1. Personality, Statehood and Recognition
Lecture 4

2. The Concept of Personality in International Law
What is meant by legal personality? Jennings and Watts - introduced the concept of international person as one who possesses legal personality in international law and enjoys rights, duties, or powers as established in international law and has the capacity to act on the international plane either directly or indirectly. Brownlie defines legal personality as an entity of the type recognised by customary law as capable of having these capacities (rights duties and powers to bring a legal claim) is a legal person.

3. The Concept of Personality in International Law (2)
Warbrick – maintains the position that international law is mainly to do the with states as it is states which create or acknowledge the other entities.
Shaw takes a different that the Holy See, insurgents and belligerents, international organisations, chartered companies, and various territorial entities such as the League of Cities were at one time or another treated as possessing the capacity to become international persons.

4. Subjects of International Law (1)
Statehood
Article 1 Montevideo Convention on the Rights and Duties of States sets out the criteria for statehood;
“the state as a person of international should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government (d) capacity to enter into relations with other states.”

5. Subjects of International Law (2)
This set of criteria has now passed into customary international law. There are now 192 members of the UN, and Kosovo has recently declared independence. As new states are coming into existence all the time, these criteria are very important. (a) Permanent population – no minimum number of people is specified. i.e. the state practice are recognition of Nauru and Tavula which have 10,000 and 12,000 people respectively.

6. Subjects of International Law (3)
(b) Territory – the case of Deutsche Continental Gas-Gesellschaft v Polish State (1929) is relevant. The German-Polish mixed arbitration panel held that in order for a state to exist and be recognised as such, it is enough that its territory has a sufficient consistency, even though its boundaries have not been accurately demarcated.
Israel is another example which to this day still does not have settled borders.
A recent state practice could be Bosnia, which was constituted a state during an armed conflict when its territory and population were not properly defined.

7. Subjects of International Law (4)
(c) Government – there are several examples of state practice concerning the necessity for a stable government.
A pertinent example of a state practice is the Aaland Islands case.
An example of a failed state - an entity that does not have a government–is the case of Somalia which continues to this day in a state of constant civil war after the disastrous UN intervention.
Warbrick argues that Somalia still exist as a state even though there is not an effective formal government.

8. Subjects of International Law (5)
(d) Independence – capacity to enter into relations with other states requires factual as well as legal independence from other states. This means puppet states can lose independence- i.e. Manchukuo which came into existence after Japan invaded Manchuria, a province of China in The League of Nations sent a commission which reported and it was decided that sovereignty over Manchuria belonged to China.

9. International Organisation as International Legal Persons
What are International Organisations?
Intergovernmental organisations, created by states, usually by means of a treaty, in order to exercise a task or function that states themselves are unable or unwilling to perform. i.e. the UN, WTO or World Bank
First International Organisation was created in 1815 which was the Rhine Commission – in order to manage problems of communication
International organisations play an important role in global affairs in international law

10. International Organisation as International Legal Persons (2)
Usually these organisations only be in session once a year or even less. Example would be the UN Security council, whose main task is to secure international peace and security.
UNSC – has 15 members of which five are permanent member (USA, Russia, China, France and the UK)
Its been argued that the Security Council has lost quite a bit of its legitimacy.

11. International Organisation as International Legal Persons (3)
Virtually all international organisation, no matter how small, will have an administrative organ, a secretariat, whose task will include the execution of decisions of the policy-making organs.

12. Individuals as International Legal Persons
For centuries international law did not think of individuals than a highly abstract sense.
Individuals were citizens of states; international was the law between states, and that was it.
Individuals, so the phrase went, were objects of international law, but not subjects; they were not considered to be capable of bearing rights and obligations under international law.

13. Individuals as International Legal Persons (2)
States could treat their citizens as they pleased. It was only citizens of other states that states had to respect some basic principles.
In the twentieth centuries we then started seeing individuals enjoy rights under international law (Human Rights) see;
Nuremberg Tribunal were it was held that “Crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”.

14. Individuals as International Legal Persons (3)
International criminal tribunals have now made it clear that individuals can be prosecuted, under international law, for such heinous activities as committing war crimes or committing genocide.

15. Other International Legal Persons
Holy See – can conclude treaties and also has diplomatic missions; the Holy See is often allowed to participate in the negotiation of multilateral conventions.
Enjoys diplomatic relations with many states and is a party to such international law documents as the 1961 Vienna Convention on Diplomatic Relations.
Not a member of the UN, however, and opinions are divided as to whether it would be eligible for membership under the provisions of article 4 UN which not only stipulates that aspiring members must be states.

16. Recognition of States and Governments
The Montevideo Convention not only listed the requirements for statehood but also referred to recognition of statehood.
Recognition gives rise to quite a bit of confusion, and does so partly because it is unclear what exactly is recognised; a state or a government?
There is no legal obligation that requires recognition of states.

17. Recognition of States and Governments (2)
What exactly is recognised ; a state or a government?
Even if all four requirements are royally met, an entity that is not recognised will have a hard time existing.
recognition of a government only arises if a government comes into power by unconstitutional means. i.e. coup
We are told that the are two traditional doctrine of recognition of a state, the constitutive theory and the declaratory theory.

18. Declarative theory
Under this theory, States are subject to rights and duties under international law once they meet the criteria for statehood.
The act of recognition should be used merely to specify that in the opinion of other states.
In general, state practice seems to demonstrate a preference for the declaratory theory.

19. Constitutive theory
Constitutive theory – this theory, holds that a state is and becomes an international person through recognition only and exclusively. Meaning that states are essentially non-existent and do not possess any legal rights until recognised by other states.
For example – Biafra found out its dismay when it proclaimed independence after a bloody war of succession with Nigeria, only to discover that it did not meet with recognition from more than a handful of states and within three years of proclaiming independence, Biafra became part of Nigeria again.

20. Constitutive theory (2)
See the following cases;
Luther Co v James Sagor &Co (1921) 1 KB
Bank of Ethiopia v National Bank of Egypt

21. Recognition of States and Governments (3)
One thing that is clear is that recognition is essentially, a political act; state X decides whether it recognises entity Y as a state, and may do so for a host of reasons. Obviously, it may do so because it thinks that entity Y meets all the requirements of statehood, but it may also do so for different reasons, e.g. because it appreciates the government running entity Y.
Decisions on whether to recognise or not are eminently political decisions, predominantly guided by political motivations.

22. Recognition of States and Governments (4)
Perhaps what really matters is not so much statehood, but rather the sort of government that the new state has.
i.e. Germany was divided in two; the Federal Republic of Germany (FRG, West Germany and the German Democratic Republic (GDR, East Germany). Communist states were reluctant to recognise the FRG, despite it meeting the requirements of statehood, whereas western states were highly reluctant to recognise the GDR.

23. Recognition of States and Governments (5)
Recognition of governments can also take place either de jure or de facto.
De jure – recognition signifies that a government has risen to power in a legitimate way.
De facto – recognition on the other hand, signifies that while a government maybe in power and therefore, constitutes a negotiating partner, the recognising state is not very pleased with the way the government came into power. i.e. British recognition of Nazi authority in Czechoslovakia; the British were pragmatic enough to recognise that Nazis were in charge, yet still voiced their dissent at the illegitimate way in which they had assumed power.
States recognised under De facto are not entitled to diplomatic privileges and immunities. See;
Haile Selassie v Cable wireless Co.

24. Implied and Express Recognition
Recognition may be expressed or implied.
It is probably accurate to state that entering into diplomatic relations will constitute implied recognition as the formulization of diplomatic relations presupposes the sort of political validation that otherwise comes from recognition.
Collective recognition – states act collectively during the process of receiving information of the situation, evaluating that information and reaching a decision, and communicating that decision

25. Conditional Recognition
An entity can be recognised as a state only when it fulfils some conditions. See the Berlin Congress of were Britain, France, Italy and German marked the recognition of Bulgaria, Serbia, Romania and Montenegro with condition that these countries would not impose any religious disabilities on any of their subjects.

26. Withdrawal of Recognition
It is possible to withdraw a granted recognition – easier for the de facto since the position is different with de facto which includes an ambiguity for the future of the entity.
On the other hand de jure – more difficult to withdraw as stronger than the de facto.

27. Effects of Recognition in National Law
Only a recognised state or government has locus standi in the UK (the right to bring an action in court) see; UK courts Gur Corporation v Trust Bank of Africa Ltd
Only a recognised state or government may plead immunity from suit. It cannot be sued without its consent. See Duff Development Co v Kelantan Government
Only the legislative, executive or judicial acts of a recognised state or government will be given legal effect in the UK. See; the Luther v Sagor case

28. Effects of Recognition in National Law
4. It will be entitled to possession in the recognising state of property belonging to its predecessor.
5. Recognition once granted is retroactive. It is back dated to the establishment of entity in question it does not relate to the time recognition is accorded. See; Luther v Sagor case
Comparing with the Anglo-American courts, the courts have established that recognition entitles a recognised entity to;
1. Sue and be sued in the courts of law of the recognising state and courts will give effect to its past and present.

29. Effects of Recognition in National Law (2)
2. Claim sovereign immunity from legal action for its diplomatic representatives and public property. 3. Demand and receive possession of public property belonging to the recognised state. Effects of non recognition both at international level and national level is that a state cannot enter in legal relations with other states.