Lecture 7 subjects of international law

Lecture 7

Subjects of International Law

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 international law.

(Dixon)

• Subjects of international law are States and non- State actors like individuals and international organizations.

• Some argue that international non-governmental organizations and multinational companies also fall into the category of subjects of international law.

Subjects of International Law

Subjects

States

Malaysia

UK, USA, China, Australia

Non-States actors

Individuals Me

International Organizations

UN, ICJ, ICC

Multinational Companies

Shell, British Petroleum

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 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 tortured.

Question

• 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

• 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;

• (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; and

• (4) be subject to obligations under international law

(Dixon).

However:

• 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 diplomat personally.

• 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.

Question

• 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.

States

• 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).

Insurgents

• 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 sovereignty.

• 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 individuals.

• 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 states

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 immutable.

• 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 requirement.

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 statehood.

• Where this element is not present, there cannot be a state.

• The essence of such capacity is independence; it is a formal statement that the state is subject to no other sovereignty.

Recognition

• 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 linguistic minorities).

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 recognition.

• 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 state.

• 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 weight.

2. Estopples

• By creating estoppels, it will prevent the recognizing party from later contesting or denying the legal personality of the new state.

Premature Recognition

• 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 Commission.

• 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 European Community.

• 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 new state.

• 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 USSR.

• 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 aggression.

• 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 treaties etc.).

• 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 world community.

• 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 States

• 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.

Problem

• 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 international statehood).

• 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 territory.

B. Rules regarding property (Vienna Convention 1983)

• 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 state archives.

• 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 state.

• 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 obligations.

• 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.