International legal persons

• Author: John H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld
• Pages: 180-305

180

CHAPTER 3

INTERNATIONAL LEGAL PERSONS

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 personality — states 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.

A. STATES AS ULTIMATE INTERNATIONAL LEGAL PERSONS

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].

182 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY

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.

state.gov/s/inr/rls/4250.htm

4 United Nations, “About Permanent Obse rvers” online: www.un.org/en/members/aboutpermobservers.

shtml.

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: www.crlp.org/pdf/pub_bp_holysee attheun.pdf.