Lecture 6

Question 1

What do we mean by subjects?

Answer 1

• Subjects of IL are those entities that the law regards as possessing rights and duties enforceable at law.
• Think in domestic terms, we (humans) and corporations (Leiden University) can enter into contracts and have duties, but not (say) pigs or trees.
• If an entity has qualified personality, it only has legal personality insofar another entity with legal personality accepts it as having legal personality.

Question 2

States as subjects of IL

Answer 2

• States have traditionally been and remain the main subjects of IL, as well as by far the most important subjects.
• The orthodox positivist doctrine has been explicit in the affirmation that only states are subjects if IL (Lauterpacht).
  o This is no longer true today and perhaps wasn’t true even in the heyday of classical positivism (cf Vatican before the Lateran treaty).

Question 3

Montevideo convention 1933

Answer 3

• Montevideo convention 1933, the most widely accepted definition of a state (restated).
  o The state as a person of IL should possess the following qualifications;
  A permanent population, a defined territory, a government, capacity to enter into relations with other states and legitimacy.

Question 4

A permanent population

Answer 4

• Population as a requirement for statehood underlines the ultimate object of a state as an organized community of people.
• No threshold requirements; Vatican city 1800, San Marino 33000, nor even of citizenship requirements (probably) (cf Monaco).
• ‘permanent’; no ‘voluntary associations of robbers and pirates’ nor ‘unsettled hordes’ (!) (Wheaton 1866).

Question 5

a defined territory

Answer 5

• Again, size has no particular threshold, see Vatican city or San Marino.
• The existence of territorial conflict/boundary dispute does not affect statehood, as long as there is a stable community within a piece of territory which is undeniably controlled by the government of the putative state.

Question 6

Government

Answer 6

• Again, a low bar, the government doesn’t have to be good or bar, it doesn’t have to be democratic.
• In the case of entities in the process of achieving self-determination, not even that very low bar has to be cleared, see Congo and guinea Bissau.
• In other words, IL now takes a broader view than the Weberian one.

Question 7

Capacity to enter into relations with other states

Answer 7

• Is this tautological? After all, an entity cannot enter into state to state relations unless it is a state.
• A view is that this refers to recognition.
• Alternatively, it refers to legal capacity, the kingdom of the Netherlands has capacity to enter into such relations whereas Zuid-Holland doesn’t.

Question 8

Legitimacy (?)

Answer 8

• A state will not be recognized unless it has developed toward statehood in a way consistent with self-determination and ius cogens.
• For instance, an entity born out of an international illegal act (aggression: northern Cyprus; apartheid; South African bantustans/Rhodesia) cannot and will not be recognized despite its fulfillment of the 4 criteria.
• Conversely, an entity which is seen as the vehicle of legitimate self-determination will be recognized as state even when it lacks some of the essential elements of statehood.
• DR Congo achieved recognition as state at a time when it had minimal government.
• Guinea-Bissau achieved recognition when it was still a Portuguese colony.

Question 9

State recognition

Answer 9

o Montevideo convention sided with the declarative view, today, declaratory view is generally accepted.
o In practice, recognition is political as well as legal, with the attendant consequences. o Formerly one of the great debates of IL theory.

Question 10

Constitutive theory of statehood

Answer 10

o Some said recognition by other states was a constitutive element of statehood (constitutive theory of statehood).

Question 11

Declaratory theory of statehood

Answer 11

o Others maintained that statehood was a fact and that recognition merely acknowledged the fact (declaratory theory of statehood).

Question 12

Sample case Taiwan

Answer 12

o The republic of China government retreated to island of Taiwan in 1949, in the face of communist advances.
o The communist subsequently proclaimed the people’s republic of China, while the government of Taiwan continued to maintain its claim to be the government of the whole of China.
o Today, the ROC has diplomatic relations and recognition with 13 states.
o Neither the PRC nor the ROC will maintain diplomatic relations with any state that recognizes the other.
o Is the republic of China/Taiwan a state?
 Crawford = Taiwan doesn’t want to be a state, it claims China still.

Question 13

Sample case Kosovo

Answer 13

o Unilaterally declared its independence in 2008, ICJ dodged the question of the legality of its independence.
o Today, 101 out of 193 UN members recognize it as a state, so is it a state?

Question 14

States - Sui generis cases

Answer 14

• Sovereign military order of Malta (SMOM)
  o Roman catholic order of crusaders expelled from Malta by Napoleon in 1798.
  o Today it is generally recognized as a subject of IL and as sovereign, but not as a state.
  o There is a difference between the SMOM and the country of Malta, there is no connection.

Question 15

Having internationa legal personality means IO’s can

Answer 15

o Have a legal existence independent of their member-states.
o Can sue to enforce their rights, but also be sued and held liable for breaches of international obligation.
o Many IO’s will also have privileges and immunities, particularly from the host state.
o IO’s can conclude international agreements subject to the limitations of the founding treaties.

Question 16

IO’s

Answer 16

• Traditionally, IO’s status was contested in IL.
• Today, the principle that IO’s have international legal personality is recognized.
• But not all organizations created through agreements between states are IO’s.
• How do we know?
  o If the treaty creating it says so.
  o If it is indispensable to achieve the purpose of the organization as established by its governing document (by inference).
  o There is also an ‘objective theory’ of what is an IO and what isn’t.
• The legal personality of IO’s is thus generally considered derivative, and thus be a qualified personality (but EU?).

Question 17

The individual

Answer 17

• Traditional positivist doctrine stated that whereas states are only subjects of IL, individuals were the objects of IL, i.e. the only subject-matter of intended legal regulation; but had no direct tights and obligations arising from IL (those were meditated through the state).
• Nowadays, many would recognize individuals (whether as individuals or in groups) as participants and, in some cases, subjects of IL.

Question 18

Human rights before the world wars

Answer 18

o Human rights have been the principal conduits through which individuals have gained some sort of status in international law.
o Traditionally, individuals’ rights were wholly at the mercy of the state they belonged to; aliens sometimes were protected by specific treaties between their parent state and the other state

Question 19

Human rights after ww1

Answer 19

o After the First World War, the concept of group rights entered international law; and in some cases individuals could also assert their rights directly to international tribunals if given the permission via treaty.

Question 20

Human rights after ww2

Answer 20

o After the Second World War, protection of human rights, whether individually or collectively, became a mainstay of international law.
o An important development is the growing right for individuals to access international courts.

Question 21

Individual responsibility

Answer 21

o Conversely, international law also recognized that individuals could be held liable criminally for international legal obligations, mainly of a criminal nature (war crimes, genocide, etc).

Question 22

International economic law

Answer 22

o The growth of international economic law has also meant that individuals as well as private corporations increasingly possess international legal protections for their investments, chattels, contractual rights, etc, in foreign countries.
o Such rights can be controversial as they are framed in terms of private entities infringing on the sovereignty of states.

Question 23

A word on nationality

Answer 23

o Whilst this is no longer the inevitable rule, the idea that the right to bring a legal claim against a state for injuries suffered by an individual lies with his own state is still an important one.
o In other words, your citizenship/nationality affects the extent to which you have rights enforceable against a state as an individual.