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3. International Persons: States
What does it mean to say that an entity possesses international legal personality? It is important to distinguish between the question of who is a legal actor vs who has the capacity to act/who is competent to act. Just to say that someone is an international legal person does not determine the answer to this question; the answer will vary for different legal persons. Capacity implies personality, but only takes us so far: entity A, a legal person, may have capacities to perform acts X,
Y, Z; entity B, also a legal person, may have capacities to perform acts A, B, C…The main capacities of an international legal person are the abilities to make claims before an international tribunal to vindicate rights given by international law, and to be subject to some or all obligations imposed by it. The persons to be discussed are states, international organisations and individuals.
The focus will be on states, as they are the most important and most powerful subjects of international law, as they are the ones who make it.
There is no doubt that states are international legal persons but what entities qualify as a state? The starting point in answering this question is Art 1 of the Montevideo Convention on the Rights and
Duties of States 1993 (this Convention never entered into force, but this article has now come to reflect customary int'l law on the criteria for statehood, so is relevant and important). The article reads:
The state as a person of international law should possess the following qualifications:
a) a permanent population — the size is irrelevant, but it must be 'stable', continuous.
b) a defined territory, — what about states with not clearly defined territory, such as Israel? Even where borders are contested, if the entity is in effective control of an area, still satisfies this criteria. Deutsche Continental Gas-Gessellschaft v Polish State, the Arbitral Tribunal said that it is enough that a territory has sufficient consistency, even though its boundaries are not accurately determined.
c) government, — effective government, in effective control of the territory. 1917: Finland's declaration of independence from the Russian Empire was proceeded by a period of unrest,
disorganisation, etc. in the country during which the Finnish authorities were not able to assert themselves; the legality of the Finnish gov was opposed by those within Finland…and the Int'l
Committee of Jurists said that a state had not been formed until a stable political organisation had been created. A state that later descends into civil war and ceases to have a stable government is not considered to have lost its statehood: Lebanon in 1970-1980s, Somalia since 1990s, Syria. Kosovo as a mixed example.
d) capacity to enter into relations with other states. — this has been interpreted as implying
'independence' — independence from the authority of any other state (Austro-German
Customs Union Case). For example, a new state must prove that it is an entity separate from the parent state. A state exists if the territory is not under the lawful sovereign authority of another state (Hong Kong under the legal authority of China, so even though it complies with all the other requirements above, it is not a state). Units within a federal state may be considered to have international personality if and to the extent that they are allowed some freedom to conduct their own foreign affairs.
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