International Personality 1.

Introduction International personality refers to the capacity to be a bearer of rights and duties under public international law. The traditional view is that the only subjects of international law are sovereign states. They alone have capacity to make claims on the international plane in respect of breaches of international law, capacity to make treaties and other binding international agreements, and enjoy privileges and immunities from national jurisdiction. This traditional view has been challenged with the development and proliferation of international organizations. As a result, it is now accepted that international organizations can have a measure of international personality. However, international personality is unlimited only in respect of sovereign states. Limited international personality applies to dependent states or international organizations. The International Court of Justice (ICJ) has recognized the diversity of international personality by stating that the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights.(Advisory Opinion in Reparations for Injuries Suffered in the Service of the United Nations (1949), ICJ Rep 174). Increasingly, there is a trend towards accepting private persons, whether legal or natural, as having limited international personality for the purposes of carrying out a limited category of transactions. 2. The criteria for statehood Independent states remain the primary subjects of international law as they occupy the central position in the international community. In order to be regarded as an independent state an entity must satisfy certain criteria. The accepted definition of what constitutes the criteria for statehood is laid down in art 1(1) of the Montevideo Convention on Rights and Duties of States 1933 which provides: The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c)government;(d)
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capacity to enter into relations with other states. The simultaneous occurrence of these elements creates a sovereign entity possessing international personality. However, the absence of some of these elements over a period of time does not necessarily deprive a state of its international personality. The criteria set out by the 1933 Montevideo Convention have been clarified and developed by international law, first by academics who, on the basis of states practices, have identified further elements that should be included within the criteria for statehood, and second, by the Badinter Arbitration Commission which was established by the European Community to respond to the break-up of the former Yugoslavia and the subsequent unilateral declarations of independence of its former republics. The EC decided that if the former republics wished to be recognized by the EC as independent states they had to apply to the EC which would then refer their applications to an Arbitration Commission chaired by Robert Badinter. The Badinter Commission prepared guidelines for possible recognition of the republics of Yugoslavia which were officially adopted by the EC (1991). Although the Badinter Commissions main concern was the recognition of states, its decisions have also influenced the criteria for statehood. (1).A permanent population A state cannot exist without population. The requirement of a permanent population refers to a stable community. There is no prescribed minimum number of people making up the population. When Nauru became independent its estimated population was 6,500 people. The criterion of population is not affected if the population of a state is nomadic, that is, it constantly changes its place of residence because of its nomadic mode of life. International law does not require the population to be homogenous. The notion of a nation state is of historical interest only. It is not necessary that the population is made up of nationals. The determination of nationality is one of the attributes of a state but not an element of its definition. Therefore, nationality is dependent upon statehood and not the reverse. The criterion of a stable population refers to a group of individuals living
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within a certain geographical area. The matter whether a very limited population will preclude the creation of a state was examined by the UN Special Committee of Twenty-Four which was asked to interpret the right of self-determination of colonial people in the context of extremely small colonial populations. The smallest entity which was examined by the Committee was Pitcairn Island with a population of 90 inhabitants occupying an area of five square kilometers. The Committee reaffirmed that the right of the people of Pitcairn Island to self-determination but warned them that in deciding their political future they should take into consideration the Territorys tiny size, its small and decreasing population, mineral resources and dependence on postage stamps for the bulk of its revenue. (UN Doc A/9623/Add 5 (Part III) (1974), 6-7). (2). A defined territory A fixed territory constitutes a basic requirement for statehood. Jessup, in his arguments submitted in favor of the admission of Israel to the United Nations, stated that 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. (3 UN SCOR, 1948). There is no requirement that the frontiers of the state be fully defined and undisputed, either at the time it comes into being or subsequently. The state of Israel was admitted to the United Nations in 1949, though the final delimitation of its boundaries had not yet been settled. Many of the states created after World War I were recognized by the Allied powers, although their boundaries were only drawn up in the subsequent peace treaties. What is important is the effective establishment of a political community. In order to say that a state exists and can be recognized as such it is enough that its territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited. Therefore, there is no state without an area of land being generally defined. For that reason a nomad state cannot exist. International law does not require any minimum size for a territory. For example, the Vatican City occupies only 0.44 square kilometers.

(3). Government A government, or at least some governmental control, is required for qualification as a state. The government must maintain some degree of order and stability. However, once a government has been established, the absence of governmental authority does not affect the existing states right to be considered as a state. States have often survived periods of anarchy, civil war and hostile occupation. (4). Capacity to enter into relations with other states This requirement mentioned by the Montevideo Convention has been challenged by many authors as being a consequence of statehood not a prerequisite. Indeed, the capacity of an entity to enter into relations with other states derives from the control the government exercises over a given territory, which in turn is based on the actual independence of that state. The essence of the capacity to enter into relations with other states is independence. In the Island of Palmas Arbitration (1928) the Permanent Court of Arbitration clearly stated that Sovereigntysignifies independence. Independenceis the right to exerciseto the exclusion of any other state, the functions of a state. Sovereignty is described as the supreme power of the state over its territory and inhabitants, independent of any external authority. The supreme power exists only inside the independent state not outside. However, a state may be limited in the exercise of its sovereignty, for example as a result of economic dependence, or because it has surrendered by treaty some of its competences to another state. Limitations of its competences do not limit a states sovereignty. They only impose restrictions on the exercise of sovereignty. Consequently, a state remains independent as long as it has not given up its independence to any other state, since only an entity which is subjected to international law through the intermediary of a foreign state is not a sovereign state under international law. Therefore, if a state has neither abandoned its independence to another state, nor is subject to the intermediary of any other state, nor dependent economically on another state such a state is a direct subject of international law.
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In respect of independence it is necessary to distinguish between independence as a criterion for statehood and as a qualification for the continued existence of a state. Indeed, once a state is established it can reduce its independence through agreements and treaties with other states or international organizations. Independence as a criterion for statehood can be formal or actual. Formal independence refers to the situation where a state has control over all its functions or competences, whilst actual independence is described as the minimum degree of real government power at the disposal of the authorities of the putative state, necessary for it to qualify as independent. The relationship between formal and actual independence of an entity will indicate to what extent such entity satisfies the criteria for statehood. In this circumstance a number of possibilities may arise. 1.Formal independence may be combined with the actual ability to exercise independence. The entity will satisfy the fourth criterion and its recognition should pose no problem. 2.Formal independence exists but actual independence is missing. The entity will not meet the fourth criterion and should not be recognized as such. 3.Formal independence is missing but the entity exercises some degree of actual independence. In such a case the fourth criterion is not satisfied. It will be difficult to recognize such an entity, although the circumstances of each case may provide justification for its recognition, eg colonial people exercising the right to self-determination. (5).The legality of origin of a state Some authors argue that an additional criterion should be added to those mentioned above: that is the legality of origin of a state. A putative state which is created in violation of international law, and which exists because of such violation, should be denied recognition. A putative state will be illegal if it has been created in violation of any of the following three norms of international law: the prohibition of aggression and of the acquisition of territory by force; the right to self-determination; and the prohibition of racial discrimination and apartheid.
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Article 2(4) of the UN Charter which prohibits aggression and the acquisition of territory by force has the status of jus cogens. Consequently, no entity created in breach of this rule should be recognized by the international community. This is illustrated by the case of Manchukuo, a puppet state created by Japan subsequent to its 1931 invasion of Manchuria. The League of Nations sent the Lytton Commission to Manchukuo to observe the situation. The League of Nations adopted the recommendations of the Commission and decided not to recognize Manchukuo. Similarly, when the independent Turkish Republic of Northern Cyprus was proclaimed by Turkish Cypriot in 1983 it was not recognized by any state but Turkey since the entity was created as a result of the illegal Turkish military intervention in 1974. Although there have been some examples which challenged the view that an entity founded on a breach of the prohibition of aggression and the use of force will not be recognized by the international community (eg the recognition of Bangladesh as a result of the 1971 invasion of East Pakistan by India which within three months was recognized by 90 states), it seems that the UN will strongly oppose such recognition. The EC in its Declaration on the Recognition of New States in Eastern Europe and in the Soviet Union 1991 clearly stated that its member states will not recognize entities which are the result of aggression. When new entities are created in breach of the right to self-determination and the prohibition of racial discrimination and apartheid the international community will refuse to recognize them as states and thus effectively deny these entities personality under international law even though the other criteria for statehood are satisfied. When Rhodesia, a British colony, unilaterally declared its independence on 11 November 1965 the UN called for its members not to recognize the white minority racist government on the ground that the new state was created in breach of the principle of selfdetermination. Some authors argue that the criterion of legality should be rejected because the criterion of effective government leaves the choice of the form of government to the population of the state, but does not punish it with disappearance of the statehood if the government violates a norm of jus cogens.
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It is difficult to agree with this view given that an entity which, at its creation, violates fundamental norms on which the international community is based can hardly, as a sovereign state, be expected to respect those norms. The case of Rhodesia clearly indicated that new entity was created without the consent of the people and subsequently disintegrated as a result of internal conflicts. The criteria for statehood were not frozen by the Montevideo Convention 1933. Since then the criterion of legality of origin of a state has been widely accepted. Possible future additions to the 1933 Montevideo criteria may be taken from the EC Declaration on the Recognition of New States. Although the Guidelines were applied in respect of recognition of new states, some of their principles are relevant to the criteria for statehood. It is submitted that the following principles should be included in the criteria for statehood. 1.Respect for the provisions of the United Nations Charter, the Final Act of Helsinki and the Charter of Paris, especially with respect to the rule of law, democracy and human rights. This element would ensure that a state is adult enough to be a member of the international community. 2.Guarnateess for the rights of ethnic and national groups and minorities. This would ensure that such groups are incorporated into the structure of a state from its inception.

3. The personality of international organizations In the Reparations for Injuries Suffered in the Services of the United Nations Case (1949), the International Court of Justice (ICJ) upheld the claim of the United Nations to exercise limited international personality. International personality was essential to give effects to the purposes and principles of the organization and could clearly be presumed from the intentions of the draftsmen of the Charter. The Organization was a subject of international law and was capable of possessing international rights and duties and had the capacity to maintain its rights by initiating international claims. Any claim incurred by the organization must have been incurred in exercise of the legitimate functions of the organization. As a result, the grant of
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personality is coextensive with the powers of the organization. These powers may be: (a).Express: This would include a treaty-making power in relation to matters within the Charter, ie in relation to privileges and immunities under Article 105 which resulted in the General Convention on Privileges and Immunities of the United Nations 1946. (b).Implied: A power may be implied by necessary implication from the constitutional document of the organization. For example, the UN possesses an implied treaty-making authority, eg Headquarters Agreement between the United Nations and the United States 1947. In addition, regional international organizations may also be capable of exercising limited international capacity. Under art 113 (3) of the Treaty of Rome (now art 133 (3) EC) the European Community is empowered to negotiate tariff and trade agreements with third countries to implement the Communitys commercial policy. Most treaties setting up international organizations contain a clause providing for them to enjoy legal personality under municipal laws of its contracting states. Usually the clause is similar to art 104 of the Charter of the United Nations which states that: the organization shall enjoy in the territory of each of its members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. The most important attribute of an international organization in respect of international personality is the right to enter into international agreements with states who are not members of it on matters within the organizations competence. Treaty-making power is strong evidence of international personality. If the constitution of the organization provides for the settlement of disputes by arbitration or other international adjudication this may be of relevance in deciding its status, the power to present claims on the international plane being one of the basic rights of international personality. It is apparent from the Advisory Opinion in the Reparations for Injuries Suffered in the Service of the United Nations Case that the whole powers of the organization must be considered. These will therefore include those implied powers which must be conferred on an organization in order for it
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to perform the duties required under its constitution. Although the international personality of organizations has been recognized by the ICJ at the international level, it was not until recently that a national court had to consider the implications of this personality in national law in the UK. This occurred in Arab Monetary Fund v Hashim and Others (1991). In this case, the English courts held that an international organization has no personality in English law in the absence of an orderin-council giving such effect, but in the circumstances of this particular case, the locus standi of this organization could be upheld on the basis of the rule of private international law that confers standing in the English courts to foreign corporate bodies incorporated in other states. On 9 December 1996 the United Kingdom passed the United Nations Personnel Act 1997 to ratify the Convention on the Safety of the United Nations and Associated Personnel adopted by the General Assembly of the United Nations in 1996. It provided that any person who attacks UN workers outside the UK shall be guilty of the same offence as if the attach too place in the UK. 4. Individuals Individuals per se are deemed objects of international law and do not exercise international rights unless conferred expressly by treaty. In the case of Jurisdiction of the Courts of Danzig (1928) the PCIJ held that where an agreement was specifically intended to establish definite rules creating individual rights and obligations and enforceable in national courts, international rights could be conferred on individuals. This interpretation of law has permitted the creation of a number of mechanisms for the exercise of rights by individuals through due processes of international law. In particular, the following instruments are most relevant: (a).The European Convention on Human Rights 1950; the International Covenant on Civil and Political Rights 1966; and the International Covenant on Economic, Social and Cultural Rights 1966. (b).The provisions of the Treaty of Rome which permit individuals to institute proceedings before the Court of Justice of the European Communities.
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At the same time, international law imposes duties directly on individuals. Of these the most important include: (a).the duty to refrain from acts of piracy; (b).the duty to refrain from committing crimes against peace, crimes against humanity, war crimes and genocide; (c).hijacking and associated acts are now considered to be crimes of quasiuniversal jurisdiction as created by convention, eg the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971.

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