INTERNATIONAL LAW by monkey6

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                                             OVERHEAD 4

                               INTERNATIONAL PERSONALITY

4.1      INTRODUCTION

A „legal person‟ possesses the capacity to have and to maintain certain rights, and is required
to perform specific duties. Such „legal persons‟ are said to be subjects of the law.

International personality is held to rest on participation in the international community and
some form of acceptance.

4.2        STATES

Lauterpacht: „… the orthodox positivist doctrine has been explicit in the affirmation that only
states are subjects of international law‟.

4.2.1      CREATION OF STATEHOOD

Article 1 of the Montevideo Convention on Rights and Duties of States (1933) (165 LNTS 19
[in Harris 5th ed, p 102):

        The State as a person of international law 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.

4.2.1.1 Permanent Population

The existence of a permanent population is naturally required;
but, see the Western Sahara case.

4.2.1.2 Defined Territory

The need for a particular territorial base upon which to operate.
No necessity in international law that a state have clearly defined and undisputed borders.
North Sea Continental Shelf cases (ICJ Reports 1969, p 3 at 32):

        „The appurtenance of a given area, considered as an entity, in no way governs the precise
        determination of its boundaries, any more than uncertainty as to boundaries can affect territorial
INTLAW1.4                                                                                                  ii

      rights. There is for instance no rule that the land frontiers of a State must be fully delimited and
      defined, and often in various places and for long periods they are not …‟

What is required is that there be a consistent band of territory that is undeniably controlled by
the government of the alleged state.

4.2.1.3 Government

A state must have some form of government that is in effective control of its territory, and
that is independent of any other authority.
International Committee of Jurists in 1920 in its Report on the status of Finland:

      „until a stable political organisation had been created, and until the public authorities had
      become strong enough to assert themselves throughout the territories of the State without the
      assistance of foreign troops. It would appear that it was in May 1918, that the civil war ended
      and that the foreign troops began to leave the country so that from that time onwards it was
      possible to re-establish order and normal political and social life, little by little.‟

4.2.1.4 Capacity to enter into relations with other states

The capacity to enter into relations with other states is an aspect of the existence of the entity
in question as well as an indication of the importance attached to recognition by other
countries.
The capacity to enter into relations with other states is a consequence of sovereign
independence.

Austro-German Customs Union Case (1931) (Advisory Opinion PCIJ) (in Harris 5th ed, pp
105 - 106).

Article 88 of the Treaty of Saint-Germain:

      „The independence of Austria is inalienable otherwise than with the consent of the Council of
      the League of Nations. Consequently Austria undertakes in the absence of the consent of the
      said Council to abstain from any act which might directly or indirectly or by any means
      whatever compromise her independence. …

The court held:

      ... the independence of Austria ... must be understood to mean the continued existence of
      Austria within her present frontiers as a separate State with sole right of decision in all matters
      economic, political, financial or other with the result that that independence is violated, as soon
      as there is any violation there, either in the economic, political, or any other field, these different
INTLAW1.4                                                                                               iii

      aspects of independence being in practice one and indivisible. ...
      By “alienation”, as mentioned in Article 88, must be understood any voluntary act by the
      Austrian State which would cause it to lose its independence or which would modify its
      independence in that its sovereign will would be subordinated to the will of another Power or
      particular group of Powers, or would even be replaced by such will.

In a separate opinion Judge Anzilotti noted:

      Independence ... is really no more than the normal condition of States according to international
      law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by
      which is meant that the State has over it no other authority than that of international law. The
      idea of dependence therefore necessarily implies a relation between a superior State (suzerain,
      protector, etc) and an inferior or subject State (vassal, protégé, etc); the relation between the
      State which can legally impose its will and the State which is legally compelled to submit to that
      will. Where there is no such relation of superiority and subordination, it is impossible to speak
      of dependence within the meaning of international law. It follows that the restrictions upon a
      State‟s liberty, whether arising out of ordinary international law or contractual engagements, do
      not as such in the least affect its independence. As long as these restrictions do not place the
      State under the legal authority of another State, the former remains an independent State
      however extensive and burdensome those obligations may be.

4.2.1.5 Respect for human rights

European Community adopted Guidelines on Recognition of New States in Eastern Europe
and the Soviet Union (16 December 1991): underlined the need to respect the rule of law,
democracy and human rights, mentioning specifically the requirement for guarantees for the
rights of minorities.

4.2.1.6 Self-Determination and the Criteria of Statehood

Declaration on the Granting of Independence to Colonial Territories and Peoples,
Paragraph 2:

      „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.‟

Western Sahara Case (Advisory Opinion ICJ Reports 1975, p 12 [in Harris 5th ed, pp 115 –
118]):

      „The principle of self-determination as a right of peoples, and its application for the purpose of
      bringing all colonial situations to a speedy end, were enunciated in the Declaration on the
      Granting of Independence to Colonial Countries and Peoples, General Assembly resolution
      1514 (XV). … The above provisions, in particular paragraph 2, thus confirm and emphasize that
      the application of the right of self-determination requires a free and genuine expression of the
      will of the people concerned.‟
INTLAW1.4                                                                                                iv

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolutions 276 (1970) Advisory Opinion of
21 June 1971:

        „“… [T]he last fifty years … have brought important developments. These developments leave
        little doubt that the ultimate objective of the sacred trust [accorded to South Africa in overseeing
        the mandate territory of South West Africa] was the self-determination and independence of the
        peoples concerned. In this domain, as elsewhere, the corpus iuris gentium has been
        considerably enriched, and this Court, if it is faithfully to discharge its functions, may not
        ignore.”‟

Judge Dillard in a separate Opinion (though concurring in the court‟s Opinion):

        „It seemed hardly necessary to make more explicit the cardinal restraint which the legal right of
        self-determination imposes. The restraint may be captured in a single sentence. It is for the
        people to determine the destiny of the territory and not the territory the destiny of the people.
        …‟

4.2.1.7 Recognition

Recognition may be viewed as „constitutive‟ or „declaratory‟;
constitutive theory: it is only through recognition that a state comes into being;
declaratory theory: once the factual criteria of statehood have been satisfied, a new state
exists as an international person.

4.2.1.8 Extinction of Statehood

4.2.2      THE FUNDAMENTAL RIGHTS OF STATES

4.2.2.1 Independence

International Law Commission, in 1949 Draft Declaration on the Rights and Duties of States,
defined independence: 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.

The notion of independence in international law implies a number of rights and duties: for
example, 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. It implies,
also, the duty not to intervene in the internal affairs of other sovereign states.
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Corfu Channel case (1949): „between independent states, respect for territorial sovereignty is
an essential foundation of international relations‟.

4.2.2.2 Equality

Equality of legal rights and duties.

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;
        (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 gas 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.‟

4.2.2.3 Peaceful co-existence

Five Principles of Peaceful Co-existence (1954) drawn up by India and China: included
mutual respect for each other‟s territorial integrity and sovereignty, mutual non-aggression,
non-interference in each other‟s affairs, and the principle of equality.
final communiqué of the Bandung Conference in Indonesia in 1955;
various other resolutions of the United Nations.

4.2.3      THE FORM OF A STATE

4.2.3.1 Composite states

federation versus confederation.

4.2.3.2 Dependent or non-self-governing territories

General Assembly‟s Declaration on Independence suggests that all peoples have an
inalienable right to exercise their sovereignty.
INTLAW1.4                                                                                      vi

4.2.3.3 Diminutive States

4.2.4    SUI GENERIS TERRITORIAL ENTITIES

4.2.4.3 Condominium

In a condominium two or more states equally exercise sovereignty with respect to a territory
and its inhabitants.

Condominium of the New Hebrides became independent on 30 July 1980 as the state of
Vanuatu.

4.2.4.4 International Territories

General Assembly partition resolution for Palestine in 1947 proposed that Jerusalem be a
„corpus separatum under a special international regime … administered by the United
Nations‟.

The term „international territory‟ has no legal meaning as such and the nature and capacity of
the entity created will depend upon all the relevant circumstances.

4.2.4.5 Taiwan

Taiwan would appear to be a non-state territorial entity that is de jure part of China but under
separate administration.

4.2.4.6 The Turkish Federated State of Cyprus

On 15 November 1983, the Turkish „Republic of Northern Cyprus‟ proclaimed its
independence.
Resolution 541 (1983) of the Security Council declared the proclamation to be illegal.
Reiterated in Security Council resolution 550 (1984).

The territory cannot be regarded as a sovereign state. Instead it remains a de facto
administered entity within the recognised confines of the Republic of Cyprus and dependent
upon Turkish assistance.
INTLAW1.4                                                                                       vii

4.2.4.7 The Saharwi Arab Democratic Republic

In 1976, Spain withdrew form the territory and Morocco and Mauritania took over in
accordance with the tripartite agreement.
In February of the same year, the Polisario liberation movement commenced a war to free the
Western Saharan territory from Moroccan control.
The independent sovereign state of the Saharwi Arab Democratic Republic (SADR) was also
declared.
A strong argument can now be made regarding SADR‟s statehood, although the issue is still
controversial, particularly in view of the continuing hostilities.

4.2.5    SPECIAL CASES

4.2.5.1 The Sovereign Order of Malta

The Italian Court of Cassation in 1935 – in the case of Nani v Pace and the Sovereign Order
of Malta (1935-37) 8 AD 2 [in Harris 5th ed, 142 – 143]) - recognised the international
personality of the Order, noting that „the modern theory of the subjects of international law
recognises a number of collective units whose composition is independent of the nationality
of their constituent members and whose scope transcends by virtue of their universal character
the territorial confines of any single state‟.

4.2.5.1 The Holy See and the Vatican City

1929 the Lateran Treaty was signed with Italy which recognised the state of the Vatican City
and „the sovereignty of the Holy See in the field of international relations as an attribute that
pertains to the very nature of the Holy See, in conformity with its traditions and with the
demands of its mission in the world.‟

It would appear that by virtue of recognition and acquiescence the Vatican City does exist as a
state.

Holy See, in 1993, reminded the UN Committee on the Elimination of Racial Discrimination
of its „exceptional nature within the community of nations; as a sovereign subject of
international law, it has a mission of an essentially religious and moral order, universal in
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scope, which is based on minimal territorial dimensions guaranteeing a basis of autonomy for
the pastoral ministry of the Sovereign Pontiff‟.

4.3      INTERNATIONAL ORGANISATIONS

An international organisation, for purposes of international law, is an entity established by
agreement and which has states as its principal members.

Reparations for Injuries Suffered in the Service of the United Nations Case (advisory Opinion
ICJ Reports 1949 p 174 [in Harris 5th ed, pp 132 – 139):

         „The subjects of law in any legal system are not necessarily identical in their nature or in the
        extent of their rights, and their nature depends upon the needs of the Community. Throughout
        its history, the development of international law has been influenced by the requirements of
        international life, and the progressive increase in the collective action of States has already
        given rise to instances of action upon the international plane by certain entities which are not
        States. This development culminated in the establishment in June 1945 of an international
        organisation whose purposes ad principles are specified in the Charter of the United Nations.
        But to achieve these ends the attribution of international personality is indispensable.

        …

        In the opinion of the Court, the Organisation was intended to exercise and enjoy, and is in fact
        exercising and enjoying, functions and rights which can only be explained on the basis of the
        possession of a large measure of international personality and the capacity to operate upon an
        international plane. It is at present the supreme type of international organisation, and it could
        not carry out the intentions of its founders if it was devoid of international personality. It must
        be acknowledged that its Members, by entrusting certain functions to it, with the attendant
        duties and responsibilities, have clothed it with the competence required to enable those
        functions to be effectively discharged.‟

Whether an international organisation will possess international legal personality in all
instances will depend upon the particular characteristics of the organisation – organisations
vary.

4.4         INTERNATIONAL PUBLIC COMPANIES

This type of entity, which may be known by a variety of names, for example, multinational
public enterprise or international bodies corporate, is characterised in general by an
international agreement providing for co-operation between governmental and private
enterprises.
INTLAW1.4                                                                                       ix

Examples:

     INTELSAT, established in 1973 as an intergovernmental structure for global
      commercial telecommunications satellite systems;
     Eurofima, established in 1955 by fourteen European states in order to lease equipment
      to the railway administrations of those countries;
     And, the Bank of International Settlement, created in 1930 by virtue of a treaty between
      five states and the host country Switzerland.

4.5      TRANSNATIONAL CORPORATIONS

In essence they constitute private business organisations comprising several legal entities
linked together by parent corporations.
They are distinguished by their size and their multinational spread.
Barcelona Traction case

4.6      NATIONAL LIBERATION MOVEMENTS

1977, the General Assembly Fourth Committee permitted representatives of certain NLMs
from Portugal‟s African territories to participate in its work dealing with such territories.
GA granted observer status for NLMs recognised by the OAU in resolution 2918 (XVII).
Resolution 3247 (XXIX) accepted that NLMs recognised by the OAU or the Arab League
could participate in Assembly sessions.

Economic and Social Committee of the UN

UN Security Council also permitted the PLO to participate in its debates.

4.7      INSURGENTS AND BELLIGERENTS

International law has recognised that such entities may in certain circumstances, primarily
dependent upon the de facto administration of specific territory, enter into valid arrangements.
INTLAW1.4                                                                                          x

4.8     INDIVIDUALS

The question of the status of individuals in international law is loosely bound up with the rise
in the international protection of human rights.
1919 peace treaties made it possible for individuals to apply directly to an international court
in circumstances dealing with minority protection.
Since then:

     European Convention on Human Rights (1950);
     European Communities treaties (1957);
     Inter-American Convention on Human Rights (1969);
     Optional Protocol to the International Covenant on Civil and Political rights (1966);
     International Convention for the Elimination of All Forms of Racial discrimination
      (1965);
     Convention on the Settlement of Investment Disputes (1965).

As far as obligations are concerned, international law has imposed direct responsibility upon
individuals in certain specified matters:
piracy and slavery;
Statute of the International Criminal Court.

4.9      THE ACQUISITION, NATURE AND CONSEQUENCES OF LEGAL
         PERSONALITY – SOME CONCLUSIONS

There exists a range of interaction by entities of all types upon the international scene.

International Court recognises the multiplicity of models: „the subjects of law in any legal
system are not necessarily identical in their nature or in the extent of their rights‟.

two basic categories – objective and qualified personality.
objective: the entity is subject to a wide range of international rights and duties and will be
entitled to be accepted as an international person by any other international person with which
it is conducting relations; it will operate erga omnes.
qualified: binds only the consenting subject; may arise more easily.

								
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