International Legal Personality: The Subjects of International Law

• Author: John H. Currie
• Pages: 21-79

21

Chapter 2

INTERNATIONAL

LEGAL PERSONALITY:

THE SUBJECTS OF

INTERNATIONAL LAW

a. relevaNCe aNd defiNitioN of

“subjeCts”

Perhaps no topic more readily illustrates the sharp distinction between

international and domestic legal systems than that of “subjects.” A sus-

tained discussion of who or what constitutes a subject of the law would

likely seem quite curious to most domestic lawyers, as the application

of the law to all individuals and other legal persons (such as corpora-

tions) is a virtual given in most domestic legal systems founded upon

the rule of law. Moreover, the law in most domestic legal systems ap-

plies primarily to individuals and only secondarily, in accordance with

the rules establishing and regulating them, to artif‌icial or corporate

legal persons.

Precisely the opposite is true in the international legal system.

From its inception (and indeed by def‌inition) international law has ap-

plied not to real persons at all but almost exclusively to a surprisingly

small number of artif‌icial, politico-legal entities known as states. It is

for this reason that international law has often been referred to as the

“law of n ations”1— law that governs the rights and obligations of na-

tions or states.

1 See, for example, Hugo Grotiu s, Three Books Treating of the Rights of War and

Peace,1625 (London: M.W. for Thomas Basset, 1682), ed. by J.B. Scott, tr ans. by

PUBLIC INTERNATIONA L LAW22

While, as we shall see below, there has been some evolution in the

range of subjects to which international law now applies, states remain

its primary subjects. Even with the dramatic changes in the compos-

ition of the international community since the end of the Second World

War, this means that the international legal system still largely applies

only to a select club of less than 200 subjects or so.

However, caution is in order here. There are no f‌irm rules of inter-

national law that necessarily limit the classes of its potential subjects.

While it is true that states were at one time the sole, and remain today the

prin cipal, subj ects of int ernation al law, state s as we sha ll see are also in a

very real sense the authors of international law.2 Thus, to the extent that

states permit international law to evolve so as to encompass potential

new classes of subjects (as indeed they have over the past sixty years or

so), it becomes necessary to evaluate the international legal personality

of such new classes. It may accordingly be helpful to think of states as

“primary” subjects of international law — that is, subjects by def‌inition

or as of right — and to think of other international legal subjects as “sec-

ondary” subjects — that is, subjects of international law only to the ex-

tent and for the purposes permitted by its primary subjects, states.3

Once it is conceded that entities other than states may emerge as

secondary subjects of international law, it becomes important to def‌ine

what is meant by an international legal subject. What are the attributes

of an international legal subject? What privileges and obligations are

associated with such status? The International Court of Justice, in its

landmark Advisory Opinion in the Reparations Case,4 addressed these

questions in def‌ining the criteria for international legal personality. A

subject of international law, wrote the Court, is “capable of possess-

ing international rights and duties, and … has capacity to maintain its

rights by bringing international claims.”5 While this def‌inition may be

somewhat circular, it is generally considered to ref‌lect the essence of

what it means, in effect, to enjoy international legal personality.

F. Kelsey, Classics of Inter national Law Series (Oxford: O xford University Press,

1925); J.L. Brierly, The Law of Nations, 6th ed. by H. Waldock (Oxford: Cl aren-

don Press, 1963).

2 See Chapters 3 –5.

3 A. Casse se, International Law, 2d ed. (Oxford: Oxford Un iversity Press, 2005) at

71. On this dist inction, see further S ection D, below in this chapter, in par ticu-

lar the dicta of t he International Court of Just ice in the Reparations Case c on-

cerning t he “lesser” personality of i nternational organi zations when compared

to that of state s, below note 4.

4 Reparation for Injurie s Suffered in the Service of the United Nations, Ad visory Opin-

ion, [1949] I.C.J. Rep. 174 [Reparations Case].

5 Ibid. at 179.

Internation al Legal Personality: The Subje cts of International L aw23

With this in mind we turn now to consider various candidates for

international legal subject status and the extent of their international

legal personality — starting of course with the most obvious candidate

of all, states.

b. states as primary iNterNatioNal

legal subjeCts

1) Introduction

As obser ved above,6 international law as a legal system evolved in re-

sponse to the emergence of a new form of societal organization in Eur-

ope —the modern nation-state. Along with these new entities came a

need for a legal system to regulate their mutual rights, obligations, and

interactions. Thus, from the outset, states have been the very raison

d’être of the international legal system and thus its principal (and until

recently, its sole) subjects.

In this section we will examine the generally accepted criteria for

statehood— that is, how one knows if a particular entity is a state and

thus entitled to the full range of rights and subject to all the duties of state-

hood established by international law. We will then consider some of the

basic rights and obligations of states in international law, as well as vari-

ous legal issues surrounding the birth, life cycle, and demise of states.

2) Criteria for Statehood

Although the criteria for statehood have been established in custom-

ary international law through long usage,7 a convenient and frequently

cited restatement of those criteria is found in the so-called Montevideo

Convention.8 Article 1 of the Convention provides as follows:

The state as a p erson of international law should possess the follow-

ing qualif‌ications: (a) a permanent population; (b) a def‌ined terri-

6 See Chapter 1.

7 See Chapter 5.

8 Convention on the Rights an d Duties of States, 26 December 1933 (entered into

force 26 December 1934), (1934) 28 AJ.I.L. Supp. 75. Although a regiona l treaty

arrangement b etween the United States of Ame rica and a number of Latin

American st ates, it is generally consider ed to ref‌lect a universally applic able — if

not wholly satisfa ctory — def‌inition of stateho od.