WHO IS A SUBJECT OF INTERNATIONAL LAW?
• A subject of international 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
• Subjects of international law are States and
non- State actors like individuals and
• Some argue that international non-governmental
organizations and multinational
companies also fall into the category of
subjects of international law.
Subjects of International Law
UK, USA, China,
UN, ICJ, ICC
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
• For example, an individual has a 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
• USA deports a UK citizen to UK where the
citizen is tortured by the authorities. What are
the rights, duties and obligations of the
citizen, UK and USA in this situation?
• Legal personality also includes the capacity to
enforce one’s own rights and to compel other
subjects to perform their duties under
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;
• (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;
• (4) be subject to obligations under international law
• Not all subjects of international law have the same rights, duties and capacities.
• For an example, a diplomat has immunity before foreign courts because he is an
agent of the sending State. This is a privilege enjoyed by the State and not the
• This means that, even if a diplomat commits a crime, he cannot be brought before
a foreign court to be prosecuted.
• One State can bring a claim against another State before the International Court of
Justice to enforce its rights, an individual on his own can’t bring a claim against a
State before the ICJ.
• States have all the capacities mentioned above and individuals have only a few.
• Of the four examples that we discussed, which
ones are applicable to individuals?
Traditional Subjects of International Law
• Individuals are the primary subjects of law in
the national systems.
• On the international plane, the primary
subjects are States.
• Traditionally, states and insurgents have been
the only subjects of international law.
• In addition to controlling a territory, they
exercise lawmaking and executive functions;
they have full legal capacity (ability to be
vested with powers, rights and obligations).
• They come into being through their struggle against
the state to which they belong.
• Because insurgents are a destabilizing factor, States are
reluctant to accept them or take them into account,
unless they can show some of the attributes of
• They acquire power through force, their existence is by
definition provisional: they either prevail and turn into
fully fledged States, or are defeated and disappear.
Modern Subjects of International Law
• After WWII, several new subjects of international
law have emerged, namely international
organizations, national liberation movements and
• They lack permanent and stable authority over a
territory, so unlike States, all other international
subjects have limited legal capacity (do not have
a full spectrum of rights and obligations), which
also means a limited legal capacity to act (i.e. to
enforce their rights).
Commencement of the Existence of States
• States are few and very different, which is a complicating factor and
explains in part the weakness of international law.
• The lack of homogeneity makes the finding of a common ground
and the reaching of a consensus rather difficult.
• Another complicating factor is the fact that unlike national law
(which contains a set of rules dealing with the prerequisites for a
acquiring legal personality), international law lacks a set of detailed
rules regarding the creation of states.
• Such rules can be inferred from custom.
Customary rules pertaining to the creation of states
• Under international customary rules, two elements are required for
the creation of a state. Once these two elements are met, the rules
governing international dealings become applicable.
• 1. Central structure capable of exercising effective control over the
human population living in a given territory. The bodies that
comprise that central structure must be independent of any other
state, i.e. must be endowed with an original legal order.
• 2. Independent territory, with a population that owes no allegiance
to other outside authorities or governments. Without territory,
there is no state. The control and possession over the territory must
be effective. Exception: Governments-in-exile.
Conditions for Statehood
• Under traditional international law an aspiring
state had to meet the following requirements:
• have a defined territory
• a permanent population
• an effective government; and
• the capacity to enter into relations with other
The Montevideo Convention, art. 1
• Lays the most widely accepted criteria of
statehood in international law. It states “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.
• Even today, these conditions continue to be
regarded as the fundamental elements of
statehood, but they are neither exhaustive nor
• Other factors might be relevant such as self-determination
and recognition, but one thing is
clear – the relevant framework revolves
essentially around territorial effectiveness.
1. Defined Territory
• The need for defined territory focuses upon requirement for a particular
territorial base upon which to operate.
• Therefore, for this reason, it was argued that the “State of Palestine”
cannot be regarded as valid state.
• Why? The Palestinian organizations did not control any part of the
territory they claim.
• However, note that there is no need for clearly defined boundaries. E.g.
Albania, prior to WWI was recognized by many countries as an
independent state, although its borders were in dispute. Similarly, Israel
has been accepted by the majority of nations, as well as the UN as a valid
state, although its borders have not been finally settled and despite its
involvement in hostilities with its Arab neighbors.
2. Permanent population
• The existence of a permanent population is
naturally required and there is no specification
of a minimum number of inhabitants.
3. Effective government
• As to whether a state has an effective government, the
emphasis has been on the control the state exercises over
the relevant territory, at the exclusion of all other entities.
• The degree of control required varies depending on how a
state came to existence.
• Where the prior sovereign over the territory has consented
to the creation of a new state under a new government, a
low degree of control may be sufficient in satisfying this
4. Capacity to enter into relations
with other nations
• States are not the only international law subjects who
have this capacity, but this capacity is essential to
• Where this element is not present, there cannot be a
• The essence of such capacity is independence; it is a
formal statement that the state is subject to no other
• Who gets to decide whether the ‘statehood’
conditions are met?
• Two competing theories on recognition:
1) declaratory theory of recognition and
2) constitutive theory of recognition
1. Declaratory Theory of Recognition
• An entity is a state once the conditions of
statehood are met regardless of the attitude
of other states towards the new entity.
• Example: Montevideo Convention, art 3: “The
political existence of the state is independent
of recognition by the other states”.
• Even before recognition, the state has the
right to defend its integrity and independence,
to provide for its conservation and prosperity,
and consequently to organize itself as it sees
fit, to legislate upon its interests, administer
its services, and to define the jurisdiction and
competence of its courts.
• The exercise of these rights has no other
limitation than the exercise of the rights of
other states according to international law.
• In its opinion No. 10 of 07.04.1992, the Arbitration
Commission of the Peace Conference on the Former
Yugoslavia stated that:
While recognition is not a prerequisite for the foundation of
a state and is purely declaratory in its impact, it is a
discretionary act other states may perform when they
choose and in a manner of their own choosing (subject to
compliance with the imperatives of general international
law, and particularly those prohibiting the use of force and
those guaranteeing the rights of ethnic, religious or
2. Constitutive Theory of Recognition
• Only when other states decide that the above
conditions are met, and consequently
acknowledge the legal capacity of the new
state, is the new state actually created.
• Criticism of constitutive theory: contradicts
the principle of effectiveness; inconsistent
with the principle of sovereign equality of
states; logically unsound since it would allow
an entity to be a state with respect to those
states that have recognized it, while lacking
legal personality with respect to those that
have withheld recognition.
• Note: There is an integral relationship
between the conditions to statehood and
• If recognition is weak, there will be more focus
on the conditions and vice versa.
Effects of Recognition
• politically important
• legally relevant
• Recognition is politically important because it
testifies to the will of recognizing states to
undertake international dealings with the new
• Legally relevant because
1) It shows that recognizing states consider
the conditions of statehood met, and
2) it creates estoppel
1. Legally Relevant
• (Tinoco Concessions v. Costa Rica, 1923)
The non-recognition of a government by other nations
is usually appropriate evidence that such government
has not attained the independence and control
entitling it by international law to be classified as such.
The recognition or non-recognition by one state is not
binding on other states, but has a certain amount of
• By creating estoppels, it will prevent the
recognizing party from later contesting or
denying the legal personality of the new state.
• When the conditions for statehood are not
met, it has legal relevance in that it may
amount to unlawful interference with the
internal affairs of a state (e.g. Croatia –
Opinion No. 5 (Croatia) of the Arbitration
• In this opinion, the Commission considered the application of Croatia for
the recognition of its independence. The Commission ruled that Croatia's
independence should not yet be recognized, because the new Croatian
Constitution did not incorporate the protections for minorities required by
• In response, to this decision, the President of Croatia wrote to Robert
Badinter giving assurances that this deficit would be remedied. Given
these assurances the European Community recognized Croatia.
• While the Arbitration Commission on Yugoslavia in 1992 found that
Croatia met the necessary conditions for statehood, some commentators
have considered the recognition by Austria premature since Croatia
exercised effective control over only 1/3 of its territory.
The Dissolution of the USSR
• The traditional Montevideo Convention criteria still
reflect the minimum conditions for the creation of a
• However, in modern international law some states
have made their recognition of another state
contingent on additional requirements relating to more
modern notions of human rights and democracy.
• The breakup of the USSR is an example of recognition
practice and an illustration of modern trends.
• In December 1989, the Congress of the USSR People’s
Deputies found that the Molotov-Ribbentrop Accords
of 1939, whereby the USSR first occupied and then
annexed the Baltic States (Estonia, Latvia, Lithuania)
were contrary to international law.
• In 1991, Baltic states held referenda and
overwhelmingly chose independence.
• The USSR released the 3 states and recognized their
independence in 1991, the same year they were
admitted to the UN.
• Thereafter, several other of republics of the USSR held
referenda on whether to secede.
• All but Kazakhstan proclaimed their independence in 1991,
while Russia proclaimed itself the successor state of the
• Almost all other states recognized the independence of the
republics, but what is interesting is the approach taken by
the European Community in the Declaration on
the Guidelines on the Recognition of New States in Eastern
Europe and in the Soviet Union.”
• The Declaration sets down general conditions, requiring a new state:
1) respect UN Charter, the Helsinki Final Act, the Charter of Paris, especially with regard to the
rule of law, democracy and human rights,
2) guarantee the rights of ethnic and national groups and minorities,
3) respect existing borders,
4) accept relevant arms control commitments; and
5) to commit to settle through negotiation and by agreement all questions regarding state
succession and regional disputes.
• The Declaration stated that the Community and its members will withhold recognition in cases of
• Some states withhold recognition for a variety of reasons
(e.g. lack of political or ideological affinity; economic
interests), and the consequence being the inability of the
aspiring state and the non-recognizing state to enter into
international dealings (exchange diplomats, conclude
• The new entity is not however not totally devoid of legal
personality towards the non-recognizing state and general
international rules will still apply (e.g. non-recognizing
states must respect the right of the new state to sail the
high seas; may not invade or occupy the new state).
Situations where a state meets all the requirements of
statehood, but is still unrecognized by the majority of states
• This situation is the result of a conflict between the
traditional principle of effectiveness and the modern
international law trends of withholding legitimacy where a
situation, albeit effective, contravenes general values of the
• Southern Rhodesia – UN SC Council called upon all member
states to withhold recognition on account of South
Rhodesia’s racist policy.
• Turkish Republic of Northern Cyprus – proclaimed in 1983
and recognized by Turkey only. Declaration of
Independence was declared “legally invalid” by the SC.
Continuity and Termination of the Existence of
• Revolutionary or extra-constitutional changes in
the government do not have a bearing on the
identity of a States.
• States are bound by international acts performed
by previous government. See Tinoco Concessions
v. Costa Rica, 1917 (arbitration).
• However, changes in the territory of a state, may
affect its legal personality.
• Dissolution (dismemberment, disappearance) of
a state (e.g. breakup of the USSR).
• The extinction of the USSR was accompanied by a
claim, which was successfully accepted, that the
Russian Federation is the successor of the USSR.
This meant that Russia did not need to apply to
the U.N. anew.
• State’s merger with another State (1958 Egypt
and Syria merged to form the United Arab
Republic; in 1990 South and North Yemen
merged to for the Republic of Yemen)
• Incorporation by one state of another (e.g.
the incorporation by the Federal Republic of
Germany of the German Democratic
Republic), with the latter becoming extinct.
• Are the rights and obligations of the former state
transferred to the other international subject that has
replaced the old State?
• (Note: In cases of secession of a part of a State’s
territory or population, the State continues to exist as a
legal subject, but the seceding party may acquire
• The matter is regulated by customary rules:
A. Rules regarding the succession to
treaties (Vienna Convention 1978)
• Customary law differentiates localized treaties
and non-localized treaties.
1. Localized Treaties
• Localized treaties impose rights and
obligations with respect to specific territories.
• They are not affected by mere fact of
succession, i.e. they attach to the new entity.
2. Non-localized treaties
• Non-localized treaties are dealt with differently
depending whether they concern a “newly
independent State” or “other States.”
• For newly independent States – the clean slate
principle applies, i.e. the successor state (one
whose territory prior to succession was under
sovereignty of another state) is not bound by the
treaties in force for the territory at the date of
succession (anti-colonialist approach)
• For other States – principle of continuity –
treaties binding on the predecessor state are
also binding on the successor state.
• Human rights treaties – the general rule that
has evolved with respect to successor States is
that they must respect them; individuals
should continue to be protected even after a
change in sovereignty over a particular
B. Rules regarding property (Vienna
• As for State property (as defined by national
law at the time of succession), art. 8 states
that once assets are declared to be public, the
assets will belong to the state on whose
territory the assets are located. Same with
• As for public debts – Art. 40 – unless
otherwise agreed, the State debt of the
predecessor State passes to the successor
States “in an equitable proportion.”
Membership in international organizations
• No admission to UN required in the case of merger (the
state that merged is automatically a member of the UN
if the state it merged into is also a member).
• In the case of break-up, all resulting states must apply,
unless a state can claim to be a continuation of the old
• If a state comes into being through secession, it too
must apply for membership.
Recognition of governments
• Where a new government is established
through normal, constitutional processes
within a state, there are no questions
regarding the recognition of that government.
• The new government is entitled to all the
rights and obligation under international law.
• By contrast, when an entity comes to power
through non-constitutional means, it is not
automatically accorded such rights and
• The key issue for a state when deciding to
recognize a new government is whether the new
government is in effective control of its state (de
facto control test) – degree to which the
government controls the people within a state.
• This test has not always proven sufficient.
• Sometimes, in determining whether to recognize a new
government, some states (like the US ) have taken into account
whether the new government is willing to honor the international
obligations of the predecessor.
• Sometimes, states have refrained from recognizing a new
government if it has come to power through aggression.
• Another factors that has played a role has been the political nature
of the new government (democratic or not).
• The notion of states recognizing the government
of another state has bothered some who view it
as an interference with a state’s internal affairs.
Estrada Doctrine 1930 (named after the Mexican
Foreign Secretary) – states should not seek to
influence the outcome of an internal power
struggle by granting or withholding recognition.
Doctrine is invoked when states find it politically
difficult to publicly announce whether they
recognize a new government.