4. Lecture Notes Subjects of International Law PDF

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Subjects of International Law -

A subject of international law is an entity possessing international rights and obligations.

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Characteristics of international legal personality: o o o o

Enjoyment of rights conferred and the subjection to obligations imposed by international law (R&O) Capacity to enter into treaties and agreements valid on the international plane (T&A) Capacity to make claims in respect of breaches of international law (B) Enjoyment of privileges and immunities from national jurisdictions (P&I)

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These are also known as “ indicia of international personality ” and are primarily based on qualities of a State as an international person.

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In 19th century, Oppenheim stated: since the law of nations is based on the common consent of States, and not individual human being, States solely and exclusively are subjects of international law

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After the 2nd World War, new actors have emerged on the international plane, such as public international organisations established by States, non-governmental organisations (NGOs) created by individuals, multinational corporations and even private individuals. They are now recognized as possessing some, although limited international personality

STATES AS SUBJECTS OF INTERNATIONAL LAW -

Oppenheim: a state is proper in its existence when a people is settled in a territory under its own sovereign government For a state to be a state, it must be sovereign and characterized by the recognized features of statehood. As the Arbitration Commission of the European Conference on Yugoslavia put it, a state may be defined as “a community which consist of a territory and a population subject to an organized political authority… such a State is characterized by sovereignty”.

[Art. 1, Montevideo Convention on Rights and Duties of States 1933]: The State as a person of international law should possess the following qualifications: -

a) A permanent population b) A defined territory c) Government

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d) Capacity to enter into relations with other States

A permanent population: A community of persons sufficient in number and capable of maintaining a permanent existence of the community and held together by a common bond of law. -

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Can be defined as a “stable community”. Does not have to be homogenous but must be settled. This requirement illustrates the basic need for some form of stable human community capable of supporting the superstructure of the State. The people must have the intention to inhabit a specific territory on a permanent basis. Mere occupation of a territory will not be sufficient to legally fulfill this criterion. The criterion of a “permanent population” is connected with that of territory and constitutes the physical basis for the existence of a State. There must be people linked to a specific territory on a permanent basis and can be regarded as its inhabitants. Nomadic tribes without any settled territorial links are insufficient but if such tribes move through a territory with a permanent population then statehood is possible. Western Sahara case: The territory of the Western Sahara is populated by nomadic tribes who move freely across the desert. Their link with the territory is such that they may be regarded as its “population”. While it was a territory sparsely populated mostly by people of a nomadic nature, it was still considered by the Court to have a permanent population, possessing the right to self-determination. Thus, the criterion of population is not affected if the population of a State is nomadic as long as it can be proven that there is a link between the nomads and the territory so as to regard them as the State’s permanent population. Vatican City: There is no lower limit to the size of a State’s population. o E.g: Nauru has only 9000 inhabitants. The population need not be homogenous (the same) as the establishment of statehood is not dependent upon the nationality of the population.

A defined territory: A fixed portion of the surface of the Earth in which the people of the State reside. -

Control must be exercised over a certain portion of territory. This criterion is a critical precondition for a statehood.

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Exclusive control of territory remains a fundamental prerequisite for the competence and authority required by any State to administer and exercise its State functions both in fact and in law.

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A defined territory helps determine a State’s territorial sovereignty: Exclusive competence of the State to exercise sovereign authority within that territory and prohibiting foreign governments from exercising authority in the same area without consent. There must be ‘a certain coherent (recognisable) territory effectively governed.’

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The concept of territory is defined by geographical areas separated by borderlines from the territories of other States, however, a State is not required to have fully defined and undisputed boundaries.

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North Sea Continental Shelf Case: it is not a requirement that the precise delimitation of this territory be defined o Israel is one such example. It achieved statehood in 1948, even though the whole of its territory was in dispute o Similarly, Kuwaiti sovereignty was restored and recognized before its borders were finally demarcated by the UN in 1992 in accordance with its 1963 agreement with Iraq o The size or wealth of the territory is also not important. The Vatican City is considered a sovereign state despite, ‘whatever domain it may have elsewhere’, occupying less than 100 acres on earth. o Since 1990, despite their small size, Andorra, Liechtenstein, Monaco, Nauru, San Marino and Tuvalu have all joined the United Nations. Deutshe Continental Gas-Gesellshaft v Polish State: A State may still be recognised as a legal person if the State’s territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited. Thus, a State must have generally defined territory in order to exist. International law does not impose a minimum size for a territory. What is important is that a State consistently controls a sufficiently identifiable core of territory. It does not matter whether the territory is large or small. There must be a definite physical existence which separates it from its neighbours: By way of agreement; primitive markings etc.

Government: An agency through which the will of the State is formulated, expressed and realised; primarily responsible for the international rights and obligations of a State. -

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The government must be “effective” within the defined territory and exercise control over the permanent population. Its mere existence will not suffice. The government must maintain some degree of order and stability. A State entity must have a central government operating as a political body within the law of the land and in effective control of the territory. This requirement is not tied to any particular form or style of government, but is instead concerned with a coherent, stable and effective political organisation. The mere existence of a government will not be sufficient to satisfy the requirement of an effective government. To do this its must be sovereign and independent, so that within its territory its is not subject to the authority of another State. The importance of government as a criterion for statehood in international law is best understood by appreciating the need for stability and effectiveness both within a State and in a State’s international relation. It is necessary for there to be evidence of effective internal control. Aaland Island case: Finland had been a part of the Russian Empire until the Russian Revolution. Finland’s independence was declared. It was recognised by the Soviet Government, but many opposed the idea of Finland’s independence and caused violence to break out. For a time the

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Government of the new State was able to maintain order only with the help of Soviet troops. o The International Committee of Jurists held: In the midst of revolution and anarchy, certain elements essential to the existence of a State were lacking for a fairly considerable period. Thus, the Finnish Republic only became a definitely constituted sovereign State once its public authorities became strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops. Once a government has been established, the absence of governmental authority does not affect the existing State’s right to be considered a State. It does not cease to exist when it is temporarily deprived of an effective government as a result of civil war, anarchy or hostile occupation. o

The lack of government in Somalia did not abolish the international legal personality of the country as such

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Similarly, the allied occupation of Germany and Japan after the 2 nd World War did not terminate their statehood

Capacity to enter into relations: Independence in law from the authority of other States -

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May also be described as ‘sovereignty’: Full competence to act in the international arena and exclusive jurisdiction over internal matters. Often treated as being closely connected to the third requirement of effective government. This is because the capacity to enter into relations with other states is primarily concerned with the emergent entity having the relevant political and legal machinery with which to engage in the complex sphere of international relations. The critical consideration attaching to this criterion is one of the capacity to act independently in international legal relations, rather than proof of action. While states or provinces within federated countries such as Victoria (Australia) and Texas (USA) have permanent population, defined territory and effective government, they are not considered to be sovereign states. This is because the capacity to act on the international plane is the preserve of the federal government of these countries, and not of their provincial governments. As Art 2 of the Montevideo Convention: the federal states shall constitute a sole person in the eyes of the law. The Permanent Court of Arbitration in the Island of Palmas case: Sovereignty signifies independence. Independence is the right to exercise to the exclusion of any other States, the functions of a State. Derived from the control the government exercises over a given territory, which in turn is based on the fact that the State is independent. The State has over it no other authority than that of international law so that agreements with other States can be freely entered into. Austro-German Customs Union case: The restrictions upon a State’s liberty, do not affects its independence. As long as these restrictions do

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not place the State under the legal authority of another State, the former remains an independent State however extensive and burdensome those obligations may be. It is necessary for a State to have both, formal independence, which refers to the situation where a State has control over all its functions or competences, and actual independence, which is described as the minimum degree of real government power at the disposal of the authorities of the State, in order to qualify as independent.

Meeting the criteria for statehood will not give a State the ability to enter into international relations with other states. A State must be recognised by others before it fully assumes true international personality. Recognition: The act of acknowledging the capacity of an entity to exercise rights belonging to statehood. -

A distinction must be made between recognition of States and recognition of governments.

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The recognition of a government is no more than an acknowledgement that it is the representative organ of the State and has the consent or at least the acquiescence of its people.

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The recognition of a State, however, is the establishment of the fact that a State is a subject of international law.

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Recognition of a State may consist of a legal act or a political act.

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This means that the act of recognition can have purely political (and thus, non legal) consequences, or recognition can have legal consequences by establishing the fact of the existence of a State in the sense of international law.

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Thus, recognition can be both political and legal in nature.

Legal functions of recognition -

The determination of statehood by other States A condition of the establishment of formal relations, including diplomatic relations and the conclusion of bilateral treaties. Recognition is a matter of intention and may be express or implied.

Recognition of States Declaratory Theory: Recognition is a declaration of an existing state of law and fact. -

Art. 3: The political existence of a state is independent of recognition by other states. Treats recognition as a mere political or symbolic act, with no legal ramification. Statehood can be achieved without recognition from other pre-existing states. The establishment of statehood in international law is

regarded as a question of fact. Once certain facts come into existence, international personality and statehood are conferred on the newly emergent state. Any decision to recognize a newly independent State is merely an acknowledgement that the new state has already satisfied the requisite criteria for statehood. The state in question does not have to wait for recognition. -

If an entity satisfies the criteria for statehood, it is a State not merely for States which have recognised it, but for all States. The State exists irrespective of recognition. Arbitration Commission of the Peace Conference on the Former Yugoslavia Recognition is not a prerequisite for the foundation of a state and is purely declaratory in its impact. Wulfsohn v Russian Republic: The court held that declaratory theory is in accord with the practical realities because the state acquired capacity in international law not by virtue of consent of other existing states but by particular factual situation, legally constituted by its own efforts. Tinoco arbitration: Recognition is simply evidence that the international law requirements are met. o

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The Tinoco government came into power after a coup d’état. When Tinoco was ousted, the new government repudiated the obligations undertaken by the Tinoco government towards British nationals. Britain made claims in respect of the injuries to its nationals. The main issue was the status of the Tinoco regime in international law in the light of non-recognition of it by the other States. Held: The Tinoco regime was the government of Costa Rica because it was clearly in effective control of Costa Rica, and the fact that it had not been recognised by several States, including Britain, made no difference.

Constitutive Theory: Recognition is a necessary precondition of the existence of legal rights. -

Recognition by other States is what creates a new State.

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A State may possess all the formal attributes and qualifications of statehood, but unless recognition is accorded by other States, it will not acquire international personality.

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Statehood, as a legal status, springs from the act of recognition itself. It is the recognition by an existing State creates a State and determines its legal personality. The existence of a State is not absolute: a “State exists only in relations to other States.” It is the legal act of recognition from existing States that enables the new States to exist on international legal plane. A new State has to be recognised in order to obtain rights and obligations under international law, until and unless recognition is given, it does not exist. Difficulty arises when a State is recognised by some members of the international community, but denied recognition by others.

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When an entity has breached international obligations in order to attain statehood, the constitutive theory is applied by other States in determining whether the entity is actually a State. o

Malaysia does not recognized Israel as a State

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European countries does not recognized Palestine as a State.

Recognition of Government: The act of acknowledging the capacity of an entity to exercise powers of government of a State. -

The absence of a recognised government does not lead to a loss of statehood. Governments that come into office in a normal and constitutional manner require no recognition in international law. This differs where a new government comes into power abnormally and in a revolutionary manner.

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1st guide of recognition o

Under-Secretary Statement ▪

of

State

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Foreign

Affairs

Official

Criteria for a government to be recognized, notwithstanding of illegal changes of government are: •

Effective control over the territory

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Such control is likely to continue

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Obedience of mass population

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The above-mentioned requirements were subsequently recognized and adopted in the case of Gur Corp v Trust Bank of Africa.

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However, the criteria is not absolute because it is driven by political consideration.

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Carl-Zeiss Case: Britain refused to recognize North Vietnam, North Korea and German democratic Republic although they had satisfied all requirements needed.

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Tinoco Arbitration’s case: Tinoco government in Costa Rica was overthrown and the new regime, having power, repudiated certain obligations entered into by previous regime with Britain. The court, however, held that since the new regime has effective control of the country, it is a valid agreement irrespective of lack of recognition from other states including Britain.

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The State v Dosso & Others: In this case, the court held that the new regime with a new grundnorm was validly created as it portrays an effective control over the country. The basis behind the court’s judgment was that there was no protest on the part of the people as whole when the new government took over the power and imposed martial laws.

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2nd guide of recognition o

Tobar Doctrine of Legitimacy (Mugerwa) ▪

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Government which come into power by extra-constitutional means should not be recognized until it has been accepted by the people.

3rd guide of recognition o

Estrada Doctrine, proposed by Mexican Secretary of Foreign Relations ▪

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Recognized all governments in all circumstances because changes of government in a State is an internal matter and does not concern international law or other states.

Rousseau: this doctrine is unrealistic especially in states with competing government

A recognising State may recognise a foreign entity as either de jure or de facto government. -

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Recognition of a new regime as the de facto (by fact) government of a State: The new regime has in fact effective control over most of the State’s territory and that this control seems likely to continue. Luther v Sagor: A de facto government is one which is really in possession ...