The Subjects of International Law

Legal Personality
or
International Personality
IR303 – International Law
Tuğba Bayar
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Legal Personality

In municipal law:

• individuals,
• companies
• public corporations

are legal entities.

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• In international law:

Rights and duties afforded under the international system

determine who the subjects are.
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• A subject of international law is

1. an individual, body or entity;

2. recognized or accepted;
3. as being capable of possessing and exercising;
4. rights and duties;
5. under international law.
(Dixon)
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HOW DO WE DETERMINE IF AN ENTITY IS A SUBJECT OF

INTERNATIONAL LAW?

An entity is a subject of international law if it has “international legal

personality”. In other words, subjects must have rights, powers and duties
under international law and they should be able to exercise those rights,
powers and duties. The rights, powers and duties of different subjects
change according to their status and functions. For example, an individual
has the right of freedom from torture under international law and states
have a duty under international law not to torture individuals or to send
them to a country, where there is a likelihood of that person being
tortured. This right is a right under treaty law, for example, the
International Covenant on Civil and Political Rights and under customary
international law. The Convention against Torture and Cruel, Inhuman and
Degrading Treatment places obligations on States not to torture and to
extradite or prosecute those who torture.
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- Legal personality also includes the capacity to enforce one’s

own rights and to compel other subjects to perform their duties
under international law. For example, this means that a subject
of international law should be able to:
(1) bring claims before international and national courts and
tribunals to enforce their rights, for example, the International
Court of Justice;
(2) have the ability or power to come into agreements that are
binding under international law, for example, treaties;
(3) enjoy immunity from the jurisdiction of foreign courts; for
example, immunity for acts of state;
(4) be subject to obligations under international law.
(Dixon)
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Q: Who are the subjects of IL?

States & IOs

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Q: How about non-state actors?

Non-state actors, such as multinational corporations, insurgent or

terrorist groups, or leading charitable or issue-oriented organizations
(NGOs), have sometimes become more influential and powerful than
States.
In spite of this evolution, these actors remain largely outside the field of
international law. They have no, or very few, formal rights of participation,
and they are generally not considered to be internationally accountable
for their actions. Under the current system, non-State actors depend on
States to defend their interests, and they are only accountable for
their transgressions at the level of the State. The system does not
seem to contemplate the situation where non-State actors may have their
own interests that can hardly be defended by States and that in many
parts of the world the power of the State is weak or even non-existent.
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Q:
What are the criteria of statehood?
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• Terrae nullius are no longer apparent. All

territories are owned by certain states.
• Decolonization process ended.
• USSR, Yugoslavia, Czechoslovakia broke up.
• We define states acc. to the Montevideo
Conv. And ‘91Yugoslavia Arbitation
Commission.
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The Montevideo Convention on Rights and

Duties of States (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.
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Arbitration Commission of the Peace

Conference on Yugoslavia (1991)
• The Commission considers: (Opinion #1):

«the existence or disappearance of the state is a

question of fact; … that the state is commonly
defined as a community which consists of a territory
and a population, subject to an organized political
authority; that such a state is characterized by
sovereignty»
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• Population:

A certain
minimum # of
inhabitants is
not necessary.

E.g. Nauru,
Tuvalu
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• A simple population is not enough for

forming a state. Those people have to
have the ability to realize formation of
a representation that will govern the
state and represent that state in their
foreign relations.
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• Territory
No need for defined borders.
The size of the territory does not matter.
A consistent band of territory is
necessary.
E.g. Israel
• A state is composed of soil, air and sea
territories
• A geographical unity is not sought.
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A state can
be
composed
of one
mainland
and islands
(i.e.Greece)
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 A state can
be spread
among
continents
(i.e.Turkey
)
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 A state can be
composed of
multiple
islands (Japan,
Indonesia)
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 A state can be composed of multiple mainlands where

foreign states are situated in between. (i.e. USA/Alaska)
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• Acquisition of territory can only be done by

adoption of terra nullius or territory of another
sovereign state.
• No terra nullius left today. It was possible till
15th-16th centuries.
• By 16th till 19th Centuries, territory could be
acquired by discoveries.
• By 19th Century could be acquired by
occupation. Conquest was a legitimate way,
as well.
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• A form of government / a central control

Sophisticated net of legislative and executive are not

sought. Any kind of governance is acceptable.

• E.g.
Croatia
Bosnia & Herzegovina

• States under mandate cannot become sovereign states,

since they cannot govern themselves independently.
• A public administration network is strictly necessary.
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• Sovereignty and independence are

integrated elements of having a
government.
• Otherwise, municipalities could also
become states.
• According to its nature, state is never
dependent on another authority than itself.
This is sovereignty by definition.
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• The first natural result of the sovereignty of each

and every state is, all states are equal.
(=sovereign equality of states)
• The second natural result of the sovereignty of
each and every state is, principle of non-
intervention. (States do not intervene domestic
affairs of each other)
• The third natural result of the sovereignty of each
and every state is, permanent sovereignty over
natural resources. (A reaction to former
colonies)
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The Legal Right to Self-Determination

• This principle was invoked on many occasions during
World War II.
• Proclaimed in the Atlantic Charter (1941):
«no territorial changes that do not accord with the freely
expressed wishes of the peoples concerned» (Principle
2), «the right of all peoples to choose the form of
government under which they will live» (Principle 3)
«sovereign rights and self-government restored to those
who have been forcibly deprived of them» (Principle 3).
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Definition:
• Self determination means having the right to
decide on which state to belong to; or to decide
on to establish own state.
• For a newly formed state, the basis of relation of
the constituent state and the public is the self-
determination principle.
• Decolonisation is the main motive of self-
determination.
• The usage of self determination depends on
certain conditions.
• It is NOT an UNLIMITED right.
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1. If terrae nullius is found.

2. Cannot work against sovereignty of another state.
3. Possible, if consent of the central government of
the sovereign state is obtained.
4. Must respect territorial integrity of sovereign
states. This principle is also approved by the UN
Charter (§2/4.) It cannot function as secession.
(Deintegration of a state!)
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RECOGNITION
• Necessary for the creation of the
statehood.
• A state comes into being under
international law via ‘recognition’.
• Evidence = a state satisfies the criteria to
become a state
• A political act, not a legal act.
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EUROPEAN COMMUNITY:
THE GUIDELINES ON THERECOGNITION OF NEW
STATES. [December 16, 1991].
• The political need to take action in both the
Yugoslav and the Soviet Union situations was
mounting.
• On 16 December 1991, the EC Foreign
Ministers meeting in Brussels issued a
'Declaration on the Guidelines on the
Recognition of the New States in Eastern
Europe and in the Soviet Union‘.
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The Guidelines list the following requirements:

- 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
- 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 -
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.
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The Role of the Trusteeship Council

• Art. 76 (b) UN Charter :

one of the basic objectives of the

trusteeship system is to promote the
‘progressive development’ of the
inhabitants of the trust territories towards
‘self-government or independence’
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Extinction of Statehood
• Merger
• Absorption
• Annexation

• With Consent
• Without Consent
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• 1990  North and South Yemen

Unification
• 1990  German reunification
(East Germany + Federal Germany)
• 1993  Czechoslovakia Dissolution :
self-determined split
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The Fundamental Rights of the

States
• Independence
• Equality
• Peaceful Co-existence
• Protectorates and Protected States
• Federal States
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Protectorate and protected states

Protectorate:
• Agreement
• NO separate statehood
• Separate legal personality may be involved
• Affording extensive functions internally/externally

• (Morocco – France / Morocco as a sov. stt.)

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Federal States
• 2 levels of organization 1.federation/member state; 2.the federal
state (the central authority)
• There are various forms of federation or confederation, according
to the relative distribution of power between the central and local
organs.
• The federal state will itself, have personality, but the question of the
personality and capability of the component units of the federation
on the international plane can really only be determined in the light
of the constitution of the state concerned and state practice.
• Degree of autonomy  Federated state
• Constitution
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Sui Generis Territorial Entities

• Mandates & Trust Territories
• Germany 1945
• Condominium
• International Territories
• Holy See (Vatican)
• Taiwan
• North Cyprus
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Mandates & Trust Territories

After the end of the WW-I
Decolonization
successors of the remaining League of Nations
mandates
UN Trusteeship Council
i.e. Pacific Islands, Togo, Tanzania, Somalia etc.
The Mandate for Syria and the Lebanon
(1923−1946)
The Kingdom of Iraq under British Administration
(1914-1932.)
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Germany 1945
With the defeat of Germany on 5 June 1945
Germany was divided into four occupation
zones with four-power control over Berlin
The Soviet Union, the UK, the US and France.
The state of Germany continued, however, the
legal representation was the matter.
Under the 1952 Treaty between the three
Western powers and the Federal Republic
of Germany, full sovereign powers were
granted to the latter subject to retained
powers concerning the making of a peace
treaty, and in 1972 the Federal Republic
of Germany (West Germany) and the
German Democratic Republic (East
Germany) established in 1954 by the
Soviet Union in its zone, recognised each
other as sovereign states
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Condominium
In this instance
two or more
states equally
exercise
sovereignty
with respect
to a territory
and its
inhabitants.
i.e. Central
America
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International Territories
A particular territory is placed under a form of international
regime
The UN is able to assume the administration of territories
in specific circumstances.
Attempts were made to create such a regime for
Jerusalem under the General Assembly partition
resolution for Palestine in 1947 as a ‘corpus separatum’
under a special international regime administered by
the UN (but this never materialised for a number of
reasons)
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Taiwan
De facto state
Recognized by 23 states
China assumes itself as the mainland of
Taiwan
Taiwan assumes itself as a sovereign
state
(China  Japan  allies / US)
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Cyprus (TRNC)
• In 1974, following a coup in Cyprus backed by the military
regime in Greece, Turkish forces landed in the island.
• The Security Council (in resolution 353/1974) called upon
all states to respect the sovereignty, independence and
territorial integrity of Cyprus and demanded an immediate
end to foreign military intervention in the island.
• 83 – TRNC proclaimed independence
• SC named it illegal/call for withdrawal
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• On 15 November 1983, the Turkish Cypriots proclaimed

their independence as the ‘Turkish Republic of Northern
Cyprus’.
• This was declared illegal by the UNSC (in resolution
541/1983) and its withdrawal called for.
• All states were requested not to recognise the ‘purported
state’ or assist it in any way
• the international community does not recognise the TRNC
• very heavy dependence of the territory upon Turkey.
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Palestine
• PLO – Palestine
• 2012 Non member observer state
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Holy See and Vatican City

• No permanent population
• Diplomatic relns
• Enters into treaties
• Organizational authority of the catholic
church