Part II Personality and recognition, 4 Subjects of

international law
James Crawford SC, FBA

From: Brownlie's Principles of Public International Law (9th Edition)

James Crawford

Previous Edition (8 ed.)

Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 09 July 2019
ISBN: 9780198737445

Subject(s):
General principles of international law — Subjects of international law — Corporations

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
 (p. 105) 4 Subjects of international law
1. Introduction
A subject of international law1 is an entity possessing international rights and obligations
and having the capacity (1) to maintain its rights by bringing international claims;2 and (2)
to be responsible for its breaches of obligation by being subjected to such claims.3 This
definition, though conventional, is unfortunately circular since, while the indicia referred to
depend in theory on the existence of a legal person, the main way of determining whether
the relevant capacity exists in case of doubt is to inquire whether it is in fact exercised. All
that can be said is that an entity of a type recognized by customary law as capable of
possessing rights and duties and of bringing and being subjected to international claims is a
legal person. If the latter condition is not satisfied, the entity concerned may have legal
personality of a very restricted type, dependent on the agreement or acquiescence of
recognized legal persons and opposable on the international plane only to those agreeing or
acquiescent. The principal formal contexts in which the question of personality has arisen
have been: capacity to make claims in respect of breaches of international law, capacity to
make treaties (i.e. agreements valid on the international plane), and the enjoyment of
privileges and immunities from national jurisdiction. States pre-eminently have these
capacities and immunities; indeed, the incidents of statehood as developed under customary
law have provided the indicia for, and instruments of personality in relation to, other
entities.
Apart from states, organizations may have these capacities and immunities if certain
conditions are satisfied. The capacity to claim under international law, at least for
organizations of a certain type, was established in Reparation for Injuries.4 Waldock’s (p.
106) first report on the law of treaties noted the capacity of international organizations to
become parties to international agreements, and this reflected the existing practice.5 Since
Reparation for Injuries, international organizations have joined states as a recognized
category of legal persons, and this has facilitated acceptance of quite limited or marginal
entities (for international organizations, see chapter 7).
Thus, it is states and organizations which represent the normal types of legal person on the
international plane. However, the realities of international relations are not reducible to a
simple formula. The ‘normal types’ have congeners which create problems, and various
entities which are of neither type can have a certain personality—for example, the
International Committee of the Red Cross (ICRC).6 Moreover, abstraction of types of
acceptable persons at law falls short of the reality, since recognition and acquiescence may
sustain an entity which is in some respects anomalous and yet has a web of legal relations
on the international plane.
In spite of the complexities, it is as well to remember the primacy of states as subjects of
the law. As Friedmann observes:

The basic reason for this position is … that ‘the world is today organized on the
basis of the co-existence of States, and that fundamental changes will take place
only through State action, whether affirmative or negative’. The States are the
repositories of legitimated authority over peoples and territories. It is only in terms
of State powers, prerogatives, jurisdictional limits and law-making capabilities that
territorial limits and jurisdiction, responsibility for official actions, and a host of
other questions of co-existence between nations can be determined … This basic
primacy of the State as a subject of international relations and law would be

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
 substantially affected, and eventually superseded, only if national entities, as
political and legal systems, were absorbed in a world state.7

2. Established Legal Persons

(A) States
This category is by far the most important, but it has its own problems, analysed in chapter
5. For instance, the existence of ‘dependent’ states with certain qualified legal capacities
has historically complicated the picture, but, provided the basic conditions (p. 107) for
statehood existed, the ‘dependent’ state retained its personality. In some federations
(notably those created by a union of states at the international level), the constituent
members may retain residual capacities. In the constitutions of Switzerland8 and Germany,9
component states are permitted to exercise certain state functions, including treaty-making.
Normally, the states, even when acting in their own name, do so as agents for the union.10
The US Constitution enables the states of the Union to enter into agreements with other
states of the Union or with foreign states with the consent of Congress.11 But this happens
rarely if at all, and in most federations, old and new, the federal government’s power to
make treaties with foreign states is exclusive.12 The position of the International Court, set
out in LaGrand and Avena, is that international obligations under the Vienna Convention on
Consular Relations (VCCR) must be fully observed irrespective of constitutional limitations,
and, though the means of implementation remain for it to choose, the federal state incurs
responsibility for the wrongful acts of its subdivisions.13

(B) Entities legally proximate to states

Political settlements have from time to time produced entities, such as the former Free City
of Danzig, which, possessing a certain autonomy, territory, and population, and some legal
capacities on the international plane, are more or less like states. Politically such entities
are not states in the normal sense, yet legally the distinction is not very significant. The
treaty origin of the entity and the existence of some form of protection by an international
organization—the League of Nations in the case of Danzig—matter little if, in the result, the
entity has autonomy and a nucleus of the more significant legal capacities, for example the
power to make treaties, to maintain order and exercise (p. 108) jurisdiction within the
territory, and to have an independent nationality law. The Permanent Court recognized that
Danzig had international personality proximate to that of a state, except insofar as treaty
obligations created special relations in regard to the League and to Poland.14 Under Articles
100–108 of the Treaty of Versailles, the League of Nations had supervisory functions but
Poland had control of the foreign relations of Danzig.15 The result was a protectorate, the
legal status and constitution of which were externally supervised. To describe legal entities
like Danzig as ‘internationalized territories’16 is not very helpful since the phrase covers a
number of distinct entities and situations and elides the question of legal personality.
The point is that a special status may attach without the creation of a legal person. An area
within a state may be given a certain autonomy under treaty without this leading to any
degree of separate personality on the international plane: this was the case with the Memel
Territory, which had a special status in the period 1924 to 1939 yet remained part of
Lithuania.17 Another type of regime, more truly international, involves exclusive
administration of a territory by an international organization: this was the regime proposed
for Jerusalem by the Trusteeship Council in 1950 but never implemented.18 In such a case,
no new legal person is established except insofar as an agency of an international
organization may have a certain autonomy.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
 (C) Entities recognized as belligerents
In practice, belligerent or insurgent bodies within a state may enter into legal relations and
conclude agreements on the international plane with states and other belligerents/
insurgents. Fitzmaurice has attributed treaty-making capacity to ‘para-Statal entities
recognized as possessing a definite if limited form of international personality, for example,
insurgent communities recognized as having belligerent status—de facto authorities in
control of specific territory’.19 This statement is correct as a matter of principle,20 but its
application to particular facts requires caution. A belligerent community often represents a
political movement aiming at secession: outside the colonial (p. 109) context, states have
been very reluctant to accord any form of recognition in such cases, including recognition
of belligerency.21

(D) International Administration of territories prior to independence

In relation to territories marked out by the UN as under a regime of illegal occupation and
qualified for rapid transition to independence, an interim transitional regime may be
installed under UN supervision.22 Thus, the final phase of Namibian independence involved
the UN Transition Assistance Group, established by Security Council Resolution 435
(1978).23
In 1999, the long-drawn-out crisis concerning the illegal Indonesian occupation of East
Timor was the subject of decisive action by the Security Council. Security Council
Resolution 1272 (1999) established the UN Transitional Administration in East Timor
(UNTAET) with a mandate to prepare East Timor for independence.24 UNTAET had full
legislative and executive powers and assumed its role independently of any competing
authority. After elections, East Timor (Timor-Leste) became independent in 2002.25
Following the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY), civil war
broke out in the disputed, previously self-governing, territory of Kosovo, ending with NATO
military intervention.26 The Security Council in Resolution 1244 (1999) put in place the
framework for an interim civil administration, further elaborated by regulations of the UN
Mission in Kosovo (UNMIK). UNMIK Regulation 2001/9 of 15 May 2001 set out a
Constitutional Framework for Provisional Self-Government, dividing administrative
responsibilities between UN representatives and the Provisional Institutions of Self-
Government of Kosovo. Following unsuccessful negotiations between Serbia and Kosovo
regarding final status, on 17 February 2008 a declaration of independence of Kosovo was
adopted, giving rise to a request by the General Assembly for an advisory opinion.27
On the one hand, the Court held, ‘[t]he Constitutional Framework derives its binding force
from the binding character of resolution 1244 (1999) and thus from international (p. 110)
law. In that sense it … possesses an international legal character.’28 On the other hand,
‘[t]he Constitutional Framework … took effect as part of the body of law adopted for the
administration of Kosovo during the interim phase’,29 and it did not dispose of the territory
beyond that phase. Security Council Resolution 1244 (1999) could not be interpreted as
precluding all action aimed at resolving the impasse which the parties beyond question had
reached.30 Rather, it was a matter for the UN Special Representative or the Security
Council to prohibit (or to condemn after the fact) any unilateral declaration of
independence. Neither had done so. In the circumstances, ‘the authors of that declaration
did not act, or intend to act, in the capacity of an institution created by and empowered to
act within that legal order but, rather, set out to adopt a measure the significance and
effects of which would lie outside that order’.31 There was thus no breach of the
Constitutional Framework either. Apparently, guarantees of international territorial

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
 administration go only so far, as against claims to sovereignty.32 The status of Kosovo
remains unresolved.33

(E) International organizations

The conditions under which an organization acquires legal personality on the international
plane are examined in chapter 7. The most important person of this type is the United
Nations.
Entities, acting with delegated powers from states, may appear to enjoy a separate
personality and viability on the international plane.34 By agreement, states may create joint
agencies with delegated powers of a supervisory, rule-making, and even judicial character.
Examples are the administration of a condominium, a standing arbitral tribunal, the
International Joint Commission set up under an agreement concerning boundary waters
between Canada and the US, and the former European Commission of the Danube.35 As the
degree of independence and the legal powers of the particular agency increase, it will
approximate to an international organization.

(p. 111) (F) Individuals

There is no general rule that the individuals cannot be ‘subjects of international law’, and in
particular contexts individuals may have rights which they can vindicate by international
action, notably in the field of human rights and investment protection.36 At the same time,
to classify the individual as a ‘subject’ of the law is unhelpful, since this may seem to imply
the existence of capacities which do not exist and does not avoid the task of distinguishing
between the individual and other types of subject. While international human rights law
recognizes a variety of rights for individuals (and even corporations), the norms of human
rights law are not yet regarded as applying horizontally between individuals, in parallel to
or (still less) in substitution for the applicable national law. To the extent that some human
rights instruments include provisions dealing with individual responsibilities as well as
rights, international law provides no regular means for their enforcement. In practical
terms, human rights (and other obligations assumed for the benefit of individuals and
corporations) arise against the state, which so far has a virtual monopoly of responsibility.37

3. Special Types of Personality

(A) Corporations, public and private
Reference to states and similar political entities, to organizations, and to individuals does
not exhaust the tally of entities active on the international scene. Corporations, whether
private or public, often engage in economic activity in one or more states other than the
state under the law of which they were incorporated or in which they have their economic
seat. The resources available to the individual corporation may be greater than those of
some states, and they may have powerful diplomatic backing from their home government.
Such corporations can and do make agreements, including concession agreements, with
foreign governments.38 In this connection, in particular, some have argued that the
relations of states and foreign corporations as such should be treated on the international
plane and not as an aspect of the normal rules governing the position of aliens and their
assets on the territory of a state.39 In principle, however, corporations do not have
international legal personality. Thus, a (p. 112) concession or contract between a state and
a foreign corporation is not governed by the law of treaties.40 The question will be pursued
further in chapter 24.
On the other hand, conduct of corporations may sometimes be attributed to the state for the
purposes of responsibility, and separate state-controlled entities may be able to plead state
immunity before foreign courts. It will not always be easy to distinguish corporations which
are so closely controlled by governments as to be state agencies for such purposes. The

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
 conferral of separate personality under national law is not conclusive of autonomy vis-à-vis
the state for purposes of international law.41
Important functions are performed today by bodies which have been grouped under the
labels ‘intergovernmental corporations of private law’ or ‘établissements publics
internationaux’.42 The point is that states may by treaty create legal persons whose status is
regulated by the national law of one of the parties. At the same time, the treaty may contain
obligations to create a privileged status under the national law or laws to which the
corporation is subjected. The parties by their agreement may accord certain immunities to
the institution created and confer on it various powers. Where the independence from the
national laws of the parties is marked, the body concerned may simply be a joint agency of
the states involved, with delegated powers effective on the international plane and with a
privileged position vis-à-vis local law in respect of its activities.43 Where there is, in addition
to independence from national law, a considerable quantum of delegated powers and the
existence of organs with autonomy in decision- and rule-making, the body concerned has
the characteristics of an international organization. It is when the institution created by
treaty has a viability and special function which render the description ‘joint agency’
inappropriate, and yet has powers and privileges primarily within the national legal systems
and jurisdictions of the various parties, that it calls for use of a special category. An example
of an intergovernmental enterprise of this kind is Eurofima, a company set up by a treaty in
1955, with the object of improving the resources of railway rolling stock. The treaty
established Eurofima as a corporation under Swiss law subject to certain modifications.44
The parties agreed that they would recognize this (Swiss) private law status, as modified by
the treaty, within their own legal systems. The corporation is international in function; the
participating railway administrations provide the capital. The corporation is given privileges
on the international plane, including exemption from taxation in Switzerland, the state of
domicile. However, useful as the category ‘établissements publics (p. 113) internationaux’
may be, it is not an instrument of exact analysis, and does not reflect a distinct species of
international legal person. This type of arrangement is the product of a careful interlocking
of national and international legal orders on a treaty basis, and the product will vary
considerably from case to case.

(B) Non-self-governing peoples

Quite apart from the question of protected status and the legal effect of mandate or
trusteeship agreements, it is probable that the populations of ‘non-self-governing
territories’ within the meaning of Chapter XI of the Charter have legal personality, albeit of
a special type. This proposition depends on the principle of self-determination (see chapter
29). Furthermore, practice in the course of the anti-colonial campaign conducted within the
UN and regional organizations conferred legal status upon certain national liberation
movements.45 Most of the peoples represented by such movements have acquired
statehood.
National liberation movements may, and usually do, have other roles, as de facto
governments and belligerent communities. Political entities recognized as liberation
movements have a number of legal rights and duties, the more significant of which are as
follows:

(1) In practice, liberation movements have the capacity to conclude binding

international agreements with other international legal persons.
(2) There are rights and obligations under the generally recognized principles of
humanitarian law. The provisions of the Geneva Protocol I of 1977 apply to conflicts
involving national liberation movements if certain conditions are fulfilled. 46

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
 (3) The legal capacity of national liberation movements is reflected in the right to
participate in the proceedings of the UN as observers, this right being conferred
expressly in various General Assembly resolutions. 47
(4) The designation of a non-self-governing people engaged in a process of national
liberation has implications for the colonial (or dominant) power. Thus, the colo (p.
114) nial authorities do not have the capacity to make agreements affecting the
boundaries or status of the territory which are opposable to the people concerned. 48

(C) Entities sui generis

Whilst due regard must be had to legal principle, the law cannot ignore entities which
maintain some sort of existence on the international legal plane in spite of their anomalous
character. The role played by politically active entities such as belligerent communities
indicates that, in the sphere of personality, effectiveness is an influential principle. As
elsewhere (and subject to compliance with any relevant peremptory norm), acquiescence,
recognition, and the incidence of voluntary bilateral relations may prevail. Some special
cases may be briefly considered.
In a treaty and concordat of 1929, Italy recognized ‘the Sovereignty of the Holy See in the
international domain’ and its exclusive sovereignty and jurisdiction over the City of the
Vatican.49 Numerous states recognize the Holy See and have diplomatic relations with it;
the Holy See is a party to many treaties. Functionally, and in terms of its territorial and
administrative organization, the Vatican City is proximate to a state. However, it has no
population, apart from resident functionaries, and its sole purpose is to support the Holy
See as a religious entity. Some jurists regard the Vatican City as a state but its special
functions make this doubtful. However, it is widely recognized as a legal person with treaty-
making capacity.50 Its personality rests partly on its approximation to a state, in spite of the
peculiarities, including the patrimonial sovereignty of the Holy See, and partly on
acquiescence and recognition by existing legal persons. More difficult is the question of the
personality of the Holy See apart from its territorial base in the Vatican City.51 Probably the
personality of political and religious institutions of this type can only be relative to those
states prepared to enter into relations with them on the international plane. Even in the
sphere of recognition and bilateral relations, the legal capacities of institutions like the
Sovereign Order of Jerusalem and Malta must be limited simply because they lack the
territorial and demographic characteristics of states.52
(p. 115) Two other political animals require classification. ‘Governments-in-exile’ may be
accorded considerable powers within the territory of most states and be active in various
political spheres. Apart from voluntary concessions by states and the use of ‘governments-
in-exile’ as agencies for unlawful activities against established governments and states, the
status of a ‘government-in-exile’ is consequential on the legal condition of the community it
claims to represent, which may be a state, belligerent community, or non-self-governing
people. Its legal status will be established the more readily when its exclusion from the
community of which it is an agency results from acts contrary to a peremptory norm.53
Lastly, there is the case of territory title to which is undetermined, which is inhabited and
has an independent administration. Communities existing on territory with such a status
may be treated as having a modified personality, approximating to that of a state.54 In one
view, this is the situation of Taiwan. Since 1972, the UK, like most other governments, has
recognized the Government of the People’s Republic of China (PRC) as the sole government
of China, and it acknowledges the position of the PRC that Taiwan is a province of China.55
No government has managed to sustain a recognition policy based on two Chinese states.
The question whether Taiwan is a ‘country’ may nevertheless arise within particular
contexts;56 it is a ‘fishing entity’ for law of the sea purposes,57 and as a separate customs

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
 territory it is a WTO Member.58 Though not recognized as a state, it has an international
legal identity.

4. Conclusion
This survey should carry with it a warning against facile generalizations on the subject of
legal personality. In view of the complexity of international relations and the absence of a
centralized law of corporations, it would be strange if the legal situation was simple or
uniform. The number of entities with personality for particular purposes is considerable.
Moreover, the tally of autonomous bodies increases if agencies of states and organizations
with a quantum of delegated powers are taken into account. The listing of candidates for
personality, as characters to be encountered in the practice of (p. 116) international law and
relations, has a certain value. Yet, such a procedure has its pitfalls. In the first place, a
great deal depends on the relation of the particular entity to the various aspects of the
substantive law. Thus, individuals are in certain contexts regarded as legal persons, yet it is
obvious that they cannot make treaties, nor (if only because of lack of any available fora)
can they be subjected to international claims—outside the limited field of international
criminal law applicable in international tribunals. The context remains paramount. Further,
subject to the operation of peremptory norms, the institutions of acquiescence and
recognition have been active in sustaining anomalous relations. Finally, the intrusion of
agency and representation has created problems both of application and of principle. Thus,
it is not always easy to distinguish a dependent state with its own personality from a
subordinate entity with no independence, a joint agency of states from an organization, or a
private or public corporation under some degree of state control from the state itself.
Given the breadth and occasional vagueness of the concept of ‘subjects of international
law’ (and the complete disappearance of the term ‘objects’, whose only function was denial
of status59), it has been asked whether the concept has any value.60 The answer must be in
the affirmative. It matters whether an entity has direct access to international fora; it
matters whether an entity is directly bound by the body of general international law. On the
other hand, being so bound is a constraint that most entities such as INGOs do not need.
States and international organizations, and by inference other subjects, are bound not to
intervene in the domestic jurisdiction of another state (see chapter 20). The whole point of a
non-governmental organization (NGO) may be to do just that, in pursuit of its aims. The
‘international plane’ is a construct, not a place—but it remains an arena to which, in most
circumstances, one still needs a ticket.

Footnotes:
1
Especially Lauterpacht, 2 International Law (1975) 487; Higgins, Problems and Process
(1994) 39–55; Nijman, The Concept of International Legal Personality (2004); Crawford,
Creation of States (2nd edn, 2006) 28–33; Portmann, Legal Personality in International Law
(2010); Dominicé (2013) 370 Hague Recueil 9, 139–200; Chetail in Alland et al (eds), Unity
and Diversity of International Law (2014) 105, 107–10; Kjeldgaard-Pedersen (2014) 16 J
Hist IL 9, 11–15.
2
Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949 p
174, 179.
3
For the ILC’s rejection of the concept of ‘delictual capacity’ in the context of state
responsibility: ILC Ybk 1998/I, 1, 31, 196.
4
Reparation for Injuries, ICJ Reports 1949 p 174.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
 5
ILC Ybk 1962/II, 31, 32, 35, 37. Also: Brierly, ILC Ybk 1950/II, 230; Lauterpacht, ILC Ybk
1953/II, 96; Fitzmaurice, ILC Ybk 1956/II, 117–18; 1958/II, 24, 32; Waldock, ILC Ybk 1962/
II, 31, 35–7. At a later stage, the Commission decided to confine the Draft Articles to the
treaties of states: ILC Ybk 1965/II, 18; 1966/II, 187, Art 1, commentary. Instead a separate
treaty was concluded, modelled on the VCLT: Convention on the Law of Treaties between
States and International Organizations or between International Organizations, 12 March
1986, A/CONF.129/15; 25 ILM 543 (44 parties, not yet in force).
6
E.g. Agreement between the International Committee of the Red Cross and the Swiss
Federal Council to Determine the Legal Status of the Committee in Switzerland, 19 March
1993, GA Res 45/6, 16 October 1990; Rules of Procedure and Evidence for the Application
of the Rome Statute of the International Criminal Court, Art 73; Prosecutor v Simić, IT-95–9-
PT, Trial Chamber, 27 July 1999, para 46.
7
Friedmann, The Changing Structure of International Law (1964) 67, quoting Jessup, A
Modern Law of Nations (1948) 17. Cf Anghie (1999) 40 Harv ILJ 1, 2.
8
Jenni v Conseil d’État (1978) 75 ILR 99. The Swiss cantons may ‘conclude treaties with
foreign countries within the domain relevant to their competencies’ but these ‘may not be
contrary to the law and interests of the Federation nor to the rights of other Cantons’: Swiss
Constitution (as amended, entered into force 1 January 2000), Art 56.
9
German Constitution, Art 32(3); Lindau Agreement regarding the Treaty Making Power of
the Federation, 14 November 1957: (1957) Bulletin des Bundesregierung 1966.
10
Waldock, ILC Ybk 1962/II, 31, 36–7; Wildhaber, Treaty-Making Power and Constitution
(1971); Uibopuu (1975) 24 ICLQ 811; Di Marzo, Component Units of Federal States and
International Agreements (1980) 48–9; Opeskin (1996) 43 NILR 353; Rudolf, ‘Federal
States’ (2011) MPEPIL; Grant in Hollis (ed), The Oxford Guide to Treaties (2012) ch 6;
Hernández in French (ed), Statehood and Self-Determination (2013) 491.
11
Constitution, Art I (10)(3); 1 Restatement Third §302(f); Hollis (2010) 88 Texas LR 741.
12
The Australian federal executive has exclusive power to enter into treaties, which the
federal Parliament can implement by legislation under the ‘external affairs’ power:
Koowarta v Bjelke-Petersen (1982) 68 ILR 181; Commonwealth v Tasmania (1983) 68 ILR
266; Queensland v Commonwealth (1989) 90 ILR 115; Victoria v Commonwealth (1996) 187
CLR 416. In Canada, s132 of the Constitution Act 1867 (UK) vests the power to make
treaties in the federal government, but the federal Parliament cannot legislate to implement
in domestic law treaties falling within areas of provincial jurisdiction. See Attorney-General
for Canada v Attorney-General for Ontario and Others [1937] AC 326; Schneider v The
Queen [1982] 2 SCR 112, 135; Thomson v Thomson [1994] 3 SCR 551; UL Canada Inc v
Quebec (Attorney General) [1999] RJQ 1720, [81]–[83], aff’d [2005] 1 SCR 143.
13
LaGrand (Germany v US), ICJ Reports 2001 p 466, 514; Avena and Other Mexican
Nationals (Mexico v US), ICJ Reports 2004 p 12, 65–6.
14
E.g. Free City of Danzig and the ILO (1930) PCIJ Ser B No 18; Polish Nationals in Danzig
(1932) Ser A/B No 44, 23–4. Germany occupied the Free City in 1939; since 1945 Danzig
(Gdansk) has been part of Poland.
15
Treaty of Peace, 28 June 1919, 225 CTS 188. On Danzig, see further Crawford (2nd edn,
2006) 236–41; Stahn, The Law and Practice of International Territorial Administration
(2008) 173–85.
16
Ydit, Internationalized Territories (1961); Verzijl, 2 International Law in Historical
Perspective (1970) 500–2, 510–45. A more recent label—hardly more informative—is

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
 ‘international territorial administration’, of which the type-case is Kosovo under SC Res
1244 (1999): e.g. Wilde, International Territorial Administration (2008) 114–27.
17
Interpretation of the Statute of the Memel Territory (1932) PCIJ Ser A/B No 49, 313.
18
GA Res 181(II), 29 November 1947. Further: Ydit (1961) 273–314; Cassese (1986) 3
Palestine YIL 13; Stahn (2008) 99–102; Ramos Tolosa in Biagini & Motta (eds), Empires and
Nations from the Eighteenth to the Twentieth Century (2014) 90–8; Ben-Dror & Ziedler
(2015) 26 Diplomacy & Statecraft 636.
19
ILC Ybk 1958/II, 24, 32; Fitzmaurice (1957) 92 Hague Recueil 5, 10. The Draft Articles
on the law of treaties as initially adopted referred to ‘States or other subjects of
international law’: ILC Ybk 1962/II, 161. This was intended to cover the case of insurgents.
20
McNair, Law of Treaties (1961) 676; Kelsen, Principles of International Law (2nd edn,
1967) 252. Further: Chen, The International Law of Recognition (1951) 303–6; Crawford
(2nd edn, 2006) 380–2.
21
Under the Articles on the Responsibility of States for Internationally Wrongful Acts, Art
10, successful insurgents may be responsible (qua government of the old or new state, as
the case may be) for conduct of the insurgent movement, but this is a rule of attribution, not
a retrospective recognition of legal personality. Cf Cahin in Crawford, Pellet, & Olleson
(eds), The Law of International Responsibility (2010) 247; and further: chapter 25.
22
Generally: Chesterman, You, The People: The United Nations, Transitional
Administration and State-Building (2004); Knoll, The Legal Status of Territories subject to
Administration by International Organisations (2008); Ronen, Transition from Illegal
Regimes under International Law (2011).
23
See Berat, Walvis Bay: Decolonization and International Law (1990); Ronen (2011) 38–
46.
24
SC Res 1272 (1999). Further: Drew (2001) 12 EJIL 651.
25
SC Res 1414 (2002); GA Res 57/3, 27 September 2002, admitting the Democratic
Republic of Timor-Leste to UN membership.
26
S/1999/648.
27
GA Res 63/3, 8 October 2008.
28
Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, ICJ Reports 2010 p 403, 439–40.
29
Ibid, 440, 444.
30
Ibid, 449–52, and for the impasse in negotiations, see the Ahtisaari Report: S/2007/168,
2 February 2007.
31
ICJ Reports 2010 p 403, 446.
32
For criticism: e.g. Kohen & Del Mar (2011) 24 LJIL 109. Further on Kosovo, see Weller,
Contested Statehood (2009); Hilpold (ed), Kosovo and International Law (2012); Almqvist in
French (2013) 165; Walter in Walter, von Ungern-Sternberg & Abushov (eds), Self-
Determination and Secession in International Law (2014) 13; Summers, ibid, 235; Milanović
& Wood, The Law and Politics of the Kosovo Advisory Opinion (2015); Chinkin in Chinkin &
Baetens (eds), Sovereignty, Statehood and State Responsibility (2015) 155, 161–6. Generally
on secession: chapter 5.
33
Further: chapter 5.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
 34
See Fitzmaurice, ILC Ybk 1952/II, 118. On the role of the chartered companies such as
the English East India Co and the Dutch East India Co (VOC): McNair, 1 Opinions 41, 55;
Island of Palmas (1928) 2 RIAA 829, 858–9.
35
Baxter, The Law of International Waterways (1964) 103–7, 126–9.
36
Parlett, The Individual in the International Legal System (2011); Peters, Beyond Human
Rights (2016). See also chapters 28 (investment arbitration), 29 (human rights). Also:
Kjeldgaard-Pedersen (2014) 16 J Hist IL 9.
37
Similar considerations apply to international non-governmental organizations (INGOs),
some of which—e.g. Greenpeace, Medecins sans Frontières, Amnesty International—have
become very influential, but without the need to claim international legal personality:
Lindblom, Non-Governmental Organizations in International Law (2005); Dupuy & Vierucci
(eds), NGOs in International Law (2008); Ben-Ari, The Legal Status of International Non-
Governmental Organizations (2013).
38
E.g. the Channel Tunnel Concession of 1986 between an Anglo-French consortium and
the British and French governments, analysed in Eurotunnel (2007) 132 ILR 1, 51–5.
39
Seidl-Hohenveldern, Corporations in and under International Law (1987) 12–14. For an
egregious example: Sandline v Papua New Guinea (1998) 117 ILR 552.
40
Waldock, ILC Ybk 1962/II, 32. Cf Anglo-Iranian Oil Co (UK v Iran), Jurisdiction, ICJ
Reports 1952 p 93, 112; SGS v Philippines (2004) 8 ICSID Reports 518, 553.
41
McNair, 2 Opinions, 39. See Noble Ventures v Romania (2005) 16 ICSID Reports 210,
252–5.
42
Sereni (1959) 96 Hague Recueil 169; Goldman (1963) 90 JDI 321; Friedmann (1964)
181–4, 219–20; Adam, 1–4 Les Organismes internationaux spécialisés (1965–77); Angelo
(1968) 125 Hague Recueil 482; Salmon, Dictionnaire (2001) 453, 1029.
43
The treaty concerned may result in legal personality under the national law of the
parties. See Vigoureux v Comité des Obligataires Danube-Save-Adriatique (1951) 18 ILR 1.
For the Bank for International Settlements (restructured in 1993): Bederman (1988) 6 ITBL
92; Tarin (1992) 5 Trans L 839; Reineccius v Bank of International Settlements (2003) 140
ILR 1.
44
Convention on the Establishment of ‘Eurofima’, European Company for the Financing of
Railway Equipment, 20 October 1955, 378 UNTS 159 (currently 25 parties).
45
Wilson, International Law and the Use of Force by National Liberation Movements
(1988); Younis, Liberation and Democratization (2000); Higgins, International Law and
Wars of National Liberation (2014); Mastorodimos (2015) 17 Oregon RIL 71.
46
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS
3, Arts 1(4), 96(3). For the first successful fulfilment of these conditions (by Polisario), see
Swiss Federal Council, ‘Notification to the Governments of the States parties to the Geneva
Conventions of 12 August 1949 for the Protection of War Victims’, 26 June 2015.
47
Thus, the Palestine Liberation Organization was granted observer status in GA Res
3237(XXIX), 22 November 1974; granted the right to circulate communications without the
need for an intermediate in GA Res 43/160, 9 December 1988; designated ‘Palestine’ in GA
Res 43/77, 15 December 1988; granted the right to participate in debate and certain
additional rights in GA Res 52/250, 7 July 1998; upgraded to ‘non-Member Observer State
status’ in GA Res A/RES/67/19, 29 November 2012. Further: Vidmar (2013) 12 Chin JIL 19;

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
 Eden (2013) 62 ICLQ 225; Ronen in Baetens & Chinkin (2015) 229. Palestine is recognized
as a state by some 135 (of 193) UN Members.
48
See Delimitation of the Maritime Boundary between Guinea-Bissau and Senegal (1989)
83 ILR 1, 25–30; Kasikili/Sedudu Island (Botswana v Namibia), ICJ Reports 1999 p 1045,
1091–2.
49
Lateran Pacts, Treaty of Conciliation, 11 February 1929, 130 BFSP 791. See Duursma,
Fragmentation and the International Relations of Micro-States (1996) 374–419. Further:
Kunz (1952) 46 AJIL 308; 2 Verzijl (1970) 295–302, 308–38; Crawford (2nd edn, 2006) 221–
33. Also: Cismas, Religious Actors and International Law (2014) 166–85; cf Morss (2015) 26
EJIL 927, 941–5.
50
Fitzmaurice, ILC Ybk 1956/II, 107, 118; State of the Vatican City v Pieciukiewicz (1982)
78 ILR 120; Re Marcinkus, Mennini and De Strebel (1987) 87 ILR 48; Holy See v Starbright
Sales (1994) 102 ILR 163.
51
The problem of personality divorced from a territorial base is difficult to isolate because
of the interaction of the Vatican City, the Holy See, and the Catholic Church: Duursma
(1996) 386–96. Also: Cismas (2014) 155–238; Morss (2015) 26 EJIL 927, 929–31.
52
In the law of war, the status of the Order is merely that of a ‘relief society’ within the
meaning of Geneva Convention III, 12 August 1949, 75 UNTS 135, Art 125. Cf Prantner,
Maltesorden und Völkergemeinschaft (1974), reviewed by O’Connell (1976–7) 48 BY 433;
Theutenberg, The Holy See, the Order of Malta and International Law (2003); Karski (2012)
14 Int Comm LR 19.
53
Talmon, Essays in Honour of Ian Brownlie (1999) 499; and generally Talmon,
Recognition of Governments in International Law (1998) 113–268.
54
On state-like entities not claiming statehood: Ronen in French (2013) 23.
55
Official statements reported in (1986) 57 BY 509, 512; (1991) 62 BY 568; (1995) 66 BY
618, 620–1; Additional Articles to the Constitution of China, 25 April 2000, Art 11; White
Paper Taiwan Affairs Office and the Information Office of the State Council, 21 February
2000, ‘The One-China Principle and the Taiwan Issue’; Anti-Secession Law of PRC, 14
March 2005. Also: Crawford (2nd edn, 2006) 197–221; Freund Larus (2006) 42 Issues &
Studies 23; Hsieh & Tsai (2010) 28 Chinese (Taiwan) Ybk IL & Aff 226; Oda (2011) 54 JYIL
386; Lee (2014) Maryland Series in Contemporary Asian Studies 1.
56
E.g. Reel v Holder (1981) 74 ILR 105, noted (1981) 52 BY 301.
57
Serdy (2004) 75 BY 183.
58
Marrakesh Agreement establishing the WTO, 15 April 1994, 1867 UNTS 3, Art XII; Cho,
Taiwan’s Application to GATT/WTO (2002); Mo (2003) 2 Chin JIL 145; Hsieh (2005) 39 JWT
1195.
59
Oppenheim, International Law (1st edn, 1905) 344–5 (individuals classed as ‘objects’
alongside rivers, canals, lakes, straits, etc).
60
E.g. Higgins (1994) 49–50.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024