International Legal Personality

Introduction

The notion of ‘legal persons’ or ‘subjects’ within a given legal system demands that those entities enjoy certain rights and have the duty to perform certain obligations. It was common practice traditionally for international law only to apply to states; individuals or other entities were not part of the international legal community.However, in recent times contemporary international law has witnessed the appearance of various groups of non-state actors.

It is also argued that insurgents and belligerents have been provided with the capacity to enjoy certain rights while at the same time taking on obligations to conduct hostilities in line with rules of international humanitarian law.Moreover, de facto regimes exist which do not hold de jure recognition. However, they do possess a high degree of effectiveness which raises issues of international legal personality. Notable examples of such de facto states are Somaliland, Kosovo, the Turkish Republic of Northern Cyprus and Taiwan. Somaliland is one of those de facto states which presents a stark explanation of the mismatch between international recognised sovereignty and what can be referred to as “stateness”- a de facto ability of exercising authority to employ control to its territory internally and guard it against external threats.This chapter will first deal with the concept of statehood in international law. In doing so, the traditional criteria of statehood will be discussed as well as the additional criteria. It will also explain the role of recognition in state creation. Finally, it will explain the notion of un-recognized states in international law.2.2 Criteria of Statehood

Despite the richness of academic literature on statehood, there are very few authoritative sources that offer a practical, legal definition of it.At the beginning of the nineteenth century, Jellinek contended that a state must have three elements: a territory, a population, and public authority. Various criteria have been suggested for the determination of statehood. However, it is interesting to note that Jellinek’s doctrine of three elements can be found in the Montevideo Convention on the Rights and Duties of States of 1933.

The Traditional Criteria of Statehood

The traditional criteria of statehood are stipulated in Article 1 of the Montevideo Convention on the Rights and Duties of States:‘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 other states.’ It is argued that these provisions have acquired the status of customary international law.Nevertheless, it has been question whether these criteria are adequate for statehood.

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1. Thomas D Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’ (1999) 37 Columbia Journal of Transnational Law 413. On which page does Grant state this?
2. As reported inJure Vidmar, ‘Territorial Integrity and the Law of Statehood’ (2012) 44 Washington International Law Review 700. On which page exactly?
3. Grant(n 7) 417.
4. Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1934) article 1.
5. ibid.
6. DJ Harris, Cases and Materials on International Law (Sweet & Maxwell 2004) 99.

The initial and defining attribute of any permanent population could be understood to be the permanent residence within a defined territory of any sovereign state. Linkage to any particular territorial entity on a basis of permanence is paramount from the perspective of defining the distinctive socio-political hallmarks. Oppenheim defined a permanent population as ‘an aggregate of individuals who live together as a community though they may belong to different races or creeds or cultures, be of a differentcolor’. Another criteria regarding the attributes of any population is a reasonable stability which defines the territorial and cultural linkages of such a population with the state to which such a population could fundamentally belong. One of the most significant of such points is the speculations about the minimum or maximum numerical extent of such populations. Although a permanent population is an important requirement for statehood, no minimum requirement has been stipulated. Another point of significance has been the consistency of existence of such population within the determined geographical boundaries of any recognised state. However, this prerequisite could be considered to be a vague one since it remains ambiguous. Nomadic tribes had been qualified as having statehood in the Western Sahara advisory Opinion ICJ report (1975) since it was argued that these had linkages with particular territories. The requirement of the population to be indigenous was non-existent. Furthermore, the requirements related to the socio-cultural cohesions are also ambiguous. From a practical perspective, the considered permanent population of any state could be the nationals who reside within the geographical and administrative boundaries. The national laws determine the actual criteria of the qualifications of any nationality. In this context, the population size could become immaterial since the definite population size could be as limited as that of 30000 inhabitants (San Marino) and as extensive as 1.3 billion (People’s Republic of China). Raic argues that it is important to emphasize the following considerations with respect to the requirement of a

permanent population: ‘First, the population must have the intention to inhabit the territory on a permanent basis ... Secondly, the territory claimed has to be habitable.’ It is contended, that, the latter point prevents territories like Antarctica from fulfilling this requirement.

Any entity claiming statehood needs a territorial base over which it exercises exclusive authority. Nevertheless, international law does not set a minimum benchmark for such an area. However, what is very important is that there should be an effective establishment of a political community. It seems that there is a common understanding that the geographic size of the state does not matter with respect to creating an effective government and accommodating a permanent population. For instance, Monaco has a territory estimated to be less than 1.95 km2. Similarly, no rule or statutestipulatesthat the boundaries of a state

should be undisputed. For instance, in 1913 Albania was recognized as a state by a number of states notwithstanding the lack of settled or agreed boundaries. Another good example is Israel, which was admitted to the United Nations on 11 May 1949, despite its territorial dispute with Arab states.A case in point isDeutsche Continental Gas-Gesellschaft v Polish State.

Another case of note is North Sea Continental Shelf Cases which were a series of disputes over which the International Court of Justice confirmed that international law does not require the frontiers of a state to be fully delimitated.

Government

The third criterion requires there to be government. This has been described as the most important single criterion of statehood; all other criteriadepend on it. Dixon argues that the government should be ‘effective and functional,’ enjoying internal and external independence, as well as effective power over its permanent population and the territory over which it claims sovereignty. This has been the political disposition of the British Governments towards the recognition of Kampuchea. With respect to the above issue, the International Committee of Jurists was entrusted by the Council of the League of Nations with the task of examining the dispute over the Aland Islands.When deciding the exact date of the establishment of the Finnish Republic, it stated that it did not becomea sovereign state ‘until the public authorities had become strong enough to assert themselves throughout the territories of that state without the assistance of foreign troops’. Nevertheless, it could be argued that recent international statehood practices indicate that other factors such as international recognition and admission to the UN could compensate for the lack of effective control over a territory.

Capacity to Enter into Relations with other States

This is the fourth requirement of statehood. It is believed that this criterion needs an entity to possess ‘competence, with its constitutional system to make international relations with other states, as well as political, technical and financial capabilities to do so.’ Some scholars contended that the capacity to enter into relations with other states is ‘a consequence of statehood, not a criterion of it.’

The international legal entities could be could be characterised by the inherent capacity to formulate agreements which could be legally ratified, with other States. The primary attribute of any State is the possession of recognised capacity of maintaining sustained external relations with various other States which could be deliberated as external independence. Such capacity defines the fundamental capabilities of the sovereign States since the absence of such a capacity could culminate in to the dissolution of independence.

There has been a debate whether Montevideo definition is missing fundamental elements important to statehood.It is argued that the criteria of additional did not come from directly in the law of statehood but are rather notions developed in other fields of international law which effects the law of statehood.Vidmar contends that the traditional criteria of statehood have been complemented by a set of supplementary ones. The notion of prohibition of the illegal use of force, respect of the right of self-determination and respect for human rights have been included in this criteria.

The emergence of statehood, especially in the second part of the twenty century, is mainly tied to the principle of self-determination which has facilitated to many colonised territories to statehood and independence. Conceptually self-determination is regarded as the ‘ the right of cohesive national groups “peoples” to choose for themselves a form of political organisation and their relation to other group’.

Recognition has been the subject of a great deal of doctrinal attention and political debate. Brown argues that there is no other branch of international law that has been as poorly misunderstoodas the recognition of states and governments.He further adds that recognition had been the football of diplomats who had it translated with their meanings and interests.

The established doctrine of recognition of States by different political entities such as other recognised states, outlines the principal aspect of attribution of such recognition as an act of statecraft or policy. The act of attribution of recognition of States, is a question of state policy and not a matter which could be considered to be governed by international laws.

However, for his part, Shaw defines recognition as ‘a method of accepting factual situations and endowing them with legal significance.’There is also the suggestion that claims that the relationship between factual situations and the creation of legal rights with respect to recognition is itself a legal conundrum in international law because an act of recognition has legal consequences. This could be explained as that recognition is the act of policy, which is denied the endorsement by the quality of law in a direct manner, however, once this act could be accomplished, it entails further legal consequences. The irony is that states are used to grant recognition to entities which fail to fulfill all statehood requirements while at the same time withholding recognition of other entities which satisfied statehood prerequisites.In this context, it could be understood that the dominant practice in international polity is that the legal rights of the international States, as political entities, to exist, are considered to be excluded from the primary jurisdiction of international law.

Grant contends that international recognition is ‘a procedure whereby governments of existing states respond to certain changes of states in the world community.’ Kreiken notes that recognition enables a political community to accept the rights and obligations established by international law, although the community concerned decides the extent it binds itself. However, the tension remains between the concepts of recognition as a legal issue in international and assumptions that in the political circle recognition is a matter of choice. Shaw also argues that ‘the decision whether to recognize or not is generally dependent upon political views rather than legal grounds.’

The notion of recognition is closely linked to the determination of statehood. Traditionally, there are two theories of recognition: constitutive and declaratory. The constitutive theory sees recognition as ‘a necessary act before the recognized entity can enjoy international personality,’ while the declaratory theory observes recognition as ‘merely a political act recognizing a pre-existing state of affairs.’

It is argued that the constitutive theory originated in the nineteenth century and its notion is based on the positivist view of international law. Oppenheim notes that the constitutive theory holds that:‘A state is and becomes an international person through recognition only and exclusively’. According to the theory, a state must possess all the formal characteristics and qualifications of statehood, but will not achieve international personality unless other

states render recognition. This method is based on the shift from natural law to the positivist theory of international law which emphasizes consent as an important and essential component of state creation.Thiswas adopted by positive scholars such as Oppenheim who contended that:

However, it is the general critical observation that the legal norm of recognition could be manipulated as a political tool by states to serve their exclusive interests. Another interesting criticism is that state practice does not show that states regardunrecognized states as terra nullius. For example, states have always resisted not to extend recognition to unrecognized states, and yet, treated these states as de facto states with many of the rights of de jure states.

The declaratory theory argues that an act of recognition has no critical legal consequences, and an entity becomes a state as soon as it fulfills the factual criteria of statehood. The declaratory theory of recognition is based on Article 3 of the Montevideo Convention which states that: ‘The political existence of the state is independent of recognition by the other states.’Brownlie advises that‘if an entity bears the marks of statehood, other states put themselves at risk legally if they ignore the basic obligation of state relations.’

The Notion of Unrecognized States

’ As Geldenhuys notes, the notion of unrecognized states would always qualify as an unsexy topic among scholars of international relations.Another scholar notes that unrecognized states are cloaked in mystery and subject to myths and simplifications because they are not part of the international system of sovereign states.

From a historical perspective, unrecognized states have existed for a longperiod, but the reason for their lack of de jure recognition has always varied.

Interestingly, this area requires greater academic attention from the perspective of international legal considerations since majority of the previous researches in this fiel had been conducted from the perspectives of international relations only. The three major studies on it are Pegg’s International Society and the De Facto State,Lynch’s Engaging Eurasia’s the Separatist Statesand Geldenhuys’ Contested States in World Politics.

From a conceptual perspective, Geldenhuys argues that unrecognized states imply that the polities concerned do not enjoy any recognition whatsoever. This, could, thus be, considered to be the indication of an existing gap in the reality of structure in the international legal architecture. Such an observation pertains to the notion that if any existing legal system, such as the international diplomatic order, could fail to determine the actual measures achieved by any legal entity, in fulfilment of the prerequisites of recognition of Statehood, then, it could be the prerogative of the such components/members of the international community, to act

to their own interests. This pertains serving their political considerations such as diplomatic opportunities. “The differences might be attributed to the lack of empirical capacities, to ideologically unacceptable regimes to contravention of norms of territorial integrity.” In this context, the significance of differences in between recognition of States and Governments could be palpable from the perspective of international laws. This perspective is progressively representative of the complementary nature of these two entities as it could be inconceivable that any entity could be recognised as a State in spite of the absence of any sovereign government. However, this is not observed as a definite practice in the international political practices.

However, more recently Caspersen has outlined the following characteristics of any de facto yet unrecognised state:

The basis is the fulfilment of fundamental functionalities associated with the ensuring of the survival of the state, such as, security (establishment of control over the utilisation of violence to direct the social and political functionalities), revenue generation (primarily through taxation and customs duties imposition) and imposition of the rule of law and order on the communities, societies and citizenry residing within the controlled territorial extent by such a de facto State. The basis is the establishment of the necessary measure of permanence.

It is argued that the major problem of de facto states is the lack of external sovereignty.Kolstø has also adopted asimilar definition to Caspersen by defining a de facto state as a territory where: (1) the political leadership must be in control of (most of) the territory it lays claim to, (2) it must have sought but not achieved international recognition as an independent state, and (3) it has to persist in the state of non-recognition for more than two years. However, Pegg sets out a broader definition with respect to de facto states as follows:

“There are six basic elements of the definition of a de facto state, a number of which come from Article 1 of the 1933 Montevideo Convention on Rights and Duties of States. First, there is an organized political leadership which receives some form of popular support. Second, this leadership has achieved sufficient capacity to provide governance or governmental services to a defined population. Third, the de facto state effectively controls its territory or the large majority of it for at least two years. Fourth, the de facto state views itself as capable of entering into relations with other states. Fifth, the de facto state actively seeks widespread international recognition of its sovereignty. Finally, the de facto state is, however, unable to achieve widespread recognition of its sovereignty and remains largely or totally unrecognized by the international society of sovereign state.”

Through the study of cumulative nature of all of such definitions, a concrete perspective regarding the definitions and nature of de factor states could be formulated. The de facto states do become integral to the organised international order through their ipso facto entry into the general international community of States. However, integration into the international juridical community of states would require recognition by a majority of numbers of existing states. This observation, ultimately, brings into the realisation that natural statehood (de facto) implies the independence from any recognition and international community based membership requirement.

Apart from the different conceptual definitions, it is essential to highlight the difference between a de facto state and recognized state under international law. Sovereign recognized state is considered as a complete legal entity and institution under the pretexts of international law, while the de facto state is not. However, the declaratory theory states that recognition

means the existing states are accepting to recognize de facto states, which has rights and obligations under the international law. While most of the jurists go are in favour of the declaratory theory, state political practice tends to support the constitutive doctrine.

Conclusion

This chapter has tried to offer an overview of the doctrine of statehood in international law. It has also discussed the traditional criterion of statehood, which there is continues debate with respect to statehood. What has been very interesting to observe is that satisfying the Montevideo convention does not directly warranty an entity for de jure recognition and neither does failure to fulfill the Montevideo criteria prevent an entity from reaching statehood.

In addition, the chapter looked an exciting and perplexing phenomenon feature on contemporary international law and politics.

Dig deeper into ILC Articles on State Responsibility with our selection of articles.

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Vidmar J, 'Democracy And State Creation In International Law' (PHD, University of Nottingham 2009)