Subjects of Law

Internation Law Entities

International law applies only to certain classes of entities.  These are generally states and international organisation.  Entities with full international personality are the subject of rights and obligations.

States are the primary and original subjects of international law.  All states have full international personality.  This personality carries related rights and duties under international law, and is the basic inherent characteristic of the state.

It is both an attribute and defining characteristic of a state that it enters relationships with other states internationally.

Nongovernmental organizations may be established under domestic law.  However, they are not the subject of international law.  Some have consultative status before the UN Economic and Social Council.

States

The International Court of Justice statute provides that only states may be parties to claims before the court.  This is also reflected in principles that the states are deemed to have suffered certain wrongs done to the nationals.  However, it does not follow that states must hand over compensation received due to wrongs done to and damages suffered by their nationals.

The Montevideo  Convention on the Rights and Duties of State define the requirements for a state.  There must be a permanent population, a government, a defined territory and the ability to enter relations with other states.

The Convention reflects and embodies existing customary international law. A state has been defined as a community consisting of a territory and a population subject to organised political authority.  There are no minimum population or territory sizes.  Boundaries need not be definitively and absolutely established.

There must be an effective government.  It must enjoy legislative and administrative competence.  It must be a stable political organisation which is strong enough to assert itself throughout the territory.  However, the absence of an effective government does not necessarily imply that established statehood is lost.

Self-Determination

The UN declaration on granting independence to colonial territories and peoples asserted the principle of self-determination.  Peoples may fully determine their political status and freely pursue their economic and social development.

The 1966 International Covenants on Civil and Political rights and on economic, social and cultural rights provide that all peoples have the right to self-determination.  They may freely determine their political status and fully pursue their economic, social and cultural development.

The extent and nature of the right to self-determination are unclear.  It must not involve changes to existing frontiers at the time of independence. Attempts aimed at the partial or total disintegration of the national unity or territorial integrity of the country are incompatible with the principles of the UN charter.

In 1998, the Canadian Supreme Court denied the existence of the right of a Province, in this case, Quebec to secede.  A right of self-determination could only arise in limited cases. It is not a right existing under international law which allows entities or groups within existing states to secede unilaterally.

Human Rights

The 1992 Declaration on guidelines on the recognition of new states in Eastern Europe and the former Soviet Union laid emphasis on  human rights and the rights of minorities.  The following criteria were provided.

• respect for the provisions of the Charter of the United Nations
• respect for democracy, the rule of law  and human rights
• guarantees for ethnic and national groups and minorities
• respect for the inviolability of frontiers which may only be changed by peaceful means or agreement.
• acceptance of all relevant commitments in relation to disarmament and nuclear non-proliferation as well as security and regional stability
• commitment to settle by agreement, including recourse to arbitration, questions regarding states’ secession and regional disputes

Recognition

Recognition follows from intention.  Commencement of diplomatic relations implies recognition, as does entry into treaties.  Participation in an international conference does not necessarily imply recognition.  The UN is not the recognizing body.  Membership of the UN does not necessarily imply statehood.

States have agreed not to recognize entities established as a result of the aggression. The case of Kosovo involved the declaration of independence by provisional institutions of self-government.  The opinion held that it did not violate international law.

Recognition of a state is an acknowledgement internationally that the entity has sufficient criteria the be recognized as such.  It involves the recognition of an effective government.

The constitutive theory places emphasis on recognition as key.  The declaratory or evidentiary theory takes the view that the existence of the state is a matter of fact and recognition is declaratory or evidentiary only.

Generally, once a state is recognized, recognition is not withdrawn.  As long as the criteria for states continue to exist, the state will continue.  If they perish or the state no longer exists, formal derecognition is not required.

A Government regime may be recognized independently from a state.  Recognition may be withheld from a government without denying the existence of the state.  This may arise when there has been an unlawful change of government.

Recognition Issues

The establishment of diplomatic and other relations does not necessarily mean approval or disapproval of governments.  It may reflect a willingness to conduct affairs with other governments.

The U.S. and UK, since the late 1970s, have taken the pragmatic view that they do not recognise governments as such but deal with them on a pragmatic basis. They are of the view that they may deal with a government without any recognition or denotation of approval.

Issues for consideration in whether a state should be recognized include the

• constitutional nature of its government,
• stability and scope of control,
• dealing with other states with the entity and
• dealings by other states with the country.

An entity may be recognized as a de facto or effective government without necessarily being recognized as the legal government.  This principle is of diminished relevance given the above more pragmatic approach by which recognition is essentially discretionary and political in nature.

Effect of Recognition

Recognition of an entity as a state gives it the totality of rights and duties of statehood under international law.  This includes sovereignty and jurisdictional rights.  It is to refrain from the use of force, save in limited circumstances.  These obligations are immediately assumed.

The legal consequence of recognition is that the state or government has standing in foreign courts and can take legal action.  The state is entitled to immunity aboard.  Its legislative and administrative acts may be given effect.

The recognition of a state is retrospective to the date of establishment.  This may have anomalous effects on rights in that a de facto and legal state may coexist.

Legal recognition implies full diplomatic relations and rights of the state to recover public debts and state assets in other states.

Rebel groups may gain effective control over territory.  They may enter into agreements with states. In the conduct of arm conflict,  rebel groups are bound by international humanitarian law, including the Geneva conventions.

An unrecognized entity lacks privileges and rights under international law.  It has no standing in a foreign court.  Its legal and administrative actions may not be recognized in other countries.

State Succession

State succession is the replacement of one state by another in terms of international relations. State succession raises complex issues.  The question arises as to what extent a successor succeeds to the assets and liabilities of the preceding authority.

A key consideration s to the extent to which the new state assumes the assets and liability for the debts of the earlier state or authority.

There are no formal procedures for the termination of states.  A state which is a member of the UN does not cease to be as such because its constitution changes or boundaries are altered.  The extinction of a state must be shown before its international rights and obligations cease to exist.

Where a new state is created in respect of territory and population, it cannot operate under the UN and claim that it is a member of the United Nations until it has been formally admitted in conformity with the provisions of the charter.

On the breakup of the Soviet Union, Russia succeeded to its privileges and its membership of the UN and its permanent seat on the Security Council on the basis of having the bulk of the population and land area.

In contrast, the rump Yugoslavia comprising Serbia and Montenegro was not permitted to succeed to the Yugoslavia seat at the UN as it did not succeed to the bulk of the land or population of the former Yugoslav Republic.  It is required to formally apply for membership later. becoming Serbia and Montenegro.  Serbia and Montenegro later declared their independence and were accepted as a member of the United Nations.

Issues in terms of succession arise in relation to treaty obligations.  The general principle is that the successor does not succeed to pre-existing treaties. It may assume the obligations if it wishes to do so. This principle does not apply to treaties limiting boundaries or those imposing restrictions on treaties for the benefit of another state.

There is a Vienna convention on the succession of states in relation to treaties and a Convention on the succession of state in respect of property, archives and debt.

International Organisations

International organizations are recognized as entities in international law.  They are said to be derivative in contrast to their member states.  International organizations are established by agreements between states.  States are members.  The UN and the EU are preeminent examples.

The competence of international organizations is set by its establishing constitutional documents.  The document will generally establish legal personality. expressly or by implication.

Conventions on privileges and immunities support the legal personality of organizations.  International organizations, however, do not have a general competence.  The competence is limited by the terms of their powers and functions under the constitution.

Human Rigths

Progressively international rights and duties of individuals have become recognized.  Human rights have been accorded progressively greater recognition.

Treaties following the First World War protected particular national groups.  Conventions on suppression of trafficking women and children and slavery conventions signed in the 1920s. After the Second World War and the NAZI genocide, comprehensive human rights instruments against specific types of behaviour were adopted.

Very few duties are placed on individuals by international law.  The duty not to engage in piracy is one of the oldest duties.  However, international crimes have developed such that individuals can’t claim immunity by claiming they acted lawfully in accordance with the law of their state.

For example, one of the earliest conventions provided that persons committing genocide or other acts enumerated are punishable whether they are constitutionally responsible rulers,  public officials or private individuals.

The international criminal tribunals for the former Yugoslavia and Rwanda have developed extensive principles in relation to responsibility for genocide, war crimes and crimes against humanity. The statute for the tribunals provided that the tribunal had jurisdiction to find persons individually responsible for certain grievous crimes.

International Criminal Court

The Rome Statute 1998 established a permanent International Criminal Court.  Individuals accused of violating certain international laws may be tried.  War crimes, genocide and crimes against humanity are within the jurisdiction of the court. Amendments in 2010 extended crimes to include non-international armed conflicts, use of outlawed weapons and called crimes of aggression.

The Rome statute provides that the ICC court has jurisdiction over individuals.  A person committing a crime within the jurisdiction of the court is individually responsible and liable for punishment in accordance with the statute.

The Statute applies to all persons irrespective of whether they are acting in a private or official capacity. Grave breaches of the Geneva Convention, certain drug trafficking, terrorism, and acts against state diplomats are within the powers of the court.

Individual Rights

Individuals may be granted procedural capacity by states.  Individuals may have procedural capacity under a number of UN Human rights treaties, including the optional protocol in the International Covenant on Civil and political rights in relation to violation of the Covenant’s provision.

A state party to the Covenant that becomes a party to the protocol recognizes the competence of the committee to receive and consider communications from individuals who claim to be victims of a violation by the state of the rights set out in the Covenant.

There are similar provisions in

• the International Convention on the elimination of all forms of discrimination 1966,
• Convention against torture 1984 and
• the Convention on the protection of persons from enforced disappearance in 2006.

There are optional protocols to the

• International Covenant on economic, social and cultural rights 1966 adopted in 2008
• Convention on the elimination of discrimination against women 1979, adopted 1999 and
• the Convention on the rights of persons with disability adopted in 2006

each allowing for individual claims and petitions.

The European Convention on Human Rights allows complaints from individuals against states.