INTERNATIONAL PERSONALITY

Possessing international personality indicates an entity is a subject

of international law and is “capable of possessing international
rights and duties, and has the capacity to maintain its rights by
bringing international claims”.

A subject of international law has obligations and enjoys rights, the

benefits of which may be claimed. If these are denied they may be
enforced to the extent recognised by the international legal system, via
legal procedures. That is, the entity will have procedural capacity.

As international law has developed and expanded in scope and

substance, new entities have been recognised as actors on the
international stage. The personality enjoyed by different actors
varies considerably. The concept of international legal personality
is neither static nor uniform:

“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. Throughout its history, the
development of international life

. . . and the progressive increase in the collective activities of States has

already given rise to instances of action upon the international plane by
certain entities which are not States.”
Traditionally, states were the exclusive subjects of international
law: “Since the law of nations is based on the common consent of
individual States, and not of individual human beings, States solely and
exclusively are the subjects of international law.”

States remain the primary subjects, but are no longer the exclusive
subjects of the contemporary international legal system. During the
20th century the scope of international legal personality widened to
take account of, and accommodate, the proliferation of other actors
in the international system. These other actors are identified as “non-
state actors”. States possess full international legal personality as
an inherent attribute of statehood,

however other entities possess personality to the extent that states

allow: that is, their international personality is derived via states.

The personality of states is original and that of other entities is

derivative.

STATES

States are the principal “persons” of international law.

International law is essentially the manifestation of relations
between states, whether through practice contributing to the formation
of customary international law or through international agreements
(treaties). Only states may be parties to contentious cases before the
International Court of Justice (ICJ). States enjoy the exclusive
discretion as to whether or not to espouse a claim on behalf of a
national who has allegedly been aggrieved by another state. If a
state does take up an individual’s claim, the dispute is raised to the
international level and becomes one between two states. An
individual cannot deny a state’s right to espouse a claim on his or her
behalf should it choose to do so and a state does not act as the agent of
its nationals when negotiating a treaty.

What is a state?

A “state” in international law is an entity which has a defined

territory; a permanent population; is under the control of a
government; and engages in, or has the capacity to engage in,
formal relations with other entities.

This definition reflects the criteria of statehood accepted in the 1933

Montevideo Convention on the Rights and Duties of States (the
Montevideo Convention). The Montevideo Convention sets out in
general terms what was regarded as the requirements of statehood
demanded by customary international law. The Convention was
adopted by the Seventh International Conference of American States
(15 Latin American states and the US) and provides:

“The 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 other states.”
Permanent population

States are made up of individuals and a permanent population is a

prerequisite of statehood. That said, no minimum population is
required: China has over 1.4 billion people whereas Nauru and Tuvalu
have little more than 10,000. There is no requirement that the
population is ethnically or culturally homogeneous.

Defined territory

States are territorial units and

“‘territorial sovereignty’ involves the exclusive right to display the
activities of a State. This right has a corollary, a duty: the obligation
to protect within the territory the rights of other States, in particular
their right to integrity and inviolability in peace and in war, together
with the rights which each State may claim for its nationals in foreign
territory. Without manifesting its territorial sovereignty in a manner
corresponding to circumstances, the State cannot fulfil this duty.
Territorial sovereignty cannot limit itself to its negative side, i.e. to
excluding the activities of other States, for it serves to divide between
the nations the space upon which human activities are employed, in
order to assure them at all points the minimum of protection of which
international law is the guardian”.

Article 9 of the Montevideo Convention provides that:

“The jurisdiction of States within the limits of national territory
applies to all the inhabitants. Nationals and foreigners are under
the same protection of the law and the national authorities and the
foreigners may not claim rights other or more extensive than those
of the nationals.”

However, while territory is necessary, there is no prescribed

minimum geographical size. Taking the examples already cited, China
is over 9.5 million km2, Nauru covers 21km2 and Tuvalu is 16.2km2.
The requirement of territory may be satisfied even if the entity’s
territorial boundaries are not precisely defined or are to some
extent in dispute, for example Israel, whose borders have never been
agreed with its neighbours. Borders being disputed do not negate
statehood. Another example is Somalia…

A government

Statehood must be demonstrated by the establishment of an

effective government, that is, one independent of any other
authority and one which enjoys legislative and administrative
competence.

….“until a stable political organisation had 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”….
Statehood is not nullified if an established state is without an
effective government for a period of time, for example during a civil
war. Somalia, for instance, was ravaged by civil war from 1991 until
2004, but during that time continued to be recognised as a state and was
a member of the United Nations. In 2012, the country emerged from an
eight-year period of political transition and in August of that year
Somalia’s first formal parliament for over 20 years was sworn in.
Throughout the civil war Somalia was considered a failed state
meaning that despite possessing legal capacity it was unable to
exercise it in the absence of an effective regime.

In 1992, Croatia and Bosnia-Herzegovina were accorded recognition as

independent states from the former Socialist Federal Republic of
Yugoslavia by Member States of the European Community (now the
EU), notwithstanding that large areas of their respective territories were
controlled by non-governmental forces. Likewise, military occupation
does not terminate statehood, for example Germany’s occupation of
certain European states during the Second World War or the military
occupation of Iraq following the overthrow of Saddam Hussein in 2003.

International law is silent regarding the type of government, and

therefore there is no requirement that the government is a
democratic one. However, when the international community is
involved in rebuilding states after conflict, through peace building
activities, the missions are mandated to always include the
development of democratic institutions. This encompasses (re-)
establishing of the rule of law, interpreted as governments
democratically elected in free elections; independence of the judiciary;
and clear separation of powers and national institutions which have the
capacity to protect and promote human rights.

Capacity to enter into international relations

An important indicator of statehood is the response of other

members of the international community. The first three criteria
for statehood demands certain facts are fulfilled, but satisfying this
criterion depends on recognition:

“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 organise itself as it sees fit, to
legislate upon its interests, administer its services, and to define the
jurisdiction and competence of its Courts. The exercise of these rights
has no other limitation than the exercise of the rights of other States
according to international law.”

An entity may have the capacity to enter into foreign relations but,
should other states decline to enter into relations with it, the entity
in question is denied the opportunity to demonstrate this capacity
in practice. For example, Southern Rhodesia (now Zimbabwe), a
British self-governing territory until it declared unilateral independence
from Britain in November 1965, had a population, territory, a
government and the capacity to enter into relations with other states.
However, no other state was willing to enter into relations with it.
Southern Rhodesia was therefore refused recognition as a state by the
rest of the international community.

An entity which possesses the ability to conduct foreign relations

does not terminate its statehood if it voluntarily hands over all or
part of the conduct of its foreign relations to another state, for
example San Marino to Italy and Monaco to France. Another “mini”
European state is Liechtenstein, which operates within the Swiss
economic system and has delegated a number of sovereign powers to
Switzerland but, nevertheless, is still recognised as a sovereign state.
Similarly, the personality of a protected state which existed before
the conclusion of the agreement establishing its dependent status, is
not extinguished. This was demonstrated in the Nationality Decrees in
Tunis and Morocco case and Rights of Nationals of the United States in
Morocco case. Such relationships were characteristic of the British and
French Empires, and most were terminated during the
decolonisation movement following the Second World War.

Membership of a regional organisation does not negate the

statehood of individual members, for example the EU, although
admittedly, sovereignty in certain areas of competence may be pooled
and so restricted.
Self-determination
Political self-determination, that is the principle whereby the
political future of a colony or similar non-independent territory is
determined in accordance with the wishes of its inhabitants, is
closely linked to issues of statehood. The origin of the principle of
self-determination dates back to the French Revolution, however,
it has been since the end of the Second World War and, most
importantly, since the decolonisation processes of the 1960s, that it
has developed. The principle, which was articulated more than 40 years
ago as “a formative principle of great potency”, has now evolved into a
rule of international law. One of the purposes of the United Nations,
as established in the Charter (arts 1.2 and 55), is to “develop
friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples”. The principle
developed through a series of UN General Assembly Declarations and
ICJ decisions. In 1966 the International Covenants on Civil and
Political Rights and Economic, Social and Cultural Rights included
the right to self-determination as a collective right of peoples.

The 1960 Declaration on the Granting of Independence to Colonial

Territories and Peoples (General Assembly Resolution 1514) reads
(para.2):

“All peoples have a right to self-determination; by virtue of that

right they freely determine their political status and freely pursue
their economic, social and cultural development.”
The emergence of self-determination, as a cardinal principle in
shaping the political future of a colonial or similar non-independent
territory, signified such territories could no longer be considered as
mere adjuncts of the administering state. They have, according to
the 1970 Declaration on Principles of International Law Concerning
Friendly Relations and Co- operation among States in Accordance with
the Charter of the United Nations “a status separate and distinct from
the territory of the State administering it; and such separate and
distinct status under the [UN] Charter shall exist until the people
of the colony or non-self- governing territory have exercised their
right of self-determination in accordance with the Charter, and
particularly its purposes and principles”.31

Self-determination is an issue which has generated considerable

controversy. Contemporary international law does acknowledge
self-determination as a legal right in the colonial context. However,
a claim for self-determination outside the colonial context is one
which still gives rise to considerable debate.

The issue of self-determination beyond the traditional context of

colonialism has highlighted that self-determination may have an
internal aspect as well as an external aspect. In the Canadian
Supreme Court decision in Re Reference by the Governor in Council
Concerning Certain Questions Relating to the Secession of Quebec
from Canada, the Court dealt with whether the province of Quebec
enjoyed the right to secede unilaterally from Canada. The Court
concluded it did not, holding that any right of self-determination
could only arise in strictly limited circumstances and international
law does not support the “right” of entities within an existing state
to secede unilaterally. The Court accordingly upheld the principle
of territorial integrity of existing states. It was also noted that no
right of external self-determination would be recognised when full
participation in civil and political life is available, namely internal
self-determination, which may be interpreted as the right of a
minority people to pursue political, economic, social, and cultural
development, within the framework of an existing state.

The Badinter Committee on Yugoslavia stated:

“That whatever the circumstances, the right to self-determination
must not involve changes to existing frontiers at the time of
independence (uti possidetis juris) except where the State concerned
agreed otherwise”.

Self-determination may be expressed legitimately without violating

established international provisions protecting territorial integrity.
However, the right of self-determination nevertheless has to be
moderated otherwise “if every ethnic, religious or linguistic group
claimed Statehood, there would be no limit to fragmentation, and
peace, security, and economic well-being for all would be much
more difficult to achieve”.

Much of this controversy stems from an assumption that self-

determination and its expression is premised on a granting of
independence leading to the break-up of territorial units. The right to
self- determination is not equivalent to a right of secession. In 2010, the
ICJ reopened the debate on the necessary balance between the principle
of self-determination of people and territorial integrity. In its Advisory
Opinion on 22 July 2010, the Court considered the compliance of
Kosovo’s unilateral declaration from Serbia in 2008 with international
law and concluded that such a declaration was not in violation of
general international law.

Self-determination remains a feature on the international scene. An

example of internal self-determination was the referendum on Scottish
independence from the UK held in 2014, the terms of which were
agreed between the UK Government and devolved Scottish
Government. Catalonia seeking to break away from Spain is another
example of continuing self-determination movements.

RECOGNITION OF STATES AND GOVERNMENTS

The international community is not static. New states emerge while

existing states may become extinct. The post-conflict dissolution of
the Socialist Federal Republic of Yugoslavia in 1991/92 led to the
creation of Bosnia-Herzegovina, Slovenia, Croatia and Macedonia as
independent states. Montenegro subsequently declared independence
from Serbia in 2006, followed by Kosovo in 2008. In 2008 South
Ossetia declared independence from Georgia, but has received little
recognition as an independent state by other members of the
international community. In July 2011 South Sudan attained
independence from Sudan.

The recognition of a state is of importance as it is concerned with

status, that is the status of the entity in question: (i) on the
international scene; and (ii) within the domestic legal system of the
recognising state.

Recognition is a complex issue. Factors other than legal

considerations influence a decision to recognise any given entity. A
state is accorded recognition in the majority of cases by the executive.
It is a matter of policy in which the recognising state has discretion:
an entity seeking recognition cannot however demand recognition
as a right. Governments come to power and are removed from
power. Recognition essentially denotes a willingness on the part of
the recognising entity to enter into relations with the entity being
recognised. Recognition is most aptly defined as a political act
which produces legal consequences.

Recognition of states and governments distinguished

Recognition as a state is the formal acknowledgment by another

state that the entity being recognised possesses the attributes of
statehood.

Recognition of a government is the formal acknowledgment by the

recognising state that the regime in question is the effective
government and, accordingly, signifies a willingness to treat that
regime as such.

Recognition of a state is normally a one-off act—that is, once an entity

has been recognised as a state, that recognition will not as a norm be
retracted provided the requirements of statehood continue to be fulfilled.
If these requirements cease to be fulfilled, the state may no longer exist
but de-recognition will not be necessary. Two states, for example, may
be consolidated into a single state, as in 1990, when the Yemen Arab
Republic (North Yemen) and the People’s Democratic Republic of
Yemen (South Yemen) united to form the Republic of Yemen. However,
the governmental regime of a state may not always be accorded
recognition but this does not negate a state’s statehood. Normally
governments will be accorded recognition. Recognition is only
raised when the regime in question has come to power by
unconstitutional methods, e.g. by coup d’état. For example, in
Somalia v Woodhouse Drake & Carey (Suisse) SA, the English Court
held the plaintiff could not recover any money held by the Company as
the plaintiff had not been recognised by the UK as the interim
government in power at that time. The judge identified several criteria
which should be considered by UK courts when determining whether a
government is the sovereign government of a state, for example:
“(a)whether the entity is the constitutional government of the State;
(b) the degree, nature and stability of administrative control, if any,
which are exercised over the territory of the State; (c)whether the
British Government has any dealings with that government, and, if so,
the nature of those dealings; and (d)in marginal cases the extent of
international recognition that has been accorded the government of that
State.”
An entity may be recognised as a state, but it is possible for its
governmental regime not to be accorded recognition. It is evident
from the foregoing case that the UK courts are able to make an objective
decision concerning the international legal personality of a government
based on factors other than the official position of the UK Government.
The decision in Sierra Leone Telecommunications Co Ltd v Barclays
Bank Plc,49 further reinforces that the courts enjoy a more central role
than previously.

Before considering what happens in practice, the two principal

schools of thought on recognition of states must be mentioned.

Theories

The two principal theories on recognition of states are the

constitutive and declaratory schools of thought.

(i) The constitutive theory. The constitutive theory emphasises the

act of recognition itself and maintains that it is the act of
recognition which establishes (is constitutive of) the international
personality of the entity in question. This is a precondition of legal
status, as it is the act of recognition which: (a) creates a state; and
(b) determines the legal personality of a new governmental regime.
The constituent theory immediately raises two questions: what is
the position of unrecognised entities; are they free to behave as they
choose on the international scene unfettered by obligations imposed
by international law? What is the position when an entity is
recognised by some states and not by others?

(ii) Declaratory (or evidentiary) theory. The declaratory theory

minimises the importance of the act of recognition and regards
recognition as only a formal acknowledgement of already existing
circumstances. The act of recognition is not regarded as what
creates the state. See the response of the Arbitration Commission
(Badinter Committee) as to whether the dissolution of the Socialist
Federal Republic of Yugoslavia was a new state calling for recognition.
The Commission’s view was that “while recognition is not a
prerequisite for the foundations of a State and is purely declaratory
in its impact, it is nonetheless a discretionary act that other States
may perform when they choose and in a manner of their own
choosing”.

Although the declaratory theory is more in line with state practice,

it is nevertheless too simple in that it denies some of the complexities
which underline recognition. Recognition, when granted, has
retroactive effect— that is, recognition is backdated. For example,
the UK accorded recognition to the post-revolution regime in the Soviet
Union in 1921, but the effect of that was that the recognition was
backdated to 1917.
Existing states do treat unrecognised entities as having obligations
under international law. Such unrecognised entities are not free to
behave as they choose on the international scene. For example, in
1949, the UK demanded compensation from the Israeli state in respect
of British aircraft shot down by Israeli airmen over Egypt; in 1957,
compensation was also demanded by the British from the unrecognised
Taiwan Government for damage done by Taiwan forces to British
vessels; and in 1968, the US asserted that North Korea, which it did not
recognise, had violated international law by attacking a US Navy vessel,
The Pueblo.
Is there a duty to recognise?

Sir Hersch Lauterpacht was the most notable exponent of the

proposition that an entity which satisfies the formal factual
requirements of a state or a government should be accorded
recognition. He did, however, acknowledge recognition should be
withheld if the entity had come to power through a violation of
international law, for example by the use of force contrary to
art.2(4) of the UN Charter. Although states do look at the factual
criteria which are manifested by an entity, the act of recognition is
essentially governed by political expediency. A state can choose not
to enter into relations with another entity. If a state was required
to do so and there was a legal duty to recognise, recognition would
not be discretionary but mandatory.
In the case of Kosovo the international community has not responded
uniformly: at the time of writing over half of the
UN’s Member States recognise Kosovo. Some EU states have not
recognised it as an independent state, for example Spain and Greece.
However, the EU maintains independent relations with it, including the
signing of international agreements, such as the Stabilisation and
Association Agreement, which entered into force in 2016.

A clear example of non-recognition is the former British protectorate of

Somaliland which, in 1960 declared independence as the State of
Somaliland, but it was not internationally recognised. Today it is an
autonomous region of Somalia which still claims international
recognition as the Republic of Somaliland.

Criteria for recognition of states

The criteria of statehood have already been considered and should

the governmental regime in question appear effective and stable,
then recognition will be accorded. “Effective” refers to the physical
control of the territory in question. Does the regime enjoy control over
most of the territory, and is that control likely to continue? An
affirmative answer will characterise the control as effective. “Stable”,
on the other hand, refers to the regime’s likelihood of continuing in
power (see below, especially the distinction between recognition de
facto and recognition de jure). The imposition of additional conditions
upon Croatia, Slovenia and Bosnia- Herzegovina by the European
Community in 1992 was clearly a political act and is indicative of the
application of the constitutive theory. Despite this, the decisions of the
Badinter Committee favoured the application of the declaratory theory
to the dissolution of Yugoslavia. If all the criteria are fulfilled, the
timing of recognition is a matter for the recognising state —and
usually the timing is with regard to the recognising state’s own
national interests, e.g. commercial interests.

Existing states may refuse “statehood” to an entity, which has

attained a characteristic of statehood in violation of international
law, for example through the acquisition of territory by the use of
force contrary to art.2(4) of the United Nations Charter, or to the
principle of non-intervention. However, in most instances, whether or
not there has been an unlawful threat or use of force will be disputed,
and generally it is not an issue which will be authoritatively resolved.
For example, Indian intervention in Bangladesh was deemed by many
governments to be illegal, while others argued to the contrary, justifying
India’s action as supporting the principle of self-determination.
Territory acquired by the legitimate use of force, for example in self-
defence, and then annexed from the aggressor may be an exception to
the non-recognition-of- conquest rule.

Recognition of governments

The question of whether to recognise a government does not arise

when the government comes to power by constitutional procedures.
The question only arises when the new governmental regime has
assumed power by unconstitutional means.

British practice in the past has been to consider whether a

government displayed the criteria for recognition, namely
effectiveness and stability, rather than to look at how it came to
power. Recognition did not imply approval of the new regime. The
British adopted an “acknowledgment of the facts” stance. The US,
on the other hand, regarded recognition as a political weapon, not
as something to be granted as a matter of international obligation.
The granting or refusal by the US was discretionary and could be
withheld to further national policy. However, the UK and the US
now adopt a similar stance in respect of the recognition of
governments. Both place less emphasis on recognition and do not
formally recognise new regimes:

“In recent years, U.S. practice has been to de-emphasise and avoid the
use of recognition in cases of changes of governments and to concern
ourselves with the question of whether we wish to have diplomatic
relations with the new governments.”

In 1980, the British Foreign Secretary announced that the Government

had concluded

“there are practical advantages in following the policy of many other

countries in not according recognition to governments. Like them, we
shall continue to decide the nature of the dealings with regimes which
came to power unconstitutionally in the light of our assessment of

whether they are able of themselves to exercise effective control of the

territory of the State concerned, and seem likely to continue to do so”
(the 1980 Statement on Recognition).

Although there is no formal acknowledgment of recognition, the

same tests of effectiveness and likelihood of permanence still apply.
The general rule is that a new governmental regime will be
recognised if it has effective control over the territory it claims to
represent and is likely to maintain its control.

However, in spite of minimising the act of recognition, the UK, in July

2011, did recognise the Libyan National Transitional Council as the
sole governmental authority after the ousting of Colonel Gaddafi’s
regime. France and the US had made similar declarations of recognition
the previous day. The UK Foreign
Secretary emphasised this was not a change in UK practice, but rather
a response to a unique set of circumstances.

De facto and de jure recognition

The practice of differentiating the recognition accorded to either a

state or a government evolved in the 19th century. The practice was
initiated by the UK but was also employed by other countries such as
Canada. The US has generally accorded only de jure recognition. Such
a distinction is of less significance given the decrease in importance of
a formal act of recognition.

Recognition in reality is neither de facto nor de jure and what is

being referred to by the use of these terms is rather the entity which
is being recognised. If a government was recognised as the de facto
government it implied that the government had effective control,
the control appeared to be permanent and there was every
likelihood the regime would be a permanent one. A government
that was recognised as de jure was one which had effective control
and was firmly established. An entity recognised as de facto was
one which manifested most of the attributes of sovereignty, whereas
a de jure entity displayed all the characteristics of sovereignty. De
facto recognition was neither a substitute for de jure recognition,
nor a lesser alternative. De facto recognition in essence meant the
recognising state had certain reservations regarding the entity
concerned.

The distinction was one generally applied in respect of governments

rather than states. Israel, however, is an example of a state which was
initially recognised de facto by some other states, e.g. Canada. The UK
maintained de facto recognition in respect to the Baltic States (Estonia,
Latvia and Lithuania) in spite of the 1940 occupation of these territories
by the USSR.

The benefit of the distinction was that it allowed the recognising

entity to hold back and observe how a particular situation was
going to develop. In particular, it prevented a state from according
premature recognition. To afford recognition to insurgents while the
existing government is still attempting to quell the situation is an
unquestionable breach of international law. The advantage of the
distinction being that it enabled cognisance to be taken of factual
circumstances while still acknowledging the de jure government—even
if that government was not in physical control of every part of the state’s
territory, or was in exile abroad. In the event of competing authority
within a territory,the general rule has been to recognise that the de
facto regime is competent within the area in which it has physical
control, whereas the de jure authority remains competent for
matters arising outside that territory.

MODES OF ACCORDING RECOGNITION

Recognition may be expressed or implied. In the absence of an

express formal declaration of recognition, the establishment of
diplomatic relations between a state and the entity concerned will
be taken to imply recognition. Similarly, the conclusion of a
bilateral treaty on a general topic implies recognition. A bilateral
treaty for a specific purpose does not imply recognition, nor does
participation in a multilateral treaty such as the UN Charter. It is
possible for parties to be signatories to a multilateral treaty, even
though one party does not recognise another party. Admission to
the UN is an acknowledgment of statehood for the purposes of the
organisation. It does not constitute collective recognition by the
international community, nor recognition of the entity by
individual Member States of the United Nations. The most salient
factor at all times remains intention—that is, the intention of

the recognising state. In October 2011 UNESCO, a specialised body

of the UN, admitted Palestine as its 145th member. Many states
made clear that they did not consider this as a recognition of
Palestinian statehood, and indeed, the Palestinian Authority’s
request to become a member of the UN was blocked at the UN
Security Council later that year.

INTERNATIONAL ORGANISATIONS

As mentioned, states are the primary subjects of international law,

but they are not the exclusive subjects. International organisations
have limited international legal personality, which is referred to as
derivative and functional personality.

International organisations proliferated during the 20th century.

An international organisation, for the purposes of international law,
is an entity established by agreement and which has states as its
principal members. Organisations vary considerably in their
competencies, importance and membership. The United Nations, for
example, is a global (or “open”) organisation enjoying almost universal
membership, while the Council of Europe is an example of a regional
(or “closed”) organisation, as are other regional organisations such as
the EU, the Organization of American States, the African Union and the
Association of Southeast Asian Nations to name but a few.

An international organisation must be afforded some degree of

international personality before it can make any impact on the
international scene. The degree of international personality
enjoyed by international organisations varies. An international
organisation may enjoy certain rights but not others, and while all
states enjoy the same degree of personality, this is not true of all
international organisations. As highlighted by the ICJ, “international
organizations are subject to international law which do not, unlike states,
possess a general competence. International organizations are governed
by the ‘principle of speciality’, that is to say, they are invested by the
States which create them with powers, the limits of which are a function
of the common interests whose promotion those States entrust to them.”

Determination of personality

International organisations frequently resemble states regarding the

personality they possess and their legal personality may, to some extent,
parallel that of states. Organisations may have the capacity to own,
acquire and transfer property and to enter into contractual
agreements and international agreements with states and other
international organisations. They may pursue legal remedies and
may enjoy rights and duties under international law. International
organisations are restricted by their constituent charter, that is, the
agreement establishing the organisation. Determination of an
organisation’s personality demands the constituent document be
examined. The International Court of Justice has acknowledged that
the object of constituent instruments “is to create new subjects of law
endowed with a certain autonomy, to which the parties entrust the task
of realizing common goals”.

The constituent document may expressly provide that an

organisation is to have international legal personality, for example,
art.47 of the Treaty on European Union states “The [European]
Union shall have legal personality.”

More commonly, personality may only be implied from the

constituent document and consolidated through the practice of the
organisation.
The United Nations

The United Nations Charter is silent on the organisation’s international

legal personality. There are only two articles of the UN Charter which
deal explicitly with legal status, and then only with the United Nations’
status within the municipal systems of its Member States. Article 104
provides that the United Nations is to enjoy within Member States’
territory “such legal capacity as may be necessary for the exercise
of its functions and fulfilment of its purposes”. Article 105 provides
that the United Nations “shall enjoy in the territory of each of its
Members such privileges and immunities as are necessary for the
fulfilment of its purposes”.
The United Nations has also concluded agreements with host states
in which it operates, for example the UN/USA Headquarters
Agreement.

Headquarters agreements are necessary, as an organisation can

only establish itself within a state’s territory with that state’s
consent. Such agreements determine the status of an organisation’s
headquarters and its capacities, privileges and immunities.

INDIVIDUALS

Individuals have limited international legal personality, although

contemporary international law increasingly recognises that an
individual may possess both international rights and duties. The
increasing focus on human rights over the last 80 years has prompted
the conclusion of international and regional instruments guaranteeing
the protection of human rights for individuals.

Procedural capacity of individuals

The Permanent Court of International Justice in the Danzig Railway

Officials case recognised that treaties could exceptionally create rights
for individuals, and in certain circumstances these rights could be
enforced in the domestic courts, “the very object of an international
agreement, according to the intention of the Contracting Parties, may
be the adoption by the Parties of some definite rules creating individual
rights and obligations and enforceable by the national Courts.”
The Central American Court of Justice, established in 1908, was novel
as it envisaged disputes between states and private individuals coming
within the Court’s jurisdiction. The Court’s competence was to hear
disputes between private individuals, nationals of any one of the five
Contracting Parties and any of the other contracting governments. The
Court’s importance was the potential procedural capacity envisaged for
individuals. The Court, however, ceased to function in 1918 after
hearing only five cases—of which four were declared inadmissible and
the fifth failed on the merits.

The Treaty of Versailles provided for the espousal of claims by

individuals against governments and nationals of the defeated states.
However this did not represent a major enhancement of the individual’s
position under general international law.

The tribunal established under the 1922 Upper Silesian Convention,

was notable for its competence to hear cases brought by nationals of a
state against their own state.

Contemporary international law affords individuals a greater

measure of procedural capacity. Under arts 34 and 35 of the
European Convention on Human Rights, individuals can initiate
claims alleging breaches of the Convention by their national state.
The right of individual petition is similarly provided for in art.14 of the
1966 International Convention on the Elimination of All Forms of
Racial Discrimination, while under the (First) Optional Protocol to the
International Covenant on Civil and Political Rights (1966) the Human
Rights Committee is competent to receive and consider
“communications from individuals claiming to be victims of violations
of any of the rights set forth in the Covenant”. Other instruments
providing for individual petition include the Optional Protocol to the
Convention on the Elimination of Discrimination against Women
(1999), the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights (2008) and the Optional Protocol
to the Convention on the Rights of Person with Disabilities (2006). The
International Convention for the Protection for all Persons from
Enforced Disappearance (2006) includes an optional complaints system
for individuals to appeal to the Committee on Enforced Disappearance
for assistance in locating disappeared persons. In December 2011, the
UN General Assembly approved an Optional Protocol to the 1989 UN
Convention on the Rights of the Child which provides for an individual
complaints procedure.

it has been increasingly recognised that individuals may be held

responsible for certain conduct and the development of individual
international criminal responsibility is now a notable feature of
international law. Traditionally international law did not recognise
individual responsibility except in the very limited case of piracy
which has long been recognised as an international crime under
customary international law. It is no longer believed that states are
exclusively the perpetrators of conduct which breaches
international law. The legal fiction that individuals do not
participate on the international scene, and consequently may not be
held responsible for their acts, was perceptibly dented in the latter
half of the 20th century. See, for example, the Statutes of the
International Tribunals for the former
Yugoslavia (the ICTY) and Rwanda (ICTR) and the Statute
establishing the International Criminal Court (ICC) also referred
to as the Rome Statute. Issues of individual international criminal
responsibility has been dealt with in national courts, through the
application of the universal jurisdiction principle such as the Pinochet
case.

Similarly, art.4 of the Convention on the Prevention and Punishment of

the Crime of Genocide provides that genocide is punishable as a crime
irrespective of whether those committing it “are constitutionally
responsible rulers, public officials or private individuals”. The corollary
of this acknowledgment that individuals may incur international
responsibility is that they are under an obligation to refrain from such
conduct. Individuals, therefore, have limited rights and duties on
the international scene. Other acts, which are now recognised as
incurring individual responsibility at an international level, include,
inter alia, hijacking, sabotage, terrorism, drug trafficking and acts
against diplomats. A major obstacle to individuals exercising
international personality has been a lack of procedural capacity, denied
to them because of the reluctance of states to grant them such capacity.

OTHER NON-STATE ACTORS

Non-state actors do not possess international legal personality as
such, however, they may enjoy certain rights, defined capacities
and locus standi. Some of these non-state actors participate in
international life actively and they influence the creation and
development of international law.

Insurgents and rebel groups

Rebel groups are relevant to international law to the extent that

they may have de facto control over certain territory. In such cases
they may enter into international agreements which could be
considered valid under international law. In the course of civil
conflicts, rebel groups are also bound by international
humanitarian law with regards to the conduct of hostilities.

National liberation movements

The most notable national liberation movement is arguably the

Palestine Liberation Organisation (PLO). The Palestinian
National Authority (established pursuant to the 1993 Oslo Accords
between Israel and the PLO) enjoys non-member observer state
status at the United Nations—such recognition, however, does not
impute recognition by the Member States of the Organisation.

The Holy See

The Holy See is another notable example of an entity possessing

limited international personality. The Holy See, of which the Pope
is the head, has a population which is neither permanent nor
indigenous, and its function is exclusively religious. However, it is a
party to international treaties on such diverse subjects as
arbitration, non-proliferation and monetary matters. The New
Monetary Convention between the Holy See and Italy, signed on 29
December 2000, authorised the Euro as official currency within the
Vatican City. The Holy See also replaced the Fundamental Law of the
State of the Vatican (7 June 1929) with one which entered into force on
22 February 2001. The latter draws a greater distinction between the
legislative, executive and judicial powers and provides for closer ties
between the Governorate and the Secretary of State, for the
maintenance of international relations.

The Holy See has permanent observer status at the United Nations
and a presence at other international organisations, such as the
Organization of American States and the specialised agencies of the UN,
e.g. the World Health Organization and the International Labour
Organization. Over 180 states have diplomatic relations with the
Holy See.

The Holy See is an anomaly on the international scene, enjoying

and exercising international personality because other
international actors are willing to enter into international relations
with it. The same is true of the Sovereign Order of Malta, which
performs functions of a charitable nature from its headquarters in Rome.

Non-Governmental Organisations (NGOs)

The proliferation of NGOs and the active role of civil society in
international life has been one of the main features of the
international scenario since the last decade of the 20th century.
These organisations have diverse aims, from the protection of
specific human rights and humanitarian needs, the environment,
animal rights, religious interests, etc. However, one common
characteristic is their non-profit driven nature. They are entities of
municipal law, created under the law of a particular state, but
many of them act in a global way, extending their activities
transnationally, and considerably influencing public opinion.
However, such social influence has not translated into international
legal capacity. Some NGOs, though, enjoy consultative status
before international organisations, in particular, pursuant to art.71
of the United Nations Charter, nearly 3,000 organisations are
accredited with such status before the Economic and Social Council.
The International Committee of the Red Cross has a particular
hybrid nature, because while it is constituted under Swiss law, it
has the capacity to conclude agreements with states and has been
given specific competences granted by the 1949 Geneva
Conventions.

NGOs are increasingly instrumental in law making and in

supporting international legal advocacy before international courts.
The Rome Conference of 1998, culminated in the Statute of the ICC
being approved by an overwhelming majority of 120 states. This
success was largely credited to the preparatory work of NGOs and
their lobbying efforts at national level. Similar efforts are apparent
in the field of international environmental law, where significant
pressure and work by civil society shaped commitments in the
framework of the Paris Agreement on Climate Change (2015).

Transnational Corporations

Transnational corporations wield considerable power. These

corporations negotiate with governments and have rights under
international investment treaties, including locus standi before
international arbitration dispute resolution mechanisms. Some
transnational corporations control economic resources which may
exceed that of states, and the scope of their activities transcends
national boundaries. The realisation of the increasing power and
potential impact of such entities led to calls for corporate
accountability when their activities harm human rights and an
expectation that this be realised by way of the international legal
system.