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Week 4 – Subjects of International Law

Subjects of IL – entities capable of:

• possessing international rights & duties
• entering into international legal relations
• enforcing those rights through international claims

What are they?

• States
• International Organizations
• Individuals
• National Liberation/Insurgent Movements
• Holy See
• Corporations

States = primary subjects of IL

Other entities can attain degree of international legal personality, but hold different rights & duties than states.

Statehood

Montevideo Convention (1933)

• Population
• Territory
• Effective Government
• Capacity to Enter into International Relations

Population (Permanent/Stable/Territorial)

• no minimum number of permanent residents required (Nauru, Liechtenstein)
• need not be nationals of state

Territory (Delimited/Controlled)

• no minimum size required
• need not be unitary or contiguous
• some territory must be effectively controlled

Effective Government (Control of Population & Territory)

• absence of independent control may not be fatal (decolonisation)
• no particular type of government required—sometimes humanitarian issues arise
• presumption of continuance maintains statehood if this criterion disappears (Somalia)

Capacity to Enter into International Relations (Independence)

State must be:
• sole legally constituted authority over territory & population
• be independent + exercise political/legal will free from control of another state
• independence not compromised by political/economic pressure, nor compliance with IL

Compromised if
• foreign control is overbearing – effectively exercising influence on wide variety of governmental issues, with ability to substitute decisions

Sub-National Units

• legal personality of sub-national units often depends upon internal constitutional order, which delineates authority to enter into international relations
• where conduct of foreign relations lies within authority of the sub-national unit, IL treats sub-unit as agent of national state

Contexts in which international legal personality is important:

• capacity to make claims under IL
• capacity to enter into valid treaties (i.e. is contract under domestic or IL?)
• capacity to claim privileges & immunities

For non-state actors, issue is how do states relate to the entity?

Peoples Seeking Self-Determination

• principle of SD originally articulated by USSR
• evolved throughout 20th century (particularly during decolonisation process) - Wilson
• often resisted by states
• scholars & states (practice) agree that in some circumstances there is right to SD enjoyed by entities known as peoples.
It is a binding norm of IL, based on customary law. The ICJ recognized the principle of self- determination in the Western Sahara & Namibia cases, which dealt with colonial territories. The ICJ left unclear the extent/content/timing of the right. The legal personality of peoples seeking SD is limited/circumscribed & transitory.

Source:

• UN Charter--1(2), 2(4), 2(7), 55 (inalienable rights of people vs. inalienable rights of states)
• Declaration on the Granting of Independence to Colonial Territories & Peoples (internal & external SD, plus preservation of national unity & territorial integrity)
• ECOSOC—1, 1(3)
• Declaration on Principles of IL Concerning Friendly Relations—5, paras 1, 2, 4 (sovereign & independent states, integration of new status, core, territorial integrity, finite status of SD)

Definition of "Peoples"

• how is "peoples" to be defined?
• could it be a definition of a new subject of IL?
• can this only be understood in the context of colonialism?

Criteria:
objective--a cohesive national group with a reasonable degree of homogeneity
subjective-group manifests political will to be recognised as such

Evidence:
referenda, elections, uprisings/popular movements

"free & democratic expression of will of members amounting to clear desire to be recognised" (ICJ)

Position of "Peoples" Vis-à-vis State

Colony right of SD denied ipso facto SD
Peoples relation to state characterised by denial of participation in governance denial of internal SD on discriminatory basis SD arises

Reference re: Quebec Secession (SCC, 1998):
• colonial people
• alien subjugation/domination/exploitation
• people denied meaningful exercise of right to internal SD

SCC & international conventions emphasise exceptional nature of situations in context of overriding norm of territorial integrity

Substantive Content of SD

• statehood is not necessary—rather, it is the right to choose – look to the will of the people for content/status: Western Sahara (ICJ, 1975)
• termination of denial may suffice (e.g. Kosovo)

International Organisations

2 types:
• IGOs
• NGOs

IGOs came into own in 19th century, as states moved away from bilateral to multilateral ties,
Encouraged by LON & UN
IGOs are creatures of treaties

Reparations Case (ICJ, 1949)

Reasoning:
• UN purports to concern itself with broad goals & purposes
• Charter equips UN with organs designed to carry out mandate
• Charter sets out detailed state-IGO relations, obligations of members vis-à-vis UN
• UN can enter into treaties with its members
• thus, members intended to give UN some degree of international legal personality

Findings:
• UN could not carry out its intended functions without international legal personality
• UN has capacity to bring claims for injury to itself or to its agents
• personality of the UN extends to non-members

Criteria for International Legal Personality of International Organisations

• permanent association of states with lawful objects, equipped with organs capable of fulfilling those objects
• distinction (re: legal powers & purposes) between organisation & member states
• existence of legal powers exercisable on international plane & not solely within national legal systems of one or more states (e.g. treaty-making, immunities, ability to bring or be subject to international claims, etc.)
• criteria to be applied with primary regard to treaty creating organisation & applying functional analysis to same

NGOs

While major players on international scene they do not possess even the limited personality of IGOs
Unlike IGOs, they are not established by states
ECOSOC may grant consultative status at UN (Charter 71)

Individuals

Conventionally individuals did not possess international legal personality – existed vicariously through their (national) state.

This century has seen a weakening of this position:
• civil & political rights against the state – limited by inadequate enforcement
• obligations for war crimes, crimes against humanity, crimes against peace – enforcement possible in domestic courts, ad hoc tribunals, or ICC (not in force)

Corporations

• constituted by domestic law
• generally do not possess international legal personality
• corporate codes of conduct are not considered binding norms

• note grey areas: Crown Corporations (IL may treat as agent of state) & corporations permitted to directly enforce (trade) treaty obligations against states.