#16804 - Statehood - Public International Law

3. International Persons: States

What does it mean to say that an entity possesses international legal personality? It is important to distinguish between the question of who is a legal actor vs who has the capacity to act/who is competent to act. Just to say that someone is an international legal person does not determine the answer to this question; the answer will vary for different legal persons. Capacity implies personality, but only takes us so far: entity A, a legal person, may have capacities to perform acts X, Y, Z; entity B, also a legal person, may have capacities to perform acts A, B, C…The main capacities of an international legal person are the abilities to make claims before an international tribunal to vindicate rights given by international law, and to be subject to some or all obligations imposed by it. The persons to be discussed are states, international organisations and individuals. The focus will be on states, as they are the most important and most powerful subjects of international law, as they are the ones who make it.

A) States

There is no doubt that states are international legal persons but what entities qualify as a state? The starting point in answering this question is Art 1 of the Montevideo Convention on the Rights and Duties of States 1993 (this Convention never entered into force, but this article has now come to reflect customary int’l law on the criteria for statehood, so is relevant and important). The article reads:

The state as a person of international law should possess the following qualifications:

a permanent population — the size is irrelevant, but it must be ‘stable’, continuous.

a defined territory, — what about states with not clearly defined territory, such as Israel? Even where borders are contested, if the entity is in effective control of an area, still satisfies this criteria. Deutsche Continental Gas-Gessellschaft v Polish State, the Arbitral Tribunal said that it is enough that a territory has sufficient consistency, even though its boundaries are not accurately determined.

government, — effective government, in effective control of the territory. 1917: Finland’s declaration of independence from the Russian Empire was proceeded by a period of unrest, disorganisation, etc. in the country during which the Finnish authorities were not able to assert themselves; the legality of the Finnish gov was opposed by those within Finland…and the Int’l Committee of Jurists said that a state had not been formed until a stable political organisation had been created. A state that later descends into civil war and ceases to have a stable government is not considered to have lost its statehood: Lebanon in 1970-1980s, Somalia since 1990s, Syria. Kosovo as a mixed example.

capacity to enter into relations with other states. — this has been interpreted as implying ‘independence’ — independence from the authority of any other state (Austro-German Customs Union Case). For example, a new state must prove that it is an entity separate from the parent state. A state exists if the territory is not under the lawful sovereign authority of another state (Hong Kong under the legal authority of China, so even though it complies with all the other requirements above, it is not a state). Units within a federal state may be considered to have international personality if and to the extent that they are allowed some freedom to conduct their own foreign affairs.

Difference between factual and legal independence: if HK was to declare independence, with China unable to reassert authority, would this be sufficient to presume legal capacity and therefore independence? The manner of attainment of this capacity/independence proves important: if the territory that declares factual independence is able to claim self- determination, this is sufficient. On the other hand, if independence is achieved in a manner regarded as unlawful under international law, they may not qualify as states under int’l law, for example, the Turkish Republic of Northern Cyprus.

The Montevideo Convention does not give sufficient guidance as to how the independence is to be achieved, but state practice shows that the manner in which independence is achieved is important; and there are now certain ‘qualifications of a political and moral character’ (Crawford).

1. independence must be achieved by legal means, without the use of force in violation of Art 2(4) of the UN Charter/not in pursuance of racist policies, etc.

Independence should not be achieved by illegal means (against the principle of s-d below would also count as an illegality). An example is the Turkish Rep. of Northern Cyprus: following Turkey’s invasion of northern Cyprus in 1974, a declaration establishing an independent state “The Turkish Republic of Northern Cyprus” was made in 1983. A Security Council resolution nullified the declaration. The declaration of independence is, to the day, without effect in the international legal community and the Republic is not regarded as a state, as its independence was achieved illegally by the use of force.

2. independence must be achieved in accordance with the principle of self-determination.

The principle of self determination has now become an indispensable rule in international law which holds that the political future of a colonial or similar non-independent territory should be determined in accoradance with the wishes of its inhabitants. It is VERY important to note that this does not extend to claims for independence by minority groups in a non-colonial context, such as Catalonia, of Biafrans in Nigeria (GA resolution with the attempt of bringing all colonial situations to an end) !! The Southern Rhodesia case is evidence that the qualification that independence be achieved in accordance with this principle, as the new white minority regime Smith Government was not recognised. But a difficulty with such an approach could be that legal rights/duties may become divorced from reality: why should the UK be responsible for international law for Smith Gov’s illegal actions? In the Western Sahara case, the Court held that the principle of s-d was a part of customary international law. In the Reference re Secession of Quebec, the Court confirmed that the principle does not generate a right to s-d outside the colonial context, or unless a definable group is denied meaningful access to government to pursue their political, social and economic development. These situations did not apply to Quebec — it did not possess a right to unilaterally secede from Canada. Similarly, Serbs within Bosnia-Herzegovina and Croatia were not found to have the right to s-d, although the two states’ obligation towards minorities were emphasised.

A state can cease to be one — as seen in the extinction of the Socialist Federal Republic of Yugoslavia (SFRY) and succession to its rights and obligations in international law. This was an example of ‘universal’ secession; no ‘parent’ state remained, whereas the dissolution of the USSR can be seen as a ‘partial’ one, with the Russian Federation being recognised as the successor to the rights and obligations of the USSR.

It can be seen that the criteria for statehood under the Montevideo Convention is definitely insufficient, as examples such as Southern Rhodesia or TRNC show that despite meeting the criteria under the Convention criteria, they were not recognised as states. This raises the question of whether recognition ought to be added to the list as an additional criterion in deciding if an entity has acquired statehood. While Lauterpacht suggested that there was a duty to recognise any entity fulfilling the legal criteria for statehood, the majority view is that recognition is discretionary. The legal importance of recognition is controversial. The two theories for the importance of recognition is the declaratory and constitutive theories.

The constitutive theory says that the legal capacity of states are conferred on the entity in question only when that state is recognised. Recognition is said to ‘constitute’ the entity’s status as a state. The constitutive theory has certain problems. Firstly, it seems to conflate the political and legal spheres — although there is an inevitable interaction between the two, it is only that: an interaction. The two dimensions are still separate, and the legal personality of an entity should not be dependent on political acts or decisions of third parties. On a more practical level, it also raises the question of what the requisite recognition will be, if it is taken to be constitutive of statehood. Does it require recognition by a single state? Unanimous recognition? The only threshold that will enable sufficient clarity and certainty on the matter seems to be a requirement of...