Unit 4.Personality, Statehood & Recognition

8/17/2019 Unit 4.Personality, Statehood & Recognition

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Unit 4: Personality, Statehood &

RecognitionE. Siang’andu

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mailto:[email protected]:[email protected]


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Part 1- Personality: What is internationalpersonality?

• International person is an entity which possessesrights and duties at international law.

• Reparation case ICJ p. 179

A subject of law is an entity capable of possessing

international rights & duties and having thecapacity to maintain its rights by bringinginternational claims Brownlie, p. 57 referring tothe Reparation case.


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Concept of personality in International a!

• he main capacities of an international legalperson are as follows!

• "apacities to ma#e claims for $reaches ofinternational law.

• o ha%e the capacity to ma#e %alid agreements&treaties' on the international plane.

• o $e su$(ect to some or all o$ligations imposedunder international law.

• "apacity to en(oy pri%ileges ) immunities from

national (urisdiction.


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"s !e shall see

• It is only states ) certain internationalorganisations &*+' that ha%e all these capacitiesto a fullest degree.

• ther su$(ects may ha%e some of the capacitiesto a certain degree.

• International personality is not an a$soluteconcept.

• Se%eral su$(ects of I- ha%e %aries capacities for %arious purposes.


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• i.e. states in I- all ha%e all the capacities in fullmeasure.

• ther su$(ects of I- such as internationalorganisations ) indi%iduals will only ha%epersonality as far as it is necessary to achie%e its

purpose within the international legal system.• his leads to uestion!

• /ow is international personality achie%ed0


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#!o types of personality in Internationala!- $as per %ion p'11()

• riginal personality 1 $elongs to states ipso factoonce they ha%e satisfied the criteria of statehood.

• 2eri%ed personality 1 this flows from therecognition $y states that other entities may ha%esome competences in international law.

• nce an entity is a 3state’ 1it will ha%e legalpersonality under I- $ut

• his is not necessary the case for indi%iduals orother su$(ects under I-.


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"d*isory +pinion of the legality of the

#hreat or Use of clear Weapons $W.+)

1//0 IC Rep 00,

• I"4 ruled!

International organisations are subjects ininternational law which do not, unlike states, possess a general competence. Internationalorganisations…… are vested by the states which

create them with powers, the limits if which are functions of the common interests whose promotion those states entrust to them.


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#herefore

• ersonality denotes capacity to act within aninternational system

• 2egree of personality accorded to each su$(ect will %ary

• +ote6 ersonality once gi%en may $e difficult to

ta#e away


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Part (- #he s23ects of international la! -Statehood

• The concept of state

• ain su$(ect of international law0

• "reation of statehood 1 a uestion of fact or law0


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#raditional *ie! Independent states

• 389he orthodo: positi%ist doctrine has $eene:plicit in the affirmation that only states aresu$(ects of international law’.

• herefore states are principal su$(ects ininternational law.

• hey are the most important ) power su$(ect ofI-.

• ;ll other entities were o$(ects of the law. It issimply a matter of determining what was a state.


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Statehood5 !hat is it?• A stable community, supporting a legal order, in a

certain area. Brownlie, &5th ed.' p. 7


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Criteria of Statehood

• Montevideo Convention on the Rights andDuties of States 19 ! Article 1

tate as a person of international law should possess the following !ualifications"

#a$ permanent population

#b$ defined territory#c$ a government

#d$ capacity to enter into relations with otherstates


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egality

• I- does not permit the creation of states in %iolation offundamental principles of I- thus %iolation of jus

cogens.• &a' independence must $e achie%ed in accordance with

the principle of self6 determination!

• concepts in%ol%es the idea of indigenous peoples

gaining li$erty from their colonial masters6• It is the right of people to claim independence )

statehood if desired'

• rinciples recognised $y the *+ "harter see ;rts


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• &$' not in pursuance of racist policies 1 this deals with the situation created $y apartheid and the

esta$lishment rans#ei and Bophuthatswana! werene%er regarded as states in I- due to theiresta$lishment $y South ;frica.

"Does that #ean South Africa 199$ could not %e considered as a state&'

• &c' not conseuent upon an illegal use of force 1self 1determination must $e lawful.

• hus contra%ening ;rticle =&>' of the *+ "harter.


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Per6anent Poplation

• ; permanent population 1 should there $e aminimum num$er of people0

• States are aggregates of indi%iduals

• hus a permanent population li%ing with adefined territory is a reuirement of statehood.

• +o limits as to si?e of population.• +o reuirement that the population should hold

the nationality of the state.

• +eed to li%e there with a degree of permanence


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• he case of ;ntarctica

• +omadic states

• erritory of estern Sahara is populated $ynomadic tri$es who roam freely across thedesert without regard to land $oundaries yet

their lin# with the territory is regarded as a3population’ &estern Sahara case


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%efined #erritory

• +o minimum or ma:imum si?e reuired

• erritory does not ha%e to $e defined a$solutely

• hat is reuired is merely a some identification ofa state with a portion of earth’s surface.

• E.g. Israel’s $order has ne%er $een permanentlyfi:ed.

• 2isputes $etween India ) a#istan o%er 4ammu6Cashmir ha%e continued since $oth states gainedindependence $ut this has not affected their

statehood.


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• Dact that an e:isting territory is under threat oroccupation $y another aggressi%e state 1

• his does not destroy or pre%ent the e:istence of astate

• i.e Cuwait no less of a state when it was underoccupation $y Ira,

• Same applies to Ira, ;fghanistan.

• %eutsche ontinental 'as('essellschaft v )olish tate &


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In order to say that a state e*ists and can berecognised as such …..it is enough that …its

territory has a sufficient consistency, even thoughits boundaries have not yet been accurately

determined.

3hat matters is the presence of a sta$lecommunity within a certain area, e%en though itsfrontiers may $e uncertain’. Shaw &>th ed.' p.


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+n the other hand

• ossi$le to cite a situation where statehood wasrefused on the $asis of unsettled frontiers

• classic e:ample -ithuania

• hich was refused mem$ership of the -eague of+ations until $order disputes with neigh$ouring

states were settled.


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7o*ern6ent

• ; state must $e under the authority of ago%ernment.

• /owe%er, Shaw states that,

It should be regarded more as an indication ofsome sort of coherent political structure and

society, than as the necessity for a sophisticatedapparatus of e*ecutive and legislative organ. &>th ed.' p.


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• International law is neutral as to the form ofgo%ernment 1 see 2eclaration on rinciples of

International -aw "oncerning Driendlyelations and "o6operation among States in ;ccordance with the "harter of the *+

esolutions =G=5 &HH'


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• +o specific reuirement as to the nature ofgo%ernment

• r e:tent of control• It seems to include some degree of maintenance of

law ) order.

• "i%il war in country would indicate a$sence ofeffecti%e go%ernment

• he state will still continue to e:ist as a su$(ect ofI- i.e. -i$eria , Ira,

;fghanistan, -i$ya =J


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#he principle of so*ereign e8ality ofstates:

• +ach state has the right freely to choose anddevelop its political, social, economic and

cultural systems.

• 2o you thin# they should $e a limitation to this

principle0


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But can we say that there is an emergingnorm requiring democratic government?

• ;rt =


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Capacity to enter into Relations !ith otherStates

• epresents idea of independence or so%ereign

• States are so%ereign or independent 1 ha%ing full

control o%er domestic ) foreign affairs• reaty o$ligations 1 he im$ledon case

confirmed the principle that treaty o$ligations donot derogate formal independence.

• E:istence of a foreign military $ases

• em$ership of international organisations

• E*0 Still ha%e powers in certain area i.e. foreign

policy


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"apacity to enter into legal relations with otherstatesF legal personality

• "olonies in the process of li$eration.

• I- has not recognised colonies as possessing anyinternational personality $ecause the control of

the colony’s foreigner relations is %ested on thecolonial powers.


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i6ited capacity of Protectorates

• (rotection #a) %e e*ercised over a territor) +hich did not have international personalit)

%efore the protectorate +as created.• ; territory under protection will only gain international

personality when it is clear that they are actingindependently of the protecting state.

• Cuwait $ecome British protectorate


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Protection cold 2e eercised o*er an already eisting state

• ;rrangement $ased on agreement $etween theprotecting state ) the protected state.

• Such protection does not affect the legalpersonality of the protected state.

• orocco was an independent state until the $eginning of =Jth century when it was di%ided intoK parts 1 International city &angier' ) the spanish) Drench had the power on the other two regions.

• Spanish ) Drench concluded treaties on $ehalf oforocco.


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Rights of US Nationals in Morocco Case91/(; ICJ Rep at p' 1


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,-D-RATI/S2efinition and types of federations

-egal personality

; federal constitution may confer treaty6ma#ingcapacity ) power to enter into separate

diplomatic relations on the constituent mem$ers

"onstituent state6 parent stateE:amples of federations


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esponsi$ility of federal states ininternational law

• By agreement or recognition a federated statemay assume a separate personality on inter’l

plane.• he case of former *SSF status of *#raine and

Belorussia

• status of *#raine and Belorussia6 mem$ers if*SS

• But they concluded treaties on their own ) weremem$ers of the *+.


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=tinction of statehood• If any ualitiesM criteria of statehood were to

cease to e:ist 1 does not mean that a state ceases

to e:ist in I-• i.e. a$sence of effecti%e go%ernment in Ira, ;fghanistan *S;’s inter%ention

• Sudan only until recently lac#ed an effecti%ego%ernment.

• -i$ya =J


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• Suspension of rights of mem$ership to *+ does notlead to loss of statehood.

• he uestion as to whether a new go%ernment in astate is accepted or not is a political issue ) not a legalone.

• ossi$le for an entity to cease through lawful means!

• oluntary su$mission to the so%ereignty of another orif two states merged into one state6

• I.e. est ) East ermany, +orth ) South Nemen,small gulf state merged to form *nited ;ra$ Emirates.


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Reparations Case 1/4/ IC Rep 1


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IC also 6ade it clear that• I"4 also made it clearF


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Indi*idals• eneral rule I- concerns with primarily

relationships $etween states.

• odern I- creates duties on indi%iduals ininternational criminal -aw.


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Piracy• ;cts of depredation committed on the high seas $y one %essel against another for personal gain

• i.e. form of ro$$ery on the high seas.• ;ll states can e:ercise (urisdiction o%er pirates.

• he rationale for this is maintaining free ) open

lines of trade ) communication.


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War cri6es• Charter of the /ure#%urg Tri%unal

"19$0' 9 AJI2 suppl2 p 309

3International law imposes duties ) lia$ilities onindi%iduals as well as states’

•

herefore state responsi$ility ) indi%idualresponsi$ility are two different things in I-


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Four Geneva Conventions 1949 &

Protocols I & II 19'

• ra%e $reaches includeF

• ilful #illing

• orture or inhuman treatment

• E:tensi%e destruction ) appropriation ofproperty not (ustified $y military necessity )

carried out unlawfully.• *nlawful deportation or transfer of protected

persons

• a#ing hostages.


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Protocol I etends the list to inclde

• a#ing ci%ilian population o$(ect of attac#

• -aunching attac#s against wor#s or installations

containing dangerous forces in the #nowledgethat such attac#s will cause e:cessi%e loss ofdamage to ci%ilians.

• ransferring the ci%ilian population from theterritory of an occupying power to that of anoccupied area.


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• ;ll indi%iduals regardless of ran# will $ecriminally responsi$le for the commission of

such acts.• "laims of superior orders is not a defence ,

although it may $e ta#en in mitigation.


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War related Cri6es• +urem$urg ) o#yo ri$unals

• hey include F


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• Tri%unal for the ,or#er 4ugoslavia2 SCRes 537"199'2 199 3 IM 136

• Tri%unal for R+anda2 SRes 900 "199$'. "199$' IM 1095.

• Ro#e Statute of the International Cri#inal Court"1995' 37 IM 999

• 4urisdiction of the court include

• enocide 6 ;rt G• ar crimes 1 ;rt L

• "rimes against humanity 1 article 7

• ;rt


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.6an Rights Isses• Indi%iduals acuire international personality on

the $asis of treaties.

• ;rticle =5 European "on%ention on /umanights > ;merican "on%ention on /uman

ights


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• ;rticles < ) = ptional rotocol to International"o%enant on "i%il and olitical ights &I""'

6


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Part @ - Recognition• eans $y which a state ac#nowledges the

e:istence of a particular state of affairs in its

international relations.• E.g. Dormer "olonial territory gaining

independence.

• art of an e:isting state has gained itsindependence from federal authorities 1Bangladesh

• Independence self6determination


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• ecognition may either $e de jure & as of right' or

• %e facto &accepting the fact'

• ecognition is primarily a political act.

• /owe%er produces a legal effect

• ecognition is restricted to recognition of states

) go%ernments.• he two issues are not to $e confused.

• ecognition produces effects at $othinternational ) national le%el.


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When does the 8estion of recognition

arise?

• Theories of Recognition

• here are two ma(or theories of recognition!

• 2eclaratory ) "onstituti%e %iews


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%eclaratory #heory• ;ct of recognition is not significant of the new

entity’s claim to statehood.

• Status is conferred $y operation of I-.• herefore whether a state or go%t. is actually

recognised $y other states, it is still entitled to therights ) su$(ect to the general duties of thesystem.

• he international legal personality of a state doesnot depend on its recognition $y other states.


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#herefore nder %eclaratory #heory

• Dormation of a new state is a matter of fact notlaw.

• ecognition is a political act $y which therecognising state indicates a willingness to initiateinternational relations with the recognised state.

• I is independent of recognition.

• /owe%er the act of recognition is not totally without legal significance 1 new entity $ecomesan international su$(ect.


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Tinoco Arbitration (Great Britain v Costa

Rica $1/(@) 1 RI"" @0/

• reat Britain made certain claims against "osta icaarising out of the o$ligations underta#en $y the inoco

go%ernment.• his go%t. had not $een recognised $y reat Britain

• But ar$itral 4udge heldF

• hat the fact of non recognition did not prohi$it the

claim• est to $e applied in assessing recognition would $e afactual one accepted internationally.

• If an unrecognised state is effecti%e it can still $e ano$(ect of claims in I-.


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• heory accords international practice

• i.e. he fact that certain ;ra$ states at some

point did not recognise the state of Israel did notpre%ent them ma#ing international claim againstIsrael.

•+on recognition does not mean 1 lac# ofinternational personality.


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Aonte*ideo Con*ention 1/@@ "rt @ & 0

• ;rticle K 1 -he political existence of the state isindependent of recognition by other states….+ven

before recognition the state has the right to defendits integrity & independence….& to organise itself as itsees fit .

• ;rticle G 1 -he recognition of a state merely signifiesthat the state which recognises it accepts the personalityof the other, with all the rights and duties determined byinternational law.


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Constitti*e #heory

• $ligation to o$ey I- deri%ed from consent of

indi%idual states.• "reation of new states results to creation of new

o$ligations.

• here acceptance of new state is essential.

• I.e. if aiwan is not recognised as a state, it is not astate.

• Idea is that if state or go%t. is not recognised that itcannot ha%e I.


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ppenheim states

-he formation of a new state is …a matter of fact

and not law. It is through recognition which is amatter of law, that such a new state becomessubject to I/

•

ecognition is there seen as a reuirement ofinternational personality .

• -auterpacht 3s theory tries to merge theconstituti%e ) declaratory theories.


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De !re & "e facto Recognitionecognition de jure &as of right'

)

de facto &accepting the fact of'• de jure 0 implication entity will en(oy

international personality, independent etc.

• de facto ( ;c#nowledges that there is a newregime in place that is li#ely to continue to e:ist $ut do not ha%e to accept it.


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Ainistates• -iechtenstein, onaco ) atican 1 inistates

• /a%e su$stantial limitation on the e:ercise of their

so%ereignty • etain some characteristic of statehood

• I.e., sending ) recei%ing diplomats, conclusion ofreaties

• Ad#ission of iechtenstein to the eague of/ations 1 application to -+ was re(ected

$ecause it ne%er had an army.

• nly recognised as a state $y *+ in


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Concept of self- deter6ination $S%)

• hat is self6 determination0

• self6 determination is one of the factors that

contri$utes to whether a state is recognition ornot.

• +eed to distinguish $etween internal ) e:ternalS2

• Internal S2 1 a$ility of people to chose the form) type of go%ernment.

• E:ternal S26 arises after orld ar I &I'


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=ternal Self- deter6ination• ost I, *S president oodrow ilson• 1o peace can last or ought to last which does not

recognise & accept the principle that governmentsderive their just powers from the consent of thegoverned and that no right e*ists anywhere to hand people about from sovereign to sovereign as if they

were property.• eace cannot last when people cannot choseindependence or who to $e ruled $y.


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Bollo!ing WWII S% esta2lished as one of the

prposes of U'

• ;rt


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• ; res


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I6portant to 6ae a distinction 2et!een

recognition of go*ern6ent and a state

• Recognition of 8overn#ents

• State ; recognises the new go%ernment in state Bit implies that it will treat the ne+ govern#entas entitled to represent that state in I.

• Internal and e:ternal control $y the go%ernment

• Dactual e:istence of go%ernment

• -egitimacy of go%ernment 1 meaning andsignificance in international law


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Recognition of States• here state ; recognises state B

• Implication each accept the other as an entity of

e:ercising all the capacities of statehood in I-.

• Bilateral relations will $e forms ie diplomaticrepresentation.

• /owe%er lac# of diplomatic relations $etween states doesnot affect recognition.

• i.e was lac# of diplomatic relations $etween *C ) -i$yain


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The i#pact of politics on internationalla+

ecognition of a state and a go%ernment ininternational law

ecognition de jure "as of right'

)

de facto "accepting the fact of'• Interim step ta#en where there is dou$t as to thelegitimacy of new go%t. i.e. *C go%t. recognisedthe So%iet go%t. de facto in


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The funda#ental rights of states

Independence

-egal, political and economic


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egal e8ality of states i6plies

• Euality of rights and dutiesF

P 4uridical euality P En(oyment of rights inherent in

full so%ereignty

• 2uty to respect personality of other states


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• In%iola$ility of the territorial integrity andpolitical independence of other states

• Dreedom to choose and de%elop a state’spolitical, social, economic and cultural systems

• 2uty to comply fully and in good faith withstate’s international o$ligations to li%e in peace with other states


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Dut) of peaceful co!e*istence

• ; guiding principle in

contemporary international law0


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#torial 4 - Personality, Statehood &

Recognition

Unit 4.Personality, Statehood & Recognition

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