3.

The subjects of international law (1)

1.International legal personality.

Int legal personality: In any legal system, law recognises certain entities (individuals,companies) as ‘legal
persons’ with capacity to have rights, and be subject to duties. An entity’s status may be determinative of its
powers and obligations. Capacity will link a person's status with some rights and duties. Personality in int
law requires considering the rights-duties relation under the int system and the capacity to enforce claims.
1. Active int. legal personality (individuals before European Human Rights Courts in Strasbourg at
Council of Europe) rights to enforce claims by violations of rights in the European Convention of
fundamental rights, 4/11/1950.

Personality: is relative, varies with circumstances. Distinctive characteristic of contemporary int. law: wide
range of participants including states, international, regional and non-governmental organisations, public
and private companies and individuals (and groups engaged in int. terrorism). Not all entities will constitute
legal persons, but they may act with some degree of influence upon the int plane. Int personality is
participation plus some form of community acceptance. The latter will depend on many different factors,
(including the type of personality). Particular branches of int law here are playing a crucial role:
- Human rights law.
- Law related to armed conflicts.
- Int economic law.
(Especially important in generating and reflecting increased participation and personality in int law).

2.State organs, diplomatic relations and Int law

STATE ORGANS: Heads of States, PM, Ministers, Ambassadors before States, Diplomats,
Representatives of Governmental organs (in Spain, representatives of CCAA).
Rules regulating aspects of diplomatic relations are one of the earliest expressions of int law. Rules of
diplomatic law, in short, constitute a self-contained regime, which lays down the receiving state’s.

The Vienna Convention on Diplomatic Relations (1961): effective in 1964, emphasising functional necessity
of diplomatic privileges and immunities for the efficiency of int relations and pointing the character of the
diplomatic mission as representative of its state. It codified existing laws and established others. Questions
not expressly regulated by it continue to be governed by rules of customary int law. The Int Court recently
emphasised this treaty continues applying despite a war among the states concerned.
There’s no right itself under int law to diplomatic relations, they exist by virtue of mutual consent. If one
state doesn’t wish to enter diplomatic relations, it’s not legally obliged. By art of the Convention, sending
state must ensure the consent of the receiving state given for the proposed head of its mission, reasons for
any refusal of consent (exequatur) don’t have to be given. Art, receiving state may declare any member of
the diplomatic mission ‘persona non grata’ without explaining. However, the principle of consent as the
basis of diplomatic relations may be affected by other rules of int law.
Main functions of a diplomatic mission, go around the representation and protection of the interests and
nationals of the sending state and also the promotion of info and friendly relations. Article 41(1): emphasis
on the duty of everyone enjoying privileges and immunities to respect the laws and regulations of the
receiving state and the duty to not interfere in the internal affairs of that state. Art: the head of the mission,
considered to have taken up his functions in the receiving state upon presentation of credentials.
Heads of mission, divided into 3 classes: viz. ambassadors or nuncios (accredited to heads of state and
other heads of mission of equivalent rank); envoys, ministers and internuncios (accredited to heads of
state); and charges d’affaires (accredited to ministers of foreign affairs). It’s usual for a named individual to
be in charge of a diplomatic mission.

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The inviolability of the premises of the mission: to facilitate operations of normal diplomatic activities, art
states premises of the mission as inviolable and agents of the receiving state aren’t to enter them without
consent. The Convention prohibits infractions of the inviolability of the mission by the receiving state and
obliges to prevent others (armed militia groups) from doing so.

The diplomatic bag: receiving state should permit and protect free communication on behalf of the mission
for all official purposes (inviolable, may include the use of diplomatic couriers and code messages, but
consent of the receiving state is required for a wireless transmitter). The bag shouldn’t be opened or
detained and its packages ‘must have visible marks of its character and may contain only diplomatic
documents or articles for official use’. The need for a balance in this area is manifest. If the competent
authorities of the receiving or transit state seriously believe the bag contains something other than official
mail, they may request it be opened in their presence by an authorised representative of the sending state.

Diplomatic immunities – property: an art states premises of the mission as inviolable and, with their
equipment and other assets and the means of transport, as immune from search, requisition, attachment or
execution. General exception from taxation regarding the mission premises is posited.

Diplomatic immunities – personal: the diplomatic agent, inviolable under art of the 4th Vienna Convention,
may not be arrested (most fundamental oldest established rule of diplomatic law). Receiving state,
obligated to prevent attacks on agents, on their freedom or dignity. UN Convention on Prevention and
Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents (1973).
States parties are obliged to prosecute offenders (principle aut dedere aut judicare).
In exceptional cases, a diplomat may be arrested or detained on the basis of self-defence or in the
interests of protecting human life.
Inviolability of private residence of diplomatic agents, of their papers, correspondence and property.
Regarding criminal jurisdiction, diplomatic agents have full immunity from the legal system of the receiving
state, still there’s no immunity from the jurisdiction of the sending state. The only remedy the host state has
against offences committed by a diplomat is declaring him persona non grata. Except when: the action
relates to private immovable property situated within the host state (unless held for mission purposes); in
litigation relating to succession matters in which the diplomat is involved as a private person (executor or
heir); respecting unofficial professional or commercial activity engaged in by the agent.

Privileges: diplomatic agents, generally exempt from social security provisions in the receiving state; taxes
(except indirect taxes); personal and public services; customs duties and inspection. Their personal
luggage is exempt from inspection unless serious reason for presuming it contains articles not covered by
the specified exemptions. Inspections only in presence of the diplomat or his authorised representative.

Consular privileges and immunities: Vienna Convention on Consular Relations (1963)

Consuls represent their state in many administrative ways. They have a particular role, assisting nationals
in distress regarding finding lawyers, visiting prisons...; and are unable to intervene in the judicial process
or internal affairs of the receiving state or give legal advice or investigate a crime. Their political functions
are few, thus not permitted the same degree of immunity from jurisdiction as diplomatic agents. They must
possess a commission from the sending state and the authorisation (exequatur) of a receiving state. They
are entitled to the same exemption from taxes and customs duties as diplomats. Art: consular premises are
inviolable and may not be entered by the authorities of the receiving state without consent.
They must also be protected against intrusion. Art: freedom of communication, inviolability of the consular’s
post, the consular bag shouldn’t be opened or detained. Art: if the nation requests, receiving state
authorities shall inform the consular post of the sending state of any arrest or detention.

The Convention on Special Missions, 1969: many cases, states will send special missions to particular
countries to deal with defined issues in addition to the permanent staff of the diplomatic and consular
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missions. These missions may rely on some immunities derived from the Vienna Conventions. Art: sending
state must let the host state know the size and composition of the mission. Art: mission must be sited in an
agreed place by the states concerned or in the Foreign Ministry of the receiving state. Art: freedom of
movement and travel only if necessary for the performance of the special mission.

Vienna Convention on the Representation of States in their Relations with International Organisations of a
Universal Character (1975): applies respecting the representation of states in any int organisation of
universal character, irrespective of if there are or not diplomatic relations among the sending and the host
states. Many similarities between this and the 1961 Vienna Convention. Diplomatic staff enjoy complete
immunity from criminal jurisdiction, civil and administrative jurisdiction with the same exceptions of the 1961
Convention. Mission premises: inviolable, exempt from taxes by the host state, its archives, documents and
correspondence equally inviolable.
The Convention received an unenthusiastic welcome, because of the high level of immunities as it
contrasts with other conventions like the Convention on the Privileges and Immunities of the United
Nations, 1946.

Immunities of international organisations: regarding traditional rules, position is far from clear and usually
dealt with by means of a treaty, providing such immunities to the int institution sited on the territory of the
host state as are regarded as functionally necessary for the fulfilment of its objectives.

3. State elements. Creation, recognition and extinction.

4 state elements:
a) Permanent population
b) Defined territory
c) Government
d) Capacity to establish relations with other states.

Creation of statehood: many cases, decision to recognise will depend more on political considerations than
exclusively legal factors. Recognition: method of accepting certain factual situations and endowing them
with legal importance. It may be:
-Constitutive: only through recognition a state comes into being under international law. It is the act of
recognition by other states that creates a new state and endows it with legal personality and not the
process by which it actually obtained independence. New states are subjects of int law by virtue of the will
and consent of existing states. The disadvantage of this is that an unrecognised ‘state’ may not be subject
to the obligations imposed by int law and may be free from such restraints (prohibition on aggression). A
further complication would arise if a ‘state’ were recognised by some but not other states. An unrecognised
‘state’ can have no rights or obligations in int. law.

-Declaratory: once the factual criteria of statehood has been satisfied, a new state exists as an int person,
recognition becomes merely a political (not a legal) act in this context. The more overwhelming the scale of
int recognition, the least may be demanded in terms demonstration of adherence to the criteria. In contrast,
the poorer int recognition is, the more attention will be on proof of actual adherence to the criteria
concerned. Recognition is merely an acceptance by states of an existing situation. It will be legally
constituted by its own efforts and circumstances and won’t have to wait for recognition by other states. This
owes a lot to traditional positivist thought on the supremacy of the state. This approach emphasises the
factual situation and minimises the power of states to confer legal personality.

Actual practice leads to a middle position between these two perceptions. The recognition of one state by
another indicates that the former conformed with the basic requirements of int law as to statehood.
Recognition is highly political and is given in a number of cases for purely political reasons.

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Example: Lauterpacht maintained, once the conditions prescribed by int law for statehood have been
complied, there is a duty on the part of existing states to grant recognition because, in the absence of a
central authority in int law to assess legal personality, the states have to perform this function on behalf of
the int community and int law.

SHAW Critic to Lauterpacht

It ignores the political aspects and functions of recognition (its use as a method of demonstrating or
withholding support from a particular government or (state) new community. The reality is that in many
cases recognition is applied to demonstrate political approval or disapproval.

Recent practice suggests that ‘other factors’ may include human rights and other matters. The European
Community adopted a Declaration (1919 “Guidelines on the Recognition of New States in Eastern Europe
and in the Soviet Union” in which a common position on the process of recognition of the new states was
adopted. Recognition required:
1. Respect for the provisions of the Charter of the UN and the commitments subscribed to in the Final
Act of Helsinki and in the Charter of Paris, regarding rule of law, democracy and human rights.
2. Guarantees for the rights of ethnic, national groups, minorities according to the commitments
subscribed to in the framework of the CSCE.
3. Respect for the inviolability of all frontiers (can only be changed by peaceful means and by common
agreement).
4. Acceptance of all relevant commitments regarding disarmament and nuclear non-proliferation as
well as to security and regional stability.
5. Commitment to settle by agreement, including where appropriate by arbitration, all questions
concerning state succession and regional disputes.

RECOGNITION OF GOVERNMENTS: quite different from recognition of a new state. Recognition will only
really be relevant where the change in government is unconstitutional. Political considerations have usually
played a large role in the decision whether or not to grant recognition. Recognition of the gov implies
recognition of the state, but it doesn’t work the other way. It is significant in the realm of diplomatic
relations. If a gov is unrecognised, there’s no exchange of diplomatic envoys and thus problems can arise
as to the enforcement of int rights and obligations.

DOCTRINES ON RECOGNITION
1.Although the effective control doctrine is probably accepted as the most reliable guide to recognition of
governments, there have been other theories:
-TOBAR DOCTRINE AND WILSON DOCTRINE (doctrine of legitimacy): govs that came into power by
extra-constitutional means shouldn’t be recognised, at least until the change had been accepted by the
people. This was applied particularly by the US in relation to Central America. Only where the revolution
was supported by the people, it would be recognised.
ESTRADA ́S DOCTRINE: the automatic recognition of govs in all circumstances. Put forward by Estrada
(Mexican Secretary of Foreign Relations). Problem. recognition of new gov that has come to power in a
non-constitutional way.

SHAW Critics: often embarrassing, for example, in the case of regimes violating human rights.

De facto and de jure recognition: recognition may take different forms.

1. De facto: there’s some doubt as to the long-term viability of the gov.
2. De jure: if the effective control displayed by the gov is permanent and that there are no legal
reasons detracting from this, such as constitutional subservience to a foreign power.

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De facto recognition involves assessment of the situation, an attitude of wait and see, when the jure
recognition when the doubts are sufficiently overcome to extend formal acceptance. To take one instance,
the UK recognised the Soviet government de facto in 1921 and de jure in 1924. A bit different approach
adopted in cases of civil war where the distinction between de jure and de facto rec is sometimes used to
illustrate the variance between legal and factual sovereignty.

Extinction of statehood: may take place as a consequence of merger, absorption or, historically,
annexation. It may also occur as a result of the dismemberment of an existing state. In general, caution
needs to be exercised before the dissolution of a state is internationally accepted. While the
disappearance, like the existence, of a state is a matter of fact. While it’s not unusual for govs to disappear,
it’s rarer for states to become extinct. This won’t happen in int law as a result of the illegal use of force, as
the Kuwait crisis, nor as a consequence of internal upheavals within a state, but it may occur by consent.

Fundamental rights of states: Independence, Equality and Peaceful co-existence.

Independence in int law implies a number of rights:
1. The right of a state to exercise jurisdiction over its territory and permanent population,
2. The right to engage upon an act of self-defence in certain situations.
Also implies the duty not to inequality and legal equality of states. States, irrespective of size or power,
have the same juridical capacities and functions, and are likewise entitled to one vote in the UN General
Assembly. This was recognised in the Declaration on Principles of Int Law (1970) and provides:
All states enjoy sovereign equality. They have equal rights and duties and are equal members of the
int community, notwithstanding differences of an economic, social, political or other nature.

In particular, sovereign equality includes the following elements:

a) States are juridically equal.
b) Each state enjoys the rights inherent in full sovereignty.
c) Each state has the duty to respect the personality of other states.
d) The territorial integrity and political independence of the state are inviolable.
e) Each state has the right freely to choose and develop its political, social, economic and cultural systems.
f) Each state has the duty to comply fully and in good faith with its international obligations and to live in
peace with other states and not intervene in the internal affairs of other sovereign states.

Within the General Assembly of the UN, rule of one state, one vote. However, we shouldn’t overlook the
existence of the veto possessed by the USA, Russia, China, France and the UK in the Security Council.

4. Immunities
In some cases jurisdiction can’t be exercised normally because of special factors. Concept of jurisdiction:
around principles of state sovereignty, equality and non-interference. Domestic jurisdiction attempts to
define an area in which actions of the organs of gov and administration are supreme, free from int legal
principles and interference. Most of the grounds for jurisdiction can be related to the requirement under int
law to respect the territorial integrity and political independence of other states. Immunity from jurisdiction,
regarding the state itself or its diplomatic representatives, is grounded in this requirement. Sovereign
immunity: closely related to 2 legal doctrines, non justiciability and act of state (acts jure imperii).

The absolute immunity approach: in the 18th and 19th centuries, sovereign was completely immune from
foreign jurisdiction in all cases/circumstances. However, growth in activities of the state, especially in
commercial matters, led to problems and to a modification of the above rule in most countries. The number
of gov agencies and public corporations, nationalised industries and other state organs created a reaction
against the concept of absolute immunity, partly because it would enable state enterprises to have an
advantage over private companies. Accordingly many states began to adhere to the doctrine of restrictive

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immunity. Gov acts regarding which immunity would be granted are named acts jure imperii, while those
relating to private or trade activity are named acts jure gestionis.

The restrictive approach: some states started adopting this approach to immunity, permitting the exercise of
jurisdiction over non-sovereign acts, at an early stage. The Supreme Court of Austria (1950), concluded
that in view of the increased activity of states in the commercial field, the classic doctrine of absolute
immunity lost meaning and was no longer a rule of int law.

Sovereign and non-sovereign acts: with acceptance of the restrictive theory, it becomes crucial to analyse
distinction between acts that will benefit from immunity (acta jure imperii) and those that will not (acta jure
gestionis).
Article of the UN Convention on Jurisdictional Immunities of States and Their Property, 2004, a state enjoys
immunity in respect of itself and its property, from the jurisdiction of the courts of another state subject to
the provisions of the present Convention. Art (Convention) declares ‘state’ means:
i) The state and its various organs of government.
ii) Constituent units of a federal state or political subdivisions of the state, entitled to perform acts in the
exercise of sovereign authority, and are acting in that capacity.
iii) Agencies of the state or other entities, in that they are entitled to perform and are actually performing
acts in the exercise of sovereign authority of the state.
iv) Representatives of the state acting in that capacity.

With the adoption of the restrictive theory of immunity, the appropriate test becomes if the activity is of itself
sovereign (jure imperii) or non-sovereign (jure gestionis). The predominant approach has been to focus
upon the nature of the transaction rather than its purpose. However, article of the Convention states that: in
determining if a contract or transaction is a ‘commercial transaction’...reference should be made primarily to
the nature of the contract or transaction, but its purpose should also be taken into account.
The reason for the modified ‘nature’ test was to provide an adequate safeguard and protection for
developing countries, particularly as they attempt to promote national economic development.

First, reference should be made primarily to the nature of the contract or transaction and, if it is established
that it is non-commercial or governmental in nature, no further enquiry would be needed. If, however, the
contract or transaction appeared to be commercial, then reference to its purpose should be made. States
should be given an opportunity to maintain that in their practice a particular contract or transaction should
be treated as non-commercial since its purpose is clearly public and supported by reasons of state.
The characterisation of an act as jure gestionis or jure imperii will also depend on the perception of the
issue at hand by the courts. Lord Wilberforce noted that while the existence of a governmental purpose or
motive couldn’t convert what would otherwise be an act jure gestionis or an act of private law into one done
jure imperii.

State immunity and violations of human rights

US Foreign Sovereign Immunities Act, amended in 1996 created an exception to immunity regarding
states, designated as terrorist states, which committed a terrorist act, including hostage taking, or provided
material support and resources to an individual or entity which committed such an act which resulted in the
death or personal injury of a US citizen.

Commercial acts: art states there’s no immunity where a state engages in a ‘commercial transaction’ with a
foreign natural or juridical person (but not another state) in a situation where by virtue of the rules of private
int law a dispute comes before the courts of another state, unless the parties to the commercial transaction
otherwise expressly agreed. Of all state activities for which immunity is no longer to be obtained, that of
commercial transactions (acta jure gestionis). Art: states the term ‘commercial transaction’ means:
i)Any commercial contract or transaction for the sale of goods or the supply of services.
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ii)Any contract for a loan or other transaction of a financial nature.
iii)Any other contract or transaction of a commercial, industrial, trading or professional nature, not including
a contract of employment of persons.

The personality issue – immunity for government figures

The question of immunity ratione personae arises particularly, most strongly, in the case of heads of state.
Serving heads of state, and other gov officials, may be rendered susceptible to the jurisdiction of
international tribunals, depending, of course, upon the terms of the constitutions of such tribunals.
Individual criminal responsibility will exist irrespective of any official status, including that of head
of state.
The situation of immunity before domestic courts, more complex. The immunity of a former head of state
differs in that it may be seen as moving from a status immunity (ratione personae) to a functional immunity
(ratione materiae), so that immunity will only exist for official acts done while in office.

Pinochet: immunities ratione personae apply to other governmental persons? controversial. The Int Law
Commission distinguished between the special position regarding immunities ratione personae of personal
sovereigns (including heads of state) and diplomatic agents and that of other representatives of the gov
who would have only immunities ratione materiae Immunity from execution. Immunity from execution must
be distinguished from immunity from jurisdiction, since it involves the question of the actual seizure of
assets pertaining to a foreign state. As such it poses a considerable immunity from execution iure imperii.
Exception from immunity execution iuris gestionis.
Art 1972: prohibits measures of execution or preventive measures against the property of a contracting
state in the absence of written consent in any particular case.

Conclusion
Although sovereign immunity is proclaimed as a general principle in various domestic statutes, it’s an
exception to the general rule of territorial jurisdiction. The enumeration of non-immunity situations is so long
that the true situation of a rapidly diminishing exception to jurisdiction should be appreciated. In many
instances, only with practice it has become apparent how much more extensive the submission to
jurisdiction has become under domestic legislation. The principle of diplomatic immunity may often be
relevant in a sovereign immunity case.