subjects of international law. states as subjects of international law "under international...

Subjects of International Law

States as Subjects of International Law

"Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities."

The Restatement (Third) of Foreign Relations


Declaratory TheoryThe proposition that a state has capacity (and personality)

in international law as soon as it exists in fact (that is, when it becomes competent in municipal law). This capacity is generated spontaneously from the assertion by the community that it is a judicial entity. When socially organized, the new state is internally legally organized, and hence competent to act in such a way as to engage itself in international responsibility. Thus, according to this theory, recognition does not create any state that did not already exist.


Declaratory TheoryIf entity meets criteria of statehood, immediately enjoys rights and duties as a state States can existwithout recognition.• Recognition is merely declaratory • Most nations support this theory

States as Subjects of International LawDeclarative theory defines a state as a person in

international law if it meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a government and; 4) a capacity to enter into relations with other states. According to declarative theory, an entity's statehood is independent of its recognition by other states. The declarative model was most famously expressed in the 1933 Montevideo Convention, and is recognized in OAS Charter, and is part of the Restatement (Third) of Foreign Relations.


The Criteriaa) a permanent population; there must be some people

to establish the existence of a State but there is not a specification of a minimum number of people and again there is not a requirement that all of the people be national of the state.

b) territory; the second qualification is territory where the permanent population live on. However, there is not a necessity of having well- established boundaries.


The Criteriac) government; A State requires a government that

functions as a political body within the law of the land. But it is not a condition precedent for recognition as an independent State.

d) capacity to enter into relations with other states; the fourth and last qualification is about independency, in other words independence is indicated by the criterion of capacity to enter into relations with other states.

States as Subjects of International LawConstitutive Theory Act of recognition confers international personalityRecognition is an element of statehoodIf there is no recognition: no rights and/or duties.

The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognized as sovereign by other states.

Problems arise when some states recognize a new entity, but other states do not. While a state has no obligation, many states may only recognize another state if it is to their advantage.


The constitutive theory asserts that States and governments do not legally exist until recognized by the international community and the declaratory theory adopts that States and governments gain in the international personality when they come into existence.


In 1971 the International Law Commission stated that collective recognition “means that States act collectively during the process of receiving information of the situation, evaluating that information and reaching a decision, and communicating that decision.”

• Survey of international law - Working Paper prepared by the Secretary-General in the light of the decision of the Commission to review its program of work” Extract from the Yearbook of the International Law Commission:-1971, vol. II(2), p.18


Collective RecognitionRecognition has a political side, in practice the States

prefer a middle way between these two doctrine; in addition to classic qualifications to seek some basic requirements of international law for recognition.

In the past, it was sufficient for a new State to fulfill the four criteria. In 1930s some States also looked for that a new State must obey some fundamental standards of the international community.

States as Subjects of International LawAs an example for recent times, in the European

Communities Declaration on the "Guidelines on the Recognition of new States in Eastern Europe and the Soviet Union" it is indicated that “The Community and its member States adopt a common position on the process of recognition of these new States, which requires:

- respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights;

States as Subjects of International Law- guarantees for the rights of ethnic and national

groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE

- - respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement;

States as Subjects of International Law- acceptance of all relevant commitments with regard

to disarmament and nuclear non-proliferation as well as to security and regional stability;

- commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes.

The Community and its member States will not recognize entities which are the result of aggression.”

States as Subjects of International LawWho Decides What is a State

Other StatesRestatement (Third) 201

U.S. PresidentConst. Art. II, implied by the authority to receive

Ambassadors

States as Subjects of International LawDuty to RecognizeThe general rule is no duty exist to recognize another

state.

Duty to Not RecognizeA state has not satisfied the criteria of statehoodExistence of an entity violates fundamental principles

of law, e.g., a state formed out of aggression.

States as Subjects of International LawRecognition of GovernmentFormal acknowledgment that a particular regime is the

effective government of the state.No International agreed guidelines.

Questions of a new government arise?A new government assumes power in a manner that

violates domestic law.Recognition involves a mix of international law and

politics.


Problems or issues may arise when a new government comes to power by illegal means, such as a coup d'etat, or when an existing government stays in power by fixing an election.

States once formally recognized both the government of a state and the state itself, but there may be a split in recognition statehood but not a government.


Examples of States with limited recognitionRepublic of China (Taiwan)State of PalestineIsraelRepublic of Kosovo

Subjects of International LawTraditionally, international law had states as its sole

subjects. With the rise in the number of international organizations after the Second World War, they have been recognized as its subjects as well.

Other developments in international human rights law, international humanitarian law and international trade law led to individuals and corporations being subjects of international law.

http://www.internationallawhelp.com/links_page.htm

Subjects of International Law

Fifty years ago it was generally admitted that “ States are the only legal persons of international law”, but today conception is rather different, the participants can be regarded as; states, non-state actors, international organizations, regional organizations, non-governmental organizations (NGO), public companies, private companies and individuals.

International Legal Personality

International legal personality infers rights and duties governed by international law.

International Organizations can make and enter into treaties.

Nongovernmental organizations are recognized under international law.


The United Nations exercise privileges and immunities without comparable obligations demonstrates the inequity of applying standards based on status, rather than function. Although the United Nations is not beholden to the same human rights standards as States, it enjoys many of the benefits given to States, such as privileges and immunities.

International Legal PersonalityUnited Nations

UN Charter, Art. 104 notes the organizations legal capacity:

The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.


UN Charter, Art. 105 notes the organizations privileges and immunities:

1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.

2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.

International Legal PersonalityIndividuals

The UN Charter repeatedly states the organization’s commitment to human rights and social justice. In several provisions, the Charter reiterates the need for awareness and respect for human rights. In its preamble, the UN Charter clarifies that part of its purpose is "to reaffirm faith in fundamental human rights" and "to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained." (the preamble is not binding)


IndividualsHistorically, individuals were not subjects of

international law until after the Second World War. State sovereignty gave way to international law recognizing basic human rights.

States are reluctant to recognize individual rights outside their national legal systems. Norms of international law are expressed in treaties that states have agreed to recognize when ratifying agreements as members of an organization.


IndividualsThe general rule is that individuals do not have

standing or access to file complaints in international courts or tribunals.

An exception to the general rule is based on a treaty provision that recognizes the right of an individual to appear before an international court.


IndividualsIndividuals are subject to compliance with international

law. Someone who commits an international crime can be punished in accord with international law. These crimes include:

Piracy;Slave-trading;Genocide; andOther crimes such as war crimes, crimes against

humanity, and torture.

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