CHAPTER 5

THE SUBJECTS OF INTERNATIONAL LAW

5.1Introduction

International personality means capacity to be a bearer of rights and duties under international law. Any entity which possesses international personality is an international person or a subject of international law, as distinct from a mere object of international law.1

A subject of international law is considered to be an entity capable of possessing international rights and duties and endowed with the capacity to take certain types of action on the international plane. The terms international legal person or legal personality are commonly used when referring to such entities.2

The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of states has already given rise to instances of action upon the international plane by certain entities which are not states.3

A subject of the law is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims.4

The principal question we are concerned with here is – to whom does international law apply? In order to be a subject of international law an entity must have international personality – it must be capable of possessing international rights and duties and as a consequence must have the capacity to maintain such rights by bringing international claims. A subject of international law owes responsibilities to the international community and enjoys rights, the benefits of which must be claimed, and which, if denied, may be enforced to the extent recognised by the international legal system, via legal procedures, ie the entity will have procedural capacity.

Since the law of nations is based on the common consent of individual states, and not of individual human beings, states solely and exclusively are the subjects of international law.5

Reparation for Injuries Suffered in the Service of the United Nations Case6

On 17 September 1948, Count Bernadotte, a Swedish national, was killed, allegedly by a private gang of terrorists, in west Jerusalem, at the time

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1Schwarzenberger and Brown, Manual of International Law, 6th edn, 1976, London: Stevens at p 42.

2Henkin et al, International Law: Cases and Materials, 1993, St Paul’s, Minn: West Publishing at p 228.

3ICJ in Reparation case [1949] ICJ Rep p 174 at p 178.

4Brownlie, Principles of Public International Law, 1990, Oxford: Oxford University Press at p 58.

5Oppenheim, International Law, 1912, London: Longman.

6Advisory Opinion [1949] ICJ Rep at p 174.

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controlled by Israel. Count Bernadotte was the Chief United Nations Truce Negotiator in the area. In the course of deciding what action to take in respect of his death, the United Nations General Assembly sought the advice of the ICJ. Israel was admitted to the United Nations on 11 May 1949, shortly after the Court gave its opinion.

Opinion of the Court

The first question asked of the Court is as follows:

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 Organisation, 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? ...

The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the Community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective action of states has already given rise to instances of action upon the international plane by certain entities which are not states. This development culminated in the establishment in June 1945 of an international organisation whose purposes and principles are specified in the Charter of the United Nations. But to achieve these ends the attribution of international personality is indispensable.

The Charter has not been content to make the Organisation created by it merely a centre ‘for harmonising the actions of nations in the attainment of their common ends’ (Article 1, para 4). It has equipped that centre with organs, and has given it special tasks. It has defined the position of the Members in relation to the Organisation by requiring them to give it every assistance in any action undertaken by it (Article 2, para 5), and to accept and carry out the decisions of the Security Council; by authorising the General Assembly to make recommendations to the Members; by giving the Organisation legal capacity and privileges and immunities in the territory of each of its Members; and by providing for the conclusion of agreements between the Organisation and its Members. Practice – in particular the conclusions of conventions to which the Organisation is a party – has confirmed the character of the Organisation, which occupies a position in certain respects in detachment from its Members, and which is under a duty to remind them, if need be, of certain obligations. It must be added that the Organisation is a political body, charged with political tasks of an important character, and covering a wide field namely the maintenance of international peace and security, the development of friendly relations among nations, and the achievement of international co-operation in the solution of problems of an economic, social, cultural or humanitarian character (Article 1); and in dealing with its Members it employs political means. The ‘Convention on the Privileges and Immunities of the United Nations’ of 1946 creates rights and duties between each of the signatories and the Organisations (see in particular section 35). It is difficult to see how such a convention could operate except upon the international plane and as between parties possessing international personality.

In the opinion of the Court, the Organisation was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international

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personality and the capacity to operate upon an international plane. It is at present the supreme type of international organisation, and it could not carry out the intentions of its founders if it was devoid of international personality. it must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.

Accordingly, the Court has come to the conclusions that the Organisation is an international person. That is not the same thing as saying that it is a state, which it certainly is not, or that its legal personality and rights and duties are the same as those of a state. Still less is it the same thing as saying that it is ‘a super-state’, whatever that expression may mean. It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a state must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has the capacity to maintain its rights by bringing international claims.

The next question is whether the sum of the international rights of the Organisation comprises the right to bring the kind of international claim described in the Request for this Opinion. That is a claim against a state to obtain reparation in respect of the damage caused by the injury of an agent of the Organisation in the course of the performance of his duties. Whereas a state possesses the totality of international rights and duties recognised by international law, the rights and duties of an entity such as the Organisation must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. The functions of the Organisation are of such a character that they could not be effectively discharged if they involved the concurrent action, on the international plane, of 58 or more Foreign Offices, and the Court concludes that the Members have endowed the Organisation with the capacity to bring international claims when necessitated by the discharge of its functions ...

... It cannot be doubted that the Organisation has the capacity to bring an international claim against one of its Members which has caused injury to it by a breach of its intentional obligations towards it. The damage specified in Question I(a) means exclusively damage caused to the interests of the Organisation itself, to its administrative machine, to its property and assets, and to the interests of which it is the guardian. It is clear that the Organisation has the capacity to bring a claim for this damage. As the claim is based on the breach of an international obligation on the part of the Member held responsible by the Organisation, the Member cannot contend that this obligation is governed by municipal law, and the Organisation is justified in giving its claim the character of an international claim.

When the Organisation has sustained damage resulting from a breach by a Member of its international obligations, it is impossible to see how it can obtain reparation unless it possesses capacity to bring an international claim. It cannot be supposed that in such an event all the Members of the Organisation, save the defendant state, must combine to bring a claim against the defendant for the damage suffered by the Organisation.

In dealing with the question of law which arises out of Question I(b) ... the only legal question which remains to be considered is whether, in the course of bringing an international claim of this kind, the Organisation can recover ‘the reparation due in respect of damage caused ... to the victim ...’

The traditional rule that diplomatic protection is exercised by the national state does not involve the giving of a negative answer to Question I(b).

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In the first place, this rule applies to claims brought by a state. But here we have the different and new case of a claim that would be brought by an Organisation.

In the second place, even in inter-state relations, there are important exceptions to this rule, for there are cases in which protection may be exercised by a state on behalf of persons not having its nationality.

In the third place, the rule rests on two bases. The first is that the defendant state has broken an obligation towards the national state in respect of its nationals. The second is that only the party to whom an international obligation is due can bring a claim in respect of its breach. This is precisely what happens when the Organisation, in bringing a claim for damage suffered by its agent, does so by invoking the breach of an obligation towards itself. Thus, the rule of the nationality of claims affords no reason against recognising that the Organisation has the right to bring a claim for the damage referred to in Question I(b). On the contrary, the principle underlying this rule leads to the recognition of this capacity as belonging to the Organisation, when the Organisation invokes, as the ground of its claim, a breach of an obligation towards itself.

Nor does the analogy of the traditional rule of diplomatic protection of nationals abroad justify in itself an affirmative reply. It is not possible, by a strained use of the concept of allegiance, to assimilate the legal bond which exists, under Article 100 of the Charter, between the Organisation on the one hand, and the Secretary General and the staff on the other, to the bond of nationality existing between a state and its nationals.

The Court is here faced with a new situation. The questions to which it gives rise can only be solved by realising that the situation is dominated by the provisions of the Charter considered in the light of the principles of international law ...

The Charter does not expressly confer upon the Organisation the capacity to include, in its claim for reparation, damage caused to the victim or to persons entitled through him. The Court must therefore begin by enquiring whether the provisions of the Charter concerning the functions of the Organisation, and the part played by its agents in the performance of these functions, imply for the Organisation power to afford its agents the limited protection that would consist in the bringing of a claim on their behalf for reparation for damage suffered in such circumstances. Under international law, the Organisation must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. This principle of law was applied by the Permanent Court of International Justice to the International Labour Organisation in its Advisory Opinion No 13 of 23 July 1926 (Ser B, No 13, p 18) and must be applied to the United Nations.

Having regard to its purposes and functions already referred to, the Organisation may find it necessary, and has in fact found it necessary, to entrust its agents with important missions to be performed in disturbed parts of the world. Many missions, from their very nature, involve the agents in unusual dangers to which ordinary persons are not exposed. For the same reason, the injuries suffered by its agents in these circumstances will sometimes have occurred in such a manner that their national state would not be justified in bringing a claim for reparation on the ground that diplomatic protection, or, at any rate, would not feel disposed to do so. Both to ensure the efficient and independent performance of these missions and to afford effective support to its agents, the Organisation must provide them with adequate protection ...

In order that the agent may perform his duties satisfactorily, he must feel that this protection is assured to him by the Organisation, and that he may count on

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it. To ensure the independence of the agent, and, consequently, the independent action of the Organisation itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the Organisation (save of course for the direct and immediate protection due from the state in whose territory he may be). In particular, he should not have to rely on the protection of his own state. If he had to rely on that state, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter. And lastly, it is essential that – whether the agent belongs to a powerful or to a weak state; to one more affected or less affected by the complications of international life; to one in sympathy or not in sympathy with the mission of the agent – he should know that in the performance of his duties he is under the protection of the Organisation. This assurance is even more necessary when the agent is stateless ...

The obligations entered into by states to enable the agents of the Organisation to perform their duties are undertaken not in the interest of the agents, but in that of the Organisation. When it claims redress for a breach of these obligations, the Organisation is invoking its own right, the right that the obligations due to it should be respected. On this ground, it asks for reparation of the injury suffered, for ‘it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form’; as was stated by the Permanent Court in its Judgment No 8 of 26 July 1927 (Ser A, No 9, p 21). In claiming reparation based on the injury suffered by its agent, the Organisation does not represent the agent, but is asserting its own right, the right to secure respect for undertakings entered into towards the Organisation.

Having regard to the foregoing considerations, and to the undeniable right of the Organisation to demand that its Members shall fulfil the obligations entered into by them in the interest of the good working of the Organisation, the Court is of the opinion that in the case of a breach of these obligations, the Organisation has the capacity to claim adequate reparation, and that in assessing this reparation it is authorised to include the damage suffered by the victim or by persons entitled through him.

The questions remains whether the Organisation has ‘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 when the defendant state is not a member of the Organisation.

In considering this aspect of Question I(a) and (b), it is necessary to keep in mind the reasons which have led the Court to give an affirmative answer to it when the defendant state is a Member of the Organisation. It has now been established that the Organisation has capacity to bring claims on the international plane, and that it possessed a right of functional protection in respect of its agents. Here again the Court is authorised to assume that the damage suffered involves the responsibility of a state, and it is not called upon to express an opinion upon the various ways in which that responsibility might be engaged. Accordingly the question is whether the Organisation has capacity to bring a claim against the defendant state to recover reparation in respect of that damage or whether, on the contrary, the defendant state, not being a member, is justified in raising the objection that the Organisations lacks the capacity to bring an international claim. On this point, the Court’s opinion is that 50 states, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing

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objective international personality and not merely personality recognised by them alone, together with the capacity to bring international claims ...7

(The Court answered Question I(a), unanimously, and I(b), by 11 votes to four, in the affirmative.)

Question II is as follows:

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 affirmative reply given by the Court on point I(b) obliges it now to examine Question II. When the victim has a nationality, cases can clearly occur in which the injury suffered by him may engage the interest of both his national state and of the Organisation. In such an event, competition between the state’s right of diplomatic protection and the Organisation’s right of functional protection might arise, and this is the only case with which the Court is invited to deal.

In such a case, there is no rule of law which assigns priority to the one or to the other, or which compels either the state or the Organisation to refrain from bringing an international claim.

... The Court sees no reason why the parties concerned should not find solutions inspired by goodwill and common sense, and as between the Organisation and its Members it draws attention to their duty to render ‘every assistance’ provided by Article 2, para 5, of the Charter.

Although the bases of the two claims are different, that does not mean that the defendant state can be compelled to pay the reparation due in respect of the damage twice over. International tribunals are already familiar with the problem of a claim in which two or more national states are interested, and they know how to protect the defendant state in such a case.

The risk of competition between the Organisation and the national state can be reduced or eliminated either by a general convention or by agreements entered into in each particular case. There is no doubt that in due course a practice will be developed, and it is worthy of note that already certain states whose nationals have been injured in the performance of missions undertaken for the Organisation have shown a reasonable and co-operative disposition to find a practical solution.

The question of reconciling action by the Organisation with the rights of a national state may arise in another way; that is to say, when the agent bears the nationality of the defendant state.

The ordinary practice whereby a state does not exercise protection on behalf of one of its nationals against a state which regards him as its own national does not constitute a precedent which is relevant here. The action of the Organisation is in fact based not upon the nationality of the victim but upon his status as agent of the Organisation. Therefore it does not matter whether or not the state to which the claim is addressed regards him as its own national, because the question of nationality is not pertinent to the admissibility of the claim.

In law, therefore, it does not seem that the fact of the possession of the nationality of the defendant state by the agent constitutes any obstacle to a claim brought by

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7It may be argued that this is incorrect: how can third parties be affected by treaty obligations?

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the Organisation for a breach of obligations towards it occurring in relation to the performance of his mission by that agent.

(The Court answered Question II by 10 votes to five.)

5.2The subjects of international law

5.2.1 Independent states

States are the principal subjects of international law. Of the term ‘state’ no exact definition is possible, but so far as modern conditions go, the essential characteristics of a state are well settled.8

The normal criteria which the government apply for recognition as a state are that it should have, and seem likely to continue to have, a clearly defined territory with a population, a government who are able of themselves to exercise effective control of that territory, and independence in their external relations. Other factors, including some United Nations resolutions, may also be relevant.9

The traditional definition of a state for the purposes of international law is the one to be found in the Montevideo Convention on the Rights and Duties of States 1933:

MONTEVIDEO CONVENTION ON THE RIGHTS AND

DUTIES OF STATES 193310

Article 1

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 other states.

Article 2

The federal state shall constitute a sole person in the eyes of international law.

Article 3

The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organise itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.

The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.

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8Starke, Introduction to International Law, 11th edn, 1994, London: Butterworths at p 95.

9Minister of state, British Foreign and Commonwealth Office (1986) 57 BYIL 507.

10Done at Montevideo, Uruguay on 26 December 1933. Entered into force on 26 December 1934. Parties: Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, United States, Venezuela.

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Article 4

States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.

Article 5

The fundamental rights of states are not susceptible of being affected in any manner whatsoever.

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. Recognition is unconditional and irrevocable.

Article 7

The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognising the new state.

Article 8

No state has the right to intervene in the internal or external affairs of another.

Article 9

The jurisdiction of states within the limits of national territory applies to all the inhabitants.

Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.

Article 10

The primary interest of states is the conservation of peace. Differences of any nature which arise between them should be settled by recognised pacific means.

Article 11

The contracting states definitely establish as the rule of their conduct the precise obligation not to recognise territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measures. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

Article 12

The present Convention shall not affect obligations previously entered into by the High Contracting Parties by virtue of international agreements.

Article 13

The present Convention shall be ratified by the High Contracting Parties in conformity with their respective constitutional procedures. The Minister of Foreign Affairs of the Republic of Uruguay shall transmit authentic certificated copies to the governments for the aforementioned purpose of ratification. The instrument of ratification shall be deposited in the archives of the Pan American Union in Washington, which shall notify the signatory governments of said deposit. Such notification shall be considered as an exchange of ratifications.

Article 14

The present Convention will enter into force between the High Contracting Parties in the order in which they deposit their respective ratifications.

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Article 15

The present Convention shall remain in force indefinitely but may be denounced by means of one year’s notice given to the Pan American Union, which shall transmit it to the other signatory governments. After the expiration of this period the Convention shall cease in its effects as regards the party which denounces but shall remain in effect for the remaining High Contracting Parties.

Article 16

The present Convention shall be open for the adherence and accession of the states which are not signatories. The corresponding instruments shall be deposited in the archives of the Pan American Union which shall communicate them to the other High Contracting Parties.

An alternative view of statehood is offered by Schwarzenberger and Brown who argue that an entity must satisfy a minimum of three conditions before it can be considered an independent state. Those conditions are:

(1)the entity must possess a stable government which does not recognise any outside superior authority;

(2)the government must rule supreme within a territory which has more or less settled frontiers;

(3)the government must exercise control over a certain number of people.

James Crawford11 identifies five ‘exclusive and general legal characteristics of states’:

1In principle, states have plenary competence to perform acts, make treaties, and so on, in the international sphere: this is one meaning of the term ‘sovereign’ as applied to states.

2In principle states are exclusively competent with respect to their internal affairs, a principle reflected by Article 2(7) of the United Nations Charter. This does not of course mean that they are omnicompetent, in international law, with respect to those affairs: it does mean that their jurisdiction is prima facie plenary and not subject to the control of other states.

3In principle states are not subject to compulsory international process, jurisdiction, or settlement, unless they consent, either in specific cases or generally, to such exercise.

4States are regarded in international law as ‘equal’, a principle also recognised by the Charter (Article 2(1)). This is in part a restatement of the foregoing principles, but it may have certain other corollaries. It does not mean, for example, that all states are entitled to an equal vote in international organisations; merely that, in any international organisation not based on equality, the consent of all the Members to the derogation from equality is required.

5Finally, any derogations from these principles must be clearly established: in case of doubt an international court or tribunal will decide in favour of the freedom of action of states, whether with respect to external or internal affairs, or as not having consented to a specific exercise of international jurisdiction, or to a particular derogation from equality. This presumption – which is of course rebuttable in any case – is important in practice, as well as

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11James Crawford, The Creation of States in International Law, 1979, Oxford: Clarendon Press at p 32.

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providing a useful indication of the status of the entity in whose favour it is invoked. It will be referred to throughout this study as the Lotus presumption

– its classic formulation being the judgment of the Permanent Court in Lotus.

These five principles, it is submitted, constitute in legal terms the hard core of the concept of statehood, the essence of the special position in customary international law of states. It follows from this, as a rule of interpretation, that the term ‘state’ in any document prima facie refers to states having these attributes; but this is of course subject to the context. Courts will tend towards strictness of interpretation of the term ‘state’ as the context predicates plenitude of functions – as, for example, in Article 4(1) of the United Nations Charter. Conversely, if a treaty or other document is concerned with a specific issue, the word ‘state’ may be construed liberally – that is, to mean ‘state for the specific purpose’ of the treaty or document.12

5.2.1.1 Population and territory

States are aggregates of individuals and accordingly a permanent population living within a defined territory is regarded as a requirement of statehood. But there are no limits as to size of population or territory – eg Liechtenstein has a population of under 30,000, and Monaco has a territory of less than two square kilometres. It is not a requirement that the population should hold the nationality of the state in question, merely that they should live there with some degree of permanence. As far as territorial boundaries are concerned, there is no requirement for absolutely settled borders merely some identification of the state with a portion of the earth’s surface.

In order to say a state exists ... it is enough that this territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited, and that the state actually exercises independent public authority over that territory.13

... both reason and history demonstrate that the concept of territory does not necessarily include precise delimitation of the boundaries of that territory. The reason for the rule that one of the necessary attributes of a state is that it shall possess territory is that one cannot contemplate a state as a kind of disembodied spirit. Historically, the concept is one of insistence that there must be some portion of the earth’s surface which its people inhabit and over which its government exercises authority. No one can deny that the state of Israel responds to this requirement.14

There is for instance no rule that the land frontiers of a state must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations.15

On the other hand, it is possible to cite a few situations where statehood was refused on the basis of unsettled frontiers, the classic example being that of Lithuania, which was refused membership of the League of Nations until border disputes with neighbouring states were settled.

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12Crawford, op cit at pp 32–33 (footnotes omitted).

13German-Polish Mixed Arbitral Tribunal in Deutsche Continental Gas-Gesellschaft v Polish State

(1929) 5 AD 15.

14Philip Jessup – US representative to the UN Security Council, 1948.

15ICJ in North Sea Continental Shelf case [1969] ICJ Rep at p 132.

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5.2.1.2 Government

The shortest definition of a state for present purposes is perhaps a stable political community, supporting a legal order, in a certain area. The existence of effective government, with centralised administrative and legislative organs is the best evidence of a stable political community.16

Finland did not become a definitely constituted state until a stable political organisation had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the state without the assistance of foreign troops.17

There is a strong case for regarding the possession of effective government as the single most importance criterion of statehood since, arguably, all the other requirements depend upon it. But the actual application of the criterion has been far from straightforward – see, for example, the events surrounding the independence of the Belgian Congo in 1960. More recently the extent to which the state of the Lebanon has had any effective government has been in serious doubt. Moves in the General Assembly of the United Nations have also questioned the requirement of possession of effective government. It is worth noting General Assembly Resolution 1514 (XV) Declaration on the Granting of Independence to Colonial Countries and Peoples which declares that inadequacy of political, economic, social or education preparedness should never serve as a pretext for delaying independence.

The following conclusions suggest themselves. First, to be a state, an entity must possess a government or a system of government in general control of its territory, to the exclusion of other entities not claiming through or under it.

Second, international law lays down no specific requirements as to the nature and extent of this control, except, it seems, that it include some degree of maintenance of law and order.

Third, in applying the general principles to specific cases, the following must be considered: (i) whether the statehood of the entity is opposed under title of international law; if so, the requirement of effectiveness is likely to be more stringently applied; (ii) whether the government claiming authority in the putative state, if it does not effectively control it, has obtained authority by consent of the previous sovereign and exercises a certain degree of control; (iii) in the latter case at least, the requirement of statehood may be liberally construed; (iv) finally, there is a distinction between the creation of a new state on the one hand and the subsistence or extinction of an established state on the other. There is normally no presumption in favour of the status of the former, and the criterion of effective government therefore tends to be applied more strictly.18

5.2.1.3Capacity to enter into international relations/independence/ sovereignty

Most writers seem to be agreed that the capacity to enter international relations listed in Article 1 of the Montevideo Convention could be better expressed as

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16Brownlie, Principles of International Law, 1990, Oxford: Oxford University Press at p 73.

17League of Nations Commission of Jurists in the Aaland Islands Dispute (1920).

18Crawford, The Creation of States in International Law, 1979, Oxford: Oxford University Press at p 45.

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‘independence’ or ‘sovereignty’ in the sense of having full control over domestic and foreign affairs. The concept of ‘capacity to enter into international relations’ brings with it a degree of circularity – who has capacity to enter into legal relations? states; what are states? Those entities with capacity to enter into international relations.

Independence ... is really no more than the normal condition of states according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by which is meant that the state has over it no other authority than that of international law.’19

Examples can be found where the international community formed the opinion that an alleged state did not have a sufficient degree of independence for full statehood, eg Manchukuo.

There are a number of situations which are not regarded, in international practice, as derogating from formal independence, although if extended far enough, they may derogate from actual independence:

(a)Constitutional restrictions upon freedom of action

Provided no outside state has the power to alter the constitution, the fact that the state in question is constitutionally restricted is not seen as a derogation from formal independence, eg the Constitution of the Republic of Cyprus binds the Republic permanently to accept the stationing of foreign (Greek, Turkish and British) military forces on its territory.

(b)Treaty obligations

The Wimbledon case confirmed the principle that treaty obligations do not derogate from formal independence.

(c)The existence of foreign military bases

For example, Cyprus, Germany, United Kingdom.

(d)The possession of joint organs for certain purposes

For example, Customs Unions. Of course it is possible for states to unite totally as Syria and Egypt did in the 1950s to form the United Arab Republic and as East and West Germany, North and South Yemen have done more recently – in this case, of course, two states become a single state.

(e)Membership of international organisations

Even if the international organisation has some degree of coercive authority, eg the EEC, the United Nations, this is not seen as derogating from formal independence.

Customs Regime between Germany and Austria Case20

Article 88 of the Treaty of Saint-Germain 1919 provided:

The independence of Austria is inalienable otherwise than with the consent of the Council of the League of Nations. Consequently, Austria undertakes in the

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19Judge Anzilotti in the Customs Regime between Germany and Austria case PCIJ Ser A/B, No 41 (1931).

20PCIJ Ser A/B, No 41 (1931).

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absence of the consent of the said Council to abstain from any act which might directly or indirectly or by any means whatever compromise her independence ...

In 1922 an additional protocol was signed at Geneva which contained similar provisions relating to Austrian economic independence. In 1931 Germany and Austria reached preliminary agreement on a customs union between the two states. The proposal caused widespread international concern and as a result the Council of the League of Nations had requested an Advisory Opinion from the PCIJ whether the proposed customs union would be contrary to the Treaty and Protocol. The court found that the proposed union did not contravene the 1919 Treaty but a majority of eight judges to seven found that the proposed union did contravene the 1922 Protocol. In a separate opinion Judge Anzilotti (who found the proposed union incompatible with both the Treaty and the Protocol) gave some thought to the meaning of independence in international law:

The conception of independence, regarded as the normal characteristic of states as subjects of international law, cannot be better defined than by comparing it with the exceptional and, to some extent, abnormal class of states known as ‘dependent states’. These are states subject to the authority of one or more other states. The idea of dependence therefore necessarily implies a relation between a superior state (suzerain, protector, etc) and an inferior or subject state (vassal, protégé, etc); the relation between the state which can legally impose its will and the state which is legally compelled to submit to that will. Where there is no such relation of superiority and subordination, it is impossible to speak of dependence within the meaning of international law.

It follows that the legal conception of independence has nothing to do with a state’s subordination to international law or with the numerous and constantly increasing states of de facto dependence which characterise the relation of one country to other countries.

It also follows that the restrictions upon a state’s liberty, whether arising out of ordinary international law or contractual engagements, do not as such in the least affect its independence. As long as these restrictions do not place the state under the legal authority of another state, the former remains an independent state however extensive and burdensome those obligations may be.

Admission of Liechtenstein to the League of Nations21

Liechtenstein sought admission to the League of Nations. Membership was open to ‘any fully governing state, Dominion or Colony ... provided that it shall give effective guarantees of its sincere intention to observe its international obligations, and shall accept such regulations as may be prescribed by the League in regard to its military, naval and air forces and armaments’ (Article 1(2) LN Covenant). Liechtenstein’s application was rejected in view of the following report.

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21Report of the 5th Committee to the First Assembly of the LN, 6 December 1920, 1 Hackworth 48–49.

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The government of the Principality of Liechtenstein has been recognised de jure by many states. It has concluded a number of Treaties with various states ...

The Principality of Liechtenstein possesses a stable government and fixed frontiers ...

There can be no doubt that juridically the Principality ... is a sovereign state, but by reason of her limited area, small population and her geographical position, she has chosen to depute to others some of the attributes of sovereignty. For instance she has contracted with other Powers for the control of her Customs, the administrations of her Posts, Telegraphs and Telephone Services, for the diplomatic representation of her subjects in foreign countries, other than Switzerland and Austria, and for final decisions in certain judicial cases.

Liechtenstein has no army.

For the above reasons, we are of opinion that the Principality of Liechtenstein could not discharge all the international obligations which would be imposed upon her by the Covenant.

5.2.1.4 Permanence

A state which has only a very brief life may nevertheless leave an agenda of consequential legal questions on its extinction.22

There is no requirement that a state should endure for a specific minimum period – there are examples of states existing for a very short period but they have achieved full statehood, eg Mali Federation 20 June 1960 – 20 August 1960; British Somaliland 26 June 1960 – 30 June 1960.

5.2.1.5 Legality

In recent years the view has increasingly been put forward that, in addition to the criteria already mentioned, international law does not permit the creation of states in violation of fundamental principles of international law/in violation of jus cogens.

Self-determination

While discussion of the political principle of self-determination has a long history, the process of establishing it as a principle of international law is of more recent origin. It was discussed in the early days of the League of Nations and the Mandate system was to some degree a compromise between outright colonialism and principles of self-determination. In the period 1920–22 many of the treaties concluded by the Soviet Union enshrined self-determination as a legal right. However the biggest impetus to recognition of self-determination as a legal principle came with the United Nations Charter:

The purposes of the United Nations are:

2 To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples (Article 1).

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 ... (Article 55).

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22Brownlie, Principles of Public International Law, 4th edn, 1979, Oxford: Oxford University Press at p 77.

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All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations (Article 2(4)).

While it clearly enunciated the principle of self-determination, it left unclear the precise legal ramifications and this fact was seized upon by many Western jurists to deny that self-determination was in any way a legally enforceable right. In 1952 the General Assembly stated (in Resolution 637A (VII)) that ‘the right of peoples and nations to self-determination is a prerequisite to the full enjoyment of all fundamental human rights’ and is recommended that the United Nations’ members ‘shall uphold the principle of self-determination of all peoples and nations’ while promoting ‘realisation of the right of selfdetermination’ for the peoples of colonial territories. Again the resolution left unclear the precise legal implications of the principle.

In 1960 General Assembly Resolution 1514 (XV) entitled Declaration on the Granting of Independence to Colonial Countries and Peoples was adopted 89:0 with nine abstentions (Australia, Belgium, Dominican Republic, France, Portugal, South Africa, Spain, UK, US):

The General Assembly ...

Declares that:

2All 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 ...

3Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence ...

6Any attempt at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

In 1966 two conventions on human rights were signed – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Both entered into force in 1966 and at present over 90 states have ratified them. The Covenants have a common Article 1 which states:

1All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Subsequently the Declaration of Principles of International Law Concerning Friendly Relations (General Assembly Resolution 2625 (XXV)) confirmed the principle that self-determination is a right belonging to all peoples and that its implementation is required by the UN Charter in the case of alien subjugation or foreign domination. The Declaration went further in recognising that peoples resisting forcible suppression of their claim to self-determination are entitled to seek and receive support in accordance with the purposes and principles of the Charter.

The principle of self-determination of peoples is rightly considered to be a successor to the political principle of nationality, which became widely recognised in 19th century Europe and related to the emergence of nation states.

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Since then, hardly any political or legal principles have been as highly praised and supported by some and as strongly denied by others as has that of selfdetermination.

After World War I the principle received a new boost. In 1917, in the famous Decree of Peace, Lenin wrote:

If any nation whatsoever is retained within the boundaries of a given state by coercion, and despite its expressed desire it is not granted the right by a free vote ... with the complete withdrawal of the forces of the annexing or generally more powerful nation, to decide without the slightest coercion the question of the form of state existence of this nation, then it is an annexation

...

President Wilson was an ardent proponent of the principle. In his ‘Fourteen Points’ he enunciated that ‘peoples and provinces must not be bartered from sovereignty to sovereignty as if they were chattels or pawns in a game’, and that territorial questions should be decided ‘in the interest of the population concerned’.

But at the same time Secretary of state Lansing wrote in a note of 30 December 1918:

The more I think about the President’s declaration as to the right of ‘selfdetermination’, the more convinced I am of the danger of putting such ideas into the minds of certain races. It is bound to be the basis of impossible demands on the Peace Congress and create trouble in many lands ... The phrase is simply loaded with dynamite. It will raise hopes which can never be realised. It will, I fear, cost thousands of lives.

Senator Moynihan quotes Frank P Walsh, to whom President Wilson himself had acknowledges that when he had uttered the words on the right to selfdetermination he had done so without any knowledge that nationalities existed which were coming to them day after day.

Already at that time proponents of the principles interpreted it not only differently, they also interpreted it as being not simply an end in itself but as a means of achieving different ends. For Lenin this principle was subordinated to interests of socialism and was considered as a stage and condition of the final merger of all nations into one socialist society. Hurst Hannum is quite right that it ‘should be underscored that self-determination in 1919 had little to do with the demands of the peoples concerned, unless those demands were consistent with the geopolitical and strategic interests of the Great Powers’.

By the turn of the millennium the principle of the self-determination of peoples has travelled the long road from its original political slogan to being one of the fundamental principles of international law. But as Hannum writes: ‘Yet the meaning of and the content of that principle remain as vague and imprecise as when they were enunciated by President Woodrow Wilson and others in Versailles.’23

In the 1990s the self-determination of peoples is once more not only a topical subject for dissertations, but has become a slogan of political struggle in different parts of the world. If after the First World War the principle was applied only to Eastern European nations which had hitherto been parts of the Ottoman and

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23H Hannum, Autonomy, Sovereignty, and Self Determination: The Accommodation of Conflicting Rights, 1990, Philadelphia: University of Pennsylvania Press at p 28.

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Austro-Hungarian empires, and in the 1960s determined outcomes of the anticolonial struggle in Africa and Asia, at the end of the 1980s came the turn of the Russian (Soviet) Empire.

All Soviet republics, while seeking independence from the USSR or demanding more autonomy from the centre, vigorously claimed the right to selfdetermination. But even before these republics could achieve their independence, different ethnicities living in their territories where they constituted minorities (for example, Tartars and Chechens in Russia; Crimeans in Ukraine; Crimean Tartars in their turn in the Crimean peninsula, which was their historical motherland; and Ossetians and Abkhazians in Georgia) started to use the same slogan in the furtherance of their claims.

It seems that the chain of fission is a law not only of the physical worlds but of the social world as well. When a society breaks up, not only are other societies affected by way of example, but newly born states themselves often start a new round of disintegration.

The birth and existence of the Soviet Union had a twofold effect on world society. On the one hand, it was a source of expansion of communist ideas and a resource for different left wing organisations all over the world. On the other hand, the Soviet experience served as a warning for different peoples, averting them from repeating this social experiment.

In the same vein, recent and even some current events in the former Soviet Union as well as in the former Yugoslavia, though certainly providing a source of inspiration for many secessionist movements in other counties should, at the same time, sound as a warning.

Generalisations, of course, should always be made cautiously, because seemingly identical events may have their roots in different reasons and lead to different results. But there may have been something symbolic in the picture I observed in Geneva in autumn 1992 at the time when Georgians and Abkhazians were killing each other in the Caucasus, when ethnic cleansing was in progress in the territories of the former Yugoslavia, and the UN Human Rights Committee, of which I was a member, considered emergency reports of Bosnia-Herzegovina, Croatia, and Yugoslavia (Serbia and Montenegro) on their implementation of such basic human rights as the right to life and freedom from torture and other inhuman forms of treatment. Looking out of the windows of the Palais des Nations one could see the 179 flags of the UN member states fluttering in the cold autumn wind. At that moment I did not feel especially proud of seeing so many new member states’ flags, but thought more of the cost of every flag in human lives and suffering. And this notwithstanding the fact that in 1991-92 I was myself actively involved in the process of the dissolution of the Soviet Union as Deputy Foreign Minister of Estonia.

No one doubts any more that the principle of the self-determination of peoples is a legal principle and many declare it to be a jus cogens norm of international law. What is much less clear is the content of the principle and its relation to other principles of international law having the same legal force. This last aspect is especially important because such grandiose events like those which have taken place in the erstwhile USSR and in Eastern Europe are never governed only by one principle or norm of international law. Different principles and norms, all being expressions of different real values and interests, if taken in isolation, may often indicate opposite outcomes. Therefore the task of an international lawyer is to apply these principles and norms creatively to concrete events, taking into account not only these legal principles but also important extra-legal factors and possible outcomes as well.

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The right of peoples to self-determination is not only one of fundamental principles of international law governing inter-state relations. It is at the same time a very important human rights norm and therefore rightly belongs to both Covenants on human rights. The Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in June 1993 emphasises that the Conference considers the denial of the right of self-determination as a violation of human rights and underlies the importance of the effective realisation of this right.

This is so because, first, its so-called internal aspect, that is the right of all peoples freely (there are some limitations of even this freedom as I will show later) to determine their political status and to pursue their economic, social and cultural development is the entitlement of all peoples to democracy. Second, even its external aspect, that is the right of peoples freely (so far as this freedom does not infringe upon the freedom of other peoples) to determine their place in the international community of states, is becoming more and more influenced by other human rights norms.

When this principle of self-determination as a legal norm started its development in the context of the process of decolonisation, this link between selfdetermination and human rights meant that individuals could not be free if the peoples to which they belonged were under an alien yoke.

But the process of development of the principle of respect for human rights – one of the most rapidly and radically evolving principles of international law – has influenced many international law principles and norms and the principle of selfdetermination of peoples has not remained unaffected either because, as was said in the 1970 Friendly Relations Declaration, all principles of international law and each principle should be construed in the context of other principles. Though in the Friendly Relations Declaration the principle of respect for human rights was still absent, there is no doubt that the following developments in international law have confirmed the place of this principle amongst the fundamental principles of international law. The Final Act of the Conference on Security and Co-operation in Europe contains the principle of respect for human rights and fundamental freedoms and also stresses that all principles should be interpreted whilst taking the others into account.

The principle of respect for human rights has been particularly dramatically developed in the framework of the Helsinki process. The Document of the Copenhagen Conference on the Human Dimension of 1990 not only speaks of concrete rights and freedoms and elaborates respective monitoring mechanisms, but for the first time gives the parameters of a society conducive to the protection of individual rights. And for the first time an international document states expressis verbis that freedom of choice by peoples of their political, social, economic and cultural systems is not absolute. Peoples are free to establish their respective political, social and economic systems so far as these systems guarantee respect for international standards of human rights. the states’ parties to the Conference on the Human Dimension of the CSCE confirmed that:

... they will respect each other’s right freely to choose and develop, in accordance with international human rights standards [emphasis added], their political, social, economic and cultural systems. In exercising this right, they will ensure that their laws, regulations, practices and policies conform with their obligations under international law and are brought into harmony with the provisions of the Declaration on Principles and other CSCE commitments.

One may at first assume that such a clause limits the freedom of choice of peoples with regard to the formulation of their respective economic, social and

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political systems. In reality, however, it does not curb peoples’ right to selfdetermination but, on the contrary, strengthens the principle by placing limits on rulers or other antidemocratic forces in a society.

The link between principles of the self-determination of peoples and respect for human rights – or maybe it would be better to say the filling of the principle of self-determination with humanitarian content – found further development in the processes of the dissolution of the USSR and Yugoslavia and especially in the reaction of the world community of states to these processes.

On 16 December 1991, the Council of the European Communities adopted a Declaration on ‘Guidelines on the Recognition of New states in Eastern Europe and in the Soviet Union’. This document establishes the criteria and conditions for the recognition of new states which, following the historic changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations. The Declaration refers specially to the principles of self-determination as a basis for recognition.

Application of the principle of the self-determination of peoples is strongly influenced (or one may say, balanced) also by the principles of the inviolability of frontiers and territorial integrity of states. ‘The sovereignty, territorial integrity and independence of states within the established international system, and the principle of self-determination of peoples, both of great value and importance, must not be permitted to work against each other in the period ahead’, states a report prepared by the Secretary General of the UN, Dr Boutros-Ghali. The principles of the self-determination of peoples, the inviolability of frontiers and the territorial integrity of states are inseparable and support each other, which means that they should be balanced in the same way as justice and order need to be balanced in any society. One cannot have justice without order, while order without justice is not only inhuman but it also does not last long. Max Kampelman rightly observes that ‘[t]he inviolability of existing boundaries is an integral part of this process [of self-determination], not because the boundaries are necessarily sound or just, but because respect for them is necessary for peace and stability’.

The principle of the self-determination of peoples developed in the UN mainly in the context of the process of decolonisation. Though no document confines the principle for the decolonisation of colonies of overseas parent states (so-called ‘salt water’ colonialism), it was natural that at that time this aspect of the principle became the most prominent, and for some states even the only one.24 Therefore Hector Gross Espiell wrote:

The United Nations established the right of self-determination as a right of peoples under colonial and alien domination. The right does not apply to peoples already organised in the form of a state which are not under colonial and alien domination, since Resolution 1514 (XV) and other United Nations

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24India made the following reservation to article 1 of the Covenant on Civil and Political Rights: ‘With reference to Article 1 of the International Covenant on Civil and Political Rights, the government of the Republic of India declares that the words “the right of selfdetermination” appearing in [that Article] apply only to the peoples under foreign domination and that these words do not apply to sovereign independent states or to a section of a people or nation – which is the essence of national integrity’ (UN Doc CCPR/C/Rev 3, 12 May 1992, p 18). France, Germany and the Netherlands strongly objected to this reservation by India (ibid, pp 39–40).

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instruments condemn any attempt aimed at partial or total disruption of the national unity and the territorial integrity of the country.

It seem to me that, there are two flaws in this approach. First, that the principle applies only to peoples under colonial or alien domination and, second, the assumption that application of this principle to a sovereign (even multi-ethnic) state would inevitably be fraught with the disruption of its national unity or territorial integrity.

In the colonial context, the principle meant the independence of colonies from their parent state. However, the attitude of states25 as well as that of international bodies clearly shows that the principle of the self-determination of peoples has a universal application and is an ongoing right of all peoples. Outside the colonial context, however, the meaning of the principle becomes less clear and more controversial.26

The historic roots of the principle of self-determination include the American Declaration of Independence and the decree of the French Constituent Assembly of May 1790, which refers both to the Rights of Man and to the rights of peoples. In the course of the 19th century European history the principle of nationality was influential and it was the alter ego of the principle of self-determination. These concepts, together with the concept of the protection of national minorities, were prominent in the deliberations of the Allied Supreme Council at Versailles in 1919. It is obvious that the concept of self-determination was not as yet accepted as a general principle. Thus the concept of racial equality was excluded form the Covenant of the League of Nations. Moreover, the Mandates System and the famous Minorities Treaties were conspicuous in their application only in certain cases. The special application of such institutions to defeated or newly established states only testified to the absence of a general recognition of the ‘principle of equal rights and self-determination of peoples’. However, once the principle had been recognised as such, it was in the long run difficult – in terms both of morality and logic – to maintain that it only applied within the Americas and Europe. Thus, during and after the Second World War it was more and more accepted that self-determination was a universally applicable standard.

No doubt there has been continuing doubt and difficulty over the definition of what is a ‘people’ for the purpose of applying the principle of self-determination. None the less, the principle appears to have a core of reasonable certainty. This core consists in the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives. The concept of distinct character depends on a number of criteria which may appear in combination. Race (or nationality) is one of the more important of the relevant criteria, but the concept of race can only be expressed scientifically in terms of more specific features, in which matters of culture, language, religion, and group psychology predominate. The physical indicia of race and nationality may evidence the cultural distinctiveness of a group but they certainly do not inevitably condition it. Indeed, if the purely ethnic criteria are applied exclusively many long-standing national identities would be negated on academic grounds – such as, for example, the United States. In any case the

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25For example, the German objection to the Indian reservation to article 1 of the Covenant on Civil and Political Rights states: ‘The right of self determination as enshrined in the Charter of the United Nations and as embodied in the Covenants applies to all peoples and not only to those under foreign domination’ (UN Doc CCPR/Rev 3, p 39).

26Rein Mullerson, International Law, Rights and Politics, 1994, London: Routledge at pp 5–64.

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community of states has been prepared to recognise both new states and the existence of legitimate claims by units of self-determination either by institutional procedures within the United Nations or on the basis of general recognition. Bangladesh, for example, was recognised as a state on the basis of general recognition by existing states. Provisions in written constitutions may acknowledge the relevance of self-determination to the affairs of multinational societies.

It is my opinion that the heterogeneous terminology which has been used over the years – the references to ‘nationalities’, ‘peoples’, ‘minorities’, and ‘indigenous populations’ – involves essentially the same idea. Nor is this view based upon a theoretical construction. Once a member of a people or community is expressing political claims in public discourse in Geneva, New York, Ottawa, of Canberra, and using the available stock of concepts so to do, it seems to me that the type of political consciousness involved is broadly the same. The external participation of culturally distinct groups in the political process is essentially the same as that of individual states in respect of the Law of Nations. By this I mean that in order to obtain recognition of the claim to cultural identity, or to statehood, the claimant must accept the terms of the dialogue. This may sound rather obvious but it is in this context that I want to make the point that the opposition which appears in the sources between the definition of indigenous population ‘by themselves’ and their definition ‘by others’ is a false dichotomy.

At this point I would like to stress that in practice the claim to self-determination does no necessarily involve a claim to statehood and secession. There are various models of ‘self-government’ or ‘autonomy’ but neither is a term of art. It is true that some models, such as Trusteeship, are related to the purpose of an ultimate transition to independence. However, there are a variety of other models, including that of ‘Associated state’ (as in the case of the Cook Islands and New Zealand), the regional autonomy of Austrians in the South Tyrol, the Cyprus Constitution of 1960, and the various arrangements within the Swiss and other confederations. There can be little doubt that federalism as a system provides a special capacity and a flexibility in facing cultural diversity. Federalism is probably better able than any other system to provide a regime of stable autonomy which provides group freedoms within a wider political cosmos and keeps the principle of nationality in line with ideas of mutuality and genuine coexistence of peoples.27

It now seems an accepted rule of international law that an entity created in defiance of the principle of self-determination cannot be considered a state. There remains the problem, however, of what constitutes a ‘people’ capable of exercising the right of self-determination. In this context it is worth considering and contrasting the position of the Scots, the Irish, the Croats, the Kurds, the Palestinians, the Basques, the people of Yorkshire, etc, etc. We shall return to the issue of self-determination when looking at the international law of human rights.

5.2.1.6 State succession

The transfer of territory from one state to another takes place in at least five ways:

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27Ian Brownlie, ‘The Rights of Peoples in Modern International Law’, in Crawford (ed), The Rights of Peoples, 1988, Oxford: Oxford University Press at pp 4–6.

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(a)cession;

(b)annexation;

(c)emancipation;

(d)formation of union;

(e)federation.

In all five situations one sovereign substitutes itself for another – there is a disruption of legal continuity.

5.2.2 Non self-governing territories/dependent states

There still exists, although the number is dwindling, a number of territories which have limited/restricted powers of control over their own affairs and can therefore not be considered as fully independent states. The question arises as to whether they possess any degree of international personality prior to full independence.

5.2.2.1 Colonies

Traditionally international law has not regarded colonies as possessing any international personality, because the control of the colony’s foreign relations rested entirely in the hands of the colonial power. We have already seen when looking at the law of treaties that there is a presumption that treaties will apply to a colonial power and its colonial possessions. However with the development of the principle of self-determination, international law has come to recognise that for certain purposes ‘pre-independent states’ and national liberation movements may have some degree of international personality. For example, in 1974 the Palestine Liberation Organisation was accorded observer status at the United Nations, a position previously reserved solely for the representatives of sovereign states that were not at the time members of the United Nations. The head of the PLO was subsequently invited to address the UN General Assembly and PLO representatives have attended various UN conferences and meetings. Similarly the General Assembly recognised the South West African People’s Organisation (SWAPO) as the sole representative of the people of Namibia. However, the exact nature of the personality of liberation movements is far from clear and in the case of Tel-Oren v Libyan Arab Republic 765 F 2d 774 (1984) a United States Court of Appeal declined to accept a case against the PLO in part on the ground that the PLO’s obligations under international law were unclear.

Declaration on the Gaining of Independence to Colonial Territories and Peoples28

The General Assembly ... Declares that:

1The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is conntrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation;

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28GA Resolution 1514 (XV), 14 December 1960 – adopted by 89 votes to nil, with nine abstentions. The abstaining states were Australia, Belgium, Dominican Republic, France, Portugal, South Africa, Spain, the UK and the USA.

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2All 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;

3Inadequacy of political, economic, social or education preparedness should never serve as a pretext for delaying independence;

4All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected;

5Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independences and freedom;

6Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the Purposes and Principles of the Charter of the United Nations;

7All states shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all states, and respect for the sovereign rights of all peoples and their territorial integrity

5.2.2.2 Protectorates

There are three situations where protection may be given by a foreign state:

(a)Protection may be exercised over a territory which did not have international personality before the protectorate was created. This occurred in the late 19th century in respect of a number of European states. In such situations the territory in question will only gain full international personality when it is clear that they are acting independently of the protecting state. For example, Kuwait became a British protectorate in 1899 and was gradually given increased control over its own affairs. Its independence was only formally acknowledged by the UK in 1961, but it is clear that Kuwait had achieved statehood and international personality before that time.

(b)Protection may be exercised over an already existing state. The arrangement will usually be covered by agreement between the protecting and the protected state and such protection does not usually affect the legal personality of the protected state. For example, Morocco was an independent state until the start of the 20th century when it was divided into three parts: Tangier became an international city, and the rest of Morocco was divided into a Spanish and a French zone. Foreign relations were completely within Spanish and French control, and France and Spain

could conclude treaties on behalf of Morocco. Nevertheless in the Rights of US Nationals in Morocco case,29 the ICJ held that during the period of the protectorate Morocco had retained its international personality.

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29 [1952] ICJ Rep at p 176.

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(c)In a few specific cases one state may exercise a protective power over a much smaller state without that smaller state losing its international personality, although the extent of that personality may be limited, eg San Marino, Monaco.

5.2.2.3 Mandates and Trust Territories

The Mandate system was introduced by the League of Nations to provide for the administration of the colonies and dependencies of the losing states in the First World War ‘inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’.30 The territories concerned were divided into three classes:

Class A Territories were those parts of the Turkish Empire which were thought to be closest to independence and were put under the control of Britain or France. Only Iraq achieved independence under the Mandate system, Palestine (to the extent that it has), Transjordan, Syria and Lebanon only achieved independence as a result of the Second World War.

Class B Territories comprised peoples ‘especially those of Central Africa, (who) are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military or naval bases and of military training of the natives for other than police purposes and the defence of the territory, and will also secure equal opportunities for the trade and commerce of other Members of the League’.31 Included in the Class B Territories were Tanganyika, British and French Togoland, the British and French Cameroons, Rwanda. The territories concerned only gained independence after transfer to the UN Trusteeship system.

Class C Territories included certain territories ‘which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to ... safeguards in the interests of the indigenous population’. Included in the Class C Mandates were Namibia, Samoa, and New Guinea.

When the League of Nations was disbanded to be succeeded by the United Nations a replacement was needed for the Mandate system and an entirely new ‘trusteeship system’ was established under Chapter XI of the UN Charter. Those territories held under Mandate were placed under the trusteeship system which would involve the conclusion of a trusteeship agreement between the administering authority and the United Nations. The main object of the system was ‘to promote the political, economic, social and educational advancement of

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30Article 22, para 4 of the Covenant of the League of Nations 1919.

31Article 22, para 5 of the League of Nations Covenant 1919.

32Article 22, para 6 of the League of Nations Covenant 1919.

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the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the people concerned’.33

The traditional view of Mandates and trusteeships was that, as long as they subsisted over a particular territory, that territory could not be regarded as having international personality. However, paralleling the situation with regard to colonies, increasingly the view has been expressed that Trust Territories do possess some degree of separate status and international personality, similar to that accorded to organisations such as the PLO.

Namibia, even at the periods when it had been reduced to the status of a German colony or was subject to the South African Mandate, possessed a legal personality which was denied it only by the law now obsolete ... It nevertheless constituted a subject of law ... possessing national sovereignty but lacking the exercise thereof.34

All of the trust territories have now become independent states and the UN is considering the future role of the Trusteeship Council.

5.2.3 International organisations

Accordingly, the Court has come to the conclusion that the [United Nations] Organisation is an international person. That is not the same thing as saying that it is a state, which it certainly is not, or that its legal personality and rights and duties are the same as those of a state ... What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.35

Whilst ... specific acknowledgement of the possession of international personality is extremely rare, it is permissible to assume that most organisations created by a multilateral inter-governmental agreement will, so far as they are endowed with functions on the international plane, possess some measure of international personality in addition to the personality within the system of municipal law of the members ... Possession of international personality will normally involve, as a consequence, the attribution of power to make treaties, of privileges and immunities, of power to undertake legal proceedings: it will also pose a general problem of dissolution, for in the nature of things, the personality of all such organisations can be brought to an end.36

It is clear that international organisations are capable of possessing international personality and of being subjects of international law. The functions, rights and duties of such organisations are governed by what Starke refers to as international constitutional law. Institutions will be defined by reference to their legal functions and responsibilities and the constitutions of such institutions will set out their powers, objects and purpose – analogies can perhaps be drawn with municipal company law and a company’s memorandum and articles of association. In that major respect international organisations differ from states

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33Article 76 of the UN Charter.

34Judge Ammoun in the Namibia case [1971] ICJ Rep at 68.

35ICJ in the Reparations case [1949] ICJ Rep at 174.

36Bowett, The Law of International Institutions, 4th edn, 1982, London: Stevens at p 339.

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in that their powers are limited and problems of sovereignty and jurisdiction do not arise. Almost everything is within the competence of states whereas anything not expressly within the powers of an international organisation is prima facie ultra vires – although certain powers may be implied, as in the

Reparations case.

The criteria of legal personality of international organisations may be summarised as follows:

(1)a permanent association of states, with lawful objects equipped with organs to carry out those objects;

(2)a distinction between the organisation and its member states;

(3)the existence of legal powers exercisable on the international plane and not solely within the national system of one or more states.

As far as international organisations are concerned the principal questions to be decided are:

(1)the extent to which the organisation can conclude treaties;

(2)the privileges and immunities to which the organisation is entitled;

(3)the capacity of the organisation to bring international claims. It should however be noted at this point that only states have locus standi in contentious cases before the International Court of Justice.

5.2.4 Individuals

[An individual] is a person in international law, though his capacities may be different from and less in number and substance than the capacities of states. An individual, for example, cannot acquire territory, he cannot make treaties, and he cannot have belligerent rights. But he can commit war crimes, and piracy, and crimes against humanity and foreign sovereigns and he can own property which international law protects, and he can have claims to compensation for acts arising ex contractu or ex delicto.37

Any individual who commits a crime against the peace and security of mankind is responsible for such crime.38

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37O’Connell, International Law, Vol 1, 1970, London: Stevens at pp 108–09.

38Article 3 of the Draft Code of Offences Against the Peace and Security of Mankind (1987) ILC Ybk Vol II, part II, 13.

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