Personality, Statehood and

Recognition
Dr. Rahul Srivastava.
The Concept of Personality in International
Law
What is meant by legal personality?

Jennings and Watts - introduced the concept of international person as

one who possesses legal personality in international law and enjoys
rights, duties, or powers as established in international law and has the
capacity to act on the international plane either directly or indirectly.
Brownlie defines legal personality as an entity of the type recognised by
customary law as capable of having these capacities (rights duties and
powers to bring a legal claim) is a legal person.
The Concept of Personality in International
Law (2)
• Warbrick – maintains the position that international law is mainly to
do the with states as it is states which create or acknowledge the
other entities.

• Shaw takes a different that the Holy See, insurgents and belligerents,
international organisations, chartered companies, and various
territorial entities such as the League of Cities were at one time or
another treated as possessing the capacity to become international
persons.
Subjects of International Law (1)
Statehood

• Article 1 Montevideo Convention on the Rights and Duties of States

1933 sets out the criteria for statehood;
“the state as a person of international should possess the following
qualifications: (a) a permanent population; (b) a defined territory; (c)
government (d) capacity to enter into relations with other states.”
Subjects of International Law (2)
This set of criteria has now passed into customary international law.
There are now 192 members of the UN, and Kosovo has recently
declared independence.
As new states are coming into existence all the time, these criteria are
very important.
(a) Permanent population – no minimum number of people is specified.
i.e. the state practice are recognition of Nauru and Tavula which have
10,000 and 12,000 people respectively.
Subjects of International Law (3)
(b) Territory – the case of Deutsche Continental Gas-Gesellschaft v Polish
State (1929) is relevant. The German-Polish mixed arbitration panel held
that in order for a state to exist and be recognised as such, it is enough
that its territory has a sufficient consistency, even though its boundaries
have not been accurately demarcated.

• Israel is another example which to this day still does not have settled
borders.
• A recent state practice could be Bosnia, which was constituted a state
during an armed conflict when its territory and population were not
properly defined.
Subjects of International Law (4)
(c) Government – there are several examples of state practice
concerning the necessity for a stable government.
A pertinent example of a state practice is the Aaland Islands case.

• An example of a failed state - an entity that does not have a

government–is the case of Somalia which continues to this day in a
state of constant civil war after the disastrous UN intervention.

• Warbrick argues that Somalia still exist as a state even though there is
not an effective formal government.
Subjects of International Law (5)
(d) Independence – capacity to enter into relations with other states
requires factual as well as legal independence from other states.

This means puppet states can lose independence- i.e. Manchukuo which
came into existence after Japan invaded Manchuria, a province of China
in 1931.
The League of Nations sent a commission which reported and it was
decided that sovereignty over Manchuria belonged to China.
International Organisation as International
Legal Persons
• What are International Organisations?
Intergovernmental organisations, created by states, usually by means of
a treaty, in order to exercise a task or function that states themselves
are unable or unwilling to perform. i.e. the UN, WTO or World Bank
First International Organisation was created in 1815 which was the
Rhine Commission – in order to manage problems of communication
International organisations play an important role in global affairs in
international law
International Organisation as International
Legal Persons (2)
Usually these organisations only be in session once a year or even less.
Example would be the UN Security council, whose main task is to secure
international peace and security.
• UNSC – has 15 members of which five are permanent member (USA,
Russia, China, France and the UK)

• Its been argued that the Security Council has lost quite a bit of its
legitimacy.
International Organisation as International
Legal Persons (3)
• Virtually all international organisation, no matter how small, will have
an administrative organ, a secretariat, whose task will include the
execution of decisions of the policy-making organs.
Individuals as International Legal Persons
• For centuries international law did not think of individuals than a
highly abstract sense.
• Individuals were citizens of states; international was the law between
states, and that was it.
• Individuals, so the phrase went, were objects of international law, but
not subjects; they were not considered to be capable of bearing rights
and obligations under international law.
Individuals as International Legal Persons (2)
• States could treat their citizens as they pleased. It was only citizens of
other states that states had to respect some basic principles.
• In the twentieth centuries we then started seeing individuals enjoy
rights under international law (Human Rights) see;
• Nuremberg Tribunal were it was held that “Crimes against
international law are committed by men, not abstract entities, and
only by punishing individuals who commit such crimes can the
provisions of international law be enforced”.
Individuals as International Legal Persons (3)
• International criminal tribunals have now made it clear that individuals
can be prosecuted, under international law, for such heinous activities
as committing war crimes or committing genocide.
Other International Legal Persons
• Holy See – can conclude treaties and also has diplomatic missions; the
Holy See is often allowed to participate in the negotiation of
multilateral conventions.
• Enjoys diplomatic relations with many states and is a party to such
international law documents as the 1961 Vienna Convention on
Diplomatic Relations.
• Not a member of the UN, however, and opinions are divided as to
whether it would be eligible for membership under the provisions of
article 4 UN which not only stipulates that aspiring members must be
states.
Recognition of States and Governments
• The Montevideo Convention not only listed the requirements for
statehood but also referred to recognition of statehood.
• Recognition gives rise to quite a bit of confusion, and does so partly
because it is unclear what exactly is recognised; a state or a
government?
• There is no legal obligation that requires recognition of states.
Recognition of States and Governments (2)
• What exactly is recognised ; a state or a government?
• Even if all four requirements are royally met, an entity that is not
recognised will have a hard time existing.
• recognition of a government only arises if a government comes into
power by unconstitutional means. i.e. coup
• We are told that the are two traditional doctrine of recognition of a
state, the constitutive theory and the declaratory theory.
Declarative theory
• Under this theory, States are subject to rights and duties under
international law once they meet the criteria for statehood.
• The act of recognition should be used merely to specify that in the
opinion of other states.
• In general, state practice seems to demonstrate a preference for the
declaratory theory.
Constitutive theory
• Constitutive theory – this theory, holds that a state is and becomes an
international person through recognition only and exclusively.
Meaning that states are essentially non-existent and do not possess
any legal rights until recognised by other states.

• For example – Biafra found out its dismay when it proclaimed

independence after a bloody war of succession with Nigeria, only to
discover that it did not meet with recognition from more than a
handful of states and within three years of proclaiming independence,
Biafra became part of Nigeria again.
Constitutive theory (2)
• See the following cases;
Luther Co v James Sagor &Co (1921) 1 KB
Bank of Ethiopia v National Bank of Egypt
Recognition of States and Governments (3)

• One thing that is clear is that recognition is essentially, a political act;

state X decides whether it recognises entity Y as a state, and may do
so for a host of reasons. Obviously, it may do so because it thinks that
entity Y meets all the requirements of statehood, but it may also do so
for different reasons, e.g. because it appreciates the government
running entity Y.

• Decisions on whether to recognise or not are eminently political

decisions, predominantly guided by political motivations.
Recognition of States and Governments (4)
• Perhaps what really matters is not so much statehood, but rather the
sort of government that the new state has.
• i.e. Germany was divided in two; the Federal Republic of Germany
(FRG, West Germany and the German Democratic Republic (GDR, East
Germany). Communist states were reluctant to recognise the FRG,
despite it meeting the requirements of statehood, whereas western
states were highly reluctant to recognise the GDR.
Recognition of States and Governments (5)
• Recognition of governments can also take place either de jure or de facto.
• De jure – recognition signifies that a government has risen to power in a legitimate
way.

• De facto – recognition on the other hand, signifies that while a government maybe in
power and therefore, constitutes a negotiating partner, the recognising state is not
very pleased with the way the government came into power. i.e. British recognition of
Nazi authority in Czechoslovakia; the British were pragmatic enough to recognise that
Nazis were in charge, yet still voiced their dissent at the illegitimate way in which they
had assumed power.
• States recognised under De facto are not entitled to diplomatic privileges and
immunities. See;
• Haile Selassie v Cable wireless Co.
Implied and Express Recognition
Recognition may be expressed or implied.
• It is probably accurate to state that entering into diplomatic relations
will constitute implied recognition as the formulization of diplomatic
relations presupposes the sort of political validation that otherwise
comes from recognition.
• Collective recognition – states act collectively during the process of
receiving information of the situation, evaluating that information and
reaching a decision, and communicating that decision
Conditional Recognition
• An entity can be recognised as a state only when it fulfils some
conditions. See the Berlin Congress of 1878 were Britain, France, Italy
and German marked the recognition of Bulgaria, Serbia, Romania and
Montenegro with condition that these countries would not impose
any religious disabilities on any of their subjects.
Withdrawal of Recognition
• It is possible to withdraw a granted recognition – easier for the de
facto since the position is different with de facto which includes an
ambiguity for the future of the entity.
• On the other hand de jure – more difficult to withdraw as stronger
than the de facto.
Effects of Recognition in National Law
1. Only a recognised state or government has locus standi in the UK
(the right to bring an action in court) see; UK courts Gur Corporation
v Trust Bank of Africa Ltd
2. Only a recognised state or government may plead immunity from
suit. It cannot be sued without its consent. See Duff Development
Co v Kelantan Government
3. Only the legislative, executive or judicial acts of a recognised state or
government will be given legal effect in the UK. See; the Luther v
Sagor case
Effects of Recognition in National Law
4. It will be entitled to possession in the recognising state of property
belonging to its predecessor.
5. Recognition once granted is retroactive. It is back dated to the
establishment of entity in question it does not relate to the time
recognition is accorded. See; Luther v Sagor case
• Comparing with the Anglo-American courts, the courts have
established that recognition entitles a recognised entity to;
1. Sue and be sued in the courts of law of the recognising state and
courts will give effect to its past and present.
Effects of Recognition in National Law (2)
2. Claim sovereign immunity from legal action for its diplomatic
representatives and public property.
3. Demand and receive possession of public property belonging to the
recognised state.

Effects of non recognition both at international level and national level is

that a state cannot enter in legal relations with other states.