International Legal Persons
| Author | John H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld |
| Pages | 183-293 |
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 that have formal roles to play in the international legal
system. The classic, doctrinal approach to this topic is to focus on the “subjects” of inter-
national law, namely, those entities created or regulated directly by international law. For
reasons expressed in Chapter , the state is chief among these “subjects.” International law
also now recognizes some international (that is, intergovernmental, not non-governmental)
organizations may have some degree of subjecthood. However, as we shall see, the diculty
with the concept of subjects is that it may suggest an all-or-nothing approach to identify-
ing the relevant players in the international legal system. The reality is more complex. Enti-
ties other than states can have certain entitlements and obligations under distinct areas of
international law, as well as diering capacities on the international legal plane. Additional
examples include peoples, who have an international legal right to self-determination, as
we discuss later in Chapter , and individuals have been held liable under international law
for the commission of international crimes, as we discuss in Chapter . In other words,
entities other than states may 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 obligations, bene-
ciaries of international legal rights, or as agents with legal standing or capacity to partici-
pate in and inuence the conduct of international legal relations. This focus will also allow
us to examine in some detail the nature and lifecycle 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 and under-
score the importance of states as authors of the rules of international law. However, states are
also 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 owing from such
status. We begin by focusing on these international legal prerequisites for statehood.
INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY
) Prerequisites of Statehood in International Law
a) Overview
Article of the 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 qualications: a) a perma-
nent population; b) a dened territory; c) government; and d) capacity to enter into relations
with the other states.”
Only a handful of states are parties to the Montevideo Convention. Nevertheless, Article,
with its list of prerequisites for statehood, is commonly regarded as reecting customary
international law. Consider how the American Law Institute’s inuential Restatement of for-
eign relations law has dened the four prerequisites of statehood:
Permanent population. To be a state an entity must have a population that is signicant
and permanent. . . . An entity that has a signicant number of permanent inhabitants in
its territory satises the requirement even if large numbers of nomads move in and out
of the territory.
Dened territory. An entity may satisfy the territorial requirement for statehood even if its
boundaries have not been nally 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 territory has been occupied by a foreign power or if it has
otherwise lost control of its territory temporarily.
Government. A state need not have any particular form of government, but there must
be some authority exercising governmental functions and able to represent the entity in
international relations.
Capacity to conduct international relations. An entity is not a state unless it has compe-
tence, within its own constitutional system, to conduct international relations with other
states, as well as the political, technical, and nancial capabilities to do so. . . . States do
not cease to be states because they have agreed not to engage in certain international
activities or have delegated authority to do so to a “supranational” entity, e.g., the Euro-
pean Communities.
Note that, while the Charter of the United Nations (UN Charter) species requirements
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
The original Members of the United Nations shall be the states which, having partici-
pated in the United Nations Conference on International Organization at San Francisco,
Convention on Rights and Duties of States adopted by the Seventh International Conference of American
States, December , LNTS , in force December (also known as the Montevideo
Convention on the Rights and Duties of States).
American Law Institute, Restatement of the Law, Third, Foreign Relations Law of the United States
(St Paul, MN: American Law Institute, ) at para [Third Restatement]. This position remains
unchanged in the institute’s fourth restatement.
Chap ter : International Legal Per sons
or having previously signed the Declaration by United Nations of January , sign
the present Charter and ratify it in accordance with Article .
Article
. 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
Organization, are able and willing to carry out these obligations.
. The admission of any such state to membership in the United Nations will be eect ed
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, UN member
states and several other entities working toward a possible future claim for membership. As
for observer states, the Holy See — being the government of the Catholic Church in Rome
with a global spiritual remit extending beyond the territory of Vatican City — has been con-
sidered a non-member permanent observer “state” at the UN since . According to the
UN, such status “is based purely on practice, and there are no provisions for it in the United
Nations Charter.” The benets 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 participate in world conferences with full voting rights,
to take part in discussions and decisions in the General Assembly, and to participate in
various UN agencies, commissions, and committees. . . .
The Holy See has voted and actively participated in several UN world conferences,
which rank among the foremost forums for international lawmaking. The UN gener-
ally grants widespread state access to participation at international conferences. General
Assembly resolutions convening world conferences have invited “all States” to participate
“in full, with full voting rights.” . . . Unlike non-governmental organizations, “states” have
the ability to prevent consensus and stall the conference process.
The Holy See’s status as an observer state participating in international conferences has
generated controversy, in large measure because of its views on abortion and women’s repro-
ductive rights. Consider the following condemnation from the Center for Reproductive Rights,
a US-based non-governmental group using the law to advance reproductive freedom as a
fundamental human right:
During the development of consensus agreements at recent world conferences, the Holy
See has joined forces with a small group of conservative governments and radical, right
wing organizations. They have attempted to intervene and obstruc t the goal of reaching
consensus on legal, policy, and program reforms needed to further women’s sexual and
As an example of the shades of grey, the US State Department considers there to be independent
states in the world — a tally that includes the Holy See and Kosovo as states: US State Department,
Bureau of Intelligence and Research, “Independent States in the World” ( January ), online:
www.state.gov/independent-states-in-the-world.
United Nations, “About Permanent Observers” (undated), online: www.un.org/en/about-us/about-
permanent-observers.
Center for Reproductive Rights, “The Holy See at the United Nations: An Obstacle to Women’s Repro-
ductive Health and Rights” (August ) at and , online: www.reproductiverights.org/sites/default/
les/documents/pub_bp_holyseeattheun.pdf.
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