
 Other subjects of Int law
• In the nineteenth century states were the only legal persons in
international law
• On the relative nature of Personality, the ICJ has noted in the
Reparation for Injuries Case, 1949, that ‘[t]he subjects of law in any
legal system are not necessarily identical in their nature or in the extent
of their rights, and their nature depends upon the needs of the
community’
• Unlimited vs limited personality
• STATES- the original, primary and universal subjects of international
law.
 International Organizations

• organization set up by agreement between two or more states # NGOs

• existed since 1815, if not earlier, but it is only since the First World War that
they have acquired much political importance. The idea that they have
international legal personality is even more recent.
• Treaties setting up international organizations often provide, as does Article
104 of the United Nations Charter, that ‘the organization shall enjoy in the
territory of each of its members such legal capacity as may be necessary for
the exercise of its functions and the fulfilment of its purposes
• Personality under municipal laws- to own property, enter in to contracts etc
• There is no corresponding article in the Charter expressly
giving the United Nations personality under international
law
• Nevertheless, it is generally agreed that the United
Nations does have at least some degree of international
personality; for instance, Article 43 of the Charter
empowers the United Nations to make certain types of
treaties with member states—a power which could not
exist if the United Nations had no international
personality.
• The leading judicial authority on the personality of
international organizations is the advisory opinion given
by the International Court of Justice in the Reparation for
Injuries case.
• Count Bernadotte, the United Nations mediator in Palestine, in 1948
• The UN wanted to claim compensation against Israel
• The question arose if UN had int legal personality?
• The Court began by saying that the United Nations organization had
international personality in principle; its functions were so important
that the organization could not carry them out unless it had some
degree of international personality. The Court then went on to advise
that the organization’s personality included the capacity to bring the
type of claim mentioned in the request to the Court.
• The Reparation decision showed that the powers of international organizations need not
necessarily be conferred expressly- implied powers theory.

• When states create an international organization, they set it up for specific purposes and
give it limited powers- PPLE OF SPECIALITY

• It is futile to ask whether an international organization has legal personality in the abstract;
instead, one should ask, ‘What specific rights, duties and powers is it capable of exercising?’
• In the Legality of use by a state of Nuclear Weapons Advisory Opinion:
• ICJ said: Ios do not, unlike state, possess a general competence but are governed by
the pple of specialty
• Non-governmental organizations (NGOs)
• They have some effect on international law-making in certain
areas by adding additional expertise and making procedures
more transparent, and a stronger effect with regard to
supervision and fact finding as to the implementation of
international norms, most visibly in the area of human rights.
• Inter-governmental organizations may agree to grant NGOs a
certain consultative or observer status
• The Rianbow Warrior Case
 Individuals and companies
• international law, under the positivist influence, regarded individuals in much
the same way as municipal law regards animals.
• The present century has seen a growing tendency to admit that individuals—
and companies —have some degree of international personality- this is mainly a
Post WWII DEVELOPMENT
• Many treaties confer rights under int law to individuals and companies
• One way of proving that the rights of the individuals or companies exist under
international law is to show that the treaty conferring the rights gives the
individuals or companies access to an international tribunal in order to enforce
their rights. Most international tribunals are not open to individuals or
companies;
• States approach the issues of personality of individuals with hesitation
• The clearest example of personality of individuals is the responsibility of
individuals for war crimes and crimes against humanity (genocide)
• In int criminal law, individuals become responsible under int law
• Nuremberg, Tokyo, ICC, ICTY, ICTR
• Under traditional int law also certain criminal acts could give rise to int
personality and responsibility: Ex: Piracy
• A pirate is hostis human generis enemy of all man kind and may be
arrested and tried by any state regardless of his nationality
• REBEL GROUPS
• They may have effective control
• Have obligations under IHL
• Common Article 3 to the Geneva Conventions
• Article 10 of the Draft Article on State Responsibility- an
insurrection movement will be held internationally liable
for its actions if it becomes new government of a state
• The Holy See and the Sovereign order of Malta