User:Jose Edmundo Dayot/PIL Module 3
A subject of international law is an entity possessing international rights and obligations and having the capacity to maintain its rights by bringing international claims, and to be responsible for its breaches of obligation by being subjected to such claims.[1]
Legal personality in international law[edit]
This implies the capability to possess international legal rights and duty to fulfill international legal duties and obligations. To be considered a subject of international law, it is necessary to possess legal personality. Further, this entails responsibility for any breach in obligation. A subject of international law is a body or entity recognized or accepted as being capable, or as in fact being capable, of possessing and exercising international law rights and duties.[2]
The moment an entity becomes a State, it becomes an international legal person and acquires international legal personality. States are the original subjects of international law, i.e., international law was created to regulate relations between States.
Criteria for statehood[edit]
The Montevideo Convention the Rights and Duties of States provided the definition, rights and duties of statehood. It sets out the four criteria for statehood that have been recognized by international organizations as an accurate statement of customary international law: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.[3]
Permanent population[edit]
States are not only territorial entities, but they also consist of groups of individuals. Therefore, a permanent population is another necessary requirement for statehood. However, there are no criteria relating to the size of the population. Neither does international law set any requirements about the nature of the population. The requirement of a permanent population does not relate to the nationality of a population: It merely requires that States have a permanent population. Neither does international law prescribe which person belongs to a State. Thus, States are free to determine to whom the nationality of the State is granted.[4]
Defined territory[edit]
One of the defining characteristics of the sovereign State is its territoriality. The State is the highest authority within a given territory: outside that territory the State, is obliged to respect the principle of non-intervention in its relations with other States.[5] The development of the State is closely linked to the ability to exercise effective control over a defined territory. Given the strategic, economic and symbolic importance of territory, it is therefore not surprising that at the present time many territorial disputes and disputes over border demarcation still exist. However, the existence of border disputes is not an obstacle to attaining statehood in international law. There is no rule stating that the boundaries of a State should be undisputed or unambiguously established.
Government[edit]
The importance that is attached to the criteria of independence and effectiveness is understandable considering the predominantly decentralized nature of international law. Since international law lacks a central executive body, with the power to enforce compliance with international obligations, compliance with international obligations must often be guaranteed by the States themselves. Hence, a State must be able to the effectively and independently exercise its authority within its borders.[6]
Capacity to enter into relations with other States[edit]
The capacity to enter into relations with States is not the exclusive entitlement of States: autonomous national authorities, liberation movements and insurgents are all capable of maintaining relations with States and other subjects of international law.[7] While States do possess that capacity, it is not a requirement, but a consequence of statehood. A consequence which is moreover irregular and dependent on the status and situation of a particular State. It can be said that the capacity to enter into full range of international relations can be a valuable measure, but capacity or competence in this sense depends in part on the power of the government, without which as State cannot carry out its international obligations. The ability of the government to independently carry out its obligations and accept responsibility for them in turn greatly depends on the previously discussed requirements of effective government and independence.[8] Furthermore, a State cannot enter into relations with other States if it is not recognized. Consequently, it cannot be recognized as a State.
State recognition[edit]
According to the declaratory theory of recognition, which is supported by international practice, the act of recognition signifies no more than the acceptance of an already-existing factual situation, i.e., conformity with the criteria of statehood. The declaratory theory prescribes that recognition of a State is nothing more than expressing the willingness to enter into relations with that State. In other words, an entity becomes a State for the reason that it meets all the international legal criteria for statehood and the recognizing State merely establishes, confirms or provides evidence of the objective legal situation, that is, the existence of a State.[9] In contrast, the constitutive theory, argues that it is the act of recognition itself that actually creates the state.[10]
Self-determination of peoples[edit]
The right of all peoples to self-determination is one of the core principles of international law and, by virtue of its erga omnes status, it is the responsibility of all states to ensure that this right is realized. The obstruction or violation of this principle, particularly through the use of force, constitutes a very serious violation of international law. Under the terms of the Charter of the United Nations, States Members of the United Nations that have or assume responsibilities for the administration of Territories whose peoples have not yet attained a full measure of self-government undertake to transmit regularly to the Secretary-General information relating to the economic, social and educational conditions in the Territories for which they are respectively responsible.[11]
A people can be said to have realized its right to self-determination when they have either established a sovereign and independent state, freely associated with another state, or integrated with another state after freely having expressed their will to do so.[12]
The principle of self-determination outlines not just the duty of states to respect and promote the right, but also the obligation to refrain from any forcible action which deprives peoples of the enjoyment of such a right. In particular, the use of force to prevent a people from exercising their right of self-determination is regarded as illegal and has been consistently condemned by the international community. The obligations flowing from the principle of self-determination have been recognied as erga omnes, namely existing towards the international community as a whole.[13]
State continuity and succession[edit]
International law defines a succession of States as the replacement of one State by another in the responsibility for the international relations of territory.[14] State succession involves the transfer of a territory from one State to another State. The doctrine of continuity provides that the rights and obligations of the predecessor State, relating to the territory transferred, are transmitted to the successor State. Thus, the successor State inherits the treaty rights and obligations of the predecessor State relating to the territory transferred. As well, the successor State inherits public property and debts belonging to the predecessor State relating to the territory transferred. Indeed, the "universal succession" doctrine provides that the successor State ensures the continuation of the predecessor State's sovereignty over the territory transferred.[15]
Concept of international organizations[edit]
An international organization is defined as an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.[17] The United Nations and the World Trade Organization are examples of international organizations.
Notes[edit]
- ^ Brownlie, Ian (1990). Principles of Public International Law (4th ed.). Clarendon Press.
- ^ Dixon, Martin (April 18, 2013). Textbook on International Law (7th Edition ed.). Oxford University Press. p. 166.
{{cite book}}:|edition=has extra text (help) - ^ Article 1, Montevideo Convention
- ^ Hobach, Lefeber & Ribbelink 2007, p. 168.
- ^ Hobach, Lefeber & Ribbelink 2007, p. 161.
- ^ Hobach, Lefeber & Ribbelink 2007, p. 169.
- ^ Talmon 2004, p. 121-122
- ^ Crawford 1977, p. 119
- ^ Talmon 2004, p. 105
- ^ Shaw, Malcolm (November 13, 2019). "International Law". Encyclopædia Britannica.
- ^ Article 73 (e), Charter of the United Nations
- ^ The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, 1970.
- ^ "International Law and Self-Determination". Diakonia International Human Law Center.
- ^ Vienna Convention on the Succession of States in Respect of Treaties, 1978.
- ^ Emanuelli, C. (1803). State Succession, Then and Now, With Special Reference to the Louisiana Purchase. p. 1279.
- ^ (in French) François Modoux, "La Suisse engagera 300 millions pour rénover le Palais des Nations", Le Temps, Friday 28 June 2013, page 9.
- ^ Article 2 (a), Articles on the Responsibility of International Organizations