1. Subjects of International Law – Part I
International Law II
Subjects of International Law – Part I
Asst.Prof. Sami Doğru
Spring Semester

2. Objectives - International Legal Personality - Community of Nations
- Members of the Community of Nations
States
Special Subjects
Others

3. International Legal Personality
«Legal personality» is a concept shared by all legal system. International legal personality refers to the - “entities” or - “legal persons” that can have “rights” and “obligations” under international law.

4. International Legal Personality
National legal systems typically recognise the legal personality of individuals - both natural and artificial persons (companies). States are the «principal legal persons» within the international legal system.

5. International Legal Personality
In other words, International law recognises personality; - primarly in «States»; - but also to lesser extend in «international organisations»; and,
- to an even lesser extend, in a range of «other entities» thay play some role on the international stage, such as «multinational corparations», «non-governmental organisations» and «national liberation movements», often referred to as «non-State actors».

6. International Legal Personality
A «subject of the law» is an «entity» capable of possessing international rights by bringing international claims (Reperationsa Case 1949, ICJ Rep. 174) International legal personality may entitle a «subject of international law» to; - bring legal claims to enforce international legal rights; - have the power to make international agreement/ treaties; - enjoy various immunities and privileges; - be under certain international legal obligations.

7. International Legal Personality
‘The subject of law in any legal system are not necessarily identical in their natur or in the extent of their rights, and their nature depends upon needs of the community...’ (Reperations Case 1949, ICJ Rep. 174)
- All States possess international legal personality as a result of sovereign equality.
-A number of International Governmental Organisations (IGO) also possess international legal personality for certain purposes.
- In addition, individuals have been recognised as having limited forms of international personality in certain situations.

8. Subjects of International Law
By ‘subjects’, is not meant ‘topics’, but those ‘persons’ or ‘entities’ to which international law applies
In sum, the subjects of international law are;
States
International Organizations
Other entities (non-State actors: multinational corpo- rations, non-governmental organizations (NGO), national liberation movements)
Individuals

9. Uluslararası Hukukun Süjeleri
Devletler,
Hükümetlerarası Uluslararası Örgütler (BM, NATO Vb.)
Ara Birimler (Vesayet altındaki devletler, ulusal kurtuluş hareketler vb.)
Hükümetler Dışı Uluslararası Örgütler (UEFA, Uluslararası Olimpiyat Komitesi vb.)
Ulusal Hukuk Kişileri (Gerçek ve Tüzel Kişiler)

10. Subjects of International Law
States
Traditionaly, States, with international rights and duties, and procedural capacity, have been referred to as the subjects of international law.
Before the 20th century, States were the only subjects of international law.

11. Subjects of International Law
International Organizations
Since the mid-20th century, first international organisations, particularly the United Nations, through the human rights movement, came to be recognised as possessing a measure of international personality.
They too were ‘international persons’, ‘subjects of international law’, albeit with fewer rights and duties than States.

12. Subjects of International Law
Other entities: non-State actors
- National liberation movements:
With the development of the law relating to non-self-governing territories and the principle of self determination, certain rebel movements – now usually referred to as national liberation movements (NLMs) – may be in the process of acquiring the status of a subject of international law.

13. Subjects of International Law
Other entities: non-State actors
- NGOs
Even if they operate internationally (like Amnesty or Greenpeace), non-governmental organisations (NGOs) are bodies established under domestic law.
Although they have proliferated enormously in the 2nd half of the 20th century, and been very active and sometimes influential on the international scene, they are not subjects of international law.

14. Subjects of International Law
Other entities: non-State actors
- NGOs
They are essentially providers of information, lobbyists or pressure groups, and as such may properly be regarded as so-called non-state actors.
The International Committee of the Red Cross (ICRC) has a rather special status

15. Subjects of International Law
Individuals
Up to the middle of the last century, it was common to regard individuals as objects, rather than subjects, of international law.
It is now accepted that individuals have rights and duties at the level of international law.
Individuals have limited rights under international law, and even more limited procedural capacity, accorded to them by States.

16. Members of the Community of Nations
States
Territorial states, by definition, are eligible for membership.
They are the primary subjects of international law.
What legally constitutes a state?

17. States
“To have full legal (juridical) personality, a state must have certain characteristics. A set of minimum facts defines the legal idea of a state.” (pg. 126) Consider the following summary: “International law generally defines a ‘state’ as ‘an entity that has - defined territory (ülke, toprak) and - a permanent population (halk), - under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.” (Restatement (3rd) of Foreign Relations Law of the US, Sec. 201 (1987)

18. States
In other words, we are looking for 4 fundamental requirements. This requirements are accepted as being set out in Art 1 of the Montevideo Convention on the Rights and Duties of States of 1933:
Permanent Population
Defined territory.
Stable government
Capacity to enter into relations with other states.
The Montevideo Convention was a treaty concluded between member of the Pan-American Union. However, its central provisions have acquired the status of general customary internaional law. Art.1 is indicative of the requirements for the attinment of statehood.

19. States
It is important to note that each state has the right to determine for itself whether or not the facts listed are satisfied when determining whether or not a new state exists. This can produce complications in the process of state recognition. There may be division among nations when it comes to whether nor not a state has satisfied the criteria. (Ex., Germany during the Cold War)

20. States
1. Polulation The population does not have to be homogeneous racially, ethnically, tribally, religiously, linguistically or otherwise. But it must be a settled population, though the presence of certain inhabitants who are traditionally nomadic does not matter. The important thing is that the population can demonstrate meaningful territorial ties to the political entity in question

21. States
2. Territory The requirement that States must have a territorial base is fundamental to the concept of statehood. This was exemplified by Huber J. in the Island of Palmas Case (1928) 22 AJIL 867 when he said that: “ Sovereignty in relations between States signifies independence. Independence in relation to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” The existing of competing territorial claims by other States or political entities does not undermine claims of statehood (e.g. Israel’s boundaries are contested by its neighbours and the Palestinian)

22. States
2. Territory No limits have been placed upon the size of a State (either in term of ‘population’ or ‘territory’). Although, at one time it was thought that countries with a small territory or population (‘mini-or micro-states’) were not eligible for UN membership. But since 1990, Andorra, Liechtenstein, Monaco, Nauru, San Marino and Tuvalu have joined the United Nations. Although they include some wealthy countries, some are very poor. Nor do the land or maritime boundaries have to be defined definitively.

23. States
2. Territory A State can lose substantial parts of its territory and parts of its population as a result of a successful act of secession (e.g. The secession of Bangladesh from Pakistan) or the dissolution of a federal Stae (e.g. USSR/Russia) without the losing its statehood.

24. States
3. Government. There must be a central government operating as a political body within the law of the land and in effective control of the territory. But once a state has been established, military occupation by another state or civil war will not affect that statehood. In other words, an established State will not lose its statehood (and thus its international personality) even in the absence on an effective goverment (e.g. Somalia)

25. States
4. Capacity to enter into international relations with other states.
Sovereinty is premised on the notion of independence and equality.
The government must be sovereign and independent, so that within its territory it is not subject to the authority of another state.
The corollary is that the state thus has full capacity to enter into relations with other states.
The constituent states of a federation, or the overseas territories of a state, are not sovereign and do not have international legal personality.

26. States
Another complication comes in the area of “failed states”. “While retaining formal recognition as states, failed states lack an effective central government. Because of coups , interventions, or the fortunes of civil war, these states often have had a succession of temporary governments.” These are just a couple of issues to think about.

27. Members of the Community of Nations
There are other types of members to look at, besides individual independent states. Confederations “Confederations occur when a number of independent states agree to form a set of central government organs, invested with specified powers over the member states but not over the citizens of those states.” “Such a confederation normally does not have full international personality: each of its member states remains a separate subject of international law.”

28. Members of the Community of Nations
Unions of Sovereign States (Composite International Persons)
This happens when “2 independent states are linked in such a way that they act internationally as a single unit.” (p. 128) There are 2 types:
Real Unions
Federal States

29. Members of the Community of Nations
Real Unions “A real union comes into existence when two independent states are linked by treaty under the same ruler or government and henceforth act internationally as a single unit. A real union forms a single composite international person.” (pg. 129)

30. Members of the Community of Nations
Real Unions normally
“Cannot wage war against each other”
“Cannot wage war separately against a foreign state”
“Might retain some limited rights to negotiate separate treaties; however, the institutions of the union would actually sign the agreement on behalf of the individual members.”
Also note that “members of a real union represent… potential individual international persons; and they normally will return to that status if the real union dissolves for any reason.” (pg. 129)

31. Members of the Community of Nations
Example of a real union: - Egypt & Syria in * These 2 countries “merged to form the United Arab Republic (UAR). . . * A delegation from the UAR took the place of the two individual delegations in the United Nations. * The union dissolved after a military coup in Syria in * [As a result], each state returned to its preunion status, including membership as an individual state in the United Nations.” (pg 129)

32. Members of the Community of Nations
Federal States “A federal state is a permanent union of several previously independent states, with governmental organs of its own and power over its member states and their citizens. The central government of the federal state alone has the competence; - to declare war, -make peace, and -conclude international political or military agreements. “None of the member states can be considered an international person in the meaning of that term.” Ex: The United States of America

33. Members of the Community of Nations
Qualified Full Members (p.130)
There are two types of states that fall under this category:
Neutralized States
States Admitted Under Conditions

34. Members of the Community of Nations
Neutralized States Note the difference between a «neutralized state» and a «neutral state». In regards to a neutralized state, “the status of permanent neutrality (except for the … right of self-defense in the case of direct attack) is imposed on the neutralized state by a group of outside powers… A neutralized state cannot enter into an alliance requiring its participation in any future conflict.” Example: Switzerland (since 1815)

35. Members of the Community of Nations
“A neutral state has itself chosen to adopt a policy of neutrality.” Examples of self-proclaimed neutral countries: -Sweden, - Finland, - Costa Rica.

36. Members of the Community of Nations
States Admitted Under Conditions Admission under this category comes with a “price tag”, so to speak. These members are admitted “under specific conditions – that is, under a formal agreement to adhere to certain rules or fulfill certain promises imposed by the other members as the price of admission.”

37. Members of the Community of Nations
States Admitted Under Conditions Conditions have varied from case to case, ranging from obligations regarding racial or religious tolerance to obligations regarding freedom of transit. (pg. 131) Ex: A treaty signed at Vienna on May 15, 1955, between Austria and Allied Powers, reestablished an independent Austria state and contained a prohibition on political or economic union with Germany.

38. Members of the Community of Nations
Divided States
Let’s talk briefly about instances of divided states.
This happens when you have “states divided into 2 entities, each having an operative government”.
Historical Examples:
Germany (Federal Republic & Democratic Republic),
Korea (Democratic People’s Republic & the Republic of Korea),
China (Republic of China & People’s Republic),
Vietnam (North & South),
Cyprus (Turkish Cypriot (TRNC)&Greek Cypriot)

39. Members of the Community of Nations
We will only look briefly at the example of Cyprus. “Cyprus gained independence from the United Kingdom in 1960, with constitutional guarantees by the Greek Cypriot majority to the Turkish Cypriot minority. In 1974, a Greek-sponsored attempt to seize the government was met by military intervention from Turkey, which soon controlled almost 40% of the island. In 1983, the Turkish-held area declared itself the Turkish Republic of Northern Cyprus (TRNC) but was recognized only by Turkey. . . Cyprus (minus the TRNC) was admitted to the EU on May 1, 2004.”

40. Members of the Community of Nations
Special Subjects
There are also special subjects to consider. We will now go over the following:
The City of the Vatican (The Holy See)
Sovereign Military Order of the Knights of Malta
Condominiums
Associated States

41. Members of the Community of Nations
The City of the Vatican (The Holy See)
The governing authority of the Roman Catholic Church is generally known as the Vatican.
The pope is the head of the Vatican.
The Holy See is the RCC’s secular diplomatic agent, and the Vatican City is its independent territory.
The Lateran Treaty of 1929 recognized the State of the City of the Vatican as a sovereign and independent state occupying 108,7 acres in Rome.

42. Members of the Community of Nations
The City of the Vatican (The Holy See)

43. Members of the Community of Nations
Sovereign Military Order of the Knights of Malta
Originally based in Acre*, but has since moved several times (Cyprus, Rhodes, Malta, & now Rome)
Now located in Rome.
The order operates hospitals, hospices, and other medical facilities in many parts of the world.
The order maintains diplomatic relations with the City of the Vatican and with some 40 countries.
It has concluded postal agreements with 10 countries
It has been recognized as a (landless) sovereign nation by some 40 countries.
Can be classified as a non-state subject of international law
* Acre is a city in northern Israel.

44. Members of the Community of Nations
Condominiums
A territory jointly governed by two or more states.
Condominiums are not members of the community of nations.
They play no active part in international relations
They have no governments of their own
They have no national sovereignty
Example: Pheasant Island (forms the common frontier between Spain & France, 6,820 m² )

45. Members of the Community of Nations
Pheasant Island from the International Bridge over the Bidasoa river. On the left Irun, Spain; on the right Hendaye, France

46. Members of the Community of Nations
Associated States
“An entity that delegated certain governmental functions (primarily foreign affairs and/or defense) to a ‘principled state’ while retaining its own international status.”
“Other states in the family of nations still regard the entity as a member state with full rights, privileges, and obligations.”
Examples: Republic of Palau, Republic of the Marshall Islands

47. Members of the Community of Nations
Associated States

48. Members of the Community of Nations
Others
There are a few others that we should take a look at:
International Organizations
Non-governmental Organizations
Tribes
Leased Territory

49. Members of the Community of Nations
International Organizations
In some cases, IGOs have a limited international personality. For example, some;
Have power to conclude binding international agreements
May appear as plaintiffs (davacı) or defendants (davalı) before international tribunals
May be able to claim immunity from legal process for defined categories of their officials

50. Members of the Community of Nations
International Organizations
Examples of IGOs
The United Nations
Possess a limited international personality
Charter contains numerous articles specifically outlining the legal powers and responsibilities of the UN and spelling out its status as an international legal person

51. Members of the Community of Nations
International Organizations
Examples of IGOs
The European Union
Authorized to conclude binding agreements with nonmember countries and IGOs
Can make regulations binding its member states as well as industrial concerns
Also has the status of an international legal person with limited rights.

52. Members of the Community of Nations
Non-Governmental Organizations
NGOs Do Not have international juridical personality
NGOs cannot make treaties
NGOs cannot bring cases to the ICJ (International Court of Justice)
NGOs cannot have a formal membership in an IGO
Examples: Amnesty International, Human Rights Watch, International Committee of the Red Cross (ICRC)

53. Members of the Community of Nations
Does the absence of legal personality means a lack of political influence?

54. Members of the Community of Nations
No. “NGOs … have played important roles in developing contemporary law and practice in the areas of human rights, the environment, and international humanitarian law… [They also] have often helped implement new regimes and monitor compliance, particularly for human rights and environmental issues.”

55. Members of the Community of Nations
Tribes “Tribes do not constitute independent members of the community of nations.”

56. Members of the Community of Nations
Leased Territory
“Leases of territory, regardless of the length of time specified in the relevant agreements, do not confer title or create changes in sovereignty.”
“A lease treaty only transfers jurisdictional rights and does not at all bring about an alienation of territory.”

57. Members of the Community of Nations
Leased Territory
“Sovereign rights are exercised by the leasing state; but title to the territory remains indisputably with the state granting the lease.”
Historical & Present Examples: Hong Kong, Macao, Guantanamo Bay
Macao, is one of the two Special Administrative Regions of the People's Republic of China. Macau was rented to Portugal by the Chinese empire as a trading port. The Portuguese administered the city under Chinese authority and sovereignty until 1887, when Macau became a colony of the Portuguese empire. Sovereignty over Macau was transferred back to China on 20 December 1999.
Guantánamo is a bay located in Guantánamo Province at the southeastern end of . US assumed territorial control over the southern portion of Guantánamo Bay under the 1903 Cuban–American Treaty. US exercises complete jurisdiction and control over this territory, while recognizing that Cuba retains ultimate sovereignty.

58. You are responsible for all the information in this Presentation
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