Statehood and the Law of Self-Determination docx

Because it is common to most national legal systems todistinguish between a subject of law and natural/legal personality it is surprising that in international legal doctrine a 'subject

VOLUME 43

and the Law of

Self-Determination

David Raic

Kluwer Law International

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Table of Abbreviations xiiiAcknowledgements xix

INTRODUCTION 1

PART I: STATEHOOD

CHAPTER 1 THE CONCEPTS OF 'SUBJECT OF LAW' AND

'PERSONALITY' IN INTERNATIONAL LAW

§ 2 The notion of the State 20

§ 2.1 The State as a political and social organization

§ 2.2 The State as a legal concept under international law:

legal personality, attributes and legal criteria for

statehood 21

§ 2.3 Sovereignty 25

§ 3 Recognition of States and the acquisition of international

personality 28

§3.1 The constitutive theory 29

§ 3.2 The declaratory theory 32

§ 4 The theories on recognition revisited 33

§ 4.1 Evaluation of the constitutive theory 33

§ 4.2 Evaluation of the declaratory theory 38

§ 5 Collective, implied, constitutive and obligatory recognition

of statehood and admission to membership in the United

Nations 39

§ 6 Conclusions 48

CHAPTER 3 THE TRADITIONAL CRITERIA FOR STATEHOOD AND

THE CONCEPT OF EFFECTIVENESS

§ 1 Introduction 49

§ 2 Statehood and the notion of effectiveness in international law 50

§ 2.1 Raison d'être and function of effectiveness 50

§ 2.1.1 Absence of a central organ with general

powers of attribution and enforcement ofrights and obligations 50

§ 2.1.2 Legal order 52

§ 2.1.3 Legal security 53

§ 2.2 Legal effects of effectiveness 53

§ 2.3 The meaning of effectiveness in the context of the

§ 4 Recognition and the traditional criteria for statehood 82

§ 5 Retroactivity of recognition of statehood 83

§6 The moment of the commencement of statehood 85

§ 7 Conclusions 86

CHAPTER 4 THE OBLIGATION OF NON-RECOGNITION AND

ADDITIONAL CRITERIA FOR STATEHOOD BASED ON

LEGALITY

§ 1 Introduction 89

§ 2 The prohibition of premature recognition 92

§ 2.1 No recognition without 'permissive' recognition? 93

5 2.2 Non-fulfilment of the traditional criteria for statehood

and recognition 95

§ 2.2.1 Colonialism and state formation through national

liberation wars: the requirement of effectivegovernment and the operation of

the right of self-determination 95

(a) Algeria 96(b) Guinea Bissau 98(c) Angola 99(d) The Congo 100

§ 2.2.2 The formation of States and ineffective

government in the post-colonial era 101

§ 2.3 Observations 101

§ 3 The meaning of the doctrine of obligatory non-recognition 105

§ 4 The origin and development of the doctrine of obligatory

non-recognition in practice 113

§ 5 State practice in the field of non-recognition of claims

to statehood 116

§ 5.1 The era of the League of Nations 116

§ 5.2 The era of the United Nations 122

§ 5.2.1 Violation of the prohibition of the use of force,

in particular the prohibition of aggression 122

§ 5.2.2 Violation of the right of peoples to

self-determination 128(a) The case of Southern Rhodesia 128(b) The South African Homeland territories 134

§ 5.2.3 Violation of the prohibition of systematic

racial discrimination including the prohibition

of Apartheid 140

§ 6 The character of the legal norms involved 141

§7 The legal basis of the obligation of non-recognition 150

§ 8 Modern criteria for statehood based on legality 151

§ 9 Limits to the obligation of non-recognition 158

§ 10 Non-recognition and the European Community Declaration

on the Guidelines on the Recognition of New States in

Eastern Europe and in the Soviet Union 165

§11 Conclusions and observations 167

PART II: SELF-DETERMINATION CHAPTER 5 THE EMERGENCE AND DEVELOPMENT OF THE

PRINCIPLE OF SELF-DETERMINATION: FROM THE

AMERICAN AND FRENCH REVOLUTIONS TO THE

ERA OF DECOLONIZATION

§ 1 Introduction 171

§ 2 Political and philosophical foundations 172

§ 2.1 The American and French Revolutions: democratic

political theory 172

§ 2.2 Nationalism 176

§ 3 From a political principle to a legal right 177

§ 3.1 Woodrow Wilson and 'Wilsonian self-determination' 177

§ 3.2 Vladimir Ilyich Lenin and self-determination 184

§ 3.3 Self-determination in the aftermath of World War I 188

§ 3.3.1 Versailles 188

§ 3.3.2 The League of Nations 193

§ 3.3.3 National self-determination as a gift 196

§ 3.4 The United Nations and decolonization 199

§ 3.4.1 The liberation of colonial peoples

and territories: towards a right of determination 199

self-§ 3.4.2 The subject of the right of self-determination

and the principle of territorial integrity 206

§ 3.4.3 Implementation and legal status of

self-determination 210

§ 3.4.4 Decolonization and statehood 219

§ 4 Reflections and conclusions: raison d'être and core meaning of

political self-determination 220

CHAPTER 6 THE POST-COLONIAL ERA: INTERNAL AND EXTERNAL

SELF-DETERMINATION

§ 1 Introduction 226

§ 2 Self-determination beyond decolonization 227

§ 2.1 The continuing character of self-determination and

its internal dimension 228

§ 2.2 The meaning of internal self-determination and its

surplus value 237

§ 3 The subject of internal self-determination 242

§ 3.1 The territorial definition: the entire population of

existing States 244

§ 3.2 The 'ethnic' definition: subgroups within existing

States 247

§ 3.3 Minorities 265

§ 4 Internal self-determination as a right under international law 272

§ 5 The right of external self-determination: meaning and

exercise 289

§ 6 The principles of territorial integrity and uti possidetis 293

§ 7 Conclusions and observations 305

CHAPTER 7 SECESSION

§ 1 Introduction 308

§ 2 Theoretical approaches to a right of secession 309

§ 3 Acknowledgment of a right of secession 313

§ 3.1 Recognition of a right of secession under national law

or approval by the central government 313

§ 3.2 International instruments, doctrine and judicial

SFRY? 356(c) Entitlement to unilateral secession? 361

§ 3.3.3 Acknowledgement of the existence of a

qualified right of unilateral secession underinternational law 362

§ 4 Cumulative criteria for a right of unilateral secession 366

§ 4.1 Minority-people 366

§ 4.2 Territorial bond 367

§ 4.3 A direct or indirect violation of the right of

internal self-determination 367

§ 4.4 Exhaustion of all effective judicial remedies and realisticpolitical arrangements for the purpose of realizing the

right of internal self-determination 370

§ 4.4.1 The catalytic agent: widespread and serious

violations of individual human rights 372

§ 5 Unsuccessful unilateral secessions: the cases of the Chechen

Republic of Ichkeria, the Republic of Abkhazia and the

Republic of Serbian Krajina 372

§ 5.1 The Chechen Republic of Ichkeria 373

§ 5.2 The Republic of Abkhazia 379

§ 5.3 The Republic of Serbian Krajina 386

§ 6 Conclusion: the norms of territorial integrity and secession

revisited 394

PART III: STATEHOOD AND

SELF-DETERMINATION

CHAPTER 8 THE FORMATION OF STATES AND THE OPERATION

OF THE LAW OF SELF-DETERMINATION

§ 1 Introduction 401

§ 2 Recognition of statehood despite the existence of an

ineffective government: modern state practice and the role of

the right of self-determination 402

§ 2.1 The cases of Georgia and Moldova 402

§ 2.1.1 The Republic of Georgia 402

§ 2.1.2 The Republic of Moldova 405

§ 2.2 Observations 406

§ 2.3 External self-determination and the statehood

criterion of 'government': juridical and empirical

statehood 408

§ 2.4 The special case of the Republic of

Bosnia-Herzegovina 414

§ 3 The law of self-determination and the criteria for statehood:

the unlawful proclamation of independence 418

§ 3.1 The prohibition of abuse of the right of

self-determination: the requirement of fulfilment of the

conditions of the qualified right of secession 419

§ 3.2 Respect for the right of internal self-determination

of peoples 423

§ 4 The proper subject of the right of unilateral secession as a

criterion for statehood 425

§ 5 The formation of States, self-determination and recognition 426

§ 6 Conclusions 437

PRECIS

§ 1 The formation of States, traditional criteria for statehood

and recognition 439

§ 2 The obligation of non-recognition of statehood:

the introduction of the notion of legality in the law

of statehood and additional criteria for statehood 441

§ 3 The law of self-determination 443

§ 4 Statehood and self-determination 449

§ 5 The modern law of statehood 451

Bibliography 453Table and Index of Cases 481Index 485

American University International LawReview

Annex(es)American Journal of International LawAnnuaire Français de Droit InternationalAmerican Political Science ReviewThe Associated Press

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OF SELF-DETERMINATION, 1978

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INTERNATIONAL LAW, 1998

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PEOPLES, A LEGAL REAPPRAISAL, 1995

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STATES IN INTERNATIONAL LAW, 1979

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TO ILLEGAL ACTS IN INTERNATIONAL LAW: UNITED NATIONS ACTION IN THE QUESTION

OF SOUTHERN RHODESIA, 1990

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International Covenant on Economic, Socialand Cultural Rights

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OF STATES IN PUBLIC INTERNATIONAL LAW, 1954

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meetingNorth Atlantic Treaty OrganizationNew England Law Review

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in EuropeAfrican Independence Party of Guinea andthe Cape Verde Islands

Paragraph(s)Proceedings of the American Society ofInternational Law

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Resolution(s)RevisedRevue de Droit International, de SciencesDiplomatiques et Politiques (The InternationalLaw Review)

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Socialist Federal Republic of YugoslaviaM.N Shaw, INTERNATIONAL LAW, 1997The Socialist Republic of Bosnia-HerzegovinaStanford Journal of International Law

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West European UnionWisconsin International Law JournalYale Law Journal

Zeitschrift für ausländisches öffentliches Rechtund Völkerrecht

This book was written as a thesis for the Doctorate of Laws, Leiden University.

I am most grateful, first of all, to my supervisor, Professor Peter Kooijmans.Throughout my working at this study he allowed me to make use of hiswisdom while at the same time affording inspiration and freedom He neverpermitted his demanding task as a Judge at the International Court of Justice

to stand in the way of discussing my thesis with me for many hours I also wish

to express my profound gratitude to Professor John Dugard, who acted as

referent I benefited very much from his wise suggestions and advice.

The process of writing a thesis cannot be gone through without the support

of many people This book is no exception to that rule I thank my mother,Amy Raic-van Es, and my sister, Romana Raic, both of whom, despite so manydifficulties, have always kept faith in me as well as in the fact that this workwould be completed I thank my late father Mise Raic, who motivated me tointerpret the facts of life as objectively as possible I thank Stella Zerbo for herlove, warmth, patience and impatience I thank Marianne Jonker for supporting

me and this project for so many years I am fully aware that this was not aneasy task Special thanks are owed to René Lefeber, without whom this workwould never have seen the light of the day in its present form and with whom

I have discussed almost every issue in it I also, and in particular, wish to thankMrs A Broekers-Knol, Head of the Moot Court Department of LeidenUniversity, who believed in my scientific skills and realized the funds for theresearch I thank Niels Blokker for his advice and inspiration I thank GuidoBiessen who always tried to (and eventually did) convince me that I could cut

a few pages or sections (if possible a chapter) and who always kept onmotivating me to finish the work

The Hague, May 2002

DR

Standing on the moon, watching the earth from a different perspective, onesees water and land, and, if one would take a closer look, one might seemountains, rivers, forests and deserts If one would get even closer to the surface

of the earth, one would be able to distinguish cities, lakes and roads Onewould, however, search in vain if one would wish to identify a 'State' Thereason is obvious: the State is primarily a legal concept, that is to say, it is afictitious concept, created by man for certain purposes From the perspective

of international law it is therefore relevant to know exactly what kind of entities qualify as a State and, in particular, when they do so.

As has been observed by one scholar:

[g]enerally, international lawyers proceeded from the assumption that since the end of the decolonization process the surface of the globe was covered by a given number of entities which almost all bore the characteristics of a sovereign State.

In this respect, with the exception of small corrections here and there, history seemed to have come to its irreversible end The distribution of the land surface

of the earth not only between any States, but between the currently existing States was considered more or less final.

The dissolution of the Soviet Union and Czechoslovakia as well as the violentdisintegration of the Socialist Federal Republic of Yugoslavia have disprovedthis assumption, however The communities of the new entities which havesprung up from the aforementioned States have achieved that for which theywere striving, eventually, namely the establishment of a State A growingnumber of communities within existing States are attempting, by pacific or byviolent means, to attain the same goal To legitimize their claim they refer tothe right of self-determination of peoples - and especially to a 'right ofunilateral secession' which is claimed to be encompassed by the aforementionedright In this context, one may refer to the declarations of independence of, orthe aspirations to secession of, amongst others, Transdniestr and the Republic

of Gagauzia (of Moldova), Abkhazia (of Georgia), Kosovo (of the Federal

1 C Tomuschat, Self-Determination in a Post-Colonial World, in: C Tomuschat (Ed.), MODERN

LAW OF SELF-DETERMINATION, 1993, p 1, at p 5.

Republic of Yugoslavia), the Turkish Republic of Northern Cyprus (ofCyprus), Chechnya (of the Russian Federation), the Republic of Serbian Krajina(of Croatia), the Serb Republic of Bosnia-Herzegovina (of Bosnia-Herzegovina)and Somaliland (of Somalia) Although several of these entities existed, or still

do exist, as completely effective territorial entities, none of them have beenrecognized as a State by the international community

The striving of communities for statehood is, of course, an old non For instance, against the background of nationalism, the Versailles peacesettlement led to the (re-)birth of numerous States in Europe To that effect,Butler observes, the Versailles Treaties have been described as the "balkan-isation of Europe".2 But there were others, apart from the nationalities whowere allowed to establish their own State, who favoured the peace settlementand considered it right and inevitable.3 Whether or not one agrees with thisconclusion, the same forces of national feeling have certainly not ceased tooperate, nor have they become weaker in the course of the twentieth andtwenty-first century Indeed, to speak with Cobban, "[w]e may approve them,

phenome-or we may condemn them, but we cannot ignphenome-ore them".4 Fphenome-or an internationallawyer at least, the challenge is thus to find out whether international lawcontains rules and principles regulating these forces and their outcomes.The problem of the right of self-determination, particularly in the post-colonial era, is formed in essence by the fact that this right can have a tenserelationship with the principle of state sovereignty The right of a State tohaving its territorial integrity respected, is a corollary of State sovereignty Onthe basis of this principle, States possess the right to uphold their borders ifthese are threatened either from the outside or from the inside On the otherhand, the right of self-determination was, in the aftermath of World War Iand during the period of decolonization at least, primarily seen as a conceptwhich could justify the separation of a part of the territory of an existing Statefor the purpose of establishing a new State Thus, the right of self-determina-tion is at least potentially aimed at territorial change Consequently, theaspiration of communities within existing States to the creation of their ownState on the basis of an alleged right of self-determination, and the attempts

of the parent States to preserve their territorial status quo, is the source of the

majority of conflicts with which the international community finds itselfconfronted almost daily

It is sometimes argued that these claims to self-determination as well asthe situations which arise as a result of an alleged exercise of that right, must

2 H Butler, THE LOST PEACE, 1941, p 124.

3. Id.

simply be ignored, that these matters are not regulated by international law

or that they are unsuitable for legal regulation In addition, it has beensuggested that the recognition of the new States which were formed within theboundaries of the former Yugoslavia and the former Soviet Union must mainly

be explained in terms of politics.5 In other words, the creation and recognition

of these new States should be seen to have taken place mainly outside thedomain of international law These situations and these contentions thus raisethe following question: does international law contain any rules and principles

on the basis of which the formation and recognition of some entities, and theignoring and non-recognition of others, can be explained?

In the light of the aforementioned developments, the main question of thisstudy is: when does an entity qualify as a State under international law, andwhat, if any, is the role of the law of self-determination in the process of theformation of States in international law?

This question raises a number of sub-questions: does international lawcontain objective, that is, legal, criteria for statehood on the basis of which it

is possible to determine whether or not an entity qualifies as a State? What

is the role of (non-)recognition in the creation of States? Is the formation of

a State solely a 'matter of fact' or is it (also) a 'matter of law'? That is to say,does the law of statehood contain rules barring the acquisition of statehood

of a territorial entity if the said entity has been established in violation ofinternational law? What is the role of the right of self-determination in thisregard? If self-determination may justify and legitimize the formation of a State,

in what instances does such a justification and legitimation exist? And what

is the legal status of an entity if it has been established without such a legalbasis? This last question is intimately related to another one: does a right ofunilateral secession exist in the post-colonial era? If so, when does it exist andwho is the holder of such a right? How does this right relate to the principle

of territorial integrity, and how does it relate to the principle of uti possidetis?

Finally, if a right to unilateral secession does exist under certain circumstances(that is, under certain conditions), what is the legal status of an entity which

is created whilst the conditions for the existence of a right to unilateral secessionwere not (yet) satisfied?

To this end, this study is divided into three parts Part I, entitled hood', consists of four chapters This part will focus primarily on the concept

'State-of 'State' in international law, first from the perspective 'State-of the more or lessgenerally accepted law of statehood, and thereafter in the light of additional

5 See, e.g., R.G.C, Thomas, Self-Determination and International Recognition Policy: An Alternative

Interpretation of Why Yugoslavia Disintegrated, World Affairs, Vol 160, 1997, p 17.

criteria for statehood which may be suggested on the basis of modern statepractice In that respect, some basic legal concepts, such as 'subject ofinternational law' and 'personality', will be examined in Chapter 1 Chapter

2 addresses the general characteristics and attributes of statehood, as well asthe role of recognition in the process of the formation of States Chapter 3analyses the content and status of the so-called 'traditional' criteria forstatehood, which are factual criteria based on the pre-condition of effectiveness.Some suggested additional criteria for statehood which are based on legalityrather than effectiveness are discussed in Chapter 4, against the background

of the doctrine of non-recognition of illegal acts and situations It will be seenthat a number of question relating to statehood and the status of certain entitiesremain unanswered on the basis of the discussion as it has developed thus far

It is submitted that these questions may be answered from the perspective ofthe law of self-determination

Part II of the study, entitled 'Self-Determination', consists of three chaptersfocusing on the rules and principles of the law of self-determination Chapter

5 charts the development of the concept of self-determination from its firstinternational appearance during World War I up to and until its role in the

context of decolonization This analysis leads to a formulation of the raison

d'être and main objective of the principle of self-determination insofar as this

may be deduced from the development of the concept in the said period InChapter 6, the analysis of the law of self-determination is taken a step further

In this Chapter, the question of whether or not the right of self-determinationextends beyond decolonization and if so, in what form is examined In thisrespect both the 'internal' and the 'external' aspect of the right of self-determination will be addressed Also, the legal status of (internal and external)self-determination in the post-colonial era is analysed, as well as the (potential)holder of that right It will be shown that the right of self-determination doesextend beyond the colonial context as a continuing right, primarily in the form

of 'internal' determination However, in certain aspects external determination is also a continuing right, in the sense that the entire population

self-of a State is always free to choose integration in, or association with, anotherexisting State The exercise of the external aspect of self-determination leads

to a change in the external boundaries of a State It has been suggested thatthe right of self-determination, particularly in its 'external' form, conflictsoutright with two other principles of international law: the principle of

territorial integrity and the principle of uti possidetis The content of these two

principles as well as their relation to the right of self-determination is addressed

in the final part of Chapter 6 The question of the existence of a right ofunilateral secession is dealt with in Chapter 7 on the basis of a number of case

studies, including the birth of Bangladesh, the crisis in the former Yugoslaviaand attempts at secession within the territory of the former Soviet Union.Part III is entitled 'Statehood and Self-Determination' and consists ofChapter 8 The purpose of this Chapter is to identify the precise role of the law

of self-determination in the process of the formation of States under rary international law

contempo-In the Precis, the conclusions reached in the previous chapters will be used

to formulate the applicable rules and principles of the modern law of statehood

Part I

Statehood

The Concepts of 'Subject of Law' and 'Personality'

in International Law

§ 1 INTRODUCTION

The belief that a separate and independent political existence within aterritorially defined unit ('statehood') was the ultimate, only and thereforenecessary guarantee for the effective protection, maintenance and development

of the collective identity of a community and the human rights of its members,

as well as for the progressive development of the common good of thatcommunity, can be traced back to the early beginnings of social and politicalorganization of individual human beings

Whether or not this belief is correct is beyond the scope of this study It

is, however, difficult to deny that this belief underlies many of today's State conflicts Often, the communities which are involved in these conflictsare not satisfied with anything less than separate statehood as a solution to theconflict In those cases, justifiable or no, statehood is made indistinguishablefrom the idea of being one's own master, that is, of greater apparent controlover one's own affairs This idea is subsequently linked to the belief thatforming part of a State would by definition result in a politically, legally,socially, culturally and/or economically subordinate and, therefore, inferiorposition in comparison to being a separate and independent political entity inthe form of a State In short, the communities involved in many of today'sintra-State conflicts claim the right to govern themselves and repudiate the right

intra-of an 'alien' people to determine for them their political fate and future It istherefore not surprising that in an increasing number of today's cases ofsecession, these communities seek to justify their quest for separate statehood

on the basis of a supposed universal right of peoples to self-determination.

Although, arguably, some collectivities have attained a certain degree ofinternational legal status, they are not States, nor do they possess the rightswhich are enjoyed by States under international law This issue is thus related

to the concepts of 'subject of law' and 'personality' in international law

Accordingly, before such questions as what is a 'State' and how does a 'State'become a 'subject of international law', can be addressed in the subsequentchapters, it is necessary first to examine the meaning of the notions of 'subject

of law' and 'personality'

§ 2 THE MEANING OF 'SUBJECT OF INTERNATIONAL LAW'

AND 'INTERNATIONAL PERSONALITY'

The concepts 'subject of international law' and 'international (legal) ality' are used widely in legal doctrine However, the definition of theseconcepts is not devoid of controversy and confusion

person-In most national legal systems subjects of law are those entities who arethe bearers of legal rights and/or who are subjected to legal duties While it

is not possible to make a priori qualifications about who is a subject of a system

of law and who is not because that might differ from system to system individual human beings on the one hand, and organizations and groups ofhuman beings on the other, are considered subjects of most national legalsystems In addition to the notion of subject of law most national legal systemsalso recognize the notion of 'personality' and in that respect differentiate

-between a natural person and a legal person.

In the legal system of most countries, the status of 'natural person' refers

to an individual human being who possesses - in addition to the rightscommon to all other individual human beings under the legal system - thecompetence to make a claim on his or her behalf before a judicial or quasi-judicial institution for the purpose of enforcing his or her right(s) Generally,

an essential factor for this competence is the (presumed) ability to have and

to be able to express a mature will.1 The latter ability is also determinative forthe other aspect of 'personality', namely accountability: a natural person can

be held directly accountable for his or her acts under national law Thus, thecompetence to bring a claim and accountability for one's own actions are twosides of the same coin: 'personality'

The same features apply with respect to the 'legal person' or 'corporateperson', which term refers to an organization or group of human beings (forinstance, a municipality, a company or a foundation), which possesses thecompetence under national law to bring before a national court or tribunal aclaim on behalf of the organization or group as such, in cases when the rights

1 See also A Meijknecht, TOWARDS INTERNATIONAL PERSONALITY: THE POSITION OF

MINORITIES AND INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 2001, p 39.

of the organization or group of human beings as such have been violated Inaddition, as in the case of natural persons, a legal person is an entity which can

be held directly accountable for its acts It is clear that the legal person is a legalfiction It is seen as a separate entity with a will of its own In that respect ithas organs and representatives representing the will and the interests of thelegal person But the personal will of the persons constituting these organs andrepresenting the group is legally irrelevant In other words, the legal personhas a personality and will separate from the individual personality and will ofits members

It follows that under national law natural or legal persons are normallyalways subjects of law, but subjects of law are not necessarily either a natural

or a legal person Because it is common to most national legal systems todistinguish between a subject of law and (natural/legal) personality it is

surprising that in international legal doctrine a 'subject of international law'

is often equated with an 'international person' or even with an 'international

legal person'.2

Several writers, while equating a subject of international law and aninternational (legal) person, define a subject of international law as an entity

capable of possessing international rights and duties, and having the capacity

to maintain its rights by bringing international claims.3

In this respect two critical remarks must be made First, the term 'capacity'

or 'capability' is unfortunate, and leads to unnecessary confusion Anyindividual human being or aggregate of human beings (whether it is a State,

a company, a non-governmental organization, a national minority or a soccerclub) presumably has the capacity to bear rights and duties under internationallaw.4 But it is equally true that not all aggregates of human beings do bear

rights and duties under international law Therefore, the existence of a capacity

to bear rights and duties is not as such conclusive evidence for the existence

of the legal status of 'subject of international law'

Secondly, it cannot be maintained that an entity can only be considered

a subject of international law if, and only if, this entity possesses the right to

See, e.g., OPPENHEIM'slNT'L LAW, p 119 ("[a]n international person is one who possesses legal

personality in international law, meaning one who is a subject of international law [ ]"); P Malanczuk, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW, 1997, p 91; B.

Cheng, Introduction to Subjects of International Law, in: M Bedjaoui (Ed.), INTERNATIONAL

LAW: ACHIEVEMENTS AND PROSPECTS, 1991, p 23, at p 24; J.H.W Verzijl, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE, Part II, 1969, p 3.

See Verzijl, id., at pp 3-4; Brownlie, PRINCIPLES, p 57 But see I Seidl-Hohenveldern and G.

Loibl, DAS RECHT DER INTERNATIONALEN ORGANISATIONEN EINSCHIESSLICHDER

make an international claim for the purpose of enforcing its rights.5 Thisconclusion is supported by the observations of the International Court of Justice

in the Reparations for Injuries Suffered in the Service of the United Nations case6

- the leading case concerning personality under international law In this casethe International Court of Justice was asked to give an Advisory Opinion withrespect to the question whether the United Nations had the capacity to bring

an international claim against a non-Member State of the Organization TheCourt was thus forced to analyze the concept of 'personality' in internationallaw In doing so the Court did not limit its observations to the status of theUnited Nations

After having stated that the questions which the Court was asked to addressrelated to the "capacity to bring an international claim", the Court observedthat it was therefore necessary to define that 'capacity' first:

[c]ompetence to bring an international claim is, for those possessing it, thecapacity to resort to the customary methods recognized by international law forthe establishment, the presentation and the settlement of claims Among thesemethods may be mentioned protest, request for an enquiry, negotiation, andrequest for submission to an arbitral tribunal or to the Court in so far as thismay be authorized by the Statute This capacity certainly belongs to the State[ ].'

The Court continued by stating that the question was thus centred around thefact "whether the Charter has given the Organization such a position that itpossesses, in regard to its Members, rights which it is entitled to ask them torespect In other words, does the Organization possess international personal-ity?" After it had stated that the exercise by the United Nations of functions,rights, duties and responsibilities could only be explained on the basis of thepossession of a large measure of international personality, the Court came tothe conclusion that the Organization is an international person But, the Courtnoted,

[t]hat is not the same thing as saying that it is a State, which it certainly is not,

or that its legal personality and rights and duties are the same as those of a State.

5 Cf Verzijl, supra note 2, at p 3 ("[t]he true test of 'personality' in a given legal order would

seem to be not whether an individual or composite entity derives rights from that order, but whether he or it is in a position to pursue or/and enforce them within it").

6 Advisory Opinion, ICJ Rep 1949, p 174 (hereinafter 'Reparations for Injuries case').

7 As regards the international personality of the European Community, see European Court of Justice, Case 22/70 Commission v Council (ERTA case), EC Rep 1971, p 263.

8 Reparations for Injuries case, supra note 6, at p 177.

[ ] What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain

its rights by bringing international claims.

The use of the word 'and' in the final part of the last sentence is significant

In effect, it is submitted, the Court thereby distinguished between 'a subject

of international law' and an 'international (legal) person' and thus followedthe common distinction made in national legal systems between the twoconcepts It must therefore be concluded that a subject of international law is

any entity which bears rights and/or duties under international law.10 This doesnot mean, however, that such an entity is an international person According

to the Court's remarks an international (natural or legal) person is any subject

of international law that - in addition to other rights under international law

- has the capacity or right to make an international claim Moreover, it must

be noted, under international law such an entity can normally11 be held directlyaccountable for its acts.12

The validity of the distinction between the quality of subject of

inter-national law and interinter-national personality is also implicitly affirmed in the Case

Concerning East Timor 13 In that case, the International Court of Justice held

9 Id., at p 178 (emphasis added).

10 See also R Ranjeva, Peoples and National Liberation Movements, in: Bedjaoui (Ed.), supra note

2, pp 101-112, at p 102 ("subjects of law are not entities possessing a personality but entities possessing a right"); C.N Okeke, CONTROVERSIAL SUBJECTS OF CONTEMPORARY INTER- NATIONAL LAW: AN EXAMINATION OF THE NEW ENTITIES OF INTERNATIONAL LAW AND THEIR TREATY-MAKING CAPACITY, 1973, p 9; J Spiropolous, L'INDIVIDU EN DROIT INTER- NATIONAL, 1928, p 32.

11 The matter is less complex with regard to States and individuals than with regard to national governmental organizations If an international organization has a legal personality distinct from that of the member States, and functions which in the hands of member States may create responsibility, it is in principle reasonable to impute responsibility to the organization.

inter-See WHO Regional Office case, ICJ Rep 1980, p 73 The main problem arises concerning the

determination of whether the act has been committed by or on behalf of the international organization or by or on behalf of a member State The law in this field is still undeveloped

and note must be taken of each specific set of circumstances Brownlie, PRINCIPLES, p 686 See,

generally, C Eagleton, International Organisation and the Law of Responsibility, HR, Vol 76, 1950

I, p 319; H Schermers and N.M Blokker, INTERNATIONAL INSTITUTIONAL, 1995, pp 1166

et seq.; R.A Lawson, HET EVRM EN DE EUROPESE GEMEENSCHAPPEN, 1999.

12 Brownlie, PRINCIPLES, pp 435, 584-585 ("[i]nternational responsibility is commonly considered

in relation to states as the normal subjects of the law, but it is in essence a broader question inseparable from that of legal personality in all its forms [ ] The individual does not bear normal responsibility for breaches of obligations imposed by the customary law of nations because most of these obligations can only rest on states and governments [ ] Yet there is no rule that the individual cannot have some degree of legal personality, and he has such personality

for certain purposes") See also H.Kelsen, PRINCIPLES OF INTERNATIONAL LAW, 1966, pp

194-220.

13 Case Concerning East Timor, (Portugal v Australia), Judgment, ICJ Rep 1995, p 90, at p 102.

See also Reference re Secession of Quebec, supra note 4, at p 1369 ("[w]hile international law

generally regulates the conduct of nation states, it does, in some specific circumstances, also

that peoples, not States or other entities, possess a right of self-determination.

Although the Court noted that the entitlement to respect for this right has an

erga omnes character, it did not wish to go so far as to conclude that the

possession of a right erga omnes entitles a people as such to bring an

inter-national claim when its right of self-determination has been violated.14 TheCourt thus confirmed that the absence of the possibility to make an inter-national claim does not preclude an entity like a people from being the bearer

of an international legal right In short, this means that such an entity is asubject of international law, but not however an international person.15Consequently, insofar as the distinction between 'subject of law' and 'person-ality' is concerned, there does not seem to be any essential difference betweennational law and international law, nor is there a valid reason why there shouldbe

The equation (and hence, the confusion) of the two concepts, as well asthe assertion that an entity, to be a subject of international law, must have theright to make an international claim, is closely bound up with the wholeconcept of international law itself, as the traditional view on international lawmaintains that international law must be defined as law which is applicable

to relations between States only.16 States (or groups of States) are therefore said

recognize the 'rights' of entities other than nation states - such as the right of a people to

self-determination" (emphasis in original)).

14 See also Human Rights Committee, Ominayak and the Lubicon Lake Band v Canada,

Communication No 167/1984 (26 March 1990), UN Doc A/45/40 (1990), where the Committee did not question the existence of a right of peoples to self-determination (because that right is explicitly mentioned in Article 1 of the ICCPR) However, notwithstanding the existence of this

right under the ICCPR, the Committee observed that peoples as such cannot, under the Optional

Protocol of the ICCPR, make an international claim, because the Optional Protocol provides

for a procedure under which only individuals can claim that their individual rights have been

violated.

15 In this respect the question arises as to the enforcement of legal rights which must be respected

erga omnes in cases where the holder of the right lacks all legal means to enforce his or her right.

In such a case the legal position and legal competences of third States to bring an international claim on behalf of the direct holder of the right or to enforce that right otherwise becomes

important This matter is, however, beyond the scope of this study See ILC Draft Articles on

Responsibility of States for International Wrongful Acts, adopted by the Drafting Committee

on second reading, UN Doc A/CN.4/L.602/Rev.l, 26 July 2001, Arts 48 and 54 And see, e.g.,

B Simma, Does the UN Charter Provide an Adequate Legal Basis for Individual or Collective

Responses to Violations of Obligations Erga Omnes?, in: J Delbrück (Ed.), THE FUTURE OF

INTERNATIONAL LAW ENFORCEMENT: NEW SCENARIOS-NEW LAW?, 1993, p 125; B Simma,

From Bilateralism to Community Interest in International Law, HR, 1994 VI, p 229; A de Hoogh,

OBLIGATIONS ERGA OMNES AND INTERNATIONAL CRIMES, 1996; R Lefeber and D Raic,

Frontiers of International Law, Part One: the Chechen People, LJIL, Vol 9 , 1996, p 1 See also

the Dissenting Opinion of Judge Weeramantry, East Timor case, supra note 13, at pp 142-223.

16 In this respect, the 'traditional' view formed, so to speak, a breaking point with respect to the classical Law of Nations which did recognize both States and non-State entities (in particular individuals) as subjects of that law.

to be the sole subjects of international law.17 According to this positivistic view,

in situations in which entities other than States (but within the jurisdiction ofStates) derive benefits under international law, such benefits are enjoyed not

by virtue of a right which the entity itself holds under international law, but

by reason of a right appertaining to the State which exercises jurisdiction overthe entity.18

Indeed, when one proceeds from the assumption that the State is theexclusive subject of international law, there is no need for a distinction between

a subject of international law and an international (legal) person, because it

is beyond doubt that the State is both subject and person par excellence under

international law

This traditional view, however, has been challenged strongly Quitecorrectly, it has been pointed out by several scholars who reject this view that

it is not based upon practice but upon erroneous premises regarding the nature

of international law Frederick Dunn qualifies the traditional approach as ahighly misleading "legal fossil" and a "remnant of legal animism" Andaccording to Lauterpacht

[t]here is no rule of international law which precludes individuals and bodiesother than states from acquiring directly rights under customary or conventionalinternational law and, to that extent, becoming subjects of the law of nations.Modern writers refute the classical view as being outdated as well Moreover,

17 See, e.g., D Anzilotti, COURS DE DROIT INTERNATIONAL, 1929, p 134; J de Louter, HET STELLIG VOLKENRECHT, 1910, p 11 And see R Higgins, Conceptual Thinking About the

Individual in International Law, in: R Falk et al (Eds.), INTERNATIONAL LAW, A

CONTEM-PORARY PERSPECTIVE, 1985, p 476, at p 478 (summarizing this view as follows: "under the existing rules of international law there is no evidence that individuals are permitted to be bearers of duties and responsibilities They are like 'boundaries', or 'rivers', or 'territory' or any

of the other chapter headings found in the traditional textbooks").

18 P.K Menon, The Subjects of Modern International Law, Hague Y.B Int'l L., Vol 3, 1990, p 30,

at p 61.

19 F.S Dunn, The International Rights of Individuals, PASIL, 1941, p 14.

20 H Lauterpacht, The Subjects of the Law of Nations, LQR, 1947, p 438, at p 444.

21 See, e.g., Crawford, CREATION OF STATES, p 25; Okeke, supra note 10, at pp 9-19; Y Dinstein,

International Criminal Law, IYHR, Vol 5, 1975, p 55; L Henkin, International Law: Politics, Values and Functions, HR, 1989 IV, p 9, at pp 34-35; Menon, supra note 18, at pp 32, 85; P.H.

Kooijmans, The Security Council and Non-State Entities as Partiesto Conflicts, in: K Wellens (Ed.),

INTERNATIONAL LAW:THEORY AND PRACTICE, p 333, at p 338; B.Broms, Subjects: Entitlement

in the International Legal System, in: R.St.J Macdonald and D.M Johnston (Eds.), THE

STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY,DOCTRINE AND THEORY, 1983, p 383, at pp 418-419; D.P O'Connell, INTERNATIONAL LAW,

1970, p 83 Higgins, supra note 17, at p 478 ("[t]hese views - and the reasoning on which they

are based - carry with them so many assumptions that, in disagreeing with them, it is hard to know where to begin") It is hard to find any modern legal author advocating the traditional view proper It would seem that the problem is not longer centred around the question of whether non State-entities can be international persons, but around the questions of whether

in the aforementioned Reparation for Injuries case the Court, after having noted

that "the State is the direct subject of international law", observed

[t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs

of the community.

It follows that the status of 'subject of international law' does not mean that

an entity has to be a State, nor that it must possess all the rights of States undergeneral international law, including the right to make an international claim.Any other view would mean that the legal concept of 'subject of internationallaw' is inflexible This position was explicitly rejected by the International Court

of Justice in the Reparation for Injuries case.23 Moreover, as has been pointed

out by Cheng:

[i]t is important to bear in mind, in the light of legal history and comparative law, that this capacity of being able to bear rights and duties under a legal system

is not a status that is pre-ordained On whom it is conferred depends on each

As international life develops and international relations become more complex,new subjects of international law are recognized This may be a result of, forexample, transboundary problems that need a cooperative rather than an indi-vidualistic approach by the existing States and/or the need for (additional)regulation of the conduct of (new) entities that assert themselves upon theinternational plane (either by imposing obligations on or conferring rights tothem)

From a law of inter-State relations at a time when States were the principal

if not sole subjects of international law, international law has developed into

a law that aims at regulating the conduct of all members of internationalsociety.25 Among these members one will find entities that bear rights and dutiesunder international law but do not (yet) possess international personality, or

an international person is always an international legal person, and whether an international

person must be equated with a subject of international law As has been stated above, both questions must be answered in the negative.

22 Supra note 6, at p 177 See also P.H Kooijmans, Provisional Measures of the UN Security Council,

in:E.Denters and N Schrijver (Eds.), REFLECTIONSON INTERNATIONAL LAW FR()M THE LOW COUNTRIES, 1998, p 289, at p 295.

23 Supra note 6, at p 178.

24 Cheng, supra note 2, at p 24.

25 Ranjeva, supra note 10, at p 102.

possess it only to a limited extent, such as, for instance, under a specific treatyregime.

The fact that the traditional view is rejected in doctrine as well as inpractice is not surprising, because "there is something offensive to reason thatinternational law addresses itself only to States, leaving human beings whocompose them [ ] to fulfill no more significant role in the legal process thanstocks and shares and ships".26

There is no rule of international law that precludes non-State entities fromhaving their rights under international law respected, solely on the basis of thefact that these entities do not possess a right to enforce these rights on theinternational plane As was observed above, a lack of personal capacity is notparticular to international law In most national legal systems there are certainentities that lack standing to bring actions In most countries minors andpersons under wardship are deemed to lack the ability to have and express amature will, and are thus not considered as natural persons under law But thisdoes not mean that they are without rights or duties The extent of their rightsmight be limited, especially rights affecting legal relations with others, but theyare without question subjects, and not objects of law.27

In general, the lack of international legal remedies for violations ofinternational rights of non-State entities may be the result of, on the one hand,the unwillingness of the parent-State to provide the entities within itsjurisdiction with the right to make an international claim on their own, or, onthe other, the unwillingness of the international community of States to create(legal) mechanisms for the enforcement of certain rights The absence ofenforcement mechanisms in certain fields of international law results in thefact that some entities cannot bring a claim before, for instance, an internationaltribunal for the purpose of enforcing and safeguarding a right the respect forwhich that same international law does entitle them to This position isunfortunate, but does not annul the existence of the relevant legal right, for theexistence of a legal right and the entitlement to respect for that right does notnecessarily need to be accompanied by a competence to enforce said right onthe international plane (or on the national plane, for that matter).28

26 O'Connell, supra note 21, at p 83.

27 Meijknecht, supra note 1, at p 39 See also Menon, supra note 18, at pp 84-85.

28 P.H Kooijmans, Zelfbeschikkingsrecht: Naar een Nieuwe Interpretatie?, in: N Sybesma-Knol and

J van Bellingen (Eds.), NAAR EEN NIEUWE INTERPRETATIE VAN HET RECHT OP

ZELFBE-§ 3 CONCLUSION

It has been seen that, in addition to States, international law recognizes othersubjects of law, such as 'peoples', as well as other international persons, such

as international organizations and individual human beings From a legal point

of view, those entities bearing rights and/or duties under international law butlacking the capacity to make an international claim if their rights have beenviolated, are obviously in a more vulnerable position than States and otherinternational persons Although it has been suggested that 'peoples' are entitled

to secede unilaterally from the parent State if they lack any (national andinternational) judicial and/or other realistic remedies to enforce or realize theirright of self-determination within that State,29 this does not, of course, detractfrom the fact that 'peoples' have a completely different legal position underinternational law than States For, notwithstanding other subjects andinternational persons, the State is still the principal subject and person ininternational law

The next Chapter addresses the legal notion of the State, its characteristicsand the role of recognition in the acquisition of its legal personality underinternational law

29 See Chapter 7, infra.

The State as an International Legal Person

§ 1 INTRODUCTION

If the State is a legal concept in international law, objective, that is, legal criteria

on the basis of which it would be possible (for, for instance, any judicial body)

to determine whether an entity is State or not must also exist Although thetraditional and modern criteria for statehood are dealt with in more detail inthe subsequent chapters,1 a number of preliminary issues related to the legalnotion of the 'State' as well as to the question of whether or not an entity is

a State under international law will be dealt with in this Chapter

As was observed in the previous Chapter, it is generally accepted that the

State is the principal legal person on the international scene Therefore, in

Section 2 it will be examined if, and to what extent, this characteristic might

be helpful in identifying the 'State' as a legal notion under international law.Also, attention will be given to certain general and exclusive attributes ofstatehood since that may be useful for understanding the legal notion of

statehood In addition, because States are considered to be sovereign entities

under international law, this distinct characteristic of States will also beexplored briefly in this Section

The normal procedure by which existing States declare that they regard

an entity as a State is through individual recognition In that respect it has beensuggested that the very act of recognition attributes international personality

to the recognized State, which means that, according to this view, a State doesnot exist in international law unless it has been recognized by the alreadyexisting States Thus, this point does not only concern the determinativecharacter of recognition but also, and even primarily, the question of howinternational personality is acquired by an entity claiming statehood The latterquestion forms the core of the analysis in Sections 3 and 4 Section 3 outlinesthe main propositions of the two principal theories regarding the recognition

1 For the traditional criteria for statehood see Chapter 3, infra The modern criteria for statehood are discussed in Chapters 4 and 8, infra.