Public International Law: Chapter V ー Subject of International Law: States

 Subject of International Law: States

• Subjects of international law 
• Entities endowed with rights and obligations in the international order and possessing the capacity to take certain kinds of action on the international plane. 
• They are those who have international personality.
• They are actors in the international legal system.
• They are distinct from objects of international law. 
• Objects of international law 
• Those who indirectly have rights under or are beneficiaries of international law through subjects of international law. 
• Not all subjects of international law enjoy the same rights and obligations. 
• States enjoy the fullest personality in international law. 
• In asserting the international personality of the United Nations, for instance, the Reparations Case had this to say: 
• 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 activities of States has already given rise to instances of action upon the international plane by certain entities which are not States.... 

States: Commencement of their Existence.

Montevideo Convention of 1933 on Rights and Duties of States:

“The state as a person of international law should possess the following qualifications: 

(a) a permanent population; 

(b) a defined territory; 

(c) government; 

(d) the capacity to enter into relations with other States.”

Definition of the concept “state” (Philippine writers).

A community of persons 

more or less numerous, 

permanently occupying a definite portion of territory, 

independent of external control, and 

possessing an organized government 

to which the great body of inhabitants 

render habitual obedience. 

Four Elements of State

1. People or Population
2. Territory
3. Government
4. Sovereignty

1. People or Population

• Community of persons sufficient in number and capable of maintaining the permanent existence of the community and held together by a common bond of law. 
• It is of no legal consequence if they possess diverse racial, cultural, or economic interests. 
• Nor is a minimum population required.

2. Territory

• A definite territory over which an entity exercises permanent sovereignty is another element of a state.
• Restatement (Third) on the Foreign Relations Law of the United States explains: 
• “An entity may satisfy the territorial requirement for statehood even if its boundaries have not been finally settled, if one or more of its boundaries are disputed, or if some of its territory is claimed by another state. An entity does not necessarily cease to be a state even if all its territory has been occupied by a foreign power or if it has otherwise lost control of its territory temporarily.”

3. Government

• Institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.
• International law does not specify what form a government should have. 
• Moreover, for purposes of international law, it is the national government that has legal personality and it is the national government that is internationally responsible for the actions of other agencies and instrumentalities of the state. 
• Finally, a temporary absence of government, for instance during an occupation by a foreign power, does not terminate the existence of a state.

4. Sovereignty

• Independence from outside control.
• The Montevideo Convention expresses this in positive terms as including “the capacity to enter into relations with other States.”
• This latter element of sovereignty, however, is dependent on recognition.
• An entity may in fact possess all the elements of a state but if one or more states do not extend recognition to it, the entity would not be able to establish relations with those states. 
• Incidentally, although the Philippines was not yet an independent state in 1945, it was accepted as one of the original signatories of the United Nations Charter.

Self-determination

• Sovereignty as an element of a state is related to but not identical with the broader concept of the right of self-determination. 
• In the post- World War II era, there have arisen numerous new states. 
• The impetus behind the birth of new states is the principle of self-determination of peoples. 
• Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights assert the principle of self determination of people in identical language: “All people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” 
• The various levels of claim to self-determination may be broken down into two main categories. 
1. Establishment of new states 
• The claim by a group within an established state to break away and form a new entity. 
2. Does not involve the establishment of a new state. 
• This can simply be claims to be free from external coercion, or 
• The claim to overthrow effective rulers and establish a new government, that is, the assertion of the right of revolution; or 
• The claim of people within an entity to be given autonomy. 
• The UN has used various means to give effect to self-determination: 
1. resolutions of support for demands, 
2. sanctions for offenses against self-determination, 
3. helping in ascertaining the will of the people, 
4. giving rights of participation in international fora, 
5. inquiries and reports, 
6. military force to maintain order, 
7. formulation of criteria whether self-government exists, 
8. and technical assistance. 
• But international law has not recognized a right of secession from a legitimately existing state.

Recognition of states.

• When State A recognizes State B, it means that both recognize the capacity of each other to exercise all the rights belonging to statehood. 
• Recognition thus means the act of acknowledging the capacity of an entity to exercise rights belonging to statehood.

Q: Can an entity claim to be a state before it is recognized by other states? 

There are two views on this. 

1. The declaratory theory
• Recognition is merely “declaratory” of the existence of the state.
• Being a state depends upon its possession of the required elements and not upon recognition. 
• A recognizing state merely accepts an already existing situation. 
• The weight of authority favors the “declaratory view.”
2. Constitutive theory
• Recognition “constitutes” a state, that is, it is what makes a state a state and confers legal  personality on the entity. 
• In effect, this merely emphasizes the point that states are under no obligation to enter into bilateral relations. 
• But then states may decide to recognize an entity as a state even if it does not have all the elements of a state found in the Montevideo Convention.

Roland Rich on Recognition of States: The Collapse of Yugoslavia & the Soviet Union

• Recognition of states has become more politically discretionary
• Recent practices indicate that recognizing states is less predictable and increasingly influenced by political discretion rather than traditional criteria.
• The traditional criteria for statehood exist alongside new guidelines, especially influential in recognizing new states emerging from the USSR and Yugoslavia.
• Inconsistencies in recognition
• Recognition decisions have been inconsistent, especially in cases like Georgia and the Republic of Bosnia and Herzegovina. 
• Factors such as the presence of foreign forces have been treated differently.
• UN membership and recognition
• Membership in the UN is viewed differently by different countries; some consider a vote in favor as recognition, while others extend recognition bilaterally despite UN membership.
• Political realities over consistency
• Political considerations now often take precedence over consistent application of traditional criteria for statehood. 
• This shift is not necessarily negative but inconsistency remains a challenge.
• The case of the former Yugoslav Republic of Macedonia
• Despite meeting criteria, the country's recognition of independence is hindered by political realties, because it simply refuses to change its name.
• Trend towards constitutive recognition
• There is a trend toward attempting to constitute states through the recognition process, as seen in examples like Bosnia and Herzegovina and Ukraine.
• Challenges post-Cold War
• The end of the Cold War has led to complex challenges regarding self-determination and international boundaries. 
• Recognition decisions may need to focus on contributing to peaceful conflict resolution, potentially requiring adjustments to traditional statehood criteria.

Recognition of Government.

• It means the act of acknowledging the capacity of an entity to exercise powers of government of a state. 
• If a change in government in an existing state comes about through ordinary constitutional procedure, recognition by others comes as a matter of course. 
• The problem is acute when a new government within a state comes into existence through extra-constitutional means. 
• The following are two cases involving recognition of government: 

The Tinoco Arbitration

Great Britain v. Costa Rica (1923)

• In January 1917, Costa Rica's President Alfredo Gonzalez was overthrown by Federico Tenneco, who subsequently made contracts with British Corporations. Tenneco's government was not widely recognized internationally. 
• Costa Rica's old constitution was restored after Tenneco's retirement, and a Law of Nullities was passed, annulling the contracts made during Tenneco's regime.
• Great Britain made claims against Costa Rica due to the annulments.

Issues: 

1.  The status of the Tenneco regime in international law.
• Recognition by other nations is significant evidence in establishing the existence of a government in international law. However, non-recognition loses weight if it's based on the government's illegitimacy or irregular origin, rather than its de facto sovereignty and control.
• Costa Rica argued that the Tinoco government should not be considered a de facto government because it did not conform to Costa Rica's constitution of 1871. However, international law does not require a new government to conform to the previous constitution.
2.  WoN Great Britain estopped from pursuing its claims because it never recognized the Tinoco government either de jure or de facto.
• Great Britain, however, asserted that the Tinoco government, despite non-recognition, was a de facto government that could create rights for British subjects. Non-recognition initially might have helped the succeeding government, but presenting claims based on the previous government's de facto existence did not constitute fraud or breach of good faith toward the succeeding government.

Upright v. Mercury Business Machines Co.

Supreme Court of New York, Appellate Division,

• The plaintiff filed a lawsuit against the defendant for non-payment of a trade acceptance worth $27,307.45. The trade acceptance was initially issued for business typewriters sold to the defendant by a foreign corporation and was assigned to the plaintiff after being dishonored by the defendant.
• The defendant's defense claimed that the foreign corporation involved was a creation of the East German Government, an entity not recognized by the United States. The defense alleged that the corporation was controlled by and an instrument of the East German Government.

WoN the foreign corporation's ties to the unrecognized government justified the non-payment. NO.

• A foreign government, although not recognized by the political arm of the United States Government, may nevertheless have de facto existence which is juridically cognizable. The acts of such a de facto government may affect private rights and obligations arising either as a result of activity in, or with persons or corporations within, the territory controlled by such de facto government. This is traditional law.

Consequences of Recognition or Non-recognition.

• In a world of growing interdependence, recognition or nonrecognition of government can have very serious consequences. 
• A government, once recognized, gains increased prestige and stability. 
• The doors of funding agencies are opened, loans are facilitated, access to foreign courts and immunity from suit are gained. 
• Military and financial assistance also come within reach. 
• The absence of formal recognition, on the other hand, bars an entity from all these benefits or, at least, access to them may be suspended. 
• Recognition of a government, however, like recognition of a state involves a highly political judgment. 
• The United States, for instance, refused for many years to recognize the government of the People’s Republic of China or of North Korea not because it was not obvious that these governments had effective control of their territory but because the United States did not wish these governments to benefit from the legal effects of recognition. 
• Does admission of a government to the United Nations mean recognition by all members? No. 
• The recognition is only to the extent of the activities of the organization. 
• While recognition of a state is not the same as recognition of government, the two often go together in the case of new states. 
• However, within established states, governments come and go with no effect on recognition of the state. 
• It should be noted, moreover, that recognition of government does not mean approval of the recognized government’s methods. 
• Nor do diplomatic relations connote approval; they are intended merely to secure a convenience. 
• An illustration of the political nature of recognition may be found in United States history. 
• In the 19th century, Daniel Webster said that nations have the discretion to govern themselves and to choose which agency to represent them. 
• In 1792, after the French Revolution, Jefferson said that the US would deal with any government effectively in power.
• In subsequent years, however, the US required more than just effective control by the incoming government. 
• Woodrow Wilson said that the US should not deal with governments set up in violation of their constitution. 
• After the Communists took over in China in 1949, Truman said that the US would not deal with a government imposed by a foreign power. 
• When Chinese troops entered the Korean war, Dulles said that the policy of the United States was to recognize de facto governments when (1) they control government, (2) are not confronted with active resistance in the country, and (3) are willing to live up to international obligations.

Q: When is recognition terminated? 

The answer is fairly simple: recognition of a regime is terminated when another regime is recognized. 

• For as long as a state continues to meet the qualifications of statehood, its status as a state cannot be “derecognized.” 
• When the United States recognized the government of China in 1979, it derecognized the government of Taiwan, but continued with commercial, cultural, and other non-governmental relationships.

Succession of States. 

Succession or Continuity 

• States do not last forever. The issue of state succession can arise in different circumstances.
• The international law and practice of states on this subject have been confused. 
• Some on one extreme suggest that the new state succeeds to no rights or obligations of the predecessor state but begins with a tabula rasa.
• Others on another extreme hold that the successor state assumes all the obligations and enjoys all the rights of the predecessor. 
• Others hold that succession has varying effects on state rights and duties. 

Q: When a new state arises, what is its relation to the predecessor state? Is it completely distinct from the predecessor state or is it a continuation of the  predecessor state? 

There are cases when there are no problems. For instance, the present India is a continuation of the former British India while Pakistan is a completely new state, but there are also very problematic situations like the Soviet Union and the Yugoslavia.

• After the USSR was dissolved, Russia claimed to be a continuation of the USSR and therefore entitled to membership not only in the UN but also in the Security Council. Russia’s claim was supported by the Decision of the Council of Heads of State of the Commonwealth of the Independent States on December 21, 1991. 
• But the Baltic states of Estonia, Latvia and Lithuania, which had been annexed by the Soviet Union in 1940, declared their independence. The European Community adopted a resolution welcoming the restoration of the sovereignty of the Baltic states in 1991. So did the United States. 
• The problem of Yugoslavia, however, is more complicated. The mother state was the Socialist Federal Republic of Yugoslavia. Over a period of several months, this state collapsed and the component republics declared independence. 
• Majorities in Bosnia and Herzegovina voted for independence in a referendum and this was recognized by the Arbitration Commission of Yugoslavia. The European Community recognized Slovenia, Croatia and Bosnia and these were admitted to the United Nations. 
• Serbia and Montenegro, however, formed a new state called the Federal Republic of Yugoslavia and maintained that they were the continuation of the former mother state. This claim was opposed by the other republics and by the international community. In 1992, the Security Council even declared that “the state formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist.” 
• In November 2000, Yugoslavia applied for membership in the UN thereby abandoning its claim to continuity of SFRY.

Succession of States

The issues on succession can be succession to territory, to treaties, to property and contracts. 

The rules may be summarized thus:

• When a state succeeds another state with respect to particular territory, the capacities, rights and duties of the predecessor state with respect to that territory terminate and are assumed by the successor state.

• As to state property, subject to agreement between predecessor and successor states, title passes as follows:
1. where part of the territory of a state becomes territory of another state, property of the predecessor state located in that territory passes to the successor state; 
2. where a state is absorbed by another state, property of the absorbed state, wherever located, passes to the absorbing state;
3. where part of a state becomes a separate state, property of the predecessor state located in the territory of the new state passes to the new state. 

• With respect to public debts, subject again to agreement between the states concerned, responsibility for the public debt of the predecessor, and rights and obligations under its contracts remain with the predecessor state, except as follows: 
1. where part of the territory of a state becomes territory of another state, local public debt, and the rights and obligations of the predecessor state under contracts relating to that territory, are transferred to the successor state;
2. where a state is absorbed by another state, the public debt, and rights and obligations under contracts of the absorbed state, past to the absorbing state;
3. where part of a state becomes a separate state, local public debt, and rights and obligations of the predecessor state under contracts relating to the territory of the new state, pass to the new state.

• With respect to treaties (already touched on in the Chapter on Treaties), the Vienna Convention is followed. The rules are:
1. When part of the territory of a state becomes territory of another state, the international agreements of the predecessor state cease to have effect in respect of the territory and the international agreements of the successor state come into force there. 
• This reflects the “moving treaty rule” or “moving boundaries rule.”
• If X has a treaty with Y, and part of Y is transferred to Z, X may seek relief from treaty obligation under “rebus sic stantibus.’’ 
2. When a state is absorbed by another state, the international agreements of the absorbed state are terminated and the international agreements of the absorbing state become applicable to the territory of the absorbed state. 
• Third states may appeal to rebus sic stantibus.
3. When a part of a state becomes a new state, the new state does not succeed to the international agreements to which the predecessor state was party, unless, expressly or by implication, it accepts such agreements and the other party or parties thereto agree or acquiesce. 
• This applies the “clean slate theory.”
4. Pre-existing boundary and other territorial agreements continue to be binding notwithstanding. 
• This is the uti possidetis rule.

• The consequences of the re-unification of West and East Germany were governed by the German Unification Treaty of 1990. 
• The special case of Hongkong’s return to China in 1997 were governed by the 1984 Sino-British Joint Declaration on the Question of Hongkong.

Fundamental Rights of States.

1. Independence
2. Equality
3. Peaceful co-existence

Independence

• Independence is 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. 
• As a right, independence means the right to exercise within its portion of the globe, to the exclusion of others, the functions of a state. 
• But restrictions upon a state’s liberty arising either from customary law or from treaties do not deprive a state of independence.
• Flowing from independence are certain other rights such as:
1. jurisdiction over its territory and permanent population, 
2. the right to self defense and 
3. the right of legation. 
• Independence also involves the duty not to interfere in the internal affairs of other states.

Equality

• Equality obviously does not mean equality in political or economic power. 
• Rather, it means equality of legal rights irrespective of the size or power of the state. 
• Within the General Assembly, the doctrine means one state, one vote. '
• The UN Charter, Article 2, provides that “the Organization is based on the principle of the sovereign equality of all its Members.” 
• Hence, each has one vote in the General Assembly and every state may aspire for the offices in the various organs of the UN.

Peaceful co-existence.

• This right has been developing over the past twenty years. 
• The theory was elaborated in 1954 as the Five Principles of Co-existence by India and China and includes 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. 
• This has also been expressed in other documents such as the 1970 Declaration on Principles of International Law Friendly Relations and Cooperation Among States.

Some Incomplete Subjects.

Protectorates.

• Protectorates are largely of historical importance. 
• They are dependent states which have control over their internal affairs but whose external affairs are controlled by another state. 
• They were sometimes referred to as autonomous states, vassal states, semi-sovereign or dependent states.

Federal state. 

• This is a union of previously autonomous entities. 
• Various arrangements are possible. 
• One arrangement may involve placing full authority in a central organ 
• Another arrangement might lodge authority in the individual entities to the detriment of the central organ. 
• The central organ will have personality in international law; but the extent of international personality of the component entities can be a problem.

Mandated and Trust Territories. 

• Mandated territories were territories placed by the League of Nations under one or other of the victorious allies of World War I. 
• The mandate system was replaced by the trusteeship system after World War II under the Trusteeship Council. 
• For instance, the Carolines, Marianas and Marshall Islands were placed under the trusteeship of the United States. These have been in the process of evolution and self-determination since 1986.

Taiwan.

• Taiwan seems to be a non-state territory which de jure is part of China. 
• But it is too affluent and strategically located to be overlooked by international actors.
• It is interesting that when Taiwan sought accession to the GATT treaty it did not do so as a state but as part of a “customs territory.”

The Sovereign Order of Malta. 

• There was a time when the order had sovereignty over Malta. This has since been lost. 
• But the Italian Court of Cassation in 1935 recognized its international personality. 
• Currently, it has diplomatic relations with over forty states.

The Holy See and Vatican City.

• In 1929, the Lateran Treaty was signed with Italy which recognized 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 the demands of its mission in the world.” 
• It has no permanent population.

Practice Questions:

1. What are subjects of international law, and what distinguishes them from objects of international law?
2. According to the Montevideo Convention of 1933, what qualifications must a state possess as a person of international law?
3. Define the concept of state.
4. What are the four essential elements of a state according to international law?
5. How does international law define "people or population" in the context of a state?
6. Can a state be considered a state even if its boundaries are disputed or if it has lost control of its territory temporarily?
7. Does international law does specify what form a government should have?
8. What is the concept of sovereignty in international law, and upon what factor does it depend?
9. What are various levels of claim to self-determination?
10. What is the right of secession? Do the international law recognize it?
11. How does the recognition of a government differ from the recognition of a state in international law?
12. Can a state exist without formal recognition? Explain the declaratory theory and the constitutive theory regarding state recognition.
13. Examine the case of the former Yugoslav Republic of Macedonia and the challenges it faced in gaining international recognition.
14. Discuss the legal implications of the Tinoco Arbitration (Great Britain v. Costa Rica, 1923) and its impact on the recognition of governments in international law.
15. Discuss the legal implications of the Upright v. Mercury Business Machines Co. case in recognizing the existence of de facto governments despite non-recognition by certain states.
16. What is the significance of recognition in international law, and how does it relate to the establishment of new states?
17. Does admission of a government to the United Nations mean recognition by all members? 
18. When does recognition of a regime or government typically terminate in international law?
19. Explain the concept of state succession. When can state succession issues arise, and how are they typically addressed in international law?
20. Explain the “moving treaty rule” or “moving boundaries rule.”
21. Explain the “clean slate theory.”
22. Explain the “uti possidetis rule.”
23. What are the fundamental rights of states?
24. How does international law define the independence of a state?
25. How does international law define the equality among states?
26. What are protectorates in the context of international law, and what roles do they play historically?
27. Describe the concept of a federal state in international law. How does the international personality of federal entities differ from the central organ?
28. What is the trusteeship system in international law, and how did it evolve after World War II?
29. How is Taiwan recognized in international law, and what unique status does it hold in the international community?
30. Explain the concept of the Sovereign Order of Malta and its international personality.

View more practice questions here.