International Personality

Concept of International Personality

 International Person is the one who possess legal personality in International

Law

 One who is subject of International Law enjoy rights, duties/power established

in International Law have the capacity to contract on the international plane.

Characteristics of International Personality

 The enjoyment of rights conferred and the subjection

 To obligation imposed by international law

 Capacity to enter into treaties and agreements valid on the international

plane.

 Capacity to make claims in breaches of international law

 The enjoyment of privileges and immunities from national jurisdiction

Subjects of International Law

 State

 Colonies and dependencies

 Mandates and Trust Territories

 Belligerent Communities

 The Vatican and the Holy See

 The United Nations

 International Administrative Bodies

 Subjects of International Law

1. State - is a group of people living together in a definite territory under an

independent government organized for political ends and capable of entering
into international relations.

Elements of a State

1. People- inhabitants of a State. People must be numerous enough to be self-

sufficing and to defend themselves, and small enough to be easily
administered and sustained. They are aggregate of individuals of both sexes
who live together as a community despite racial or cultural differences.

2. Territory- the fixed portion of the surface of the earth inhabited by the people
of the State. The size is irrelevant. (San Marino v. China). But practically,
must not be too big as to be difficult to administer and defend; but must not be
too small as to unable to provide for people’s needs.

3. Government-– the agency or instrumentality through which the will of the

State is formulated, expressed and realized

4. Sovereignty- the power to direct its own external affairs without interference or
dictation from other states.

Subjects of International Law

1. State as subject of International Law

 Criteria for Statehood as laid down in Article 1 of Montevideo Convention

(1933)

 Permanent Population

 Defined Territory

 Government

 Capacity to enter into relations with other states

Permanent Population

 Refers to a stable community and no prescribed number of people.

 Does not require to be homogeneous.

 Defined Territory

 The control of territory is the essence of a state

 Territorial Sovereignty allows a state to exercise sovereignty within that

territory without interference from foreign government without its consent

 This concept is defined by geographical area separated by borderlines from

the other state’s territory. So, the delimitation of state boundaries is of crucial
importance

 Absolute certainty is not required

Government

 The government must be effective within the defined territory and exercise
control over the permanent population.

 Exception:

 The effective requirement does not apply to an established state. A state does
not cease to exist when it is temporarily deprived of an effective government.
(due to war/upheavals)

Capacity to enter into relations with other States

 Montevideo Convention refers to ‘’capacity to enter into relations as

independence in law.

International Law identifies two elements evidencing the existence of

independence. 

 The entity exists separately within established boundaries. This emphasizes

the link between the four criteria. All four Criteria must be present for the
purpose of statehood.

 The entity is not subject to any authority except Intl. Law.

The legality of origin of a State as a criterion for statehood in most cases

where the issue of statehood is debated in relation to an entity created in
breach of any of the following three norms of Intl. Law:

 The prohibition of aggression and of the acquisition of territory by force;

 The right to self determination

 The prohibition of racial discrimination and apartheid

The entity will not be regarded as a State because of the lack of actual
independence, i.e. because it does not satisfy one of the criteria Set out in the
Montevideo Convention.

2. Colonies and Dependencies

• Colony- a dependent political community consisting of a number of citizens of

the same country who have migrated therefrom to inhabit another country but
remain subject to the mother State.

• Dependency- a territory distinct from the country in which the supreme

sovereign power resides but belongs rightfully to it, and subject to the laws
and regulations that the sovereign may provide.

3. Mandates and Trust Territories

• Non-self governing territories which have been placed under international

supervision to insure their political, economic, social and educational
advancement, such as those possessed by defeated states in World War I
placed under the control of League of Nations.

Kinds of trust Territories

• Those held under the mandate;

• Territories detach from the enemy states as a result of World War II; and

• Those voluntarily placed under the system by the states responsible for their
administration.

4. Insurgents and Belligerents

• It pertains to a group of rebels under an organized civil government who have

taken arms against the legitimate government. When recognized, it is
considered as a separate state for purpose of conflict and entitled to all the
rights and subjected to all the obligations, a full pledged belligerent under the
laws of war.

• During armed conflicts limited international personality may be granted to

some insurgent groups and belligerents when they exercise de facto control
over a part of national territory. The objective of such recognition is to ensure
compliance of the parties in armed conflict with International Humanitarian
Law and Human Rights Law.
 Recognition of a Belligerent Community

Belligerency presupposes the existence of a state of war between two or

more States, or actual hostilities amounting to civil war within a single State.
Recognizing the belligerents is a matter of policy on the part of the
recognizing State or government, since there is no purely legal right to be
recognized. And that recognition of the parent State or by third States may be
express or implied.

Conditions before Rights of Belligerency are accorded

1. An organized government that has control and direction over the armed
struggle launched by the rebels.
2. Occupation of a substantial portion of the national territory.
3. Seriousness of the struggle which must be so widespread, thereby leaving no
doubt as to the outcome.
4. Willingness on the part of the rebels to observe rules and customs of war.

Effect of Recognition of a Belligerent Community

Belligerent community is recognized as a separate state for purposes of the

conflict and is entitled to all the rights and subjected to all obligations of a full-
pledged belligerent under the laws of war.

The Three Friends (166) U.S. (1896) 1, (63)

The following quotation bearing on consequences of recognition of belligerency

is set forth in this case. “The recognition of belligerency involves the rights of
blockade, visitation, search and seizure of contraband articles on the high seas,
and abandonment of claims for reparation on account of damages suffered by
our citizens from the prevalence of warfare” and “Recognition of belligerency
does not confer upon the community recognized all the rights of an independent
state, but it grants to its government and subjects the right imposes upon them
the obligations of an independent state in all matters relating to the war.”
5. The Holy See and the Vatican City
 
The Holy See enjoys a special status in International Law. The term “Holy See”
is a Latin expression “sancta sedes” which refers to the chair of St. Peter. Under
canon law, the term “Holy See” is used to refer to both the Pope and the Roman
Curia through which the Pope exercises his powers over the Catholic Church,
including spiritual power over one billion people who profess the Catholic faith.
The Holy See has always been recognised as possessing international
personality.

The Vatican City State was created in 1929 when the Holy See signed the
Lateran Treaty with Italy under which diplomatic relations were established
between them. Under the Treaty the “City of Vatican” was granted to the Holy
See as its sovereign territory. Although the Holy See and the Vatican City have
separate international personality so that each has capacity on its own to enter
into international relations. They are both ruled by the Pope.

The Republic of the Philippines has accorded the Holy See the status of a
foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has
had diplomatic representations with the Philippine government since 1957. This
appears to be the universal practice in the international relations (Holy See v.
Rosario, G.R. No. 101949, December 1, 1994).

6. United Nations

Apart from State, international organization are subject of International Law

since they are the organization of states which are assigned with specific
functions, they must enjoy some measure of international personality to carry out
the function.
 
International Personality of United Nations

 Legal capacity of UN is affirmed in Article 104 of the UN Charter- the

organization shall enjoy in the territory of each of its members such legal
capacity as may be necessary for the exercise of its function and the fulfilment
of its purposes.
 Article 105- guaranteed privileges and immunities of the UN, its officials and
representatives.
 Article 1(1) on the Convention of Privileges and Immunities of the UN- the UN
shall possess juridical personality and that it shall have the capacity to
contract, to acquire and dispose movable and immovable property and to
negotiate legal proceeding.
 The most important evidence for the determination of the International
personality of the UN is the advisory opinion in Reparation’s Case

 September 17, 1948- Chief UN Negotiator, Count Folke Bernardotte, a

Swedish national and UN observer, a Frenchman, Colonel Andre Serot while
on official mission was assassinated in Jerusalem which was under Israeli
control. In the course of deciding what action to take in respect of their death,
the UN GA requested ICJ to give an advisory opinion on whether UN had the
capacity to bring international claim against the responsible government to
obtain reparation.
 The Court in its opinion: has come to a conclusion that the organization is an
international personality. That is not to say that it is a state and possess the
same legal personality, right and duties to that of the states. But it is a subject
of International Law capable of possessing international rights, duties and has
capacity to maintain its rights by bringing international claims.

Criteria for determination of international personality

 In the Reparation’s case, the court outlined two criteria:

 
 The intention of states to established an organization having a distinct legal
personality detached from that of its members. Can be inferred from various
factors. May also be expressly mentioned in the constituent instrument of the
organization.
 
 Eg. Article 4 (1) of the Rome Statute establishing the International Criminal
Courts as having an international legal capacity.

 The actual and exercising and enjoying of functions and rights which can only
be explained on the basis of the possession of large measure of international
personality.
 7. International Administrative Bodies

 Certain administrative bodies created by agreement among states may be

vested with international personality (e.g International Labor Organization,
World Health Organization).

Requisites for International Administrative Bodies to be vested with International

Personality 

 There purposes are mainly non-political; and that

 They are autonomous, i.e not subject to the control of any state.

Rights conferred to International Organization

 The treaty making power

 Privileges and immunities

 Right to bring international claim

 The right to protection for its agent acting in their official capacity

Case in History/Dev’t of International Personality

Mighell v. Sultan of Johor 1894

 In Mighell v. Sultan of Johore, the defendant, a having been sued for a breach
of promise to marry a young lady, prayed in his defence that immunity be
granted to him because of his position as a Sultan of Johore, then a British
protectorate. It was held that the conclusive certification by the foreign colonial
office as regards the status of the sultan as a sovereign precluded the court
from exercising jurisdiction, although it was clear the territory referred to was
not totally independent of the British crown. This decision shows in reality that
a foreign sovereign cannot be impleaded in foreign courts.

 Q: What does the Mighell V. Sultan of Johore signify?

 A: This case is significant in the matters of immunity. In this case the sultan of
Johore was in England and was using a pseudonym and met a woman whom
he promised to marry. She tried to sue him for the breach of contract, but
because he was a diplomat abroad he wasn’t held to the laws of the state in
which he was visiting because he held immunity in England, and would in all
other states in the international community.
Extraterritoriality, a term of international law, used to denominate certain immunities
from the application of the rule that every person is subject for all acts done within
the boundaries of a state to its local laws.
It is also employed to describe the quasi-extraterritorial position, to borrow the
phrase of Grotius, of the dwelling-place of an accredited diplomatic agent, and of the
public ships of one state while in the waters of another. Latterly its sense has been
extended to all cases in which states refrain from enforcing their laws within their
territorial jurisdiction. The cases recognized by the law of nations relate to:

1. The persons and belongings of foreign sovereigns, whether incognito or not

2. The persons and belongings of ambassadors, ministers plenipotentiary, and
other accredited diplomatic agents and their suites (but not consuls, except in
some non-Christian countries, in which they sometimes have a diplomatic
character)
3. Public ships in foreign waters.
Extraterritoriality has also been granted by treaty to the subjects and citizens of
contracting Christian states resident within the territory of certain non-Christian
states.
Lastly, it is held that when armies or regiments are allowed by a foreign state to
cross its territory, they necessarily have extraterritorial rights. "The ground upon
which the immunity of sovereign rulers from process in our courts," said Mr Justice
Wills in the case of Mighell v. Sultan of Johore, 1894, "is recognized by our law, is
that it would be absolutely inconsistent with the status of an independent sovereign
that he should be subject to the process of a foreign tribunal," unless he deliberately
submits to its jurisdiction. It has, however, been held where the foreign sovereign
was also a British subject (Duke of Brunswick v. King of Hanover, 1844), that he is
amenable to the jurisdiction of the English Courts in respect of transactions done by
him in his capacity as a subject.
A "foreign sovereign" may be taken to include the president of a republic, and even a
potentate whose independence is not complete. Thus in the case, cited above, of
Mighell v. Sultan of Johore, the sultan was ascertained to have abandoned all right
to contract with foreign states, and to have placed his territory under British
protection. The court held that he was, nevertheless, a foreign sovereign in so far as
immunity from British jurisdiction was concerned. The immunity of a foreign
diplomatic agent, as the direct representative of a foreign sovereign (or state), is
based on the same grounds as that of the sovereign authority itself.