Subjects of International Law PDF

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SUBJECTS OF INTERNATIONAL LAWWhat do we mean by ‘subjects of IL’? KEY DEFINITION- SUBJECTS OF INTERNATIONAL LAW: “The subjects of law in any legal systemare not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community.. .’ Repa...

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SUBJECTS OF INTERNATIONAL LAW

What do we mean by ‘subjects of IL’? 

KEY DEFINITION- SUBJECTS OF INTERNATIONAL LAW: “The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community . . .’ Reparations Case (1949) ICJ Rep 174.

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There are many ‘actors’ of international relations (eg states, international organizations, NGOs such as Amnesty International, important charities, terrorist groups, group of individuals…) – not all are ‘subjects of IL’ 

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Subjects of international law need to be defined more narrowly, and if you think about international law as a legal order in its own right, as something that it is different from the domestic legal order, is created through States and international or national organizations and state practice and treaties, this particular actors that do this things within the umbrella of international legal order, those are the subjects on international law. They are those entities with international legal personality.

Of interest here: ‘subjects of international law’ = entities with international legal personality

What is international legal personality? 

Previous lectures: sources of IL, treaty-making… ‘horizontal system’ -> focus now: who has rights and obligations, and has the capacity to create IL? 

International law is a horizontal legal system as there is the principle of equality and all States, at least in theory, are equal and States are the main subject of international law that create law and that comes together to find solution in the development of international law.

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KEY DEFINITION: ‘A subject of the law is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims.’ Reparations Case (1949) ICJ Rep 174.

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International legal personality = rights/duties under international law – capacity under IL (can include enforcement of rights and contribution to IL creation) 

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International legal personality is defined as an entity that has rights and duties under international law. It has capacity under international law and that can include the enforcement of rights and the contribution to the international law to the creation of international law.

Variable concept – extent of legal personality depends on the type of ‘subject’, and also context in question.  International legal personality comes in different shapes and so not all entities that have international legal personality have the same amount international legal personality of the same extent of international legal personality.  In order to assess what kind of legal personality the entity has, you need to look at what type of subject it is and look at the context in question.

Capacities of international legal persons: International legal personality may entitle a subject of international law to:    

bring legal claims to enforce international legal rights; have the power to make international agreements/treaties; enjoy various immunities and privileges; be under certain international legal obligations.”

States: 

Most important subject – highest ‘level’ of legal personality: rights, duties, creators of IL (together with other states and IOs)

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States are equal BUT States are also considered to be sovereign entities that are the most important subjects of international law because they the ones that have rights and duties and they create international law and they do so jointly with other States and international organisations. Obviously, this is subject to criticism as you could argue that individuals are who matter the most, it is not States who we should be looking at when we try to assess who is the most important subject of international law.

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States are the ones who hold rights and duties and who create international law. They have the highest level of legal personality.

All States possess international legal personality as a result of the principle of sovereign equality. It is often said that they possess ‘original’ personality. States were considered to be the only subjects of international law during the nineteenth century.

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How do we identify a state? How is a ‘state’ defined? In other words, what are the criteria for statehood?

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New states: terra nullius (no longer), decolonisation, civil wars, annexations, use of force, extinction of States, State mergers, etc etc… 

Several IGOs also possess international legal personality for certain purposes. In addition, individuals have been recognised as having limited forms of international legal personality in certain situations (see below).

Objective Criteria for Statehood: 

International legal personality is a highly valued consequence of the achievement of statehood but how does a political entity become a State?

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The Montevideo Convention was a treaty concluded between member States of the PanAmerican Union. However, its central provisions have acquired the status of general CIL. Article 1 is indicative of the requirements for the attainment of statehood.

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Excerpt From: Stephen Allen. “Law Express: International Law”. Apple Books. 

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Article 1 of the Montevideo Convention on Rights and Duties of States (1933): 

“The State as a person of international law should possess the following qualifications:

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(a) a permanent population

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(b) a defined territory

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(c) government; and

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(d) capacity to enter into relations with other States.”

The four criteria above give us some guidance on whether a State exists or not.

Montevideo Criteria: 

(a) a permanent population 

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The notion of a permanent population does not indicate that it must be settled. 

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No size restrictions (some States, such as Tuvalu, with populations of under 50,000). It does not matter how many people you have in your population.

Also nomadic population (Western Sahara Advisory Opinion (1975) ICJ Rep 12). Even people who move from one place to another are considered to be a permanent population. It doesn't matter if they are nomadic or not.

Western Sahara Advisory Opinion (1975) ICJ Rep 12 Background: 

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Morocco gained independence in 1956, and the Istiqlal Party presented its vision for the new state's boundaries.[3] These nationalists appealed to the idea of a Greater Morocco, based upon the territory of the Sharifian empire which preceded French and British colonization. This area included what was at the time Spanish Sahara, French West Africa, and French Algeria. The Moroccan state itself formally adopted the 'Greater Morocco' vision under Mohammed V in 1958.[3] After Mauritanian and Algerian independence, Morocco released claim to most of Greater Morocco. However, it has maintained its irredentist claim over Western Sahara. Following the establishment of the Special Committee on Decolonization, the Spanish Sahara was included in 1963 in the preliminary list of territories to which the declaration on the granting of independence to colonial peoples and countries applied, and from that year on the question of Western Sahara had been regularly considered by the Special Committee and in the General Assembly. After initially resisting all claims by Morocco and Mauritania, Spain announced on 20 August 1974 that a referendum on self-determination would be held in the first six months of 1975.[6] Morocco declared it cannot accept a referendum which would include an option for independence and renewed its demands for the integration of the remaining provinces of Saguia elHamra and Rio de Oro to the country's sovereignty. Algeria, after initially supporting Morocco and Mauritania in their demands, started in 1975 to support the independence of the territory. Algeria officially supported the right of selfdetermination of the people of the former Spanish colony. The Polisario Front, created in 1973, engaged in several attacks against Spanish garrisons and patrols, and also attacked the Fosbucraa conveyor belt, which exported the rich local phosphates to the El Marsa port. On 17 September 1974, King Hassan II announced his intention to bring the issue to the ICJ. In December, Spain agreed to delay the referendum pending the opinion of the court. They gave their support to ICJ submission on the grounds that it be a non-binding,

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advisory opinion, rather than a "contentious issue", where the ruling would oblige the interested states to act in a particular manner. On 13 December, the United Nations General Assembly voted on a submission, resulting in UN General Assembly Resolution 3292, affirming it and defining the wording of the questions to be submitted.

Submission: UN General Assembly Resolution 3292[1] requested that the International Court give an advisory opinion on the following questions: I. Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)? And, should the majority opinion be "no", the following would be addressed: II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity? The opinion: On 15 October, a UN visiting mission sent by the General Assembly to tour the region and investigate the political situation published its findings, showing that the Sahrawi population were "overwhelmingly" in favor of independence from both Spain and Morocco/Mauritania. These findings were submitted to the Court, who published their opinion the next day. For the former question, the Court decided by a vote of 13 to three that the court could make a decision on the matter, and unanimously voted that at the time of colonization (defined as 28 November 1884), the territory was not terra nullius (that is, the territory, did belong to someone). For the latter question, the Court decided by a vote of 14 to two that it would decide. It was of the opinion, by 14 votes to two, that there were legal ties of allegiance between this territory and the Kingdom of Morocco. Furthermore, it was of opinion, by 15 votes to one, that there were legal ties between this territory and the "Mauritanian entity". However, the Court defined the nature of these legal ties in the penultimate paragraph of its opinion, and declared that neither legal tie implied sovereignty or rightful ownership over the territory. These legal ties also did not apply to "self-determination through the free and genuine expression of the will of the peoples of the Territory." (ICJ Reports (1975) p. 68, para. 162)

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Nationality irrelevant

The important thing is that the population can demonstrate meaningful territorial ties to the political entity in question.

(b) a defined territory 

The requirement that States must have a territorial base is fundamental to the concept of statehood. This was exemplified by Huber J in the Island of Palmas Case (1928) 22 AJIL 867 when he said that: Sovereignty in relations between States signifies independence. Independence in relation to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.

Island of Palmas Case (1928) 22 AJIL 867 Background: Palmas is an island of little economic value or strategic location. It had a population of about 750 in 1932, when the case was decided. The island is located approximately 100 miles ESE of General Santos City, Philippines and 400 miles North of the Talaud Islands, the next-northernmost part of Indonesia. In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas is located within the boundaries of that cession. In 1906, the United States discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. The question before the arbitrator was whether the Island of Palmas (Miangas) formed part of United States territory (referring to what is now the Philippines) or Dutch territory (referring to what is now Indonesia). Issues: Huber had to determine "whether the Island of Palmas in its entirety forms a part of territory belonging to the United States of America or of Netherlands territory." Based on the arguments made by both states, there were two main issues: 

Did the inchoate title claimed by the United States prevail over a continuous and peaceful display of sovereignty exercised by the Netherlands?

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Did a title of contiguity have foundation in international law?

Decision: Huber ruled for the Netherlands: For these reasons The Arbitrator in conformity with Article I of the Special Agreement of 23 January 1925 DECIDES that : THE ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of the Netherlands territory. done at The Hague, this

fourth day of April 1928. Max Huber, Arbitrator Michiels van Verduynen, Secretary-General.[6] Right by discovery[edit] The United States argued that it held the island because it had received actual title by legitimate treaties from the original discoverer of the island, Spain. The United States argued that Spain acquired title to Palmas when Spain discovered the island and the island was terra nullius. Spain's title to the island, because it was a part of the Philippines, was then ceded to the United States under the Treaty of Paris (1898) after Spain's defeat in the Spanish–American War. The arbitrator noted that no new international law invalidated the legal transfer of territory via cession. However, the arbitrator noted that Spain could not legally grant what it did not hold and the Treaty of Paris could not grant Palmas to the United States if Spain had no actual title to it. The arbitrator concluded that Spain held an inchoate title when Spain "discovered" Palmas. However, for a sovereign to maintain its initial title via discovery, the arbitrator said that the discoverer had to actually exercise authority even by as simple an act as planting a flag on the beach. Spain did not exercise authority over the island after making an initial claim after discovery and so the American claim was based on relatively weak grounds. Contiguity The United States argued that Palmas was American territory because the island was closer to the Philippines than to the Netherlands East Indies. The arbitrator said that there was no positive international law for the American view of terra firma in which the nearest continent or island of considerable size gives title to the land in dispute. The arbitrator held that mere proximity was not an adequate claim to land and noted that if the international community followed the proposed American approach, that would lead to arbitrary results. Continuous and peaceful display of sovereignty The Netherlands' primary contention was that it held actual title because the Netherlands had exercised authority on the island since 1677. The arbitrator noted that the United States had failed to show documentation proving Spanish sovereignty on the island except the documents that specifically mentioned the island's discovery. Additionally, there was no evidence that Palmas was a part of the judicial or administrative organization of the Spanish government of the Philippines. However, the Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty, including a requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if Spain had actually exercised authority, there would have been conflicts between the two countries, but none is provided in the evidence. Thus, a title that is inchoate cannot prevail over a definite title found on the continuous and peaceful display of sovereignty. Peaceful and continuous display of territorial sovereignty is as good as title. However, discovery alone, without a subsequent act, cannot suffice to prove sovereignty over the island. The territorial sovereignty of the defendant,

Netherlands, was not contested by anyone from 1700 to 1906 so the title of discovery was, at best, an inchoate title and does not prevail over the Netherlands claims of sovereignty.[ 

No limits have been placed upon the “size of a State (either in terms of ‘population’ or ‘territory’). 

No minimum size (e.g. Monaco)- it can be a very small territory that is defined and still meet this condition.

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Natural, not artificial ground and thus we cannot like go to the high sea and set up an artificial island

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The existence of competing territorial claims by other States or political entities does not undermine claims of statehood (e.g. Israel’s boundaries are contested by its neighbours and the Palestinian authorities).

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Disputed boundaries? (See North Sea Continental Shelf Cases, ICJ,1969 – Albania. See also Israel). Even if your boundaries are disputed, for example there is a dispute between two States around where the border exactly is such as in Israel, as long as there is a core territory over which the State has control, that is sufficient to establish a define territory in international law in the meaning of the Montevideo Convention. 

A State can lose substantial parts of its territory (and parts of its population) as a result of a successful act of secession (e.g. the secession of Bangladesh from Pakistan) or the dissolution of a federal State (e.g. USSR/Russia) without the losing its statehood.

-> control over core territory 

(c) government (social organisation) 

This criterion refers to the extent to which a political entity is controlled effectively by a governmental authority.

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It is a form of social organisation that runs the State, that keeps the State together.

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It is helpful to draw a distinction between cases where an entity is making a claim of statehood from situations where an established State is experiencing problems of governance. In general, the government of a new State will need to show that it effectively controls the territory and population in order to achieve statehood. However, an established State may continue to exist despite major instances of civil war, which may have undermined the degree to which the legitimate government controls the State’s population and territory. What matters is whether the established government retains the capacity to act on behalf of the State in international affairs.

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An established State will not lose its statehood (and thus its international personality) even in the absence of an effective government (e.g. Somalia).

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Traditionally, at least, form of government is irrelevant (yet, concluded international/regional treaties might affect scope of choice!). Traditionally, any type of government is sufficient to meet the conditions of the Montevideo Convention. 

Effective/relatively stable:

Aaland Islands case, International Committee of Jurists, 1920: Finland became a state when ‘a stable political organisation had been created and...the public authorities had become strong enough to assert themselves throughout the territories of the state without the assistance of foreign troops.’ 

Absolute control? (eg, Bosnia an...