INTLAW1.4 i 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. 126.96.36.199 Permanent Population The existence of a permanent population is naturally required; but, see the Western Sahara case. 188.8.131.52 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. 184.108.40.206 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.‟ 220.127.116.11 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. 18.104.22.168 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. 22.214.171.124 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. …‟ 126.96.36.199 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. 188.8.131.52 Extinction of Statehood 4.2.2 THE FUNDAMENTAL RIGHTS OF STATES 184.108.40.206 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. INTLAW1.4 v Corfu Channel case (1949): „between independent states, respect for territorial sovereignty is an essential foundation of international relations‟. 220.127.116.11 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.‟ 18.104.22.168 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 22.214.171.124 Composite states federation versus confederation. 126.96.36.199 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 188.8.131.52 Diminutive States 4.2.4 SUI GENERIS TERRITORIAL ENTITIES 184.108.40.206 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. 220.127.116.11 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. 18.104.22.168 Taiwan Taiwan would appear to be a non-state territorial entity that is de jure part of China but under separate administration. 22.214.171.124 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 126.96.36.199 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 188.8.131.52 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‟. 184.108.40.206 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 INTLAW1.4 viii 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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