WHO IS A SUBJECT OF INTERNATIONAL LAW?

(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)
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.
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.
Throughout the 19th century, only States qualified as subjects of international law. After, the
Second World War, more and more new actors emerged in the international legal arena.
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

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) permanent population; (b) defined territory; (c) government; (d) capacity to enter into
relations with the other states.
A state is a community of persons more or less numerous, permanently occupying a
definite portion of territory, having a government of their own to which the great
body of inhabitants render obedience, and enjoying freedom from external control.
People - The mass of the population living within the state, no specific number requirement.
-sufficient in number and capable of maintaining the permanent existence of the
community.
Territory - demarcated area that rightly belongs to the population, should be permanent and
large enough to be self-sufficing. However, note that there is no need for clearly defined
boundaries. The requirement of a permanent population is intended to be used in association
with that of territory.
The past practice shows that the existence of fully defined boundaries is not required and
that what matters is the existence of an effective political authority having control over a
particular portion of land. In 1913, Albania was recognized as a State by a number of States
even though it lacked settled boundaries, and Israel was admitted to the United Nations as a
State in spite of disputes over its existence and territorial delineation.
Government - Refers to the agency to which the will of the state is formulated, expressed, and
carried out. 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.
Sovereignty - May be defined as the supreme power of the state to command and enforce
obedience to its will from the people within its jurisdiction and corollarily to have freedom from
foreign control.
a. Internal power of the state to rule within its territory b. External the freedom of the state
to carry out its activities without subjection to or control by other states.
Self-determination denotes the legal right of people to decide their own destiny in the
international order. Self-determination is a core principle of international law, arising from
customary international law, but also recognized as a general principle of law, and enshrined in
a number of international treaties.
Two various levels of claim:
1. Establishment of a new state- claim by a group within an established state to break
away and form a new entity.
2. Establishment of a new government- to be free from external coercion, or the claim to
overthrow effective rulers and assert the right of revolution; or the claim of people
within an entity to be given autonomy.
Recognition Who gets to decide whether the statehood conditions are met?
Two competing theories: 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.
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.
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 1) It shows that recognizing states consider the conditions of statehood met, 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.
WHEN RECOGNITION IS TERMINATED? >When another regime is recognized.
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.
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.
States 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?
The matter is regulated by customary rules: Rules regarding property (Vienna Convention 1983)
As for State property, 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.

Rules regarding the succession to treaties (Vienna Convention 1978) Customary law differentiates localized
treaties and non-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.
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.
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.
FUNDAMENTAL RIGHTS OF STATES
Independence is the capacity of a State to provide for its own well-being and development free from the
domination of other states.
The Right of Sovereignty
Firstly, the supreme undivided authority over its territory--this concept of sovereignty is known as territorial
sovereignty. Secondly, sovereignty means the capacity of a State to enter into relations with other States, such as
sending and receiving diplomats and engaging in treaty making, and the enjoyment of certain immunities and
privileges from the jurisdiction of other States.
The Right of Territorial Jurisdiction
The Right of Territorial Jurisdiction is derived from the right of sovereignty. This right entitles a State to have the
absolute and exclusive authority over all persons, property and events within the limits of its national territory. This
authority implies jurisdiction of the State to enact the law, to enforce the law and to adjudicate persons and events
within its territorial land, its internal and territorial water, and national air space.
The Right of Sovereign Equality
Sovereign equality means that all State have equal rights and duties, have the same juridical capacities and
functions, and are equal members of the international community, notwithstanding differences of an economic,
social, political or other nature
The Right of Self-Defense
this right cannot be exercised by a State unless an armed attack occurs against it and until the Security Council
has taken the measures necessary to maintain international peace and security.
Some Incomplete Subjects

Protectorates- is a dependent territory that has been granted local autonomy and some independence while still
retaining the suzerainty of a greater sovereign state. In exchange for this, the protectorate usually accepts specified
obligations, which may vary greatly, depending on the real nature of their relationship. Therefore, a protectorate
remains an autonomous part of a sovereign state. They are different from colonies as they have local rulers and
people ruling over the territory and experience rare cases of immigration of settlers from the country it has
suzerainty of. However, a state which remains under the protection of another state but still retains independence is
known as a protected state and is different from protectorates.
Federal State- In a federation the component states are in some sense sovereign, insofar as certain powers are
reserved to them that may not be exercised by the central government. However, a federation is more than a mere
loose alliance of independent states. The component states of a federation usually possess no powers in relation to
foreign policy, and so they enjoy no independent status under international law.
Mandated territory was a territory administered by the government of any country in the former British Empire by a
mandate from the League of Nations (which later became the United Nations). They were created because, in the
1920 Treaty of Versailles, Germany renounced its claims to its former colonies and, where those countries were
unable to become independent, others took responsibility for their government. The United Kingdom, Australia,
New Zealand and South Africa accepted these mandates.
A trust territory was a territory administered by the government of any country in the former British Empire under
the trusteeship system of the United Nations. Most mandated territories became trust territories under the United
Kingdoms Mandated and Trust Territories Act 1947. The others became independent, apart from Palestine, which
became part of the new state of Israel, and South West Africa, which continued to be a mandated territory
administered by South Africa.
Taiwan- non-state territory which de jure is part of china.
The sovereign order of Malta- There was a tine the order had sovereignty over Malta but has since been lost.
The Holy See and Vatican City- the Lateran Treaty recognized the state of Vatican City as sovereign in the field of
International relations but it has no permanent population.