3.

SUBJECTS: STATES

1. STATES AS SUBJECTS OF INTERNATIONAL LAW

International personality:
“a subject of international law [is] capable of possessing international rights and duties, and [...] has
the capacity to maintain its rights by bringing international claims” (ICJ, Reparations for Injuries)

Not only States: “the 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” (ICJ,
Reparations for Injuries)
→Other entities may have derived international legal personality, responding to certain functional
needs

States remain primary subjects of international law, with full legal personality → Other subjects
(IOs, sub-state authorities, MNEs) only legal personality to extent recognized by States. States are
here to stay.

What are the needs of the international community?

2. CRITERIA FOR STATEHOOD

Little agreement on legal definition of a State:

“I have been active in international law for more than fifty years and I still don’t know what a state is.
I’m sure that I will not find out before I die.” (Georges Scelle, ILC member)

Nonetheless, certain criteria inform legal concept of statehood

• “Drei Elementen Lehre” (Georg Jellinek): territory, population, government (Staatsgebiet,
Staatsvolk, Staatsgewalt)
• “[t]he state as a person of international law should possess the following qualifications: a) a
permanent population; b) a defined territory; c) government; and d) capacity to enter
into relations with the other states” (Article 1 Montevideo Convention on the Rights and Duties
of States, December 26, 1933)

a) Permanent Population

No rules regarding size or composition of population (e.g. micro States as Nauru, Tuvalu etc.) big
flexibility in terms of the number of population, what is important in that it is permanent
population. Because it has been the case that in some earlier states the population had a more
nomadic form and that is not permanent.
→Does Vatican City State have a “permanent population”? Special place. On the one hand we talk
about the Vatican City State and on the other we talk about the Holy Seat, which is often see as the
government of the Vatican City but this is not true to say because a government doesn’t have usually
legal personality.

No rules relating to nationality of population: “international law leaves it to each state to lay down
the rules governing the grant of its own nationality” (ICJ, Nottebohm Case) ICJ said the idea is to
have a “genuine link”. The only thing that international law requires is that there should be a
genuine link, meaning that it is not purely virtual, that the person should have something of a link
with a country, being family, professional interests, domicile… in that sense, some countries that

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 have legislation allowing for the so called “golden passports” are a little bit tricky with respect to
this rule of genuine link.

States have an obligation of due diligence to minimize the risk of statelessness in case of state
succession
➢ Art 15 Universal Declaration Human Rights, but it is not legally enforceable, is just a
recommendation of the general assembly.
➢ILC Draft Articles on Nationality of Natural Persons in Relation to the Succession of States.
Not binding. This is article 31 c) VC opinion of legal experts.

Can a country deprive a person of their nationality? Only in those cases of double nationality. This is
typically a unilateral practice so it is really criticised.

b) Defined Territory

State = first and foremost territorial entity: control over piece of territory, large or small =
essential prerequisite of statehood. You can not have a virtual state, you have to have a piece of
habitable land.

Territory includes: soil, sub-soil, territorial sea, internal waters, airspace (this one has an absolute
sovereignty component, meaning that no foreign airplane is entitled to use you airspace. There are
all these bilateral and multilateral treaties about the liberalisation of the use of commercial
airspace. That is why when we are flying to Japan, we are avoiding the Russian airspace…)

No rules prescribing minimum area of territory or contiguity

➢ Vatican, Monaco, Malta etc. (size); French d partements d’outre mer (contiguity). They
only joined the UN in the course of the 90s, which tell you something about the evolving
states practices, the bar for applying has become a little bit lower in the course of time.

States exist despite claims to parts or whole of territory; e.g. Israel

“there is for instance no rule that the land frontiers of a state must be fully delimited and
defined, and often in various places and for long periods they are not [...]” (ICJ, North Sea
Continental Shelf, para. 46)

c) Government

Requirement of effective and independent government

➢ Effectiveness: coherent structure of authority, able to administer and regulate the territory it
controls

➢ Independence: non-dependence on any other State, but only to international law and the state’s
international commitments (opinion of Judge Anzilotti, PCIJ, Austro-German Customs Union Case)

Test of effectiveness and independence first established in Aaland Islands Case (International
Committee of Jurists, 1920). Finland did not attain statehood until
“a stable political organization has been created, and until the public authorities had become strong
enough to assert themselves throughout the territories of the state without the assistance of foreign
troops”

d) Capacity to enter into relations with other states

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é
 Not clear what it entails, but independent of recognition:
“the political existence of the state is independent of recognition by the other states” – (Article 3
Montevideo Convention)

Therefore, this criterion might only require a State to have an administrative ability of entering into
relations with other States e.g.
➢ Northern Cyprus (regular contact with UK)
➢Somaliland (foreign missions on its territory; representations abroad)
➢ Palestine (representations abroad and membership in various IOs)

3. HOW DO STATES COME INTO EXISTENCE?

Terrae nullius = no longer apparent → all territory currently under State sovereignty

Decolonization: 17 non-self-governing territories left (e.g. W estern Sahara, Gibraltar, Malvinas

etc.)

➢ Right of self-determination:
• Art. 1 (2), 55 UN Charter
• UNGA Declaration on the Granting of Independence to Colonial Countries and Peoples
(1960); Friendly Relations Declaration (1970)→colonial countries have the right to become
independent and choose a political system of their own choice without foreign intervention
(new state, voluntary association, integration etc.)
• Recognized by ICJ as essential principle of international law, even as erga omnes
obligation (Namibia, Western Sahara, East Timor cases)

Limitation: decolonization process in conformity with existing boundaries: uti possidetis principle
→ ICJ, Burkina Faso / Mali, judgment of 22 December 1986, paras 21-26

Dismembratio: existing State falls apart in two or more States (e.g. Yugoslavia; USSR)

Merger: two or more States form a new State (by absorption in the other State/establishment of
new State; real and personal unions, federations and confederations)

Unilateral Secession:
➢ Right of self-determination = traditionally decolonization, alien occupation, racist
regimes→beyond this context problematic
➢ Supreme Court of Canada, Reference Re Secession of Quebec (1998): preference for
internal self-determination; external self-determination = exception→‘remedial secession’
➢ PIL neutral on the question of unilateral secession → Adoption of declaration of
independence of Kosovo on 17 February 2008 did not violate general international law
because “international law contains no prohibition on declarations of independence”: ICJ,
Kosovo Advisory Opinion, para. 84

4. ROLE OF RECOGNITION

Recognition of States = unilateral act whereby a State recognizes a new State as a member of the
international community (accepting that it meets the constitutive requirements of a State) and
indicates its readiness to treat it as such

Forms of recognition may include:

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 ✓ Declaration to this end by head of State or foreign minister
✓ Opening of diplomatic relations
✓ Conclusion of bilateral treaties (not necessarily joint membership in a global IO) ✓ Active support
of an entity’s application for membership in an IO

Types of recognition: express / implied / de facto – de jure

NB: EU aims at coordinating recognition by EUMS under CFSP

Recognition = discretionary act

In line with ex injuria jus non oritur, recognitions cannot create legal effects when:

1. Violation of jus cogens: creation of State violates peremptory norms of general international law
➢ E.g. Rhodesia - attempt to establish State based on system of apartheid

2. Use of force: acquisition of territory through conquest; when territorial entity tries to secede
through use of force by third State
➢E.g. Iraqi invasion of Kuwait; Northern Cyprus - Turkish invasion
➢ Cf. Stimson doctrine

Consequence: obligation of non-recognition

Eg UNSC Resolution 217 (1965) Rhodesia, UNSC Resolution 541 (1983) Northern Cyprus); UNGA
Resolution ES-11/1 2/3/2022 (aggression against Ukraine)

Two theories on nature of recognition:

1. Constitutive theory: recognition by other States creates new State and endows it with legal
personality
➢ Implies that unrecognized State can have no rights and obligations in international law

2. Declaratory theory: recognition = merely acceptance by States of an already existing situation,

political act recognizing pre-existing state of affairs
➢ Implies that a State may exist without being recognized Practical consequences

1. Constitutive Theory
Oppenheim: “a State is and becomes an international person through recognition only and exclusively”

Drawbacks:
➢ Relativity of State as subject of international law
➢ Practical difficulties, e.g. non-recognition of North Korea by US at time of shooting down of US
Military Reconnaissance Plane in 1969; relations Arab States - Israel

2. Declaratory Theory
Rivier: “the existence of the sovereign State is independent of its recognition by other States”:
international legal personality of a State solely depends on it satisfying criteria for statehood

Supported by
➢ Treaties (Art. 3 Montevideo Convention; OAS Charter)
➢International case-law (e.g. ICJ, Genocide Convention Case, para. 26)

Conclusion
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 ➢ Recognition is not a criterion for statehood, but does have important practical legal effects

5. UNRECOGNIZED OR CONTESTED STATES

Various contested claims to statehood exist

See 10 countries that don’t officially exist

Characterized by:
✓ Effective control over the territories they claim as their own
✓ Organized form of political leadership
✓ Capacity to provide governance and governmental services
✓ View themselves as capable of entering into relations with other States
✓ Actively seek international recognition, but have been unable to obtain it

6. CASE STUDY: TRANSNISTRIA

Fairytale Land?

State?
- Two decades old claim to statehood
- Territory, population, government, legislature, flag, capital, own currency, basic public services,
passports etc.

However
- Secessionist entity (war of Transnistria 1990- 1992)
- Not self-sustainable (economically dependent on Russia; militarily dependent on Russian 14th
Army)
- Unrecognized (except for Abkhazia, Nagorno – Karabakh, South Ossetia)

De facto existence, but hampered in exercise of rights and obligations by lack of recognition

Population falls outside scope of human rights protection mechanisms

ECHR, Ilascu and Others v. Moldova and Russia
✓ Acknowledgement of various human rights violations in Transnistria
✓ Extra-territorial applicability ECHR
✓ Both sponsor and parent State held responsible for human rights violations

What about other unrecognized or “less recognized” States, e.g. Abkhazia, South Ossetia, Nagorno-
Karabakh, Palestine, Kosovo, ...?

7. STATE SUCCESSION

State succession: “The replacement of one State (the “successor State”) by another (the
“predecessor State”) in the responsibility for the international relations of territory”

Element of discontinuity: successor State is not ‘continuation’ of predecessor State, own

international legal personality

One of the most confusing areas of international law

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 Codification efforts, but not successful: 1978 Vienna Convention on the succession of States in
respect of treaties; 1983 Vienna Convention on the succession of States in respect of State property,
archives and debt

Modes of State succession: universal / partial

Relations between Successor State and individuals

• Nationality of natural persons (Cf ILC Draft Articles 1999)
• Property rights acquired by individuals: “doctrine of acquired rights” vs. permanent
sovereignty over natural wealth and resources

Relations between Successor and Predecessor State

• Legal system of latter disappears and is replace by that of former
• Foreign debt: various hypotheses in 1983 Vienna Convention

Treaty relations of Successor State

• Boundary treaties: uti possidetis
• Political treaties
• Other treaties: for decolonization tabula rasa principles

A special case: human rights treaties?

Genocide Convention: see ICJ, Genocide Case - Preliminary objections (Bosnia-Herzegovina /

Yugoslavia) 1996, Separate opinion of Judge Weeramantry

Membership of international organizations

• Partial State succession: continuator State retains membership
• Decolonization, dismembratio, secession: new States must ask admission

International responsibility
• Only predecessor State remains responsible for internationally wrongful acts
• Successor State cannot exercise right of diplomatic protection

92.101

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