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
 States as Subjects of International Law
Declaratory Theory
The 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.
 States as Subjects of International Law
Declaratory Theory
If entity meets criteria of statehood, immediately
enjoys rights and duties as a state States can exist
without recognition.
• Recognition is merely declaratory
• Most nations support this theory
 States as Subjects of International Law
Declarative 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.
 States as Subjects of International Law
The Criteria
a) 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.
 States as Subjects of International Law
The Criteria
c) 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 Law
Constitutive Theory
Act of recognition confers international personality
Recognition is an element of statehood
If 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.
 States as Subjects of International Law
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.
 States as Subjects of International Law
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
 States as Subjects of International Law
Collective Recognition
Recognition 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 Law
As 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 Law
Who Decides What is a State
Other States
Restatement (Third) 201

U.S. President
Const. Art. II, implied by the authority to receive
Ambassadors
 States as Subjects of International Law
Duty to Recognize
The general rule is no duty exist to recognize another
state.

Duty to Not Recognize

A state has not satisfied the criteria of statehood
Existence of an entity violates fundamental principles
of law, e.g., a state formed out of aggression.
 States as Subjects of International Law
Recognition of Government
Formal 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.
 States as Subjects of International Law
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.
 States as Subjects of International Law

Examples of States with limited recognition

Republic of China (Taiwan)
State of Palestine
Israel
Republic of Kosovo
 Subjects of International Law
Traditionally, 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.

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 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.
 International Legal Personality
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 Personality
United 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.
 International Legal Personality
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 Personality
Individuals
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)
 International Legal Personality
Individuals
Historically, 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.
 International Legal Personality
Individuals
The 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.
 International Legal Personality

Individuals
Individuals 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; and
Other crimes such as war crimes, crimes against
humanity, and torture.