SUBJECTS

OF INTERNATIONAL LAW
Vu Van Ngoc, PhD
 SUBJECTS OF INTERNATIONAL LAW

• States
• International Inter-governmental Organizations
• MNCs
 ARTICLE 1 OF THE 1933 MONTEVIDEO
CONVENTION ON RIGHTS AND DUTIES OF
STATES

• an entity that possesses:

• “(a) a permanent population;
• (b) a defined territory;
• (c) government; and
• (d) capacity to enter into relations with other States”
 FACTUAL ELEMENTS OF STATEHOOD -
TERRITORY

• Territory is the physical or geographical area, separated by borders from other

areas, over which a State has sovereignty, i.e. the competence to exercise its
exclusive authority within that territory and prohibit foreign governments
from exercising their authority there.
 FACTUAL ELEMENTS OF STATEHOOD -
PERMANENT POPULATION

• There are no fixed requirements as to the size of State population. Some

States have very small population. So-called micro-states have been admitted as
equal members to the UN.
• Permanent population refers to the State permanently having population, not
necessarily to that population consisting of those who reside permanently
within that State‟s territory.
 FACTUAL ELEMENTS OF STATEHOOD -
GOVERNMENT

• A State cannot come into existence or exist for long, unless it has a government.
The existence of a government implies the capacity to autonomously establish and
maintain a legal order.
• This means that government should be able to function and exercise authority, not
that all territory has to be under its effective control.
• A State does not cease to exist when it is temporarily deprived of an effective
government as a result of civil war or similar upheavals.
• Even when all of its territory is occupied by the enemy in wartime, the State
continues to exist, as in the case of the occupation of European States by Germany
in the Second World War, or the subsequent occupation of Germany itself.
 LEGAL REQUIREMENTS FOR
STATEHOOD

• Legal (as opposed to factual) requirements for statehood operate over and
above the Montevideo Convention criteria, requiring that the entity in
question has the right, under international law, to own and administer the
relevant territory and require obedience from its population.
 RECOGNITION OF STATES AND GOVERNMENTS IN
INTERNATIONAL LAW

• A State does not exist for the purposes of international law

until it is recognised by other States.
• Article 3 of the Montevideo Convention suggests “The
political existence of the State is independent of recognition
by the other States”.
 CONDITIONAL RECOGNITION

• Recognition of States
• Recognition of Governments
 RECOGNITION OF A STATE
VS. RECOGNITION OF A GOVERNMENT

Recognition of a State Recognition of a government

The recognition of a State is to suggest The recognition of a government
that, in the opinion of the recognizing implies that the regime in question is
State, the entity recognized fulfills the deemed to represent the State in its
statehood requirements; and to external relations.
manifest a willingness to deal with the
new State as a member of the
international community.
The recognition of a State can be accorded without also accepting that a
particular regime is the government of that State.
 RECOGNITION OF A STATE
• Two theories dominate with respect to the role to be played by recognition:
Constitutive theory
A State does not exist for the purposes of
international law until it is recognized by other States;
recognition thus has a constitutive effect in the sense
that it is a necessary condition for the „constituting‟
(that is, establishment or creation) of the State
concerned.
The constitutive theory invites us to treat the
statehood criteria as insufficient to form a State and
states that recognition serves either as an alternative
or an additional condition for the formation of the
State.
Declaratory theory
The existence of a State or government is a question
of pure fact, and recognition merely acknowledges it.
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.
The declaratory theory claims more modest
relevance for recognition and treats it as
consequential on statehood criteria.
 THE MONTEVIDEO CONVENTION, ART. 3

• “The political existence of the State is independent of recognition by the other

States. Even before recognition the State has the right to defend its integrity
and independence, to provide for its conservation and prosperity, and
consequently to organize itself as it sees fit, to legislate upon its interests,
administer its services, and to define the jurisdiction and competence of its
courts”.
 LEGAL EFFECTS OF RECOGNITION IN
INTERNATIONAL LAW

• Recognition of another State does not lead to any obligation to establish full
diplomatic relations or any other specific links with that State.
• The termination of diplomatic relations does not automatically lead to de-
recognition.
 LEGAL EFFECTS OF RECOGNITION IN
DOMESTIC LAW

• If State A recognises State B, this usually entails that the courts of State A will
apply the law of State B and give effect to its sovereign acts.
• In the case of non-recognition, national courts will not accept the right of the
foreign State or government to sue or claim other rights of a governmental
nature,
 STATE SUCCESSION AND INHERITANCE

• Continuation: Full inheritance

• Dissolution: Selected inheritance
YUGOSLAVIA

IMF & WB
 MAIN CONTENT

• What role does the UN play in international life?

• What other supra-national organisations operate?
• What will be the role of the G8 and G7 in the future?
• What role do multinational corporations play in international law?
• What is the standard of care a host country must accord a foreign
corporation?
• Which state is authorised to espouse the claim of a multinational
corporation?
• What is the IL on expropriation and compensation?
 • The capacity to bring
claims arising from the
violation of
LEGAL
PERSONALITY international law, to
conclude international
agreements.
 INTERNATIONAL
ORGANISATIONS

• Legal personality of international

organisations is established, and limited,
by the treaty which States have
concluded to constitute them and to
accord them rights and duties.
• An international organisation is set up by
agreement between two or more States,
being an entity separate from the
member states.
 INTERNATIONAL
ORGANISATIONS

• Specialised agencies: WB
Group, IMF, FAO,
UNESCO, WHO, ILO
• Regional organisations:
EU, ASEAN
 NON-
GOVERNMENTAL
ORGANISATIONS
(NGO)

• Examples: Amnesty International,

Oxfarm, International Committee
of the Red Cross
• The role of NGOs in the
international legal system is
primarily an informal one.
• Adding additional expertise and
making procedures more
transparent, implementation of
international norms, most visibly
in the area of human rights.
 • Characteristic of these
groups is that they control
some territory and aspire
BELLIGERENTS either to become the
GROUPS effective new government
of the state or secede.
• Example: ISIS in Iraq and
Syria
 INDIVIDUALS

Some treaties give the individuals access to an

international tribunal.
 COMPANIES

• The World Bank has

set up an
international arbitral
tribunal to hear
disputes arising out of
investments between
States and the
nationals of other
States.
GLOBALISATION
• Crimea and Russia
• Italia vs Argentina (ICSID)
• Phil vs China (PCA)
• Swarna vs Kuwait (US District Court)
• International Economic Relations (Lan Cao)