Subjects of International Law

Legal Personality

Legal Personality

In every legal system certain entities are considered as possessing “rights” and “duties” enforceable at law

– Exp: an individual may prosecute or may be prosecuted for assault

– A company can sue for breach of a contract Law recognizes these actors as “legal persons”

capacity to have and maintain certain rights + capacity to perform specific duties

In domestic law individuals, companies, institutions, associations, foundations each possesses distinct legal personality

International Legal Personality

This is a “relative phenomenon” changing with circumstances It is participation plus with some community acceptance There are different criteria in determining subjects/persons of int law:

– 1- Capacity to enjoy rights deriving from int law (customary rules)both individuals, states, int org.

– 2- Capacity to make legal transactions at int law level treaties states & int org.

– 3- Capacity to invoke responsibility of others at international level both individuals, states, int org.

– 4- Capacity to be held liable (responsible) for its acts at international level both individuals (int criminal responsibility), states, int org.

– 5- Capacity to ask diplomatic immunities for its representatives both states and int org.

International Legal Personality

Conclusion: States and int org. has int legal personality while individuals have limited international legal personality (passive/subjects) passive in the sense of determining rules of int law

NOT all states and int org has same int legal personality:

– States with limited authority (ROC, Bosnia, Switzerland)– Federal states and their constituent units/capacity to

conclude treaties/sue others before courts (limited personality) dispute in Cyprus

– Int organizations: “Functional legal personality”

International Legal Personality

Int organizations: “Functional legal personality”– int org. enjoy int rights and duties appropriate for

their functions– They are not sovereign “delegated/transferred

powers” rest stays with member states (“residual powers”)

– Powers expressly delegated and powers necessary for the accomplishment of their aims

International Legal Personality

Int organizations: “Functional legal personality”– Some int org. does not have separate legal personality– There must be a “separate and permanent will” of the

organization from the member states: How can we understand?

Treaty or instrument of establishment Capacity to conclude treaties + to establish diplomatic relations Ability to shape their internal organization and to prosecute int

responsibility of others Conclusion: states + int org. + regional org. +

NGOs + to some extent individuals

States and Recognition

Montevideo Convention (1933) Declaratory theory/constitutive theory Difference between recognition and

acknowledgement Criteria for recognition and statehood

– Traditional Criteria:– Permanent population– Defined territory– Government– Capacity to enter into relations with other states

Montevideo Convention (Convention on Rights and Duties of States (inter-American); December 26, 1933)

ARTICLE 1 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.

ARTICLE 2 The federal state shall constitute a sole person in the eyes of

international law. ARTICLE 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.

Recoginition and statehood

Contemporary criteria for statehood:– Independence: “as long as such restrictions do not place the

state under the legal authority of another state” (PCIJ-Anzilotti Opinion)

– Legality: Manchukuo Rhodesia South Africa—Homelands (Bantustants)-Apartheid Doctrine of non-recognition Ex injuria ius non-oritur (illegal acts cannot create law) Iraq occupation and annexation of Kuwait Namibia Case (1971 Advisory opinion of the ICJ)

Contemporary Criteria of statehood

Another criterion:– Claim by that entity

Taiwan’s claim: Claim of that entity to be recognized as what?

– Right to Self-determination: 1991 EC Guidelines on Recognition of New States Normal application of self-determination: De-

colonization Basic principle: Territorial integrity Secession

Contemporary Criteria of statehood

Another important dimension of right to self-determination: (since 1970s) “representative government”

UN General Assembly Resolution-1970 on Principles of International Law

Contemporary Criteria-Statehood

UN Membership:– UN Charter Art. 4/1: “Membership in the United Nations is

open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.”

– 4/2: “The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”

Any obligation to recognize?

There is no such obligation for states in international law (but there is “obligation not to recognize”)– Even if that entity satisfies all criteria– 1992 Yugoslav Arbitration Commission (Badinter

Commission): “Recognition is a discretionary act that other states may perform”

– US Department of State: “international law does not require a state to recognize another entity as a state”

Withdrawal of Recognition

It is possible to withdraw recognition because “unilateral act”

Particularly when we talk about de facto recognition of a government

It is difficult regarding de jure recognized states, but still possible.

Exp: 1979 Recognition of “Peoples Republic of China” and a kind of “derecognition” of Republic of China

Recognition of governments and states

Two different issue Cannot recognize a government without

recognizing that state as a legal person But you can recognize a state without

recognizing its government Recognition of government implies

recognition of its state as well. But not vice versa

Recognition of Governments

There has to be a change of government in an “unconstitutional way”-----otherwise intervention into domestic affairs

There have been different theories about recognition of governments:

– 1- Tobar Doctrine: governments came to power unconstitutionally should not be recognized until accepted by the inhabitants (stability-Central America-referendum results)

– 2- Estrada Doctrine: asks automatic recognition in all circumstances---otherwise against the right to self-determination

– 3- Not to recognize a government: since 1980s---UK policy No longer recognize governments Not to be perceived as approving undemocratic governments Widely accepted state practice is this

De facto and de jure recognition

Both legal acts De facto recognition is different from “implied

recognition” and “acknowledgement” De facto recognition---effective control

– Where the degree of control is uncertain– Where there is some doubt about future of that government– When there is no firm/established control

Therefore---generally when we talk about de facto recognition---this refers to “recognition of governments, not states”

Extinction of Statehood

There are certain acts/events that does not affect “the international legal personality of a state”

– A- occupation or illegal use of force against that state----exp: Kuwait

– B- Change in name/flag/constitution etc.– C- Change in the government or internal uphevals

Exp: When the legal government is overthrown the state does not cease to exist as an international legal personality

Exp: civil war—no government-does not matter

Extinction of Statehood

Extinction takes place only in the following limited cases:– 1- Merger:

Exp: 1990 North and South Yemen Exp: Syria and Egypt Exp: Tanganyika and Zanzibar----Tanzania

– 2- Absorption: Exp: German unification-----GDR ceased to exist---

GDR accession as a Lander to FRG.

Extinction of Statehood

3- Dismemberment– Exp: Dissolution of Czechoslovakia (1993)—it

became extinct– Exp: Soviet Union

Continuing state status of Russian Federation Seat of the Soviet Union as permanent member

– Exp:Socialist Federal Republic of Yugoslavia New Yugoslavia admitted to UN as a new member in

2000

UN official webpage

Czechoslovakia was an original Member of the United Nations from 24 October 1945.In a letter dated 10 December 1992, its Permanent Representative informed the Secretary-General that the Czech and Slovak Federal Republic would cease to exist on 31 December 1992 and that the Czech Republic and the Slovak Republic, as successor States, would apply for membership in the United Nations.Following the receipt of their application, the Security Council, on 8 January 1993, recommended to the General Assembly that the Czech Republic and the Slovak Republic be both admitted to United Nations membership. Both the Czech Republic and the Slovak Republic were thus admitted on 19 January of that year as Member States.

UN Official web page

The Union of Soviet Socialist Republics was an original Member of the United Nations from 24 October 1945.In a letter dated 24 December 1991, Boris Yeltsin, the President of the Russian Federation, informed the Secretary-General that the membership of the Soviet Union in the Security Council and all other United Nations organs was being continued by the Russian Federation with the support of the 11 member countries of the Commonwealth of Independent States.

UN Official web page The Socialist Federal Republic of Yugoslavia was an original Member of the United Nations, the Charter

having been signed on its behalf on 26 June 1945 and ratified 19 October 1945, until its dissolution following the establishment and subsequent admission as new Members of Bosnia and Herzegovina, the Republic of Croatia, the Republic of Slovenia, The former Yugoslav Republic of Macedonia, and the Federal Republic of Yugoslavia.The Republic of Bosnia and Herzegovina was admitted as a Member of the United Nations by General Assembly resolution A/RES/46/237 of 22 May 1992.The Republic of Croatia was admitted as a Member of the United Nations by General Assembly resolution A/RES/46/238 of 22 May 1992.The Republic of Slovenia was admitted as a Member of the United Nations by General Assembly resolution A/RES/46/236 of 22 May 1992.By resolution A/RES/47/225 of 8 April 1993, the General Assembly decided to admit as a Member of the United Nations the State being provisionally referred to for all purposes within the United Nations as "The former Yugoslav Republic of Macedonia" pending settlement of the difference that had arisen over its name.The Federal Republic of Yugoslavia was admitted as a Member of the United Nations by General Assembly resolution A/RES/55/12 of 1 November 2000.On 4 February 2003, following the adoption and promulgation of the Constitutional Charter of Serbia and Montenegro by the Assembly of the Federal Republic of Yugoslavia, the official name of " Federal Republic of Yugoslavia" was changed to Serbia and Montenegro.In a letter dated 3 June 2006, the President of the Republic of Serbia informed the Secretary-General that the membership of Serbia and Montenegro was being continued by the Republic of Serbia, following Montenegro's declaration of independence

Different categories of persons

Palestinian Authority degree of int personality– Treaties/agreements with EU, other states and UN– Sends/receives diplomatic representatives– Recent discussion at ICC (prosecutor)– Recent discussion at UNESCO

Protectorates another state assumes responsibility for foreign affairs of another state/territory 1952 Rights of US Nationals in Morocco ICJ (US v. France)

– Morocco had not lost its int personality– Same for “mandated territories” and “territories under

trusteeship” they had special type of personality

Int. Organizations

Increasing role of int organizations in int politics

Level of personality may change, depending on objectives (aims) of organization & constitutional document of that organization

It is not a personality for all purposes “functional personality”

1949 Reparations Case-ICJ

What is the importance of this case? Question: Capacity of the UN to bring an

international claim against the responsible government of a non member state to enable the Secretary General to obtain reparation for injuries suffered by the agents of the organization

The Court did not answer and asked another question to itself: “does the organization possess int personality?”

1949 Reparations Case

“Subjects of law are not identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community”

The Court referred principles and purposes of the UN and said “to achive these ends the attribution of international legal personality is indispensable”

1949 Reparations Case

1949 Reparations Case (ICJ) Advisory opinion by the ICJ on “reparation for injuries suffered in the services of the UN”

– Functions and rights conferred to UN necessarily implied the attribution of int personality to this organization.

– Problem of defining int organization: No definition in Conventions See next page for definitions It must be able to express its own will separate from

members through common organs and must have the capacity to act on its own behalf.

EU & OAS has separate capacity to act to achieve their purposes

Definition of int organization

“A collectivity of states established by treaty, with a constitution and common organs, having a personality distinct from that of its member-states and being a subject of international law with treaty-making capacity”

“An entity which has been set up by means of a treaty concluded by states to engage in co-operation in a particular field and which has its own organs that are responsible for engaging in independent activities”

Individuals

Capacity to be held liable at int level (International criminal responisibility of individuals)

– Piracy High sea– War crimes & crimes against peace & crimes against humanity– 1945 Nurenberg Court + Tokyo Court– 2002 ICC through int convention– 1993 Former Yogoslavia + 1994 Rwanda + 2002 Sierra Leone

through UN Security Council Resolutions Capacity to invoke int responsibility of others

– Human rights courts (ECtHR)– Human rights commissions (ECHR)– International Covenant on Civil and Pol Rights (Optional Protocol)