Lecture 7

Subjects of International Law

 WHO IS A SUBJECT OF INTERNATIONAL LAW?

A subject of international is (1) an individual,

body or entity; (2) recognized or accepted;
(3) as being capable of possessing and
exercising; (4) rights and duties; (5) under
international law.

(Dixon)
 Subjects of international law are States and
non- State actors like individuals and
international organizations.

Some argue that international non-

governmental organizations and multinational
companies also fall into the category of
subjects of international law.
 Subjects of International Law
Malaysia
States
UK, USA, China,
Australia

Subjects
Individuals Me

Non-States International
UN, ICJ, ICC
actors Organizations

Multinational Shell, British

Companies Petroleum
HOW DO WE DETERMINE IF AN ENTITY IS A SUBJECT
OF INTERNATIONAL LAW?

An entity is a subject of international law if it

has international legal personality.

In other words, subjects must have rights,

powers and duties under international law
and they should be able to exercise those
rights, powers and duties.
 The rights, powers and duties of different
subjects change according to their status and
functions.

For example, an individual has a right of freedom

from torture under international law and States
have a duty under international law not to
torture individuals or to send them to a country
where there is a likelihood of that person being
tortured.
 Question
USA deports a UK citizen to UK where the
citizen is tortured by the authorities. What are
the rights, duties and obligations of the
citizen, UK and USA in this situation?
 Legal Personality

Legal personality also includes the capacity to

enforce ones own rights and to compel other
subjects to perform their duties under
international law.
 For example, this means that a subject of
international law should be able to:

(1) bring claims before international and national courts

and tribunals to enforce their rights;

(2) have the ability or power to come into agreements that

are binding under international law, for example, treaties;

(3) enjoy immunity from the jurisdiction of foreign courts;

and

(4) be subject to obligations under international law

(Dixon).
 However:
Not all subjects of international law have the same rights, duties and capacities.

For an example, a diplomat has immunity before foreign courts because he is an

agent of the sending State. This is a privilege enjoyed by the State and not the
diplomat personally.

This means that, even if a diplomat commits a crime, he cannot be brought before
a foreign court to be prosecuted.

One State can bring a claim against another State before the International Court of
Justice to enforce its rights, an individual on his own cant bring a claim against a
State before the ICJ.

States have all the capacities mentioned above and individuals have only a few.
 Question
Of the four examples that we discussed, which
ones are applicable to individuals?
 Traditional Subjects of International Law

Individuals are the primary subjects of law in

the national systems.

On the international plane, the primary

subjects are States.

Traditionally, states and insurgents have been

the only subjects of international law.
 States

In addition to controlling a territory, they

exercise lawmaking and executive functions;
they have full legal capacity (ability to be
vested with powers, rights and obligations).
 Insurgents

They come into being through their struggle against

the state to which they belong.

Because insurgents are a destabilizing factor, States are

reluctant to accept them or take them into account,
unless they can show some of the attributes of
sovereignty.

They acquire power through force, their existence is by

definition provisional: they either prevail and turn into
fully fledged States, or are defeated and disappear.
 Modern Subjects of International Law

After WWII, several new subjects of international

law have emerged, namely international
organizations, national liberation movements and
individuals.

They lack permanent and stable authority over a

territory, so unlike States, all other international
subjects have limited legal capacity (do not have
a full spectrum of rights and obligations), which
also means a limited legal capacity to act (i.e. to
enforce their rights).
 Commencement of the Existence of States

States are few and very different, which is a complicating factor and
explains in part the weakness of international law.

The lack of homogeneity makes the finding of a common ground

and the reaching of a consensus rather difficult.

Another complicating factor is the fact that unlike national law

(which contains a set of rules dealing with the prerequisites for a
acquiring legal personality), international law lacks a set of detailed
rules regarding the creation of states.

Such rules can be inferred from custom.

Customary rules pertaining to the creation of states

Under international customary rules, two elements are required for

the creation of a state. Once these two elements are met, the rules
governing international dealings become applicable.

1. Central structure capable of exercising effective control over the

human population living in a given territory. The bodies that
comprise that central structure must be independent of any other
state, i.e. must be endowed with an original legal order.

2. Independent territory, with a population that owes no allegiance

to other outside authorities or governments. Without territory,
there is no state. The control and possession over the territory must
be effective. Exception: Governments-in-exile.
 Conditions for Statehood

Under traditional international law an aspiring

state had to meet the following requirements:

have a defined territory

a permanent population
an effective government; and
the capacity to enter into relations with other
states
The Montevideo Convention, art. 1
Lays the most widely accepted criteria of
statehood in international law. It states 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 the other states.
 Even today, these conditions continue to be
regarded as the fundamental elements of
statehood, but they are neither exhaustive nor
immutable.

Other factors might be relevant such as self-

determination and recognition, but one thing is
clear the relevant framework revolves
essentially around territorial effectiveness.
 1. Defined Territory
The need for defined territory focuses upon requirement for a particular
territorial base upon which to operate.

Therefore, for this reason, it was argued that the State of Palestine
cannot be regarded as valid state.

Why? The Palestinian organizations did not control any part of the
territory they claim.

However, note that there is no need for clearly defined boundaries. E.g.
Albania, prior to WWI was recognized by many countries as an
independent state, although its borders were in dispute. Similarly, Israel
has been accepted by the majority of nations, as well as the UN as a valid
state, although its borders have not been finally settled and despite its
involvement in hostilities with its Arab neighbors.
 2. Permanent population
The existence of a permanent population is
naturally required and there is no specification
of a minimum number of inhabitants.
 3. Effective government

As to whether a state has an effective government, the

emphasis has been on the control the state exercises over
the relevant territory, at the exclusion of all other entities.

The degree of control required varies depending on how a

state came to existence.

Where the prior sovereign over the territory has consented

to the creation of a new state under a new government, a
low degree of control may be sufficient in satisfying this
requirement.
 4. Capacity to enter into relations
with other nations
States are not the only international law subjects who
have this capacity, but this capacity is essential to
statehood.

Where this element is not present, there cannot be a

state.

The essence of such capacity is independence; it is a

formal statement that the state is subject to no other
sovereignty.
 Recognition

Who gets to decide whether the statehood

conditions are met?

Two competing theories on recognition:

1) declaratory theory of recognition and

2) constitutive theory of recognition
1. Declaratory Theory of Recognition
An entity is a state once the conditions of
statehood are met regardless of the attitude
of other states towards the new entity.

Example: 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.
 The exercise of these rights has no other
limitation than the exercise of the rights of
other states according to international law.
 In its opinion No. 10 of 07.04.1992, the Arbitration
Commission of the Peace Conference on the Former
Yugoslavia stated that:

While recognition is not a prerequisite for the foundation of

a state and is purely declaratory in its impact, it is a
discretionary act other states may perform when they
choose and in a manner of their own choosing (subject to
compliance with the imperatives of general international
law, and particularly those prohibiting the use of force and
those guaranteeing the rights of ethnic, religious or
linguistic minorities).
 2. Constitutive Theory of Recognition

Only when other states decide that the above

conditions are met, and consequently
acknowledge the legal capacity of the new
state, is the new state actually created.
 Criticism of constitutive theory: contradicts
the principle of effectiveness; inconsistent
with the principle of sovereign equality of
states; logically unsound since it would allow
an entity to be a state with respect to those
states that have recognized it, while lacking
legal personality with respect to those that
have withheld recognition.
 Note: There is an integral relationship
between the conditions to statehood and
recognition.

If recognition is weak, there will be more focus

on the conditions and vice versa.
 Effects of Recognition

politically important

legally relevant
 Recognition is politically important because it
testifies to the will of recognizing states to
undertake international dealings with the new
state.
 Legally relevant because

1) It shows that recognizing states consider

the conditions of statehood met, and
2) it creates estoppel
 1. Legally Relevant

(Tinoco Concessions v. Costa Rica, 1923)

The non-recognition of a government by other nations

is usually appropriate evidence that such government
has not attained the independence and control
entitling it by international law to be classified as such.

The recognition or non-recognition by one state is not

binding on other states, but has a certain amount of
weight.
 2. Estopples

By creating estoppels, it will prevent the

recognizing party from later contesting or
denying the legal personality of the new state.
 Premature Recognition
When the conditions for statehood are not
met, it has legal relevance in that it may
amount to unlawful interference with the
internal affairs of a state (e.g. Croatia
Opinion No. 5 (Croatia) of the Arbitration
Commission.
 In this opinion, the Commission considered the application of Croatia for
the recognition of its independence. The Commission ruled that Croatia's
independence should not yet be recognized, because the new Croatian
Constitution did not incorporate the protections for minorities required by
European Community.

In response, to this decision, the President of Croatia wrote to Robert

Badinter giving assurances that this deficit would be remedied. Given
these assurances the European Community recognized Croatia.

While the Arbitration Commission on Yugoslavia in 1992 found that

Croatia met the necessary conditions for statehood, some commentators
have considered the recognition by Austria premature since Croatia
exercised effective control over only 1/3 of its territory.
 The Dissolution of the USSR

The traditional Montevideo Convention criteria still

reflect the minimum conditions for the creation of a
new state.

However, in modern international law some states

have made their recognition of another state
contingent on additional requirements relating to more
modern notions of human rights and democracy.

The breakup of the USSR is an example of recognition

practice and an illustration of modern trends.
 In December 1989, the Congress of the USSR Peoples
Deputies found that the Molotov-Ribbentrop Accords
of 1939, whereby the USSR first occupied and then
annexed the Baltic States (Estonia, Latvia, Lithuania)
were contrary to international law.

In 1991, Baltic states held referenda and

overwhelmingly chose independence.

The USSR released the 3 states and recognized their

independence in 1991, the same year they were
admitted to the UN.
 Thereafter, several other of republics of the USSR held
referenda on whether to secede.

All but Kazakhstan proclaimed their independence in 1991,

while Russia proclaimed itself the successor state of the
USSR.

Almost all other states recognized the independence of the

republics, but what is interesting is the approach taken by
the European Community in the Declaration on
the Guidelines on the Recognition of New States in Eastern
Europe and in the Soviet Union.
 The Declaration sets down general conditions, requiring a new state:

1) respect UN Charter, the Helsinki Final Act, the Charter of Paris, especially with regard to the
rule of law, democracy and human rights,

2) guarantee the rights of ethnic and national groups and minorities,

3) respect existing borders,

4) accept relevant arms control commitments; and

5) to commit to settle through negotiation and by agreement all questions regarding state
succession and regional disputes.

The Declaration stated that the Community and its members will withhold recognition in cases of
aggression.
 Some states withhold recognition for a variety of reasons
(e.g. lack of political or ideological affinity; economic
interests), and the consequence being the inability of the
aspiring state and the non-recognizing state to enter into
international dealings (exchange diplomats, conclude
treaties etc.).

The new entity is not however not totally devoid of legal

personality towards the non-recognizing state and general
international rules will still apply (e.g. non-recognizing
states must respect the right of the new state to sail the
high seas; may not invade or occupy the new state).
 Situations where a state meets all the requirements of
statehood, but is still unrecognized by the majority of states

This situation is the result of a conflict between the

traditional principle of effectiveness and the modern
international law trends of withholding legitimacy where a
situation, albeit effective, contravenes general values of the
world community.

Southern Rhodesia UN SC Council called upon all member

states to withhold recognition on account of South
Rhodesias racist policy.

Turkish Republic of Northern Cyprus proclaimed in 1983

and recognized by Turkey only. Declaration of
Independence was declared legally invalid by the SC.
Continuity and Termination of the Existence of
States
Revolutionary or extra-constitutional changes in
the government do not have a bearing on the
identity of a States.

States are bound by international acts performed

by previous government. See Tinoco Concessions
v. Costa Rica, 1917 (arbitration).

However, changes in the territory of a state, may

affect its legal personality.
 Dissolution (dismemberment, disappearance) of
a state (e.g. breakup of the USSR).

The extinction of the USSR was accompanied by a

claim, which was successfully accepted, that the
Russian Federation is the successor of the USSR.
This meant that Russia did not need to apply to
the U.N. anew.
 States merger with another State (1958 Egypt
and Syria merged to form the United Arab
Republic; in 1990 South and North Yemen
merged to for the Republic of Yemen)

Incorporation by one state of another (e.g.

the incorporation by the Federal Republic of
Germany of the German Democratic
Republic), with the latter becoming extinct.
 Problem

Are the rights and obligations of the former state

transferred to the other international subject that has
replaced the old State?

(Note: In cases of secession of a part of a States

territory or population, the State continues to exist as a
legal subject, but the seceding party may acquire
international statehood).

The matter is regulated by customary rules:

 A. Rules regarding the succession to
treaties (Vienna Convention 1978)

Customary law differentiates localized treaties

and non-localized treaties.
 1. Localized Treaties
Localized treaties impose rights and
obligations with respect to specific territories.

They are not affected by mere fact of

succession, i.e. they attach to the new entity.
 2. Non-localized treaties

Non-localized treaties are dealt with differently

depending whether they concern a newly
independent State or other States.

For newly independent States the clean slate

principle applies, i.e. the successor state (one
whose territory prior to succession was under
sovereignty of another state) is not bound by the
treaties in force for the territory at the date of
succession (anti-colonialist approach)
 For other States principle of continuity
treaties binding on the predecessor state are
also binding on the successor state.
 Human rights treaties the general rule that
has evolved with respect to successor States is
that they must respect them; individuals
should continue to be protected even after a
change in sovereignty over a particular
territory.
 B. Rules regarding property (Vienna
Convention 1983)

As for State property (as defined by national

law at the time of succession), art. 8 states
that once assets are declared to be public, the
assets will belong to the state on whose
territory the assets are located. Same with
state archives.
 As for public debts Art. 40 unless
otherwise agreed, the State debt of the
predecessor State passes to the successor
States in an equitable proportion.
Membership in international organizations

No admission to UN required in the case of merger (the

state that merged is automatically a member of the UN
if the state it merged into is also a member).

In the case of break-up, all resulting states must apply,

unless a state can claim to be a continuation of the old
state.

If a state comes into being through secession, it too

must apply for membership.
 Recognition of governments

Where a new government is established

through normal, constitutional processes
within a state, there are no questions
regarding the recognition of that government.

The new government is entitled to all the

rights and obligation under international law.
 By contrast, when an entity comes to power
through non-constitutional means, it is not
automatically accorded such rights and
obligations.

The key issue for a state when deciding to

recognize a new government is whether the new
government is in effective control of its state (de
facto control test) degree to which the
government controls the people within a state.
 This test has not always proven sufficient.

Sometimes, in determining whether to recognize a new

government, some states (like the US ) have taken into account
whether the new government is willing to honor the international
obligations of the predecessor.

Sometimes, states have refrained from recognizing a new

government if it has come to power through aggression.

Another factors that has played a role has been the political nature
of the new government (democratic or not).
 The notion of states recognizing the government
of another state has bothered some who view it
as an interference with a states internal affairs.
Estrada Doctrine 1930 (named after the Mexican
Foreign Secretary) states should not seek to
influence the outcome of an internal power
struggle by granting or withholding recognition.
Doctrine is invoked when states find it politically
difficult to publicly announce whether they
recognize a new government.