 Subjects of International law –

1. It can be legal persons. They are entities and they have rights and obligations and
they have certain capacities.
 They can make any claims.
 They have obligations means they can be sued.

These subjects have certain privileges and immunities. We need to see these and
that’s why we need to identify them.

1. State is the 1st subject – They are the entities through which we can make claims
and through that they also have certain immunities. A state can also be called a
normal subject of international law.
[1]
2. International organizations - Case ; Waldock – he claimed that the
international organizations are subjects to the international law.

 Categorization of the subjects –

1. State actors – India, etc. Freidman 1964 – Changing structure of nations in

international law and he was trying to identify them as the subject. In the legal order the
world order was such a way that the state was given importance which would bring
changes. States are repositories of legitimate authorities which will bring them control
the people and the territory. This can be changed when the world order is superseded
by the national entities. 3 theories of subjects of international law by other subjects –
 Realist theory – PE Corbett and they considered the state as the only identity
or subject of international law. They say that state is a broad identity with
individuals inside. They are taking extreme standpoint when they say this. They
say other entities come under this.
 Fictional theory – It is not state but the individuals are the only subject. John
Westlake and Hans Kelson. They said that the subjects are only individuals and
this is also an extreme standpoint. They thought it is the conduct of the human
beings which would develop the order and thus they are the subject. They are
 trying to say that the individuals are the entity. For state to run there should be
individuals.
 Functional theory – Akehurst. Idea to take a middle ground. Both the state as
well as the individuals can be subject of the international law. They say that the
states can maintain rights traditionally and another parallel order in which the
individuals are running. There are normal entities like states and individuals and
special entities which gives them the special identity.

SS Lotus case – ICJ said that international law governs the relationship between the
independent states. They said that in order to regulate the relationship between the
co-existing independent communities or with the view of achievement of common
aims.

Sovereign equality – equal rights and abilities given to the states under the
international law and this makes them the one subject of the international law. Each
of these are equal.

Martin Dixon – Subjects of international law is a body or an entity recognized or

accepted as being capable of possessing and exercising international law and duties.

Monte Video convention – A state has to have a permanent population and needs to
have a defined territory and a recognized government and it should have capacity to
enter into legal relationship with other states.

 Power dynamic – States are critical of states who have power –

power to influence others and control outcome
 States can be divided into different kind of legal personalities –
 Independent state – They fulfilled all the criteria and they unlimited
legal personality and they have the rights and obligations that makes
them subject of international law. They have the capacity to enter into
treaties and these capacities can alter their legal personality. But this is
not the only kind of states we are looking at and the first
 kind of states is that of the composite states which is a group of
constituent states and can be divided into 2 – federation and
confederation. A federation is when there are 2 or more states come
together to an extent at which they start abandoning their separate
identities. In a federation there will be a division of power and divided
between the members of the federation and the government. It is the
federal government which has international personality and the general
rule is that the member states can’t enter into the foreign agreements.
Other kind of federations other than U.S. i.e. Germany but they do have
the international personality and the member states have the power to
enter into agreement with other nations. In Germany certain members
can enter and they are the agents of the state itself. This can happen in
U.S but needs the consent of the Congress to enter into this. Another
example is of Canada and in common parlance confederation and
federation are separate example a swiss confederate. The difference is
regarding voluntariness – in confederation it is more voluntary as of swiss
confederate and in the federation it is more forced as the example of
U.S.A.
 Personal union – Two or more states come together and they
consent and decide to have one head of state but this does not destroy
their separate international identity. 1714 – 1837 – Hannover – A
personal union and made united kingdom the head of the states. The
English channel islands is another example – such as Sark, Jersey,
Alderney, Guernsey and they made British monarch as their head. Their
external affairs is controlled by the British monarch but they have the
separate international identity.
 Real union – 2 or more states share certain state organs. 1723 –
1829 – Austro hungarian dual monarchy that was example of this. It
depends on the states to keep or forego separate legal personalities.
 Protectorate – It is a state that does have an international
personality but they have surrendered the competence to another state
which is the protecting state. There is a treaty arrangement due to the
power dynamic. General agreement of Algerica 1907 which made France
the protecting and Morocco the protected state and they divided the
powers. Sultan of Morocco was given the liberties and he was not
 removed from his post and Morocco surrendered his powers and that
admin, judiciary, education, finance, etc. was surrendered and economic
powers were still with Morocco. France could also maintain its army
without permission. In 1912 Fez treaty entered and France undertook the
sovereign power of Morocco. France could use this power and use it in
internal and external way on behalf and in name of Sultan ; only thing it
had was to have a separate legal identity.

Non state actors –

a. Individuals
b. International organisations
c. Multi national identities – MNC

7th September 2018

At 1 of the Monte video Convention 1933 : 4 criteria of which is a state –

1. Defined territory
2. Population
3. Capacity to enter into foreign relations
4. Stable Government

1965 – The 2nd reinstatement of the foreign nation’s law of United Nations – They defined state as – an
entity which has defined territory, population under the control of government and enters into foreign
relations.

These were criticized by the Soviet DOCTRINES OF international law and they said that these definitions
did not contain the word sovereignty and there was an absence of it. As a reply to that – when you look
at the capability then it divide the state into those who are capable and incapable who can enter into
foreign relations and shows until the state is completely sovereign it can’t enter into foreign relations.

Art 6 of VCLT – States possesses legal capacity to conclude treaties. It shows the rights and the duties that
the state possess.
1970 – UNGA – Resolution of 2625, 1970 – Declaration on the principles of international law governing
friendly relations and co-operation among states in accordance with the United Nations, 1970. IT said that
all states must enjoy sovereign equality and each state and each state have inherent right of full
sovereignty.

 State is a collective, social, organized entity and possesses an independent legal status under
International Law and has certain rights and duties (bearer), capable of participating in IR and has
legal capacity to conclude treaties and responsible for any violation of International obligations
and has the right to defend its legal status.
 Criteria in detail –
1. Territory – Territory is the Earth surface where this entity has exclusive control over
and it imposes a supreme authority over this territory – land, air, land below, national
waters and the territorial waters. A state can’t exist without territory. Ex – Vatican City
didn’t have the territory attached to it – Lateran Treaty gave a territory to it and that’s
how it was a called a state and became a state in IL. There is no rule that prescribes a
minimum size for something to be called a state; other tiny states are Monaco. If there
is a territorial change – will it affect the identity of that state? Under the rule – it will still
be a state. The nation doing addition because of cessation then the identity of it as a
nation will not change. Ex – France gave Louisiana to U.S.A. same happens if there is a
decrease as well. This decrease of a portion will also not change the identity of the state.
Then comes Accretion – where something is formed out of this land which might make
an island then that would not change the identity of the state. If there is a Seceding that
happens – a colony forms – the state that had the colony as a part would still be a state.
 How well defined should the frontiers of the state be to call it a state? It need not have
a fixed frontier to call it a state. If there is a boundary dispute it does not really affect the
statehood. This state practice of how disputed territories can acquire the state of
statehood only after WW1. Ex- When Finland was coming up and gave freedom to Britain
– in recognising the freedom of Finland his majesty’s government does so with
confidence and understanding that the Finish government accepts the decisions to be
taken by the peace conference on the drawing of the Frontiers – the Frontiers is still not
fixed and they are still recognising it as state.
 WW2 - Another example is the state of Israel – NO un disputed territory as such – Judge
Jessup – One does not find in the general classic treatment of the subject that the (there
 is no rule that a territory of a state must be exactly fixed by national frontiers.) The
formula in the classic treaty somewhat differs – both history and IL say that the concept
of statehood does not include the precise understanding of the boundaries of that state.
It’s not that it should not have a territory – it should have people living, control of the
government, etc. but there should not be exact delimitation of the boundaries – so Israel
does have a piece of land.

11/09/2018

Defined territory

Boundary dispute does not affect the criteria of statehood.

WW2 – Israel

 Deutsche continental gas Gessell schaft vs. Polish state – b/t Germany and Poland – Rule – in
order to say that a state exists and can be recognized as such it is enough that the territory has a
sufficient consistency even though its boundaries have not be delimited accurately.
 North Sea continental shelf case 1969– There is no rule in IL which says that the state must
have a fully delimited and defined territory and in Various places there have been cases of
boundary dispute and the state was established – Albania as example still in UN.
 Island of Palmas Arbitration case – Max Huber as the sole arbitrator – a Spanish – American
war and Spain decided to cede a part of that area which was Philippines to U.S.A. was given by
France – in 1898 – Now 1906 – U.S. decided to visit the island and then they saw the Dutch flag
–Island of Palmas was thought to be the part of the Philippines – it was also called Miangas – was
not an island of importance – U.S.A decided to reach PCJ to decide the conflict – there was a claim
of ownership – Netherlands said that the title that U.S. was trying to establish – whether it is a
right title or whether it is a peaceful continuance of sovereignty which should decide the title
which was with Netherlands? Max ruled in favor of Netherland and said the Title of America is
inchoate title – not well established and can’t prevail over the definite title of Netherlands – the
peaceful continuance was enough – they showed it through the contract of EIC – and the
establishment – they also showed they had control from 1700 – 1906 until U.S. came and started
having the control. Huber said Spain itself did not have the title and without having it how could
it pass the same to America. Concept of territorial sovereignty – territorial sovereignty is the
independence for the functioning of state which is established on a piece of land and this shows
the exclusive right on this piece of land which is exercised by the independent entity. The
development of the IL has established the principle of exclusive competence of state in regards
to the own territory. Excludes other people from having the claim. Territory – It is the portion of
Earth’s surface in which it exercises the supreme and exclusive sovereignty – this should consist
of the land, territorial waters, national waters and the air above and sub soil beneath.

2. Population (permanent) – Territory needs a physical basis which is shown by the

permanent population. Without people you can’t something as state. People – aggregate
of the individuals of various sexes, class, creed, etc. Who live together – there is no
criteria in the IL which consists of the heterogeneous population. Just because a
community is minority (number) does not prevent it from being the part of the state.
State of Nauru – they have a population of less than 10, 000 – so no minimum size of the
population. Vatican city – 814 inhabitants only – it is still a mini state. Does not matter
how many are there. They are still the population – But if the population is too small –
10/11 which is not viable. Vatican City is not a UN member but can’t take part in the UN
resolutions. If there is an incoming or outgoing of people in / out of state – that would
not impact the identity of state – Ex – Somalia – large immigration and out ration – it is
still having a permanent population and so it is a state and it should have a significant
amount of permanent residents. Natural changes will not effect – Natural birth or death
of the population does not effect – but hypothetically if there is a total loss of population
then that would threaten the statehood. Who constitutes the population is a matter of
domestic law and not IL.

3. Stable government –

 Government –HN Blix in the article Contemporary aspects of

recognition – defined what a government is – a govt. is a political
organization by which the relationship in the community are regulated
and through which rules are upheld. The habitual obedience which is
done by the government shows the characteristic of a govt. It is a
political organization which is trying to establish the rights and duties of
a state. The need for a government so that outside states can attribute
the rights and obligations to the population of this particular state.
  Stability – A stable political community that supports a legal order
that has an exclusive right in a given area can be called a state.
1. The Finland government at the time of 1920s said that – there was an inconsistent
understanding what the criteria of the statehood are. The UN committee said that though
the Finland state has come into being but it would be called the proper state only when
the stable government will come into being.
A. Government –
i. De Jure
ii. De Facto

Recognition of state is related to the recognition of government i.e. if it is recognizing the government
then it is implied that the state is also recognised but it does not happen vice versa.

b. Effective – Overlapping with the capacity point – 4th– Finland was under
Russian Empire. Then German troop entered. Then Swedish troops entered.
Commission of Jurists under the League of Nation to decide about statehood of
Finland: Aaland Islands case. In this case, how legal status was conferred to
Finland. When the foreign troops left and a state of government was established
in Finland. This established the principle of effectiveness as a criterion of stable
government. After it went to this commission, it went to Commission of
Rapporteur. They took another stand and disagreed. They said that it’s actually
not the fact when the foreign troops left Finland or when government was
established, but it was the recognition by third parties.
c. Independent

James Croffer – Incidence of statehood – analyzed the criteria of the statehood and suggested
the considerations for the government and laid 3 suggestions as to the government – ‘

a. A state should possess a government that has a general control over its
territory. This general control should exclude other entities from claiming the
territory.
 b. (General control – IL does not have a criteria to say how much control should
a government have – there should be some degree of the maintenance of law
and order by this government)
c. Special cases –
i. When there is an opposition of a
title of a state in IL, then there is a strict application of the principle of
effectiveness – Whether this government is effective and conduct its
rights and duties.
ii. In case the control is given by the
previous sovereign, how much degree of control has been given to the
new sovereign will be seen to determine whether there is a government
in place and stable– we don’t apply effective control – we see the degree
of control.
iii. There is a difference in the already
existing and newly formed state – effective government criteria is there
when it comes to the newly formed state; when we look at the existing
state then we construe it in a liberal manner – Lebanon is the example –
there should always be a stable government is not required in this case
of existing state.
 [Quincy Wright – States usually have been subjected to anarchy, civil war (after WW2), but
they have still gone on to stay a state.

12/09/2018

B. Stable Government – Though the Monte Video convention does not talk about it but
it is to be thought of impliedly.
a. H.M. Blix pointed out – To be stable –
i. It has to have a peaceful and
orderly transfer of power from the mother country.
ii. There should be absence of
external threats.
 iii. There should be freedom from
external controls means exclusive sovereignty over that area.
iv. There should be internal stability.
v. There should be a popular support
evidenced by a free voting system.
vi. It should have adopted a
constitution.
b. In real times are these criterion actually fulfilled?
i. Mostly the stability is attached to
the perceiving of the state government by the 3rd state. (Admitting a
nation as a member in UN is the ultimate recognition of state.) When they
wanted to admit Korea – It is Republic Korea – South Korea and the
Democratic Republic of Korea – North Korea – China and U.S.A. stood by
South Korea – there is a lawful government which is effectively elected
by the people and it effectively exercises control over that part of Korea.
The great majority lives in South Korea and this is also a reason why it
should be appointed as the state. This was passed in 1948 by the General
Assembly – stable and effective government recognised by the 3rd state
in determination whether it is a state or not. This doesn’t mean they were
not protested – they were protested by Soviet Union.
1. When state perceives a stable government – they perceive
it as a democratic government.
2. Stable government overlaps the 4th criteria which is the
capacity to enter into relationship with other states.
 Similar thing with the North and the South Vietnam – the question
about recognising the government – France not recognised the South
Vietnam (Democratic one)– they said that the South Vietnam does not
have the attributes of state under the IL. This is just a different political
fraction under the same state, so you can’t differentiate between the
two.
 Another example of Israel – Only a provisional government in place
when it was admitted in UN and no elections and even the citizens were
 not recognised. No evidence of it being a democratic government. Arab
states were having the claim that it should be democratic.
 UN – Republic of Congo – 1960 – There was a government in place
but there were internal strikes were taking place. There was so much of
internal strife that they could not come up to say who would recognise
it in UN.
(There is no complete absence of external threat; there can’t be
complete independence as they are very much inter dependent and so
you couldn’t say that they are free from the external factors.)
 Bosnia is also another example
o Stability in convention is very different but in reality it is
perceived differently.
 Guinea Bissau – Inducted into UN even when they did not have a
formal authority – the reason was because of the recognition by the
majority of nations.

13/09/2018

4. Capacity to enter into relationship – We talk about independence to enter into treaties – independence
and capacity can be

 3rdreinstatement of American Law institute – what is the capacity to enter is – an entity

is not a state until it has competence within its own constitutional system to conduct
international relations with other states as well as have political, technical and financial
capabilities to do so.
 Article 3 of Monte Video Convention – Independence is not just reflected – how they
define the jurisdiction, how they reflect the competence of the courts, etc. Shows the
independence of the state but this is not an unrestricted freedom – state has
independence in affairs but they are also bound by the exercise of the International law
where they are to abide by the International obligations. In general when we look at the
independence of the state to adopt the consti and to deal with the citizens and aliens
and how they can adopt a neutral attitude and how the foreign actions work out, etc.
They can conclude any kind of treaties and there is no external interference from another
state. Until it is an independent state there is no value in the international law. This word
independence was defined by Judge Anzillotti in the case of Austro German Customs
Unions case – PCIJ – advisory – Customs union is like a free trade agreement – Austria
and German has this union and they have a protocol of 1931 – Whether this customs
union entered threatens the independence of Germany and whether it would be
contrary to the treaty of St. Germane (allied powers with Austria) – Art 88 of the treaty
– whether it would take away the economic independence of Austria – what do you
mean by independence and he said that when you talk about it then it is considering
Austria as a Separate state w/o it being subjected by any authority by any nation or group
of nations and we can use interchangeably with sovereignty and there is no external
sovereignty by which another state can take the authority of the state. Just because a
state is subordinate of IL does not mean it is a dependent state on the IL. This also does
not mean there is a restriction on that state’s liberty and independence. As long as they
did not put them under the legal authority of another state we can’t say that it is not
independent. Often scholars say the constitutional independence – ex – states in U.S.A.
– defined territory, population, etc. But not an independence so they can’t be called the
state under IL – there is no Constitutional freedom and independence.
 Lack of Independence to what extent is permissible?
o Ex – Iran – It was under allied – 1941 – 1946 – occupied by Britain and Soviet
Union – reason was that Germans would take its control – Britain as well as
Soviet Union said that it is temporary. Now there was a process when Raisa Shah
was appointed but they also had a formal government in place and that was not
considered as a puppet government as the control was just to protect Iran from
Germans and the formal control was with the Iran government only. During the
Tehran conference they gave the reason that the occupation is for the
independence and no point to takeover the control – some parts of governance
lacked independence – but the legal status of Iran was not taken.
o So independence as a criteria comes when there is a formation of a new state
but when it comes to the existing state then the last criteria is taken in liberal
sense. This was the observation by James Coffer. – The criteria of independence
as the basic element of statehood in IL may operate differently in different
qualifications for statehood and as a criterion for its continued existence.
 o When we say independence it is not complete independence – there will be
some kind of foreign relations it will be dependent – the degree of the
independence depends upon the individual circumstances.
 Dependent state when?
o Different kinds –
 Mandates
 Protectorates
Sometimes for the smooth moving they are put under the dependence
– their capacities are outsourced to the parent state – the last power is
outsourced.
 Treaty obligations – Dependent state creation
 They might submit / consenting to be represented by the European
Union or by the agency of the international law.
 Through a lawful war can become dependent states.
The degree depends on situations and each of the criteriai.e. one
brought under the protectorate and under the lawful war. In case of EU
there is still a formal authority with the states but this is not the case
under the lawful war.
SS Wimbledon case 1923 – this dependence is treaty obligation in some
way – there was an international agreement – court said – the right of
entering into international engagements is an attribute of state
sovereignty – since there is a formal authority on these states being
exercised there is no taking away of the sovereignty of the state.

14 Sep. 18

Mandate/ protectorate/ trusteeship

 France and Morocco: Treaty between the two

US Nationals in Morocco case, 1952
Even the the Treaty of Fez made France the protected state of Morocco in 1912, Morocco
still remained a sovereign state; the arrangements made under the treaty of Fez were
contractual agreements where France undertook the powers of Morocco.
Morocco still remained a sovereign state; had just given up the powers of maintaining its
foreign relations.
 Nationality Decree’s case, 1923, PCIJ [Tunisia v. Morocco]
Protectorates have a special individual legal characteristic from the special conditions under
which they’re created. Therefore, a protectorate is an example of the international
representation which keeps the personality and the sovereign character of the entity intact.
 Trusteeship Council; last case- Pacific island of Palau
o The members of the trusteeship council legally take over the formal authority of
the government of the states- Australia took over Palau, Rwanda-Brunei ??
o Trusteeship council states: only when they had completed their trusteeship were
they included as a member of the UNGA.
o Protectorates are entities dependent on the protecting states; however, they do not
compromise their statehood.
o Countries under trusteeship- don’t fulfil the criteria of statehood unless they have
completed their trusteeship period; came after the LoN ended;
Mandate system was provided for under the LoN- Article 7 [check]
 Qualitative Test for independence: By Guggenheim in 1952
1. The state shall have a centralisation of its organs
2. The state itself should have legislative authority of its own;
If these two criteria are fulfilled, statehood is determined.
 James Crawford: States should have their own legal order which can be interfered with
by only an international agency having title under the international law.
 All the states of the EU fulfil the criteria of statehood; submitting themselves to EU
doesn’t mean that there is a lack of independence.
 How to measure the lack of independence?
Nationality Decree’s case, 1923, PCIJ [Tunisia v. Morocco]
Court: No hard and fast answer can be given as to where to draw the line which establishes
legal dependency; has to be considered from case to case basis.
If there is a state which has inadequate foreign relations with other states/ limitation
on the state from conducting foreign relations- will it amount to dependence?
o Mongolia: Tried to become a member of the UN; China claimed that since it did
not have adequate foreign relations with other states, it didn’t fulfil the criteria of
statehood and so shouldn’t be allowed entry. UN:Mongolia did have foreign relations
with other states; statehood criteria fulfilled.
o Luxembourg: A part of its treaty making power was with Belgium. UN: This is
merely a delegation of authority done by Luxembourg cannot be attributed as the
dependency of Luxembourg/ degree of control is slight.
o Bahrain