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A. INTERNATIONAL LEGAL PERSONALITY AND INTERNATIONAL LEGAL PERSONS
1. INTERNATIONAL LEGAL PERSONALITY Legal personality refers to the quality of possessing rights and obligations under a legal system. International personality is not an absolute concept: it operates as if on a sliding scale with various subjects of international law having various capacities for particular purposes. There is a distinction between objective and qualified personality.
? In the former case, the entity has a wide range of international rights and duties and it will be entitled to be accepted as an international person by any other international person with which it is conducting relations - objective legal personality operates erga omnes. The creation of objective international personality will require the action of a substantial element of the international community (Reparations for Injuries)
? Qualified personality binds only the consenting subject - any legal person may accept that another entity possesses personality in relation to itself and that determination will operate only in personam A 'state' will have objective legal personality. All states, by virtue of the principle of sovereign equality, will enjoy the same degree of international legal personality. Other subjects, such as international organisations and individuals, will have qualified personality - personality in such measure and for such purposes as is necessary for the achievement of their roles within the international legal system. (i) States (ii) International organizations (iii) Individuals
2. INDIVIDUALS Individuals have a very limited capacity to participate in the international relations. States used to regard individuals as objects without international legal rights and duties, who constituted only the subject-matter of intended legal regulation. Only states, and possibly international organisations, are subjects of the law. However, the human being is the ultimate concern of international law and this was clearly manifest in the Natural Law origins of classical international law. Modern practice demonstrates that individuals are increasingly recognised as participants and subjects of international law. A wide range of treaties have provided for individuals to have rights directly and have enabled individuals to have direct access to international courts and tribunals. (i) International Criminal Law Individuals as subjects of international criminal law:
E.g. Rome Statute of the International Criminal Court (1998): Article 25. Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons pursuant to this Statute. (...)
4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law
. Article 51. Crimes within the jurisdiction of the Court The jurisdiction of the Court shall be limited to the mjost serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression. (ii) International Human Rights Law Individuals as subjects of international human rights law: Universal system for the protection of human rights: Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (1966) and International Covenant on Economic, Social and Cultural Rights (1966) Regional systems for the protection of human rights: European Convention on Human Rights (1950), American Convention on Human Rights (1969) and African Charter on Human and Peoples' Rights (1981)Right to access international courts occasionally envisaged for individuals: Art. 34, European Convention on Human Rights The Court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the Contracting Parties of the rights set forth in the Convention or the Protocols thereto
(iii) International investment law International investment law provides investors with the possibility to pursue investment protection claims directly in international arbitration. Diverse institutional arrangements exist for such claims arising from the violation of
bilateral investment treaties. However, only nationals of States Parties benefit from bilateral investment treaties.
3. INTERNATIONAL ORGANIZATIONS Article 2(a) of the ILC's 2011 Draft Articles on the Responsibility of International Organizations provides: 'international organization' means an organization established by treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may possess international legal personality and incur international responsibility. The extent of personality in international law depends on its constitutional status, its actual powers and practice. In Nuclear Weapons, the ICJ held that 'international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the 'principle of speciality' - they are invested with powers by the States. The limits of those powers are a function of the common interests whose promotion those States entrust to them. In Reparation for Injuries, the Court was asked to advise on the capacity of the UN to bring an international claim for injury to its personnel on the lines of diplomatic protection, and in respect of injury to the UN caused by the harm to its agents. But UN Charter not explicitly allowed to make such a claim. The Charter did not contain any explicit provision on the international legal personality of the UN, but the Court drew on the implications of the instrument as a whole, noting that, if the UN was to fulfill its tasks, 'the attribution of international personality was indispensable'. Q1 In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him?With respect to questions I (a) and I (b), the Court established a distinction according to whether the responsible State is a Member or not of the United Nations. The Court unanimously answered question I (a) in the affirmative. On question I (b) the Court was of opinion by 11 votes against 4 that the Organization has the capacity to bring an international claim whether or not the responsible State is a Member of the United Nations
? UN is recognized and thus can bring a claim for compensation towards even non-Member states (ie Q1(a)) as the 50 states in UN recognize UN as possessing "objective international personality"
Q2 In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?
The Court was of opinion by 10 votes against 5 that when the United Nations as an organization is bringing a claim for reparation for damage caused to its agent, it can only do so by basing its claim upon a breach of obligations due to itself; respect for this rule will usually prevent a conflict between the action of the United Nations and such rights as the agent's national State may possess; moreover, this reconciliation must depend upon considerations applicable to each particular case, and upon agreements to be made between the Organization and individual States.
Why was the UN viewed as having an international personality? -> The Court analysed the Charter and identified textual elements implying that the UN was intended to possess such personality, noting, inter alia, the defined position of Members in relation to the UN and the requirement that they assist it (Article 2(5)); the obligation to comply with and enforce decisions of the Security Council (Art 25); the grant of legal capacity, privileges and immunities to the UN in the territory of its Members (Arts 104 and 105).
? Ie all these as evidence that the UN exists as a separate legal entity These indicated that the Organization is exercising 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. Thus, the court held that where a State is responsible for an injury to an agent of the United Nations in the performance of his duties, the UN has the capacity to bring an international claim against the responsible government with a view to obtaining the reparation due in respect of the damage caused to the United Nations, as well as to the victim. The UN can only do so by basing its claim upon a breach of obligations due to itself.
1. THE CRITERIA FOR STATEHOOD IN INTERNATIONAL LAW The traditional starting point for analysis has been Article 1 of the 1933 Montevideo Convention on the 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; and d) capacity to enter into relations with the other States.d) is rather circular, isn't d) a consequence of statehood
The Montevideo list has been criticised for its ambiguity: how can one ascertain that a State has the 'capacity to enter into relations with other States'?
Independence arguably provides a capacity to enter into relations with other States. Thus Crawford (2006) propose an alternative formulation:
(i) Territorial community under government; (ii) Independence; (iii) Inexistence of legal obstacles to statehood (e.g. the entity must not be created in violation of the right of self-determination or as a result of an unlawful use of force) (i) Territorial community under government Core territory required, because a state must have some definite physical existence that marks it out clearly from its neighbours, though the existence of boundary disputes does not affect the existence of a State. What matters is the effective establishment of a stable political community within a certain area, even though its frontiers may be uncertain (In re Duchy of Sealand ). The fact that an existing state's territory is under threat of even subsumed by an aggressive neighbour does not destroy or prevent the existence of statehood. Kuwait was no less a state for its occupation by Iraq, and Iraq, Afghanistan and Syria are no less states despite the fractures in their territorial integrity. Population has to be permanent, but no numeric threshold has to be met. The territory of the Western Sahara, for example, is populated by nomadic tribes who roam freely across the desert without regard to land boundaries, yet their link with the territory is such that they may be regarded generally as its 'population' (Western Sahara). Government must be effective within the defined territory and exercise control over the permanent population, though it does not have to be entirely dominant, so long as it is capable of controlling the affairs of the 'state' in the international community.
- Ie Machinery of the state like Parliament
? Eg Republic of Somalia v Woodhouse where interim government was not exercising administrative control over Somalia
- Once the state exists there is a strong presumption that the state will continue to exist even though the administration of the state might be failing Both Croatia and Bosnia-Herzegovina were recognised as independent states by the European Community member states and admitted to membership of the UN (limited to 'states' by art 4 of the UN Charter) at a time when both states were faced with a situation where non-governmental forces controlled substantial areas of the territories in question in civil war conditions. Kosovo declared independence with certain Serb-inhabited areas not under the control of the central government. In such situations, lack of effective central control might be balanced by significant international recognition, culminating in membership of the UN. (ii) Independence (Capacity to enter into legal relations) It was noted in Island of Palmas (Netherlands v USA) that 'independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.' 'Functions of a state' refers to the
exercise public power (jurisdiction) over a territory and the population there inhabiting by e.g. enacting laws and enforcing them.
- "Sovereignty is the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of the state" Island of Palmas (Netherlands v USA) Independence may be formal (uncontested by other States or international organizations) or factual (when the territorial community is in fact capable of exercising 'the functions of a State' to the exclusion of other States). Both aspects must be present to a degree to sustain a claim to statehood. As long as the entity exercises as of right a sufficient authority over its affairs, to the exclusion of other states, it is possible to be accepted as independent. (iii) Inexistence of legal obstacles The Kosovo Advisory Opinion referred to declarations of independence regarded as unlawful as a result of 'egregious violations of norms of general international law, in particular those of a peremptory character.
- Eg Prohibition on the use of force in international relations, Art 2(4) UN Charter +
? Declaration on Principles of International Law concerning Friendly Relations: 'The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.' Crawford (2006) argues that failure to comply with peremptory norms (ius cogens) of international law will not preclude the statehood of an entity otherwise qualified. Instead, the question is whether the illegality is so central to the existence of the entity in question that international law may justifiably treat an effective entity as not a State.
2. SELF-DETERMINATION: TO WHAT EXTENT DOES INTERNATIONAL LAW RECOGNISE A RIGHT TO STATEHOOD?
(i) Emergence of right to self-determination as jus cogens A key initial development was the reference to 'the principles of equal rights and self-determination of peoples' in Art 1(2) and 55 of the UN Charter. Article 1(2) The Purposes of the United Nations are:
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; Article 55 With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United
Nations shall promote...
The practice of UN organs reinforced the principle, in particular the Declaration on the Granting of Independence to Colonial Countries and Peoples. The Declaration treats the principle of self-determination as one of the obligations stemming from the Charter: Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Res 1514 (XV) 'All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.' Means of achieving self-determination include the formation of a new state through secession, association in a federal state, or autonomy or assimilation in a unitary state. UNGA Res 1541 (XV) [which complements Res 1514 (XV)], Principle VI: 'A Non-Self-Governing Territory can be said to have reached a full measure of self-government by: a) Emergence as a self-governing independent State; b) Free association with an independent State; or c) Integration with an independent State.' The progressive recognition of self-determination as a legal right is evidenced by the jurisprudence of the International Court: E.g.: Western Sahara, Advisory Opinion (1975), para 55: 'The principle of self-determination as a right of peoples, and its application for the purposes of bringing all colonial situations to a speedy end, were enunciated in the [Colonial Declaration, the provisions of which] emphasize that the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned.' Eg East Timor (Portugal v Australia) (1995), para 29: 'The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court...; it is one of the essential principles of contemporary international law.' The progressive recognition of self-determination as an erga omnes legal right is evidenced by the jurisprudence of the International Court. In Construction of a Wall, the Court noted that 'the principle of self-determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly in resolution 2625 (XXV), pursuant to which "Every State has the duty
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