SUBJECTS OF INTERNATIONAL LAW - STATES

I. Traditional Subjects of International Law

A. States
In addition to controlling territory, States have lawmaking and executive functions. States
have full legal capacity, that is, they have the ability to be vested with rights and to incur
obligations.

B. Insurgents
Insurgents are a destabilizing factor, which makes States reluctant to accept them, unless
they show some of the attributes of sovereignty (e.g. control of a defined territory). Their
existence is temporary; they either prevail and become a full-fledged state, or fail and
disappear.

II. Modern Subjects of International Law

All new modern subjects of international law lack permanent and stable control over a
territory. They have limited legal capacity (do not have a full spectrum of rights and
obligations) and limited legal capacity to act (i.e. to enforce their rights).

A. International Organizations

B. National Liberation Movements

C. Individuals

III. Conditions for Statehood and the Role of Recognition

Unlike national systems, the international legal order lacks a set of detailed rules
regarding the creation of states. However, such rules can be inferred from custom.

A. Conditions for Statehood

The Montevideo Convention of 1933 lays the traditional and most widely accepted
criteria of statehood in international law. It states “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 the other states.
Even today, these conditions continue to be regarded as the fundamental elements of
statehood, but they are neither exhaustive nor immutable. Other factors might be relevant
such as self-determination and recognition, but one thing is clear – the relevant
framework revolves essentially around territorial effectiveness.

The need for defined territory focuses upon requirement for a particular territorial base
upon which to operate. Therefore, for this reason at least, the “State of Palestine” which
was declared in November 1988 in Algiers cannot be regarded as valid state. The
Palestinian organizations did not control any part of the territory they claim. Note, there

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is no need for clearly defined boundaries. E.g. Albania, prior to WWI was recognized by
many countries as an independent state, although its borders were in dispute.

The existence of a permanent population is naturally required and there is no

specification of a minimum number of inhabitants.

As to whether a state has an effective government, the emphasis has been on the control
the state exercises over the relevant territory, at the exclusion of all other entities. The
degree of control required varies depending on how a state came to existence. Where the
prior sovereign over the territory has consented to the creation of a new state under a new
government, a low degree of control may be sufficient in satisfying this requirement. The
existence of an effective government is not a prerequisite for the recognition of a State.
E.g. In the case of Croatia and Bosnia and Herzegovina both states were recognized as
independent at a time when non-governmental forces controlled substantial areas of the
territories in question in civil war conditions.

The capacity to enter into relations with other nations: States are not the only
international law subjects who have this capacity, but this capacity is essential to
statehood. Where this element is not present, there cannot be a state. The essence of such
capacity is independence; it is a formal statement that the state is subject to no other
sovereignty.

B. The Role of Recognition

Who gets to decide whether the above conditions are met?
There are two main theories on recognition:
- declaratory theory of recognition: an entity is a state once the conditions of
statehood are met regardless of the attitude of other states towards the new entity
(e.g. Montevideo Convention, art 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 organize 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.”
- constitutive theory of recognition: only when other states decide that the above
conditions are met, and consequently acknowledge the legal capacity of the new
state, is the new state actually created. Criticism of constitutive theory: it
contradicts the principle of effectiveness; it is inconsistent with the principle of
sovereign equality of states; it is logically unsound since it would allow an entity
to be a state with respect to those states that have recognized it, while lacking
legal personality with respect to those that have withheld recognition.

C. Effects of Recognition

Recognition testifies to the will of recognizing states to undertake international

dealings with the new state, it shows that the recognizing states consider the

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 conditions of statehood met (Tinoco Concessions v. Costa Rica. The recognition or
non-recognition by one state is not binding on other states, but has a certain amount
of weight. Recognition is also legally relevant because it creates estoppel, which
prevents the recognizing party from later contesting or denying the legal personality
of the new state.

Note that premature recognition (when the conditions for statehood are not met) has
legal relevance in that it may amount to unlawful interference with the internal affairs
of a state (e.g. Croatia – Opinion No. 5 (Croatia) of the Arbitration Commission. The
Arbitration Commission on Yugoslavia in 1992 found that Croatia met the necessary
conditions for statehood, but some commentators have considered the recognition by
Austria premature since Croatia exercised effective control over only 1/3 of its
territory).

D. Modern Trends in the Recognition of States

The dissolution of the USSR is an example of recognition practice and an illustration of

modern trends.
While almost all other states recognized the independence of the former soviet republics,
the European Community has made the recognition contingent on additional
requirements relating to more modern notions of human rights and democracy. The EC
adopted a Declaration on the Guidelines on the Recognition of New States in Eastern
Europe and in the Soviet Union,” which sets down general conditions, requiring a new
state:
- respect UN Charter, the Helsinki Final Act, the Charter of Paris, especially with
regard to the rule of law, democracy and human rights
- guarantee the rights of ethnic and national groups and minorities
- respect existing borders
- accept relevant arms control commitments; and
- to commit to settle through negotiation and by agreement all questions regarding
state succession and regional disputes

The Declaration stated that the Community and its members will withhold recognition in
cases of aggression.

There are situations where all the requirements for statehood a met, but a “state” is not
recognized as such by the majority of states. This happens when there is a conflict
between the traditional principle of effectiveness and the modern international law trend
of withholding legitimacy when a situation, albeit effective, contravenes general values
of the world community.

IV. Continuity and Termination of the Existence of States and Recognition of

Governments
A. Continuity and Termination of the Existence of States

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Changes in government do not have an effect on the identity of States. States are bound
by international acts of prior governments. See Tinoco v. Costa Rica.
However, changes in the territory of a State, may affect its legal personality. Changes in
the territory result from the following occurrences:
- dissolution of a state (e.g. USSR, FSRY, Czechoslovakia)
- merger of one State with anther (e.g. in 1990 North and South Yemen merged to
form the Republic of Yemen)
- incorporation by one state of another (e.g. the incorporation of the Federal
Republic of Germany of the German Democratic Republic)

Problem: Are the rights and obligations of the former state binding on the new state
entity?
The matter is resolved by customary rules.
- Rules regarding the succession to treaties (Vienna Convention o1978).
Customary rules distinguish between localized and non-localized treaties.
Localized treaties attach to the new entity.
Non-localized treaties are dealt with differently depending on whether they concern
newly independent states or other states.
For newly independent states, the clean slate principle applies
For other states, the principle of continuity applies.
- Rules regarding property (Vienna Convention 1983)
Public assets and state archives – belong to the state on which territory they are located
(Art. 8 of the Convention)
Public debts – unless otherwise agreed, the State debt of the predecessor State passes to
the successor States “in equitable proportion.” (Art. 40 of the Convention).
Membership to international organizations – no admission to the UN is required for the
merging state if the State it merged into is a member of the UN. In the case of dissolution,
all resulting states must apply, unless a state can claim to be a continuation of the old
state (e.g. the Russia successfully claimed to be a successor state to the USSR and needed
not apply anew for admission to the UN).

B. Recognition of Governments

Where a new government is established through normal, constitutional processes, there is

no question regarding the recognition of that government. The new government is
entitled to all the rights and obligations under international law.
By contrast, when an entity comes to power through non-constitutional means, it is not
automatically accorded such rights and obligations. The key issue for a State when
deciding whether to recognize a new government is whether that government is in de
facto control of its state. Sometimes this test is insufficient and States have taken other
factors into account (e.g. whether the new government is ready to honor the international
obligations of the predecessor, whether it is democratic, whether it has come to power
through aggression, and its political nature).