Subjects of IL

Question 1

Who are subjects in international law?

Answer 1

Subjects of international law are those entities that the law regards as possessing rights and duties enforceable by law
- Think in domestic terms: we (humans) and corporations (Leiden University) can enter into contracts and have duties, but not (say) pigs or trees

Question 2

What two variants does international legal personality exist in?

Answer 2

• Objective personality
• Qualified personality

Question 3

What is objective personality?

Answer 3

If an entity has objective personality, it is subject to a wide range of international rights and duties and it will be entitled to be accepted as an international person by any other international person with which it is conducting relations (erga omnes)

Question 4

What is qualified personality?

Answer 4

If an entity has qualified personality, it only has legal personality insofar another entity with legal personality accepts is as having legal personality

Question 5

What is the main subject of international law?

Answer 5

States have traditionally been, and remain, the main subjects of international law, as well as by far the most important
- “The orthodox positivist doctrine has been explicit in the affirmation that only states are subjects of international law (Lauterpacht)

Question 6

What example contradicts the idea that states are the only subjects of international law?

Answer 6

• States being the only subjects of international law is no longer true today, and perhaps was not true even in the heyday of classical positivism (cf. Vatican before the Lateran Treaty)
  – The Vatican was not recognized as a state but nonetheless was a subject of international law

Question 7

What type of legal personality do states have?

Answer 7

States have objective legal personalities (broadest type of legal personality)

Question 8

Definitions of a state as stated in the 1933 Montevideo Convention

Answer 8

The state as a person of international law should possess the following qualifications:
- A permanent population
- A defined territory
- Government
- Capacity to enter into relations with the other states

Question 9

A permanent population (Montevideo Convention)

Answer 9

• Population as requirement for statehood underlines the ultimate object of a state as an organized community of people
• No threshold requirements
  – Vatican city (c. 800)
  – San Marino (c. 33,000)
  – Not even of citizenship requirements (cf. Monaco)
• Permanent: no voluntary associations of robbers and pirates nor unsettled hordes (Wheat, 1866)

Question 10

A defined territory (Montevideo Convention)

Answer 10

• Size has no particular threshold - Vatican, Nauru
• The existence of territorial conflict/boundary dispute does not affect statehood, as long as there is a stable community within a piece of territory which is undeniably controlled by the government of putative the state

Question 11

Government (Montevideo Convention)

Answer 11

• A low bar - doesn’t have to be good, doesn’t even have to be democratic
• In the case of entities in the process of achieving self-determination, not even that very low bar has to be cleared
  – cf. Congo, Guine-Bissau
  – When Guinea-Bissau became a member of the UN it did not have a government, permanent population, or defined territory, yet it still go membership with the hope that Portugal would leave at some point
• International law now takes a broader view than the Weberian one (monopoly on legitimate use of force)

Question 12

Capacity to enter into relations with the other states (Montevideo Convention)

Answer 12

• Is this tautological? After all, an entity cannot enter into state-to-state relations unless it is a state
• A view is that this refers to recognition
• Alternatively it refers to legal capacity - the Kingdom of the Netherlands has capacity to enter into such relations whereas Zuid-Holland does not

Question 13

Legitimacy in relation to statehood

Answer 13

• A state will not be recognized unless it developed toward statehood in a way consistent with self-determination and ius cogens
• For instance an entity born out of an international illegal act (aggression: Northern Cyprus; Apartheid/white minority rule: the South African Bantustans/Rhodesia) cannot and will not be recognized despite its fulfillment of the four criteria
• Conversely an entity which is seen as the vehicle of legitimate self-determination will be recognized as state even when it lacks some of the essential elements of statehood
• DR Congo achieved recognition as state at a time when it had minimal government
• Guinea-Bissau achieved recognition when it was still a Portuguese colony

Question 14

Constitutive theory of statehood

Answer 14

Some said recognition by other states was a constitutive element of statehood (constitutive theory of statehood)
- You only become a state once enough states recognize you

Question 15

Two perspectives/theories on state recognition

Answer 15

• Constitutive theory of statehood
• Declaratory theory of statehood

Question 16

Declaratory theory of statehood

Answer 16

Some maintained that statehood was a fact and that recognition merely acknowledged the fact
- If you meet all the criteria you are a state and recognition is simply accepting this fact

Question 17

Which view of statehood is generally accepted?

Answer 17

Montevideo Convention sided with the declarative view: Today declaratory view is generally accepted

Question 18

What is the effect of recognition being both political and legal

Answer 18

In practice, recognition is political as well as legal, with the attendant consequences
- You can have relations with political entities even if they are not recognized states (Taiwan)
- A country can be recognized and not care, ie. not sending diplomats (Bhutan)
– Careful: diplomatic relations and state recognition are not synonymous

Question 19

Sample case of political entities not recognized as states: Taiwan

Answer 19

• The Republic of China government retreated to the island of Taiwan in 1949, in the face of Communist advances
• The Communists subsequently proclaimed the People’s Republic of China, while the government on Taiwan continued to maintain its claim to be the government of the whole of China
• Today the ROC has diplomatic relations and recognition with 13(/11?) states
• Neither the PRC nor the ROC will maintain diplomatic relations with any state that recognizes the other

Question 20

Is the Republic of China / Taiwan a state?

Answer 20

• They have all the requirements of the Montevideo Conventions
• But can you really say they meet Article 1(d) if most countries don’t recognize you, even if countries have quasi-relations with Taiwan
• One lawyer said Taiwan is clearly not a state as they are claiming (mainland) China, which they clearly don’t govern
• Taiwan says they don’t need to claim independence as they already have independence as the Republic of China, but at what point in its development did it go from being (all of) China to being the Republic of China
  – Everyone fudges the recognition to avoid WW3

Question 21

Sample case of political entities not recognized as states: Kosovo

Answer 21

• Unilaterally declared its independence in 2008
  – Serbia did not agree to this, generally in IL it is agreed that you can secede if the country you are in allows you to secede
• ICJ dodged the question of the legality of its independence
  – They said there is nothing in IL to prevent a group of people sending out a press release that they are independence, it’s not illegal so there’s no case to answer, another fudge
• Today 101 out of the 193 UN members recognize it as a state - so is it a state?
  – If you recognize Kosovo as a state then you have to deal with it as a state

Question 22

Sui generis (of its own kind) cases: Sovereign Military Order of Malta (SMOM)

Answer 22

• Roman Catholic order of crusaders expelled from Malta by Napoleon in 1798
  – A knighthood who escaped to Malta and then later Napoleon overthrows them since they are so weak, then Lord Nelson took Malta for the British until the 1950s
  – Rome gave the escaped Maltese people a castle and that is now recognized as sovereign but not as a state
• Today it is generally recognized as a subject of international law and as sovereign but not as a state
  – Current state of Malta has no connection with SMOM
  – SMOM has no territory, and the head of the order is beneath the Pope in power
  – They are tolerated because they’re old, they do good (charitable organization), and they don’t do harm (eg. like avoiding tax would as a US citizen)

Question 23

International legal personality of IOs

Answer 23

• Traditionally, international organizations’ status was contested in international law
• Today, the principle that international organizations have international legal personality is recognized
• But not all organizations created through agreements between states are IOs

Question 24

How do we know which IOs have international legal personality?

Answer 24

• If the treaty creating it says so
• If it is indispensable to achieve the purposes of the organization as established by its governing document (by inference)
• There is also an “objective theory” of what is an IO and what is not

Question 25

The legal personality of IOs is generally considered derivative, and would thus be a qualified personality (but EU?)

Answer 25

- It's not inherent it comes about from states giving the IO a personality, therefore at the mercy of the state - EU lawyers argue that the EU is special and say it has inherent legal personality, not a state but above other international organizations

Question 26

What does having international legal personality allow IOs to do?

Answer 26

- Have a legal existence independent of the member-states - Can sue to enforce their rights, but also be sued and be held liable for breaches of international obligations - Many IOs will also have privileges and immunities, particularly from the host state - IOs can conclude international agreements subject to the limitations of the founding treaties

Question 27

The individual as a subject of international law

Answer 27

- Traditional positivist doctrine stated that whereas states are the only subjects of international law, individuals were the objects of international law, ie. the only subject-matter of intended legal regulation; but had no direct rights and obligations arising from international law (those were mediated through the state) - Nowadays, many would recognize individuals (whether as individuals or in groups) as participants and, in some cases, subjects of international law

Question 28

How human rights allowed individuals to gain status in international law

Answer 28

- Human rights have been the principal conduits through which individuals have gained some sort of status in international law - Traditionally, individuals' rights were wholly at the mercy of the state they belonged to; aliens sometimes were protected by specific treaties between their parent state and the other state - After WW1, the concept of group rights entered international law; and in some cases individuals could also assert their directly to international tribunals if given the permission via treaty - After WW2, protection of human rights, whether individually or collectively, became a mainstay of international law - An important development is the growing right for individuals to access international courts

Question 29

Individual responsibility in international law

Answer 29

International law has recognized that individuals could be held liable criminally for international legal obligations, mainly of a criminal nature (war crimes, genocide, etc.)

Question 30

Growth of international economic law

Answer 30

- The growth of international economic law has also meant that individuals as well as private corporations increasingly possess international legal protections for their investments, chattels, contractual rights, etc. in foreign countries - Such rights can be controversial as they are framed in terms of private entities infringing on the sovereignty of state

Question 31

Nationality in international law

Answer 31

- Whilst this is not longer the inevitable rule, the idea that the right to bring a legal claim against a state for injuries suffered by an individual lies with his own state is still an important one -- Old rule was: were you (individual/company) able to sue a country? Depended on whether the countries had signed a treaty agreeing to that right - In other words, your citizenship/nationality affects the extent to which one has rights enforceable against a state as an individual