தமிழ்த் தேசியம்

"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."

- Tamil Poem in Purananuru, circa 500 B.C 

Home

 Whats New

Trans State Nation Tamil Eelam Beyond Tamil Nation Comments Search

Home Self Determination: International Law & Practice >Personality, Statehood and Government
 

Personality, Statehood and Government
A Framework for Study by Dr.Guglielmo Verdirame,
Public International Law,
Cambridge University, Michaelmus, 2004


1. States

Article 1, Montevideo Convention on Rights and Duties of States 1933:

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.

This provision is commonly regarded as reflecting customary international law (See Arbitration Commission of the European Conference on Yugoslavia (Badinter Commission), Opinion No. 1, 92 ILR 162 (Harris, 123).

(a) Population
Western Sahara, Advisory Opinion (1975) ICJ Rep 12 (esp. paras 54-59, 87-89, 148-152).

(b) Defined Territory
Deutsche Gas Gesellschaft v Polish State (1929) Annual Digest of PIL 11.

Consider cases of states with disputed boundaries, and small states.

(c) Government
Aaland Islands Case (1920) LNOJ Special Supp No. 3, 3.

Effective control by a government and independence, but consider state practice on Congo (1960), and Bosnia and Croatia (1992).

Should the prolonged collapse of effective government have an impact on statehood? Notion of ‘failed states’ (e.g.: Somalia and Liberia).

(d) Capacity to enter into relations with other states
Customs Regime between Germany and Austria Case (1931) PCIJ Ser. A/B No. 41

Note also the interplay between this aspect of statehood and recognition (Loizidou v. Turkey (Merits) 108 ILR para. 44).

Interesting case studies in statehood include Rhodesia, Taiwan, Turkish Republic of Northern Cyprus, East Timor. Are there, or should there be, other requirements of statehood? States created in pursuance of racist policies (Rhodesia) or in violation of the prohibition on the use of force.

Extinction and succession of states (Social Federal Republic of Yugoslavia and Union of Soviet Socialist Republics).

Further reading:

Crawford, The Creation of States in International Law (Clarendon Press, 1979), or Crawford ‘The Criteria for Statehood’ (1976-77) 48 BYIL 93, 119-139.

Warbrick, ‘States and Recognition in International Law’ in Evans (ed.) International Law (OUP, 2003) 205.

II. Self-determination and uti possidetis

Self-determination appears in the UN Charter (Art. 1(2)). But the scope and content of this principle were crystallised in the period of decolonisation. The work of the General Assembly is particularly important in this respect. See:

GA Res. 1514 (XV) ‘Declaration on the Granting of Independence to Colonial Territories and Peoples’;
GA Res. 2625 (XXV) ‘Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’.

Self-determination has become a central principle of international human rights law (see, for example, Article 1 of the International Covenant on Civil and Political Rights and of the International Covenant on Economic, Social and Cultural Rights).

Self-determination has to be seen in conjunction with the principle of uti possidetis. See the case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali) (1986) ICJ Rep 554, para. 20.

‘… the principle [uti possidetis] is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of independence wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles…’

The legal scope of self-determination was fleshed out in the following decisions:

South-West Africa case (1971) ICJ 16.
Western Sahara, Advisory Opinion (1975) ICJ Rep 12.
Badinter Commission, Opinion No. 2
East Timor (Portugal/Australia) (1995) ICJ Rep 90.

Portugal’s assertion that the right of peoples to self-determination, as it evolved from the Charter and from UN practice, has an erga omnes character is irreproachable.

Reference re Secession of Quebec (Supreme Court of Canada) [1998] 25 SCR 217

In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.

In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions. Accordingly, neither the population of the province of Quebec, even if characterised in terms of ‘people’ or ‘peoples’, nor its representative institutions… possess a right, under international law, to secede unilaterally from Canada.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, 2004 paras. 118, 121 and Sep. Op. of Judge Higgins.

Further reading:

Crawford, ‘The General Assembly, the International Court and Self-determination’ in AV Lowe & M Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in honour of RY Jennings (CUP, 1996) 585-605

Crawford, ‘The Right to Self-Determination in International Law: Its Development and Future’, in P Alston (ed.), Peoples’ Rights, (OUP, 2001) 7-67.

R Higgins, Problems and Process: International Law and How We Use It (OUP, 1994), Chapter 7.

K Knop, Diversity and Self-Determination in International Law (CUP, 2002)

S D Murphy ‘Democratic Legitimacy and the Recognition of States and Governments’ (1999) 48 International and Comparative Law Quarterly 545.

III. Other territorial entities

Mandated and trust territories, condominia, internationally administered territories, sui generis entities.

UN Mission in Kosovo (UNMIK), SC Res. 1244 (1999); UN Transitional Authority in East Timor (UNTAET).

Case Concerning Certain Phosphate Lands in Nauru (Nauru v. Australia) (1992) ICJ Rep 240.

IV. International organisations

Legal personality is not limited to states. Other entities can bear rights and duties on the international plane. By virtue of the functions they exercise, international organisations are probably the most important entities, after states, endowed with international legal personality. The legal personality of international organisations was recognised by the International Court of Justice in Reparations for Injuries Suffered in the Service of the United Nations (1949) ICJ 174. It was later confirmed in Certain Expenses of the United Nations (1962) ICJ Rep 151. The identification of the specific rights and duties of an international organisation requires an examination of its constituent instrument (this is not always done in a satisfactory way – see, for example, Akande’s comment in 9 EJIL 437 on the decision of the ICJ in Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization Request) (1996) ICJ Reports 66).

Charter of the United Nations, Articles 104 and 105.
Article 1, Convention on the Privileges and Immunities of the United Nations 1946 (1 UNTS 15).
Further reading:
Bowett’s Law of International Institutions, P Sands and P Klein (eds) (2001) 5th ed.

V. Other subjects

The ideological opposition to entities other than states becoming subjects of international law has been superseded by events. With the growth of international law in various areas (international economic law, international criminal law, human rights), a wide range of actors have acquired rights and duties on the international plane. These include: minorities, insurgents, national liberation movements, multinational corporations.

Individuals also have rights and duties under international law. The international criminal responsibility of individuals – a principle that is not new – has been revived in the 1990s with the creation of enforcement mechanisms, most importantly the two Tribunals on Yugoslavia and Rwanda and the International Criminal Court. Consider also the rights of individuals under human rights law and refugee law.

Further reading:

Higgins, Problems and Process: International Law and How We Use it (1994) 39 ff.
McCorquodale, ‘The Individual and the International Legal System’ in Evans International Law (2003).

Recognition

1. Recognition under international law

Theories of recognition:

(i) Constitutive approach: recognition by other states is necessary for the constitution of a new state. Without recognition the entity cannot have legal personality.
(ii) Declaratory approach: recognition is not a requirement for statehood, but merely a statement by other states accepting a factual situation. The state will be endowed with legal personality once that situation has obtained. Evidence in favour of the ‘declaratory’ approach: Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 A.D. 11; Badinter Commission, Opinion No. 1.

Attempt to reconcile the declaratory and constitutive approaches: duty to recognise (H Lauterpacht, Recognition in International Law, CUP, 1947). But see Opinion No. 10 of the Badinter Commission.

Consider also the comments of the arbitrator in the Tinoco case (Harris 160) on the evidential value of recognition (note, however, that this case was about recognition of governments), and Badinter Commission, Opinion No. 8.

The 1990s were an important time in state practice on recognition, as new states emerged from the collapse of the Socialist Federal Republic of Yugoslavia and of the Soviet Union. ‘EC Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ (Harris 147).

Are these new criteria for recognition or new requirements for statehood? See Warbrick’s articles on state practice on recognition following the dissolution of Yugoslavia and the USSR (41 ICLQ (1992) 473 and 42 ICLQ (1993), as well as Murphy, ‘Democratic Legitimacy and the Recognition of States and Governments’ (1999) 48 ICLQ 545.

Duty of non-recognition (or collective non-recognition): SC Res. 216 (1965) on Rhodesia; SC Res. 402 (1976) on Transkei; SC Res. 541 (1983) on Turkish Republic of Northern Cyprus; SC Res. 662 (1990) on Iraqi occupation of Kuwait. The ICJ discussed the legal effects of non-recognition in its opinion in Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding SC Res. 276, ICJ (1971) 16.

Practice on recognition of governments. Estrada doctrine. On UK practice, see 1980 Carrington statement on recognition of governments (Harris 155).

2. Legal effects of recognition in English Law

The City of Berne v Bank of England case of 1804 (Harris 169 &172) is a traditional authority for the proposition that unrecognised states have no legal personality in English law.

They cannot sue (or be sued). Their acts cannot be given effect in English courts (Luther v Sagor [1921] 1 KB 456; the Court of Appeal, [1921] 3 KB 532, reversed this decision because the UK then recognised the Soviet government as the de facto government of Russia). Finally, the unrecognised state cannot claim sovereign immunity. These rules apply, mutatis mutandis, to recognition of governments. ‘One-voice’ doctrine permeates this area: the executive and the courts should not contradict each other (see Lord Atkin in The Arantzazu Mendi, [1939] AC 256 at 264).

The distinction between effects of de facto recognition and de jure recognition has been at the heart of various cases. See Luther v Sagor, The Arantzazu Mendi, and Haile Selassie v Cable and Wireless [1939] 1 Ch. 182 (Gdynia Ameryka Linie v Boguslawski [1953] AC 11).

Some specific issues are:

1. Concept of ‘delegated authority’. In Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 2) [1967] 1 AC 853, an act of the German Democratic Republic was given effect despite lack of recognition, because the GDR was found to exercise powers delegated by the Soviet Union. In Gur Corporation v Trust Bank of Africa Ltd [1987] QB 599, the Court of Appeal applied the concept of ‘delegated authority’ to allow locus standi to the unrecognised Republic of Ciskei.

2. Following the 1980 Carrington statement, courts have had to play an even more important role than in the past in matters related to the recognition of governments. Republic of Somalia v Woodhouse Drake and Carey [1993] QB 54 (and Sierra Leone Telecommunications v Barclays Bank [1998] 2 All ER 821). NB the Carrington statement does not apply to states.

3. Should English courts give effect to the day-to-day acts of an unrecognised entity? See dicta in Carl Zeiss Stiftung (Lord Wilberforce and Lord Reid) and in Hesperides Hotel v Aegean Turkish Holidays Ltd [1979] AC 508 (Lord Denning), but Adams v Adams [1970] 3 All ER 572. See also the Foreign Corporations Act 1991 on the legal personality of corporations incorporated in the territory of entities not recognised as states in the UK (Caglar v Billingham, 108 ILR 510).

4. Construction of the terms ‘state’ and ‘government’ in contracts and legislation. Luigi Monta v Cechofracht [1956] 2 QB 552; Reel v Holder [1981] 1 WLR 1226 (CA); Re Al Fin Corporation’s Patent [1970] Ch. 160; Caglar v Billingham.


Further reading:

Talmon, Recognition of Governments in International Law (1998)
Warbrick, ‘States and Recognition in International Law’, in Evans International Law (2003).
 

Mail Us up- truth is a pathless land - Home