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4. Personality, Statehood, Recognition Definition of Subject of International Law
A subject of international law is an entity possessing international rights and obligations and having the capacity1
* To maintain its rights by bringing international claims;
* To be responsible for its breaches of obligation by being subjected to such claims. Personality can be embodied in:
* The capacity to make claims in respect of breaches of international law;
* The capacity to make treaties and agreements valid on the international plane;
* The enjoyment of privileges and immunities from national jurisdiction. Established legal persons:
* Entities legally proximate to States: e.g., the former Free City of Danzig
* Entities recognised as belligerents, i.e., insurgent(Pan Luan Zhe ) bodies
* International administration of territories prior to independence.
* International organisations
* Individuals Note that the above list is NOT exclusive. There are other recognised subjects of international law namely recognised to have international legal personality, namely:
* Corporations, public and private (not all)
* Non-self-governing peoples
* Entities sui generis, for example, Holy See
Du Te De
State as Subjects of International Law
A state may be defined as a group of people living together in a defined territory under an independent government organised for political ends and capable of entering into international relations. Elements of a State:2 Permanent population
* A community of persons sufficient in number and capable of maintaining a permanent existence of the community and held together by a common bond of law.
There is no lower limit to the size of a State's population.
- Nauru, for example, has only 9000 inhabitants. A defined territory
* A fixed portion of the surface of the earth in which the people of the state reside.
* A State may still be recognised as a legal person if the State's territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited: Deutshe Continental Gas-Gesellshaft v Polish State Government
* An agency through which the will of the state is formulated, expressed and realised.
* Failed states: a failed State is a State perceived as having failed at some of the basic conditions and responsibilities of a sovereign government.
*> Elements of "failed States":
- Are associated with internal and endogenous problems;
- A total or near total breakdown of structures guaranteeing law and order;
- The absence of bodies capable of representing the State at the international level and of being influenced by the outside world. Independence
1 Brownlie, page 115.
2 Developed from Montevideo Connection on Rights and Duties of States 1993, Article 1.
1 4. Personality, Statehood, Recognition
* Independence is also described as sovereignty, i.e., the capacity to enter into relations with other States: Austro-German Customs Union Case (1931)
* Independence needs to be declared:Taiwan issue.
* Meeting the criteria for statehood will not in and of itself give a state the ability to enter into international relations with other states. A state must be recognised by others before it fully assumes true international personality.
*> Although recognition is related to the presence of the basic requirements for statehood, it neither requires such a finding or always follows such a finding.
* Being sovereign and equal to others, a state has certain rights and corresponding duties.
*> Rights include:
- exclusive control over its territory
- exclusive control over its permanent population (with certain provisos concerning the int'l protection of human rights)
- exclusive control over other aspects of its domestic affairs
*> Duties include:
* not to intervene overtly or covertly in the affairs of other states
- not to interfere with other states' exclusive domestic jurisdiction
* Extinction and succession
- 'State succession' means the replacement of one State by another in the responsibility for the international relations of territory:Yugoslavia Arbitration Commission (Opinion No.1)
- The dissolution of a State, i.e., extinction, means that it no long has legal personality, something which has major repercussions in international law:Yugoslavia Arbitration Commission (Opinion No.8)
*> Consequence of succession:Yugoslavia Arbitration Commission (Opinion No.1)
- After succession, the States concerned are free to settle terms and conditions by international agreement.
- However, the peremptory norms of general international law are binding on all the parties to the succession.
*> In practice, when will extinction occurs? 3
- When one State merges into another and becomes merely a part of it
- When a State breaks up so that its whole territory henceforth comprises two or more new States.
- When a State breaks up into parts all of which become part of other -- usually surrounding -- States.
- Formerly, when a State has been subjugated, i.e., annexed by the victorious State after conquest in war.
*> Types of succession4
- Universal succession: SFRY
- Partial succession: USSR -- Russian Republic
Consider the proportion of the territory, population, etc.
* The Russian Public's territory constituted 76% of the total territory of the USSR and 51% of the total population.
* The territory of the FRY, by contrast, comprises 40% of the territory of the SFRY, and its population, 45%.
*> Rules on Succession of States
- Succession to territory
The succeeding state assumes all the capacities, rights and obligations of the predecessor state with respect to that territory
- Succession to state property
Where a part of State A's territory becomes territory of State B, the property of A located in that territory passes to B.
When State A is absorbed by State B, A's property passes to B, wherever the property is located.
Where part of State A becomes a separate state, property of the State A located in the territory of the separate state become the separated state's.
- Succession to public debts
3 Oppenheim Vol.1, pp204.
4 Oppenheim Vol. 1, pp209-210
2 4. Personality, Statehood, Recognition
A principle of international law that states that newly formed sovereign states should have the same borders that their preceding dependent area had before their independence.
Where part of the territory of State A becomes territory of State B, local public debt and the rights and obligations of State A under contracts relating to that territory are transferred to State B.
Where state A is absorbed by State B, the public debt, rights and obligations of State A pass to State B.Where part of State A becomes a separate state, local public debt, rights and obligations of the predecessor state under contracts relating to the territory of the new state pass to the new state.
- Succession to contracts
When part of State A becomes territory of State B, State A's international agreements with respect to that territory ceases and the force of the treaty transfers to State B. this is called the "moving treaty rule" or "moving boundaries rule". (Basically, the treaty follows the territory.)
When a State is absorbed by another State, the international agreements that govern the absorbed state will now be those applicable to the absorbing state.
When there is a new state, it does not succeed to the treaties of the predecessor state unless it accepts agreements or agree to it or acquiesced to it. This is called the "clean slate theory". (Because the new state accedes to no treaties unless those ratified by it):Yugoslavia Arbitration Commission (Opinion No.1)
* However, the peremptory norms of general international law are binding on all the parties to the succession.
* Principle of uti possidetis: pre-existing boundary and territorial arrangements continue to be binding notwithstanding
*> Uti possidetis is recognised as a general principle in international law:Yugoslavia Arbitration Commission (Opinion No. 3)
* Alternation of existing frontiers on boundaries by force is not capable of producing any legal effect: Yugoslavia Arbitration Commission (Opinion No.3) Self-determination
* This is a broader concept than sovereignty.
* All peoples have a right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.
- In a case of independence, the principle of self-determination is a part of customary international law: Western Sahara Case (1975)
* It is a principle erga omnes, i.e., towards all: East Timor case
- Situations where the self-determination not be considered:Western Sahara Case (1975)
* A certain population does not constitute a "people" entitled to self-determination; or
* On conviction that a consultation was totally unnecessary, in view of special circumstances.
* An imported, colonial population, replacing the earlier population: Gibraltar case
*> Who is people?
- 'People' is to be understood in the sense of all the peoples of a given territory, including those minorities and ethnic groups:Yugoslavia Arbitration Commission (Opinion No.2)
* Levels of claims to self-determination:
*> Establishment of new states - the claim by a group within an established state to break away and form a new entity.
*> Claims to be free from external coercion, or the claim to overthrow effective rulers and establish a new government Classification of States Independent States
* A state who is not subject from dictation from others with respect to the freedom to enter into external affairs is known as an independent state. It may either be:
*> Simple states
- A simple state is that which is placed under a single and centralised government exercising power over both its internal and external affairs.
*> Composite states
- A composite state consists of two or more states, each with its own separate government but bound under a central authority exercising to a greater or lesser degree control over their external relations.
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