UNIT – 5

STATEHOOD AND RECOGNITION

Subjects of international law: Individuals, States; International Organizations; Non State

Definition and Incidence of Statehood; Rights and Duties of States; Recognition – Theories,
Modes, Effects of Recognition

SUBJECTS OF INTERNATIONAL LAW

A subject of international law is an entity possessing international rights and obligations and
having the capacity

(a) to maintain its rights by bringing international claims; and

(b) to be responsible for its breaches of obligation by being subjected to such claims.

THEORIES OF SUBJECTS UNDER PUBLIC INTERNATIONAL LAW

● Realist theory - States

● Fictional theory - Individuals

● Functional theory – States and individuals

REALIST THEORY

Traditional theory supported by Corbett. States alone are the subjects of the International Law.
States are subjects of International Law. Individual people are objects of it. Individuals lack
judicial personality under International Law because they do not have rights or duties under it.

FICTIONAL THEORY

Kelsen and Westlake supports this theory. League of Nations supports this theory. Universal
Declaration of Human Rights, Convention on the Settlement of Investment Disputes between
States and Nationals of other States etc. are examples for the recognition of individuals in
international law.

FUNCTIONAL THEORY

This is a modern theory and coordinates the prior two theories. According to this, legal
functionality is given to those who have the capability to perform legal functions internationally.
States, individuals and international organisations are subjects of public international law.
 STATES AS SUBJECT OF INTERNATIONAL LAW

States are the original and major subjects of International Law. International Law is primarily
concerned with the rights, duties and interests of States. The moment an entity becomes a State
(once a state gets statehood), it becomes an international legal person and acquires
international legal personality. States are the original subjects of international law – i.e.
international law was created to regulate relations between States.

When a state attains STATEHOOD?

Article 1 of Montevideo Convention on Rights and Duties of States, 1933

1. A permanent population - no specific number

2. A defined territory – no minimum sq.kms

3. Government

4. Capacity to enter into relations with other states.

INDIVIDUALS AS A SUBJECT OF PUBLIC INTERNATIONAL LAW

Fictional Theory – objective of PIL is to serve humans.

Treaty of Versailles, 1919 – Article 304 (b)

○ Individuals of Allied and associated powers can bring in cases against Germany before
Mixed Arbitration Tribunal.

Case law- Danzig Railway Employees case

● Case

● Danzig Railway Officials case

● Facts

There was a treaty between Poland and Danzig regarding the conditions of employment of
railway officials. Danzig citizens had to pass Polish civil service to take up the employment for
Danzig Railways. There was a breach in the treaty by Poland and the breach resulted in the
pecuniary damage to the railway officials of Danzig. So, Danzig railway officials filed case against
Poland before PCIJ.
 ● Contentions of Poland

In case of breach of treaty by Poland, it is liable only to Danzig as a State and not to its officials.
Agreement is entered between Poland and Danzig. So, railway officials of Danzig have no locus
standi to file a case.

 Decision of the Court

But the Court held that, the agreement intended to create legal rights which could be
enforced by the private citizens as well.

INTERNATIONAL ORGANISATIONS AS A SUBJECT OF INTERNATIONAL LAW

● International organizations

● Reparation case (case summary already given)

NON STATE ACTORS AS A SUBJECT OF INTERNATIONAL LAW

● Inter-Governmental organisation

○ FAO

○ ILO

○ WIPO

● MNC

● International NGO

○ Amnesty international

○ Red Cross

(explain these institutions in few sentences)

SUI GENERIS SYSTEM – alike institutions also should be granted legal personality.
STATEHOOD

Article 1 of Montevideo Convention on Rights and Duties of States, 1933

1. A permanent population - no specific number

2. A defined territory – no minimum sq.kms

3. Government

4. Capacity to enter into relations with other states.

A state obtains legal capacity to enter into legal relations with other countries upon recognition.

TYPES OF RECONITION

De Jure Recognition – cannot be withdrawn

De facto recognition – can be withdrawn

De jure recognition is given only when a State has the attributes of statehood that are given
under Article 1 of Montevideo Convention on Rights and Duties of States, 1933 whereas de facto
recognition is granted only on conditional basis. Upon fulfilment of stipulated conditions, de jure
recognition is granted. If the state is unable to meet the conditions stipulated, then the de facto
recognition may be withdrawn. In other words, de facto recognition may be granted when not
all the attributes of statehood are met and if all the attributes are fulfilled, then de jure
recognition may be granted but failing to fulfil the requirements might result in the withdrawl of
de facto recognition.

● TYPES OF RECOGNITION

● De jure recognition - cannot be withdrawn

● De facto recognition – can be withdrawn.

Functions of formal recognition: (need of recognition)

1. Acceptance as a state

2. Establishment of legal relations

How can a State recognise other state? (modes of recognition)

1. Implied/tacit recognition

Exchange of diplomats

Entering into treaty

Is a State bound to recognise?

NO. Recognition is a political act and there is no legal duty for a state to recognise.

LAW GOVERNING RECOGNITION

● Montevideo Convention, 1933

● ARTICLE 3 - The political existence of the state is independent of recognition by the other states.

● ARTICLE 6 - The recognition of a state merely signifies that the state which recognizes it accepts
the personality of the other with all the rights and duties determined by international law.
Recognition is unconditional and irrevocable.

● ARTICLE 7 - The recognition of a state may be express or tacit. The latter result from any act
which implies the intention of recognizing the new state.

● ARTICLE 8 - No state has the right to intervene in the internal or external affairs of another.

RIGHTS AND DUTIES OF STATE

● DRAFT DECLARATION ON RIGHTS AND DUTIES OF STATES, 1949

● RIGHTS OF THE STATE

● Article 1 – Right to Independence

Every State has the right to independence and hence to exercise freely, without
dictation by any other State, all its legal powers, including the choice of its own form of
government.

● Article 2 – Jurisdiction

Every State has the right to exercise jurisdiction over its territory and over all persons
and things therein, subject to the immunities recognized by international law.

Article 3 – Policy of non -intervention

Every State has the duty to refrain from intervention in the internal or external affairs of
any other State.
● Article 4 – refrain from fomenting

Every State has the duty to refrain from fomenting (inciting) civil strife in the territory of
another State, and to prevent the organization within its territory of activities calculated to foment
such civil strife.

● Article 5 – Equality

Every State has the right to equality in law with every other State.

● DUTIES OF STATES

● Article 6 - Every State has the duty to treat all persons under its jurisdiction with respect for
human rights and fundamental freedoms, without distinction as to race, sex, language, or
religion.

● Article 7 - Every State has the duty to ensure that conditions prevailing in its territory do not
menace international peace and order.

● Article 8 - Every State has the duty to settle its disputes with other States by peaceful means in
such a manner that international peace and security, and justice, are not endangered.

● Article 9 - Every State has the duty to refrain from resorting to war as an instrument of national
policy, and to refrain from the threat or use of force against the territorial integrity or political
independence of another State, or in any other manner inconsistent with international law and
order.

● Article 10 - Every State has the duty to refrain from giving assistance to any State which is acting
in violation of article 9, or against which the United Nations is taking preventive or enforcement
action.

● Article 11 - Every State has the duty to refrain from recognizing any territorial acquisition by
another State acting in violation of article 9.

● Article 12 - Every State has the right of individual or collective self-defence against armed attack.

● Article 13 - Every State has the duty to carry out in good faith its obligations arising from treaties
and other sources of international law, and it may not invoke provisions in its constitution or its
laws as an excuse for failure to perform this duty.

● Article 14 - Every State has the duty to conduct its relations with other States in accordance with
international law and with the principle that the sovereignty of each State is subject to the
supremacy of international law.
 RECOGNITION OF INSURGENCY AND BELLIGERENCY

● INSURGENCY

Insurgency means rebellion, riot or mutiny by portion of the citizens of a State against
the established government. It indicates armed struggle by dissident forces against the
established government in a state.

The Conditions for recognition of insurgents

Some essential conditions for recognition of insurgency can be listed as follows:

a) The insurgents need to have control over a considerable part of the territory;

b) Most of the people living in the territory must support the rebels for their own accord and
not as a result of the enforcement actions taken by the insurgents;

c) The insurgents must be able and willing to comply with international obligations.

● Belligerency

On the other hand 'Belligerent signifies a stage of the civil war in which there are two
contenders for power that can be placed on a platform and there is something like a state of war,
and not only civil conflicts.

The Conditions for Recognition of belligerency are as follows:

1) There should exist within the state a status of armed conflict

2) The belligerents must administer and occupy a major portion of national territory

3) The hostilities must be conducted in accordance with the rules of war and through organized
armed forces acting under a responsible authority.

LEGAL CONSEQUENCES OF RECOGNITION TO THE BELLIGRENTS

1. One of the legal consequences of the recognition is that the laws and customs of war can
be applied to the insurgents or belligerents and the legitimate government. It includes
Protection of civilians against internal armed conflicts and Provision of rights to the belligerent’s
soldiers against each other.

2. The protection and security of civilians against internal armed conflicts is dealt by the
Additional Protocol II to the Geneva Conventions of 1949, of 1977. This convention sets
standard regulations prohibiting the belligerents of intentionally causing civilian casualties on
the other side.
3. Using poisoned weapons on arms as projectiles that cause suffering are prohibited.

4. The belligerents can have bilateral trade with the recognizing state

5 .The belligerents can enter into treaties with the recognizing state.

6. A recognized belligerent state becomes entitled to sue in courts of the recognised state.