Students Note!!

This material is obtained from copyright protected material

and therefore MUST only be used for private study. It is not exhaustive and
students should refer to additional sources.

Week 5

SUBJECTS OF INTERNATIONAL LAW

INTERNATIONAL LEGAL PERSONALITY

International legal personality refers to the entities or legal persons that can have rights and
obligations under international law. There is a wide range of actors performing on the international
scene. These include; states, international organisations, regional organisations, NGO’s, public
companies, private companies and individuals. Not all such entities will constitute legal persons,
although they may act with the same degree of influence upon the international scene.

1. States
The old thinking was that states were the only subjects of International Law. However today this
is not the case.

Statehood
Article 1 of the Montevideo Convention on the Rights and Duties of States 1933, lays down the
most widely accepted criteria for statehood.

A State has the following characteristics: (1) a permanent population; (2) a defined territory; (3) a
government; and (4) the capacity to enter into relations with other States.
Some writers also argue that a State must be fully independent and be recognized as a State by
other States. The international legal system is a horizontal system dominated by States which are,
in principle, considered sovereign and equal. International law is predominately made and
implemented by States. Only States can have sovereignty over territory. Only States can become
members of the United Nations and other international organizations. Only States have access to
the International Court of Justice.

However in Western Sahara case, IC Reports 1975, pp.12,43-4, it was stated that International
Law does not require the structure of a state to follow any particular pattern.

As regards the existence of a permanent population, there isn’t a specification on the number but
the population must be permanent. Defined territory; even with boundary disputes, there must exist
a substantial band of territory which the state controls.

The Holy See and the Vatican City

In 1870, the conquest of the Papal States by Italian forces ended their existence as sovereign states.
The question therefore arose as to the statisim international law of the Holy See, deprived, as it
then was, of normal territorial sovereignty. In 1929 the Lateran Treaty was signed with Italy which
recognised the state of the Vatican City and ‘the sovereignty of the Holy See in the field of
international relations as an attribute that pertains to the very nature of the Holy See, in conformity
with its traditions and with the demands of its mission in the world’. The question thus interrelates
with the problem of the status today of the Vatican City. The latter has no permanent population

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Students Note!! This material is obtained from copyright protected material
and therefore MUST only be used for private study. It is not exhaustive and
students should refer to additional sources.

apart from Church functionaries and exists only to support the work of the Holy See. Italy carries
out a substantial number of administrative functions with regard to the City. Some writers
accordingly have concluded that it cannot be regarded as a state. Nevertheless, it is a party to many
international treaties and is a member of the Universal Postal Union and the International
Telecommunications Union. It would appear that by virtue of recognition and acquiescence in the
context of its claims, it does exist as a state. The Vatican City is closely linked with the Holy See
and they are essentially part of the same construct. The Holy See, the central organisational
authority of the Catholic Church, continued after 1870 to engage in diplomatic relations and enter
into international agreements and concordats. Accordingly its status as an international person was
accepted by such partners. In its joint eleventh and twelfth report submitted to the UN Committee
on the Elimination of Racial Discrimination in 1993, the Holy See reminded the Committee of its
‘exceptional nature within the community of nations; as a sovereign subject of international law,
it has a mission of an essentially religious and moral order, universal in scope, which is based on
minimal territorial dimensions guaranteeing a basis of autonomy for the pastoral ministry of the
Sovereign Pontiff. Crawford has concluded that the Holy See is both an international legal person
in its own.

2. International Organizations
International Organizations are established by States through international agreements and their
powers are limited to those conferred on them in their constituent document. International
organizations have a limited degree of international personality, especially vis-à-vis member
States. They can enter into international agreements and their representatives have certain
privileges and immunities. The constituent document may also provide that member States area
legally bound to comply with decisions on particular matters.

The powers of the United Nations are set out in the United Nations Charter of 1945. The main
political organ is the General Assembly and its authority on most matters (such as human rights
and economic and social issues) is limited to discussing issues and making recommendations.
The Security Council has the authority to make decisions that are binding on all member States
when it is performing its primary responsibility of maintaining international peace and security.
The main UN judicial organ is International Court of Justice (ICJ), which has the power to make
binding decisions on questions of international law that have been referred to it by States or give
advisory opinions to the U.N.

#Read Reparations case, ICJ 1949 and Certain Expenses case IC, 1962.

3. Individuals
Individuals as subjects in light of individual criminal responsibility (Individuals are now appearing
before International Criminal Tribunals) and under international Human Rights Law.

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Students Note!! This material is obtained from copyright protected material
and therefore MUST only be used for private study. It is not exhaustive and
students should refer to additional sources.

4. Insurgents and belligerents

International law has recognised that such entities may in certain circumstances, primarily
dependent upon the de facto administration of specific territory, enter into valid arrangements. In
addition they will be bound by the rules of international law with respect to the conduct of
hostilities and may in due course be recognised as governments. The traditional law is in process
of modification as a result of the right to self-determination, and other legal principles such as
territorial integrity, sovereign equality and non-intervention in addition to recognition will need to
be taken into account.

5. Corporations

Corporations can enforce their rights through what is arguably the most robust enforcement system
in international law. Corporations often have a choice of venues in which they can seek
enforcement, and generally need not exhaust domestic remedies. They usually help choose the
arbitrators that will hear their dispute, and parties to the ICSID Convention and the New York
Convention are bound to enforce an arbitration award.

CASES
 Deutsche Continental Gas-Gessell schaft (1929) (territory as an attribute).
 Island of Palmas case (1928) (acquisition of territory).
 North Sea Continental Shelf Cases, ICJ Reports, 1969 (criteria of statehood).
 Nottebohm Case, ICJ Reports, 1955 (Nationality/ citizenship).
 Reparations for Injuries Suffered in the Service of the UN. Advisory Opinion,
 1949 (International Organisations).
 Western Sahara Case, Advisory Opinion of the ICJ, 1975, para. 93 (territory).
 A-G of Israel v. Adolf Eichmann, 36 ILR 5 (1961) (individual).
 Nuremberg Trials of 1947-49 (Individual in International Law) Reproduced in
 41 AJIL 1947, 172-333.
 Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T.

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