Public International Law 1 Dersi 4. Ünite Özet

Introduction

The term subjects of international law refers to entities endowed with legal personality, capable of exercising certain rights and duties on their own account under the international legal system. Capacity implies personality, but it is always the capacity to do particular acts. Therefore, personality as a term is only a short-hand for the proposition that an entity is endowed by international law with legal capacity. However, not all entities have the same capacity. In the case of Reparation for Injuries Suffered in the Service of the United Nations, the International Court of Justice (ICJ) stated: “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” (ICJ, 1949: 179).

State as a Subject of International Law

Despite the momentous growth of international law, which has made a dent in the traditional theories of international law that states are the exclusive subjects of international law, the state is still the main and most obvious example of an international person.

Criteria of Statehood

An entity, to be considered a state, must have certain characteristics, such as territory, population, government, and sovereignty. Article 1 of the 1933 Convention on Rights and Duties of States (the Montevideo Convention) provides that “the state as a person of international law should possess the following qualifications: (a) permanent population; (b) defined territory: (c) a government; and (d) capacity to enter into relations with other States.”

Non-Self-Governing Territories

There are difficulties in applying the essentials of Statehood to non-self-governing territories - colonies, protectorates, trusteeship and mandate territories. Capacity to conduct international relations is significant in deciding the international personality of an entity. This refers to independence from the authority of any other state. This requirement casts doubt on the claims of many non-self- governing territories as states, though their number has fast shrunk in the last three decades. Such arrangements, to different degrees, limit these territories’ power over their foreign relations. Sometimes there is a total exclusion of such territories. As a result, these territories would be evoid of international personality. However, numerous resolutions adopted by the UN General Assembly have emphasized the principle of selfdetermination. This has helped in enhancing the status of these territories in international law.

Principle of Self-Determination

The UN Declaration on the Granting of Independence to Colonial Territories and Peoples (General Assembly Resolution 1514 (XV) of December 14, 1960) expressed the conviction that “all peoples have the right to self-determination” and “subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights.” This Resolution demanded the transfer of all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will or desire. In 1961, the General Assembly established the Special Committee on Decolonization (the Committee of 24) to assist in the implementation of Resolution 1514. The Committee is currently composed of 28 UN members.

Protected Territories

A protectorate is always the creation of a treaty. It involves a certain measure of control, and a total or partial loss of sovereignty. In many cases, it has involved the loss of control of foreign relations and the disappearance of the protected state from the community of nations. In spite of common features possessed by protectorates under international law, they had individual legal characteristics resulting from the special conditions under which they were created and from the level of their development.

Mandates and Trust Territories

Like the protectorate, which is now a dying species, the mandate system of the League of Nations no longer applies to any territory. The mandate system was created after the First World War under Article 22 of the Covenant of the League of Nations to deal with the future administration of the overseas possessions of the “Axis” states of Germany and the Ottoman Empire. Three categories of mandates (A, B and C) were devised for those territories “according to the stage of their development” (Art. 22 of the Covenant of the League).

Class A comprised territories that were formerly part of the Ottoman Empire and were sufficiently advanced for their independence to be “provisionally recognized.” It was subject to the administrative advice and assistance of the Mandatory, “until such time as they were able to stand alone.” Except Iraq (Mandatory—Great Britain), which achieved early independence, all the territories under this category—Palestine and Transjordan (Mandatory—Great Britain), Syria and Lebanon (Mandatory—France) became independent only after the Second World War. Class B consisted mainly of territories of Central Africa that were still in the process of economic and political development. The Mandatory was responsible for their administration, subject to a variety of guarantees and was under the obligation to allow trading opportunities to other League members. According to Article 22 of the League Covenant, peoples of these territories were “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… 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 and naval bases and of military training of the natives for other than police purposes and the defense of territory, and will also secure equal opportunities for the trade and commerce of other Members of the League.” All these territories are now independent countries.

Class C mandates were the least-developed. Because of their sparse population or small size, or remoteness from the centers of civilization, or their geographical continuity to the territory of the Mandatory, they were administered under the laws of the Mandatory as integral portions of its territory. The territories concerned were: Nauru (Mandatory powers were Great Britain, Australia, and New Zealand), New Guinea (Mandatory—Australia), Western Samoa (Mandatory—New Zealand), Pacific Islands north of the Equator (Mandatory— Japan), South- West Africa (Mandatory—South Africa).

The United Nations Trusteeship Council

All the former mandated territories were placed under the trusteeship system by their mandatories (who were then appointed as the administering authorities in the same territories) except territories under category A, the Pacific Islands, and South- West Africa. After the Second World War, the Pacific Islands were taken away from Japan, and they became a “strategic trust area” administered by the United States. South Africa continuously refused to negotiate a trusteeship agreement and to place South-West Africa under the supervision of the United Nations. It claimed South-West Africa as an “integral part of its territory.” After a protracted conflict between South Africa, on the one hand, and the United Nations and the South- West Africa People’s Organization (SWAPO), on the other hand, South-West Africa became an independent state of Namibia in April 1990.

Besides the former mandate territories, which were brought under the UN trusteeship system, Somaliland was made a trust territory after the Second World War for a brief period of ten years (from 1950 to 1960). In all, the United Nations rusteeship system applied to 11 territories, 10 former andates and Somaliland. All these territories have now ecome independent.

The mandate and trusteeship systems, as such, are devoid of creating any international personality for the territories administered under these systems. Until independence is in prospect and there is a degree of internal self- government, a mandate or trust territory cannot be regarded as having any international personality. Moreover, until independence is achieved, such territory cannot be considered as a state for international law purposes.

International Organizations as Persons (Subjects) of International Law

The first example of an international organization is the Central Commission for Navigation on the Rhine (CCNR), which was created in 1815 by the Congress of Vienna. After the Second World War, there has been a tremendous growth in the number of international organizations. Such organizations may be either universal (such as the UN and the ILO) or regional (such as the European Union and the African Union).

International organizations are established by treaties and their international personality can be ascertained by looking at their constitutions. It is, however, rarely that the constitution of an international organization would provide and clothe it with international personality. Consequently, the question of whether an institution possesses an international personality can be answered by examining the type of functions, powers, privileges and immunities exercised by it. These can be conferred by or to be implied from its constitution or from agreements that it concluded with other entities. Legal capacity of these organizations under the municipal law finds an explicit mention in the oganizations’ constitutions, such as Article 104 of the UN Charter and Article 39 of the ILO Constitution.

These provisions generally require that the organization’s officials, and the representatives of the member nations, should be entitled to such privileges and immunities under municipal law as necessary for carrying out their functions. The 1946 Convention on Privileges and Immunities of the United Nations endows the United Nations and its officials with legal capacity in the territory of each of its members.

Individual as a Subject of International Law

There are substantial doctrinal differences over the international personality of an individual. Traditionalists accept states as the only subjects of international law. According to traditionalists, individuals are incumbents of rights and duties at international law in so far as they are objects and not subjects of international law. For this, traditionalists cite piracy jure gentium, slavery, and the rules related to the protection of foreign sovereigns and diplomatic personnel. They argue that in the ultimate analysis, rights and duties claimed by slaves, pirates jure gentium, and foreign sovereigns may exist only in reference to a state. In the case of slaves, states have accepted the obligation to protect their rights under international conventions (Article 99 of the 1982 Convention on the Law of the Sea). Similarly, the pirates jure gentium, who are considered as enemies of humankind are punished under the municipal law of the apprehending state. Thus, no rule of international law operates directly or indirectly upon individuals without some municipal legislation. The liability of pirates, the rights of slaves, and the immunity of foreign sovereigns basically arise from municipal law.

Recognition

The international community is not static; it often witnesses territorial changes in the political map of the world. New states are born out of the existing states, or old states disappear by merging with other states, or splitting into many new states. Revolutions occur and new governments take over. For example, after the disintegration of the Socialist Federal Republic of Yugoslavia in 1991, many new states have emerged, viz., Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia, and Kosovo. A new state of South Sudan has emerged from Sudan in July 2011.

The members of the international community approve or disapprove these changes. It is through recognition that a state expresses its approval of the new state or the new government. International community also faces the problem of recognition of national liberation movements and situations of insurgency and belligerency as well as other territorial changes brought about by states’ actions. According to Oppenheim, by way of recognition, the recognizing State declares that “a foreign community or authority is in possession of necessary qualifications of Statehood, of governmental capacity, or of belligerency” (Oppenheim, 1952: 127).

Recognition is concerned with the status of the new entity or the government (a) at the international plane and (b) within the municipal legal system of the recognizing state. Through recognition, a state manifests its willingness to maintain necessary international intercourse with the new entity or the government. Recognition is a unilateral act of cognitive nature of a recognizing state that creates certain legal consequences.

Modes of Recognition

International law does not specify any form or manner of granting recognition. However, in the practice of states, recognition may be express or implied. The mode of recognition unequivocally establishes the intention of the recognizing state. A state may convey its decision of recognition to the new entity or government through a formal announcement, which may take the form of public statement or notification or diplomatic note or a personal message sent to the new entity. Recognition may also be granted by the conclusion of a bilateral treaty or agreement.

This method was followed by the United Kingdom in its practice with its former colonial or other dependent territories. For example, the treaty between the Government of the United Kingdom and the Provisional Government of Burma of October 17, 1947 (treaty became operative on January 4, 1948) provided that the Government of the United Kingdom recognized “the Republic of the Union of Burma as a fully independent sovereign State” (cited in Greig, 1976: 121).

Recognition may be inferred from the conduct of the parties involved. The act must clearly indicate that a recognizing state has a clear and inescapable intention to recognize. The intention, then, is the crucial aspect of recognition. Usually, acts indicating the intention may be bilateral or multilateral. Bilateral acts may be in the form of concluding or signing a treaty with a new entity. Multilateral acts may be through common participation in a multilateral treaty or an international conference along with the unrecognized entity. However, this is a questionable mode of recognition because recognition is a unilateral and discretionary act of a state. Participation in an international conference with an unrecognized state or government will not indicate recognition if it is made clear that it is not intended to have that effect. It is also important to note that non-recognition is not necessarily accompanied by non-intercourse just like recognition does not always manifest into intercourse between the two entities.

Theories of Recognition

There are two principal theories about the nature and actual import of recognition: (1) Constitutive theory, and (2) Declaratory (evidentiary) theory. According to the constitutive theory, an entity becomes a state only by virtue of recognition. It is through the act of recognition alone that a new state emerges as an international person or a new government derives the requisite authority or status in the international arena. In Oppenheim’s view, “a State is, and becomes, an international person through recognition only and exclusively” (Oppenheim, 1952: 125). The theory advocates that a new entity cannot become a state ipso facto (by the fact itself ), but it has to be recognized by other nations to become an international person.

In contrast to the constitutive theory, the declaratory theory (also called evidentiary theory) considers that a new state or a new government exists independent of recognition. The recognition is merely an evidence of the fact that the new entity fulfils the essentials of Statehood or of a government. The state practice widely confirms the evidentiary theory because of the political nature of the act of recognition. If the majority of nations have granted recognition, refusal by a single state or few states would not affect the situation.

Collective Recognition

International law does not prescribe or prohibit the grant of collective recognition. States may grant recognition collectively. Collective recognition can be granted by states through some collective international act or through the medium of an international institution. In the past, Allied Powers granted recognition to Estonia and Albania in 1921.

The European Commission recognized the three Baltic States of Estonia, Latvia, and Lithuania in August 1991. Following the disintegration of the Socialist Federal Republic of Yugoslavia (SFRY), the EC recognized the Balkan states in January 1992. Nevertheless, admission to the membership of an international institution, such as the United Nations, raises the question whether this act of admission amounts to the recognition of the applicant as a state.

Conditional Recognition

Conditional recognition implies that recognition is granted upon the fulfilment of certain stipulations in addition to the normal requirements by the recognized entity. As a legal concept, conditional recognition has no real significance. This is partly for the reason that non- observance of the condition would not annul the recognition, since recognition once given cannot be withdrawn. Moreover, recognition being a unilateral act of the recognizing state, the recognized entity is clearly not bound to observe the conditions that were thrusted upon it. Conditional recognition has fallen into disuse in international relations.

Legal Effects of Recognition

The act of recognition creates two-fold effects: political and legal. Recognition confers on the new State or régime a status under international law and municipal law vis-a-vis the recognizing State. At the political level, it indicates the willingness of the recognizing state to initiate international relations with the recognized entity. At the legal level, it provides an evidence of the Statehood of the new entity, i.e., the new entity fulfils all the required conditions of Statehood. Once the state is recognized, it becomes entitled to all the privileges of membership of the society of states. It entitles the new entity to conclude treaties and establish diplomatic relations with other nations. It also bestows upon the new entity or régime certain rights and privileges as a sovereign state under the municipal law of the recognizing state. According to the Anglo-American practice, recognition entitles a recognized entity to:

• Sue in the courts of law of the recognizing state, and courts will give effect to its past and present legislative and administrative acts;
• Claim sovereign immunity from legal process of the recognizing state for its diplomatic representatives and public property; and
• Demand and receive possession of public property belonging to the recognized state.

De Jure and De Facto Recognition

The countries generally make a distinction between de jure and de facto recognition. Except in the case of nascent states, where the recognition of Statehood and governmental authority is merged, this distinction between de jure and de facto recognition mainly relates to governments. The de jure or de facto recognition conveys the status of a government, which is either de jure or de facto. The practice was much favored by the United Kingdom, though it has been largely discarded since 1980 after the United Kingdom adopted the new policy of not recognizing the governments. The recent state practice of other countries also does not show any clear adherence to this distinction. Under de facto recognition, in the opinion of the recognizing state, the new state or government: (i) lacks stability and permanency, or (ii) does not possess all the essentials required under international law for its effective participation in international affairs, but, in fact, it fulfils these requirements. It may grant recognition to the latter provisionally with all due reservations for the future.

In case of de jure recognition, in the opinion of the recognizing state, the new state or government fulfils all the attributes essential for its effective participation in the international community, and it may grant the recognition to the latter formally. However both, de facto and de jure recognition, are related to the fact that the recognized authority should have effective control over a given area and it should have the semblance of permanence and stability. Generally de jure recognition follows de facto recognition, particularly when the new government comes into power through unconstitutional means. In choosing between the two, the recognizing state grants de facto recognition first. This can subsequently be substituted by de jure recognition. Distinction between the two can be described as a de jure government is one “which ought to possess the powers of sovereignty, though at the time it may be deprived of them. A de facto government is one which is really in possession of them although the possession may be wrongful or precarious” (Luther v. Sagor case 1921, p. 543). De facto recognition enables the recognizing State to protect its interests, including of its citizens, in the recognized entity. It also prevents a state from giving premature recognition.