Chapter four The subjects of public international law so far as the legal theory is concerned -legal personality- is primarily an acknowledgment that an entity is the capable of exercising certain rights and being subject to certain duties under a particular system of law .

The concept of international personality Definition of international person: An international person is one who possesses legal personality in international law, in other words one who is a subject of international law so as itself to enjoy rights, duties or powers established in international law, and generally the capacity to act on the international plane.

Characteristics of legal person 1) The enjoyment of rights and the subjection to obligations imposed by international law. 2) capacity to inter in to treaties and agreements valid on the international plane . 3) capacity to make claims in respect of breaches of international law . and 4) the enjoyment of privileges and immunities from national jurisdictions .

What are the subjects of public international law?? States International organizations Private individuals

States as subjects of public international law States are the subjects of international law par excellence. in spite of the modern complexities in the concept of international personality we have to acknowledge the “primacy of states” as subjects of international law.

Criteria of statehood under international law article 1 of the Montevideo conviction on Rights and duties of states 1933 provides as follows : the state as a person of international law should possess the following qualification : A) A Permanent population. B) A defined territory . c) government and . d) capacity to inter into relations with other states .

A) A Permanent population The criterion of permanent population is connected with that of territory and constitutes the physical basis for the existence of a state. wandering tribes do not qualify to be a state.

B) A defined territory the concept of territory is defined by geographical areas separated by borderlines from the territories of other states for a state to exist there must be a defined territory. the control of the territory is the essence of a state. this is the basis of the central notion of “territorial sovereignty” establishing the exclusive competence of the state to exercise sovereign authority within that territory and prohibiting foreign governments from exercising authority in the same area without consent. .

3) government : to be a state there must be a government. the government must be “effective” within the defined territory and exercise control over the permanent population . the mere existence of a government in itself does not suffice.

4) Capacity to enter into relations with other states : when the Montevideo convention refers to “capacity to enter into relations with other states” it is referring to “independence” in law from the authority of the other states .

National Liberation Movements : the emergence of national liberation movements of “peoples under colonial, alien or racist domination” having a representative organization ( such as ANC, PLO ) IS a characteristic feature of the aftermath of the second world war. most of these movements were hosted in friendly country from where they conducted military operations against their adversaries.

Cont… control of territory ,therefore is not their distinguishing trait, in contrast to insurgents. their chief characteristic is their “international legitimating based on the principle of self-determination”. they are given international status on account of their political goals: their struggle to free themselves from colonial domination, a racist regime, or alien occupation .

Cont… the following are the generally accepted rights and obligations under international law of national liberation movements of peoples under colonial , alien or racist domination , having a representative organization :

Cont… (1) The right to self - determination ; (2) The rights and obligations deriving from international humanitarian law . (3) The capacity to enter into treaties and agreements with states or other entities on matters such as cessation of hostilities , the granting of independence and boundary questions.

Recognition Recognition is one of the most difficult topics in international law . It is a mixture of law and politics.

The legal effect of recognition in international law. according to the constitutive theory a state or government does not exist unless it has been recognized as such by other states. recognition thus has a constitutive effect in the sense that it is a necessary condition for the creation of the state or government concerned. through recognition only a state becomes an international person and a subject of international law.

Recognition of states and governments Recognition of states or of governments may occur expressly or by implication . It is express when it is made by a formal declaration or statement . It is implied when it is to be inferred from certain relations between the recognizing state and the new state or government ,such as entry into diplomatic relation or the conclusion of a bilateral treaty.

1 Recognition of states A new state may come into existence by gaining of independence of a former colony , by disintegration of an existing state , or by merger of two or more states. According to the ‘British practice ‘ , whether an entity is recognized as a state by the united kingdom is a matter for the executive authorities ( the government ).

CONT… in a case of doubt , a request will be made by the court to the ‘ foreign office ‘, who may issue an ‘ executive certificate ‘ , this certificate will specify whether or not the new state is recognized and it is conclusive .

CONT… According to the statement made by foreign office of the united kingdom “ the normal criteria for recognition as a state are that it should have and seem likely to continue to have clearly defined territory with population , a government who are able of themselves to exercise effective control of that territory and independence in their external relations ‘’

2 recognition of governments - Government coming into power normally and constitutionally; government that come into office in a normal and constitutional manner require no recognition in international law. there will of course be a message of congratulation and continuation of normal bilateral diplomatic dealings

Government coming into power abnormally and in a revolutionary manner: when, however, the new government comes into power not in a constitutional manner but after a revolution, or a civil war, recognition of that government is serious question and a decision thereon is to be made with great care.

Cont… The conditions under international law for the recognition of new regime as the government are: 1- that the new regime has in fact effective control over most of the state's territory. 2- that this control seems likely to continue.