Unit 4: Personality, Statehood &

Recognition
E. Siangandu
ellasiangandu@yahoo.com

Part 1- Personality: What is international

personality?
International person is an entity which possesses
rights and duties at international law.
Reparation case ICJ p. 179
A subject of law is an entity capable of possessing
international rights & duties and having the
capacity to maintain its rights by bringing
international claims Brownlie, p. 57 referring to
the Reparation case.

Concept of personality in International Law

The main capacities of an international legal
person are as follows;
Capacities to make claims for breaches of
international law.
To have the capacity to make valid agreements
(treaties) on the international plane.
To be subject to some or all obligations imposed
under international law.
Capacity to enjoy privileges & immunities from
national jurisdiction.

As we shall see
It is only states & certain international
organisations (UN) that have all these capacities
to a fullest degree.
Other subjects may have some of the capacities
to a certain degree.
International personality is not an absolute
concept.
Several subjects of IL have varies capacities for
various purposes.

 i.e. states in IL all have all the capacities in full

measure.
Other subjects of IL such as international
organisations & individuals will only have
personality as far as it is necessary to achieve its
purpose within the international legal system.
This leads to question;
How is international personality achieved?

Two types of personality in International

Law- (as per Dixon p.112)
Original personality belongs to states ipso facto
once they have satisfied the criteria of statehood.
Derived personality this flows from the
recognition by states that other entities may have
some competences in international law.
Once an entity is a state it will have legal
personality under IL but
This is not necessary the case for individuals or
other subjects under IL.

Advisory Opinion of the legality of the

Threat or Use of Nuclear Weapons (WHO)
1996 ICJ Rep 66,
ICJ ruled;
International organisations are subjects in
international law which do not, unlike states,
possess a general competence. International
organisations are vested by the states which
create them with powers, the limits if which are
functions of the common interests whose
promotion those states entrust to them.

Therefore
Personality denotes capacity to act within an
international system
Degree of personality accorded to each subject
will vary
Note- Personality once given may be difficult to
take away

Part 2- The subjects of international law Statehood

The concept of state
Main subject of international law?
Creation of statehood a question of fact or law?

Traditional view Independent states

[T]he orthodox positivist doctrine has been
explicit in the affirmation that only states are
subjects of international law.
Therefore states are principal subjects in
international law.
They are the most important & power subject of
IL.
All other entities were objects of the law. It is
simply a matter of determining what was a state.

Statehood; what is it?

A stable community, supporting a legal order, in a
certain area. Brownlie, (5th ed.) p. 71.
The customary law definition of statehood is contained
in Article 1 Montevideo Convention on the Rights
and Duties of States 1933
It requires that the state as a person of international law
should possess the following criteria or indicia of
statehood

Criteria of Statehood
Montevideo Convention on the Rights and
Duties of States 1933 - Article 1
State as a person of international law should
possess the following qualifications:
(a) permanent population
(b) defined territory
(c) a government
(d) capacity to enter into relations with other
states

Legality
IL does not permit the creation of states in violation of
fundamental principles of IL thus violation of jus
cogens.
(a) independence must be achieved in accordance with
the principle of self- determination;
concepts involves the idea of indigenous peoples
gaining liberty from their colonial masters It is the right of people to claim independence &
statehood if desired)
Principles recognised by the UN Charter see Arts 1,55.

 (b) not in pursuance of racist policies this deals

with the situation created by apartheid and the
establishment Transkei and Bophuthatswana; were
never regarded as states in IL due to their
establishment by South Africa.
(Does that mean South Africa 1994 could not
be considered as a state?)
(c) not consequent upon an illegal use of force
self determination must be lawful.
Thus contravening Article 2(4) of the UN Charter.

Permanent Population
A permanent population should there be a
minimum number of people?
States are aggregates of individuals
Thus a permanent population living with a
defined territory is a requirement of statehood.
No limits as to size of population.
No requirement that the population should hold
the nationality of the state.
Need to live there with a degree of permanence

 The case of Antarctica

Nomadic states
Territory of Western Sahara is populated by
nomadic tribes who roam freely across the
desert without regard to land boundaries yet
their link with the territory is regarded as a
population (Western Sahara case 1975 IcJ Rep
12).

Defined Territory
No minimum or maximum size required
Territory does not have to be defined absolutely
What is required is merely a some identification of
a state with a portion of earths surface.
E.g. Israels border has never been permanently
fixed.
Disputes between India & Pakistan over JammuKashmir have continued since both states gained
independence but this has not affected their
statehood.

 Fact that an existing territory is under threat or

occupation by another aggressive state
This does not destroy or prevent the existence of a
state
i.e Kuwait no less of a state when it was under
occupation by Iraq,
Same applies to Iraq, Afghanistan.
Deutsche Continental Gas-Gessellschaft v Polish
State (1929) 5 A.D 11 at 15
German- Polish mixed arbitral tribunal said:

In order to say that a state exists and can be

recognised as such ..it is enough that its
territory has a sufficient consistency, even though
its boundaries have not yet been accurately
determined.
What matters is the presence of a stable
community within a certain area, even though its
frontiers may be uncertain. Shaw (4th ed.) p. 141.

On the other hand

Possible to cite a situation where statehood was
refused on the basis of unsettled frontiers
classic example Lithuania
Which was refused membership of the League of
Nations until border disputes with neighbouring
states were settled.

Government
A state must be under the authority of a
government.
However, Shaw states that,
It should be regarded more as an indication of
some sort of coherent political structure and
society, than as the necessity for a sophisticated
apparatus of executive and legislative organ. (4th
ed.) p. 141.

 International law is neutral as to the form of

government see Declaration on Principles of
International Law Concerning Friendly
Relations and Co-operation among States in
Accordance with the Charter of the UN
Resolutions 2625 (XXV) 1970.

 No specific requirement as to the nature of

government
Or extent of control
It seems to include some degree of maintenance of
law & order.
Civil war in country would indicate absence of
effective government
The state will still continue to exist as a subject of
IL i.e. Liberia 1990s, Sudan 2004, Iraq,
Afghanistan, Libya 2011.

The principle of sovereign equality of

states:
Each state has the right freely to choose and
develop its political, social, economic and
cultural systems.
Do you think they should be a limitation to this
principle?

But can we say that there is an emerging

norm requiring democratic government?
Art 21(3) UDHR 1948.
Art 25(2) (b) ICCPR 1966.
Every citizen shall have the right and
opportunity
(b) To vote and to be elected at genuine periodic
elections which shall be by universal and equal
suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the
electors.

Capacity to enter into Relations with other

States
Represents idea of independence or sovereign
States are sovereign or independent having full
control over domestic & foreign affairs
Treaty obligations The Wimbledon case
confirmed the principle that treaty obligations do
not derogate formal independence.
Existence of a foreign military bases
Membership of international organisations
EU? Still have powers in certain area i.e. foreign
policy

Capacity to enter into legal relations with other

states: legal personality
Colonies in the process of liberation.
IL has not recognised colonies as possessing any
international personality because the control of
the colonys foreigner relations is vested on the
colonial powers.

Limited capacity of Protectorates

Protection may be exercised over a territory
which did not have international personality
before the protectorate was created.
A territory under protection will only gain international
personality when it is clear that they are acting
independently of the protecting state.
Kuwait become British protectorate 1899
It was given increased control of its affairs its
independence was formally acknowledged by UK 1961.
Its Clear that Kuwait had achieved statehood & interl
personality before 1961.

Protection could be exercised over an already existing state

Arrangement based on agreement between the

protecting state & the protected state.
Such protection does not affect the legal
personality of the protected state.
Morocco was an independent state until the
beginning of 20th century when it was divided into
3 parts International city (Tangier) & the spanish
& French had the power on the other two regions.
Spanish & French concluded treaties on behalf of
Morocco.

Rights of US Nationals in Morocco Case

[1952] ICJ Rep at p. 176
ICJ held that during the period of the
protectorate Morocco had retained its
international personality

FEDERATIONS
Definition and types of federations
Legal personality
A federal constitution may confer treaty-making
capacity & power to enter into separate
diplomatic relations on the constituent members
Constituent state- parent state
Examples of federations

Responsibility of federal states in

international law
By agreement or recognition a federated state
may assume a separate personality on interl
plane.
The case of former USSR: status of Ukraine and
Belorussia
status of Ukraine and Belorussia- members if
USSR
But they concluded treaties on their own & were
members of the UN.

Extinction of statehood
If any qualities/ criteria of statehood were to
cease to exist does not mean that a state ceases
to exist in IL
i.e. absence of effective government in Iraq,
Afghanistan USAs intervention
Sudan only until recently lacked an effective
government.
Libya 2011 NATO.
No effect on statehood.

 Suspension of rights of membership to UN does not

lead to loss of statehood.
The question as to whether a new government in a
state is accepted or not is a political issue & not a legal
one.
Possible for an entity to cease through lawful means;
Voluntary submission to the sovereignty of another or
if two states merged into one state I.e. West & East Germany, North & South Yemen,
small gulf state merged to form United Arab Emirates.

International Organisations
Increase number of international organisations
in existence
Different in terms of competences
maintenance of peace & security etc.
Need to enjoy international personality in order
to undertake their respective role.
These may have limited personality depending
on their constitution & functions

Reparations Case 1949 ICJ Rep 174

One of issues ICJ had to consider was whether the
UN had a right to claim reparations for death of one
of its staff
Died whilst undertaking his UN duties
ICJ confirmed that personality was essential if the
UNs was to discharge its functions effectively.
This included capacity to being claims
To conclude international agreements
To enjoy privileges & immunities from national
jurisdiction.

ICJ also made it clear that

ICJ also made it clear:
1. The UN was not a super state
2. International personality was not absolute
the subject of law in any legal system are not
necessarily identical in their nature or in extent of
their rights
3. UNs IP was limited to function it was required
to perform

Advisory Opinion on the Applicability of Articles VI

of the Convention on the Privileges & Immunities
of UN (1989) ICJ Rep 177.
The independent legal personality of the UN was
confirmed by ICJ.
Immunity of a UN officer was confirmed.
UN is not the only international Organisation which
enjoys international personality;
The African Union
Organisation of American states
Specialised agencies of the UNs
E.g. Organs of the UN can request advisory
opinions from the ICJ.

Individuals
General rule IL concerns with primarily
relationships between states.
Modern IL creates duties on individuals in
international criminal Law.

Piracy
Acts of depredation committed on the high seas
by one vessel against another for personal gain
i.e. form of robbery on the high seas.
All states can exercise jurisdiction over pirates.
The rationale for this is maintaining free & open
lines of trade & communication.

War crimes
Charter of the Nuremburg Tribunal
(1945) 39 AJIL, suppl, p 259
International law imposes duties & liabilities on
individuals as well as states
Therefore state responsibility & individual
responsibility are two different things in IL

Four Geneva Conventions 1949 &

Protocols I & II 1977.

Grave breaches include:

Wilful killing
Torture or inhuman treatment
Extensive destruction & appropriation of
property not justified by military necessity &
carried out unlawfully.
Unlawful deportation or transfer of protected
persons
Taking hostages.

Protocol I extends the list to include

Making civilian population object of attack
Launching attacks against works or installations
containing dangerous forces in the knowledge
that such attacks will cause excessive loss of
damage to civilians.
Transferring the civilian population from the
territory of an occupying power to that of an
occupied area.

 All individuals regardless of rank will be

criminally responsible for the commission of
such acts.
Claims of superior orders is not a defence ,
although it may be taken in mitigation.

War related Crimes

Nuremburg & Tokyo Tribunals
They include :
1. Crimes against peace i.e. waging war of
aggression
2. Crimes against humanity i.e. genocide.

 Tribunal for the Former Yugoslavia, SCRes 827

(1993), 1993 32 ILM 1203;
Tribunal for Rwanda, SORes 955 (1994). (1994) 33
ILM 1598.
Rome Statute of the International Criminal Court
(1998) 27 ILM 999
Jurisdiction of the court include
Genocide - Art 6
War crimes Art 8
Crimes against humanity article 7
Art 17 ICC will only exercise jurisdiction where the domestic
crt is unable or unwilling.

Human Rights Issues

Individuals acquire international personality on
the basis of treaties.
Article 25 European Convention on Human
Rights 1950 & its protocols
Article 44 American Convention on Human
Rights

 Articles 1 & 2 Optional Protocol to International

Covenant on Civil and Political Rights (ICCPR)
-1966 individuals have a right to petition the
Human Rights Committee directly if the state of
nationality has signed the Optional Protocol.*

Part 3 - Recognition
Means by which a state acknowledges the
existence of a particular state of affairs in its
international relations.
E.g. Former Colonial territory gaining
independence.
Part of an existing state has gained its
independence from federal authorities
Bangladesh
Independence self-determination

Recognition may either be de jure ( as of right) or

De facto (accepting the fact)
Recognition is primarily a political act.
However produces a legal effect
Recognition is restricted to recognition of states
& governments.
The two issues are not to be confused.
Recognition produces effects at both
international & national level.

When does the question of recognition

arise?
Theories of Recognition
There are two major theories of recognition;
Declaratory & Constitutive views

Declaratory Theory
Act of recognition is not significant of the new
entitys claim to statehood.
Status is conferred by operation of IL.
Therefore whether a state or govt. is actually
recognised by other states, it is still entitled to the
rights & subject to the general duties of the
system.
The international legal personality of a state does
not depend on its recognition by other states.

Therefore under Declaratory Theory

Formation of a new state is a matter of fact not
law.
Recognition is a political act by which the
recognising state indicates a willingness to initiate
international relations with the recognised state.
IP is independent of recognition.
However the act of recognition is not totally
without legal significance new entity becomes
an international subject.

Tinoco Arbitration (Great Britain v Costa

Rica (1923) 1 RIAA 369
Great Britain made certain claims against Costa Rica
arising out of the obligations undertaken by the Tinoco
government.
This govt. had not been recognised by Great Britain
But arbitral Judge held:
That the fact of non recognition did not prohibit the
claim
Test to be applied in assessing recognition would be a
factual one accepted internationally.
If an unrecognised state is effective it can still be an
object of claims in IL.

 Theory accords international practice

i.e. The fact that certain Arab states at some
point did not recognise the state of Israel did not
prevent them making international claim against
Israel.
Non recognition does not mean lack of
international personality.

Montevideo Convention 1933 Art 3 & 6

Article 3 The political existence of the state is
independent of recognition by other states.Even
before recognition the state has the right to defend
its integrity & independence.& to organise itself as it
sees fit.
Article 6 The recognition of a state merely signifies
that the state which recognises it accepts the personality
of the other, with all the rights and duties determined by
international law.

Constitutive Theory
Obligation to obey IL derived from consent of
individual states.
Creation of new states results to creation of new
obligations.
There acceptance of new state is essential.
I.e. if Taiwan is not recognised as a state, it is not a
state.
Idea is that if state or govt. is not recognised that it
cannot have IP.

Oppenheim states
The formation of a new state is a matter of fact
and not law. It is through recognition which is a
matter of law, that such a new state becomes
subject to IL*
Recognition is there seen as a requirement of
international personality.
Lauterpacht s theory tries to merge the
constitutive & declaratory theories.

De jure & de facto Recognition

Recognition de jure (as of right)
&
de facto (accepting the fact of)
de jure implication entity will enjoy
international personality, independent etc.
de facto - Acknowledges that there is a new
regime in place that is likely to continue to exist
but do not have to accept it.

Ministates
Liechtenstein, Monaco & Vatican Ministates
Have substantial limitation on the exercise of their
sovereignty
Retain some characteristic of statehood
I.e., sending & receiving diplomats, conclusion of
Treaties
Admission of Liechtenstein to the League of
Nations application to LON was rejected
because it never had an army.
Only recognised as a state by UN in 1990

Concept of self- determination (SD)

What is self- determination?
self- determination is one of the factors that
contributes to whether a state is recognition or
not.
Need to distinguish between internal & external
SD
Internal SD ability of people to chose the form
& type of government.
External SD- arises after World War I (WWI)

External Self- determination

Post WWI, US president Woodrow Wilson
No peace can last or ought to last which does not
recognise & accept the principle that governments
derive their just powers from the consent of the
governed and that no right exists anywhere to hand
people about from sovereign to sovereign as if they
were property.

Peace cannot last when people cannot chose

independence or who to be ruled by.

Following WWII SD established as one of the

purposes of UN.
Art 1(2) UN charter To develop friendly relations
among nations based on respect for the principle of
equal rights & self-determination of peoples..

Important concept reiterated

Art 55 UN Charter
Art 56 UN Charter
Chapter XI UN Charter
Art 73 UN Charter
Art 73 (e) UN Charter

 GA res 1514 (XV) Declaration on the Granting of

Independence to Colonial Countries & Peoples
Res changed the concept of SD from a principle to
a right.
Read Res 1514 (XV) particularly OP 1,2,3 & 6.
2. All peoples have the right to self-determination by virtue of that
right they freely determine their political status & freely pursue
their economic, social & cultural development.
Res adopted 89:0:9
Western colonials Australia, Belgium, France, SA, US, Dominican
Republic, Portugal, Spain & UK.

Important to make a distinction between

recognition of government and a state
Recognition of Governments
State A recognises the new government in state B
it implies that it will treat the new government
as entitled to represent that state in IL.
Internal and external control by the government
Factual existence of government
Legitimacy of government meaning and
significance in international law

Recognition of States
Where state A recognises state B
Implication each accept the other as an entity of
exercising all the capacities of statehood in IL.
Bilateral relations will be forms ie diplomatic
representation.
However lack of diplomatic relations between states does
not affect recognition.
i.e was lack of diplomatic relations between UK & Libya
in 1990s after the Lockerbie bombing.
Malawi and UK

The impact of politics on international

law
Recognition of a state and a government in
international law
Recognition de jure (as of right)
&
de facto (accepting the fact of)
Interim step taken where there is doubt as to the
legitimacy of new govt. i.e. UK govt. recognised
the Soviet govt. de facto in 1921 & de jure 1924.

The fundamental rights of states

Independence:
Legal, political and economic

Legal equality of states implies

Equality of rights and duties:
Juridical equality
Enjoyment of rights inherent in
full sovereignty
Duty to respect personality of other states

 Inviolability of the territorial integrity and

political independence of other states
Freedom to choose and develop a states
political, social, economic and cultural systems
Duty to comply fully and in good faith with
states international obligations to live in peace
with other states

Duty of peaceful co-existence

A guiding principle in
contemporary international law?

Tutorial 4 - Personality, Statehood &

Recognition
1. For a state to be a state it must be recognised
as such by other already existing states.
Discuss
2. Why is it important to make a distinction
between recognition of government and a state?
What are the implications of recognition?