International legal persons

AuthorJohn H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld
Having discussed the ways in which international law is made and ascertained, we turn
now to a consideration of those entities which have formal roles to play in the internation-
al legal system. The classic, doc trinal approach to this topic is to focus on the “subjects”
of international law, namely, those entities created or regulated directl y by international
law. For reasons expressed in Chapter 1, the state is chief among these “subjects.” Cer-
tain international (that is, intergovernmental) organizations are also now recognized as
subjects of international law. However, as we shall see, the diff‌iculty with the concept of
subjects is that it suggests an all-or-nothing approach to identif ying the relevant players
in the international legal system. The reality is more complex. Entities other than states
have widely divergent entitlements and obligations under distinct areas of international
law, as well as differing capacities on the international legal plane. In other words, they
have varying degrees of international legal personality or subjecthood.
In this chapter, we go beyond the classic approach of describing the subjects of inter-
national law and focus on the extent to which those entities with the greatest degree
of international legal personalitystates and international organizations have formal
roles to play on the international stage, either as subjects of international legal obliga-
tions, benef‌iciaries of international legal rights, or as agents with legal standing or capac-
ity to participate in and inf‌luence the conduct of international legal relations. This focus
will also allow us to examine in some detail the nature and lifec ycle of states, as well as
the character and functioning of international organizations. In subsequent chapters, we
will examine the more restricted international legal personality of other players on the
international stage.
The state is the key subject of international law and the key actor in international relations,
thus enjoying the ultimate degree of international legal personality. Chapters 1 and 2
underscore the importance of states as authors of the rules of international law. However,
states can also be considered as products of international law in the sense that the law
provides criteria for determining whether a given entity constitutes a state. After all, not
all collectivities of human beings are states, with all the international legal capacities,
rights, and obligations f‌lowing from such status. We begin by focusing on these inter-
national legal prerequisites for st atehood.
Chapter 3: International Legal Persons 181
1) Prerequisites of Statehood in International Law
a) Overview
Article 1 of the 1933 Convention on the Rights and Duties of States, concluded in
Montevideo, Uruguay, provides a useful starting point for describing the prerequisites
of statehood: “The state as a person of international law should possess the following
qualif‌ications: a) a permanent population; b) a def‌ined territory; c) government; and d)
capacity to enter into relations with the other states.”1
Only a handful of states are parties to the Montevideo Convention. Nevertheless, Article
1, with its list of prerequisites for statehood, is commonly considered to ref‌lect customary
international law. Consider how the four prerequisites of statehood have been def‌ined by
the inf‌luential Restatement of the Law, Third, Foreign Relations Law of the Unit ed States:
Permanent population. To be a state an entity must have a population that is signi f‌icant
and permanent. . . . An entity that has a signif‌ica nt number of permanent inhabitants in
its territory satisf‌ies the requirement even if la rge numbers of nomads move in and out
of the ter ritory.
Def‌ined terr itory. An entity may satisfy the territorial requirement for statehood even if its
boundaries have not been f‌inally settled, if one or more of its boundaries are disputed, or
if some of its territory is claimed by another state. An entity does not necessarily cease
to be a state even if all of its ter ritory has been occupied by a foreign power or if it has
otherwise lost control of its terr itory temporarily.
Government. A state need not have any part icular form of government, but there must
be some authority exercisi ng governmental functions and able to represent t he entity in
internat ional relations.
Capacity to c onduct international re lations. An entity is not a state un less it has competence,
within its own constitutional system, to conduct international relations with other states, as
well as the politica l, technical, and f‌inancia l capabilities to do so. . . . States do not cease to
be states because t hey have agreed not to engage in cert ain international activities or have
delegated authority to do so to a “supranational” entity, e.g., the European C ommunities.2
Note that, while the Charter of the United Nations (UN Charter) specif‌ies require-
ments for becoming a member of that body and limits membership to states, it does not
establish criteria for statehood itself:
Charter of the United Nations, 26 June 1945, Can TS 1945 No 7, in force 24 October 1945
Article 3
The or iginal Members of the United Nations shall be the states which, having part ici-
pated in the United Nations Conference on Intern ational Organization at San Francisco,
1 Convention on Rights and Duties of St ates adopted by the Seventh International Conf erence of Ameri-
can States, 26 December 1933, 165 LNTS 19, in force 26 December 1934 (also known as the Montevi -
deo Convention on the Rights an d Duties of States).
2 American Law Institute, Res tatement of the Law, Third , Foreign Relations Law of the U nited States (St
Paul, MN: American Law Institute P ublishers, 1987) at para 201 [Third Restatement].
or having previously signed t he Declaration by United Nations of 1 January 1942, sig n
the present Charter and rat ify it in accordance with Article 110.
Article 4
1. Membership in the United Nations is open to all other peace-loving states which accept
the obligations contained in the present Charter and, in the judgment of the Organiza-
tion, are able and willing to c arry out these obligations.
2. The admission of any such state to membership in the United Nations will be effected
by a decision of the General Assembly upon the recommendation of the Security Council.
On their face, the legal requirements for statehood and the UN membership rules are
straightforward. In practice, there are shades of grey. There are, at present, 193 UN mem-
ber states and another dozen entities working towards a possible future claim for mem-
bership.3 As for observer states, the Holy See being the government of the Catholic
Church in Rome with a global spiritual remit that is not limited to the territory of Vatican
City — has been considered a non-member permanent observer “state” of the United
Nations since 1964. According to the United Nations, such status “is based purely on
practice, and there are no provisions for it in the United Nations Charter.”4 The benef‌its
of this status are as follows, as described by one critic:
Privileges of Non-Member State Permanent Observers include the ability to sign and
ratify UN- sponsored treaties, to part icipate in world conferences with f ull voting rig hts,
to take par t in discussions and decisions in the General Assembly, and to par ticipate in
various UN agencies, commissions, and commit tees. . . .
The Holy See has voted and actively participated in several UN world conferences,
which rank among the foremost forums for international lawmaking. The U N gener-
ally grants widespread st ate access to participation at intern ational conferences. General
Assembly resolutions convening world conferences have i nvited “all State s” to partic i-
pate “in full, with full voting rights.” . . . Unlike non-governmental organizations, “states”
have the ability to prevent consensus and sta ll the conference process.5
The Holy See’s status as an observer state participating in international conferen-
ces has generated controversy, in large measure because of its views on abortion and
women’s reproductive rights. Consider the following condemnation from the Center for
Reproductive Rights, a US-based non-governmental group using the law to advance re-
productive freedom as a fundamental human right:
3 As an example of the shades of grey, the US State De partment considers there to be 195 independe nt
states in the world — a tally that includes the Holy See and Kosovo as states: US State Depar tment,
Bureau of Intelligence and Research, “Ind ependent States in the World” (3 January 2012), online: www.
4 United Nations, “About Permanent Obse rvers” online:
5 Center for Reproduct ive Rights, The Holy See at the Uni ted Nations: An Obst acle to Women’s Reproductiv e
Health and Rights (August 2000) at 3 and 5, online: attheun.pdf.

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