ENG ELC 220 Lecture Notes - Lecture 15: Legal Personality, Genocide Convention, United Nations Human Rights Council
Chapter 4 – The Actors in the international legal system
1. Introduction
• International society – society of individual sovereign states
o States not only relevant actors in international law
o Legal subjectivity/personality – subjects of international law are those whom
the international legal system gives he capacity to hold rights, powers and
obligations
▪ Relative – not all actors hold the same rights/obligations
• ICJ – Reparations case: Legal subjects are not necessarily identical in their nature or
in the extent of their rights, and their nature depends upon the needs of the community
• Principal features of international legal personality: capacity to
▪ Bring claims in respect of breaches of international law
▪ Conclude treaties
▪ Enjoyment of privileges and immunities from the exercise of national
jurisdiction
o States have all these capacities
o Other actors possess only those they have been given by states (derived legal
personality)
2. The state
2.1 Introduction
• Emergence of large number of states in the 20th century
o Beginning of 20th century – around 50 states
o July 2016 – 193 UN Members
• States – most important actor among international legal actors
o Only the can create international law
2.2 The issue of recognition
• Special status afforded to states→ important to identify rules and principles that
govern creation of states
o Certain uncertainty: diverging opinions about what role is played by other
states in the recognition of an emerging state
• Important to distinguish between state and government:
o State – legal entity under international law
o Government – representative of the state that is entitled to act on the state’s
behalf
• Doctrinal debate about effects of recognition:
1. Declaratory view
• Creation of states – matter of law and fulfilment of legal criteria
• Entity satisfies a number of predetermined requirements → enjoy rights
and duties of a state in international law
• Relevant criterion for acquiring statehood: effectiveness
2. Constitutive view
• Recognition by other states is a precondition for statehood
• Unless an entity that appears to bear all the hallmarks of a state is
recognized as such by other states → not a state
• Tied to the rise of positivism
• Problematic in practical application
o Absolute existence not possible
• Contemporary international law – based on the declaratory approach
o Art. 3 of the Montevideo Convention on the Rights and Duties of States 1933
▪ “political existence of the State is independent of recognition by other
states”
• In very limited number of cases statehood denied to entities that would otherwise
fulfil the formal criteria on the basis of ex injuria jus non oritur – legal rights cannot
arise from wrongful conduct
• General rejection of the constitutive theory does not mean that recognition is
irrelevant
o Have evidentiary value – reflect that other states accept that an entity fulfils
the conditions for statehood
o UN Membership – only open to states → Membership provides strong
evidence of statehood and effectively resolves the matter of contention about
an entity’s status as state
▪ Not a requirement
o Recognition also carries practical consequences
▪ No obligation between states to have diplomatic relations
▪ Recognition policies of states – initiation of bilateral relations on
conditions that may be stricter than those found in Montevideo
Convention
2.3 The Montevideo criteria and the requirements of effectiveness
• 1933 Montevideo Convention on the Right and Duties of States
o Most authoritative and accepted criteria for statehood:
1. a permanent population
▪ someone has made the territory their home – certain size not required
▪ permanent – unclear whether a population that is entirely composed of
nomadic tribes suffices
Western Sahara – ICJ concluded that nomadic people possessed some
rights relating to the land through which they migrated
2. a defined territory
• small entities not excluded from statehood – no size requirement
• boundaries do not have to be precisely demarcated and settled
• As long as authorities control a consistent area of undisputed territory
= entity likely to fulfil the requirement of defined territory
3. a government
• before a territorial entity with a population can be considered a state –
must have someone who can exercise control over the territory and
ensure its compliance with international obligations
• once public authorities had become strong enough to assert themselves
throughout the territories of the State without the assistance of foreign
troops
• effective government less important once the statehood is established
4. a capacity to enter into relations with other states
• legal importance rather than political or economic independence
• to be an state – entity must have the ability to act without legal
interference form other states
• PCIJ decision (Judge Anzilotti):
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 characterize
the relation of one country to other countries…as long as 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
• Temporary interference with an established state’s independence and
ability to enter into relations with other states (such as belligerent
occupation) does not alter statehood
2.4 The issue of illegality in the creation of a state
• Otherwise effective territorial entity created in a manner that is deemed to be so
illegitimate that it is met with essentially unanimous rejection by international society
o Ex injuria jus non oritur principle → entity in question should not be
considered a state
2.5 The right to self-determination
• Right to self-determination stipulates that all peoples have the right to freely
determine their political status and pursue their economic, social and cultural
development
o Art. 1 UN Charter
o 1970 Declaration on Principles of International Law concerning friendly
Relations and CO-operation among States in Accordance with the UN Charter
• ICJ – East Timor case: right to self-determination is an essential principle of
international law that has an erga omnes character
• Referred to as a core legal norm by national courts
• In practice: application fraught and contentious
o Kosovo – ICJ: noted that international law does not preclude Kosovo from
issuing a declaration of independence
o Current status: Canadian Supreme Court made a distinction between ‘internal’
self-determination/autonomy and ‘external’ self-determination/right to
statehood
▪ Self-determination normally fulfilled by autonomy according to which
a people pursue their political, economic, social and cultural
development within the framework of an existing state
▪ Right to external self-determination only arises in the most extreme
cases
• Right need not materialize in an actual claim for statehood
o Clear trade-off between the rights of the people who want their own state and
the maintenance of international peace and stability
• Need for order and respect for existing territorial borders reflected in ‘safeguard
clause”
o 1970 Declaration on Friendly Relations
Document Summary
Chapter 4 the actors in the international legal system: introduction. 3 of the montevideo convention on the rights and duties of states 1933: political existence of the state is independent of recognition by other states . 2. 5 the right to self-determination: right to self-determination stipulates that all peoples have the right to freely determine their political status and pursue their economic, social and cultural development, art. 1 un charter: 1970 declaration on principles of international law concerning friendly. Relations and co-operation among states in accordance with the un charter. Icj east timor case: right to self-determination is an essential principle of international law that has an erga omnes character: referred to as a core legal norm by national courts. 2. 6 the acquisition of new territory: question related to statehood and the permanent territory requirement, state can purchase territory from another state through, cession. Land purchases": us purchase of alaska from russia and danish west indies from.
