Subjects of International Law

Atty. Al Conrad B. Espaldon

 WHO IS  A SUBJECT OF INTERNATIONAL LAW?

A subject of international law can be defined as

an entity capable of possessing international
rights and duties and having capacity to protect
its rights by bringing international claims.
If an entity is not a subject of IL, it may still
assume certain characteristics of international
personality but in a special or restricted context
such as that defined by agreement, recognition
or acquiescence. However, such legal personality
applies only to those involved in the act of
agreement, recognition or acquiescence.
Hence, we may distinguish general or objective
international personality from particular or
subjective international personality. As to the
first, rights and obligations are conferred by
general international law and such personality is
binding erga omnes. As to the second,
personality binds only those which give consent
(express or tacit).
• 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
Malaysia
States
UK, USA, China,
Australia

Subjects
Individuals Me

Non-States International
UN, ICJ, ICC
actors Organizations

Multinational Shell, British

Companies 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.
Under the traditional view, however, the only
subjects of international law were sovereign
States. They alone had capacity to make claims
on the international plane in respect of breaches
of international law, capacity to make treaties
and other binding international agreements, and
the ability to enjoy privileges and immunities
from national jurisdiction
• 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. 
 IOs
Their status is determined by their constituent
instrument (charter) or by the agreement and
not by general or customary international law.
Their personality is derivative of the collective
will of the states creating it.
Criteria:
• A permanent association of states, with lawful
objects, equipped with organs;
• A distinction, in terms of legal powers and
purposes, between the organization and its
member states; and
• The existence of legal powers exercisable on the
international plane and not solely within the
national system of one or more state.
 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
The world is today organized on the basis of co-
existence of States, and that fundamental
changes will take place only through State
action, whether affirmative or negative. The
States are the repositories legitimated authority
over peoples and territories. It is only in terms of
State powers, prerogatives, jurisdictional limits
and law-making capabilities that territorial limits
and jurisdiction, responsibility for official
Actions, and a host of other questions of co-
existence between nations can be determined.
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).
 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

The act by which another State acknowledges

that the political entity recognized possesses the
attributes of statehood.
• 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.Estoppel

• By creating estoppel, 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.