INTERNATIONAL LAW

Seminar 3
THE SUBJECTS OF
INTERNATIONAL LAW

LLM. NGUYEN Cong Dinh

Overview
 LEGAL PERSONALITY

• In the world today, there is an increasing interpenetration of

international law and domestic law across a number of
fields, such as human rights, environmental and
international investment law, where at the least the same
topic is subject to regulation at both the domestic and the
international level;
• There are many instances where problems can emerge
and lead to difficulties between the two systems;
• There are cases where the same situation comes before
both national and international courts, which may refer to
each other’s decisions in a complex process of interaction.
 STATES

Creation of statehood

• In the international legal system, states remain the

most important legal persons;
• The state as an international person should possess
the following qualifications: “(a) a permanent
population; (b) a defined territory; (c) government; and
(d) capacity to enter into relations with other states”
(However, such provisions are neither exhaustive nor
immutable).
 STATES

Creation of statehood

• The existence of a permanent population:

• There is no specification of a minimum number of
inhabitants.
• Defined territory:
• focuses upon the requirement for a particular
territorial;
• there is no necessity for defined and settled
boundaries;
 STATES

Creation of statehood

• Government:
• Not a precondition for recognition as an independent country;
• A foundation of effective control is required for statehood, but
the loss of control by the central authorities in an independent
state will not obviate statehood.
• The capacity to enter into relations with other states
• Indication of recognition by other countries;
• It is essential for a sovereign state to be able to create such
legal relations with other units as it sees fit;
• Indication of state’s independence;
 STATES

Self-determination

• It is the criterion of government which has been most

affected by the development of the legal right to self-
determination;
• Self-determination has modified the traditional principle
with regard to the effectiveness of government in
certain circumstances;
• The principle of self-determination may be relevant as
an additional criterion of statehood.
 STATES – RECOGNITION

Recognition of states

There are basically two theories as to the nature of recognition

• The constitutive theory: it is the act of recognition by other
states that creates a new state and endows it with legal
personality and not the process by which it actually obtained
independence;
• The declaratory theory: A new state will acquire capacity
in international law not by virtue of the consent of others but
by virtue of a particular factual situation.
=> the declaratory theory is a little more in accord with
practical realities.
 STATES – RECOGNITION

Recognition of states

In case an entity, while meeting the conditions of international

law as to statehood, went totally unrecognized?
• Hamper the exercise of its rights and duties (absence of
diplomatic relations);
• Can’t deny the statehood of that state (in law).
=> while recognition of a state by other states has only
declarative value, such recognition, along with membership of
international organisations, bears witness to these states’
conviction that the political entity so recognised is a reality and
confers on it certain rights and obligations under international
law.
 STATES – RECOGNITION

Recognition of states

In case where the international community is divided upon

recognition? (Kosovo as an example)
• When Kosovo declared independence:
• It was recognised swiftly by the US, the UK, Germany
and the majority of EU states, Japan,…;
• Russia, Spain, Greece and Serbia opposed recognition;
• Entry into the UN is not possible;
=> A situation where the international community is divided
upon recognition will, especially in the absence of UN
membership, ensure the continuation of uncertainty.
 STATES – RECOGNITION

Recognition of states

Whether other state has obligations to recognize a new state?

• US’s opinion: “International law does not require a state to
recognise another entity as a state; it is a matter for the
judgment of each state whether an entity merits recognition as a
state. In reaching this judgment, the United States has
traditionally looked to the establishment of certain facts. These
facts include effective control over a clearly defined territory and
population; an organised governmental administration of that
territory and a capacity to act effectively to conduct foreign
relations and to fulfil international obligations. The United States
has also taken into account whether the entity in question has
attracted the recognition of the international community of states”
 STATES – RECOGNITION

Recognition of states

Whether other state has obligations to recognize a new

state?
• UK’s opinion: “The normal criteria which the government
apply for recognition as a state are that it should have, and
seem likely to continue to have, a clearly defined territory
with a population, a government who are able of themselves
to exercise effective control of that territory, and
independence in their external relations. Other factors,
including some United Nations resolutions, may also be
relevant”
 STATES – RECOGNITION

Recognition of states

Recognition of States in modern International Law

(Reality)
• A combine between two theories:
• With declaratory, it accepts the realities of new creations
of states and governments by practical means (i.e. the
entity fulfils the requirements of statehood including
territory, population, government);
• With constitutive, recognition is applied to demonstrate
political approval.
 STATES – RECOGNITION

Recognition of governments

• Two separate recognitions (State and Government) can be involved

and they must not be confused;
• Recognition of government will only be relevant where the change
in government is unconstitutional;
• Recognition constitutes acceptance of a particular situation by the
recognising state both in terms of the relevant factual criteria
(required conditions) and in terms of the legal repercussions;
• A change in government, however accomplished, does not affect the
identity of the state itself;
• If a government is unrecognised, there is no exchange of
diplomatic envoys and thus problems can arise as to the
enforcement of international rights and obligations.
 STATES – RECOGNITION

Recognition of governments

• Criteria for recognition of illegal changes in

government:
• whether or not the new government enjoyed with a
reasonable prospect of permanence;
• the obedience of the mass of the population;
• effective control of much of the greater part of the
territory of the state concerned without the
assistance of the foreign troops.
 STATES – RECOGNITION

The legal effects of recognition

• An unrecognised state must be deemed subject to the

rules of international law;
• Non-recognition, with its consequent absence of
diplomatic relations, may affect the unrecognised state
in asserting its rights or other states in asserting its
duties under international law, but will not affect the
existence of such rights and duties.
 CHARACTERISTICS OF STATES

Independence

• The outstanding characteristic of a state (sovereignty);

• The capacity of a state to provide for its own well-being and
development free from the domination of other states,
providing it does not impair or violate their legitimate rights;
• Independence is a legal concept;
• The notion of independence in international law implies a
number of rights and duties (the right of a state to exercise
jurisdiction over its territory and permanent population, or
the right to engage upon an act of self-defence in certain
situations).
 CHARACTERISTICS OF STATES

Equality

This was recognised in the 1970 Declaration on Principles of

International Law
All states enjoy sovereign equality. They have equal rights and
duties and are equal members of the international community,
notwithstanding differences of an economic, social, political or
other nature. In particular, sovereign equality includes the
following elements:
(a) States are juridically equal;
(b) Each state enjoys the rights inherent in full sovereignty;
… (CONT)
 CHARACTERISTICS OF STATES

Equality

…
(c) Each state has the duty to respect the personality of other
states;
(d) The territorial integrity and political independence of the
state are inviolable;
(e) Each state has the right freely to choose and develop its
political, social, economic and cultural systems;
(f) Each state has the duty to comply fully and in good faith
with its international obligations and to live in peace with other
states.
 CHARACTERISTICS OF STATES

Peaceful co-existence

• mutual respect for each other’s territorial integrity and

sovereignty;
• mutual non-aggression;
• non-interference in each other’s affairs;
• the principle of equality;
• condemnation of subversive activities carried out from one
state and aimed against another;
• non-interference in each other’s affairs and the principle of
equality;
 INTERNATIONAL ORGANISATIONS

• International organization, institution drawing membership

from states, having activities in several states, and whose
members are held together by a formal agreement;
• Geographic representation of IGOs varies from one world
region to all regions;
• Whereas some IGOs are designed to achieve a single
purpose, others have been developed for multiple tasks;
• International organizations serve many diverse functions,
including providing aid to promote economic development,
regulating and supervising international trade, delivering
services and aid,…