Unit 2 of International Law

unit 2- Legal Personality

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  • Created on: 18-03-13 22:31

Legal Personality, Statehood, Recognition and Self

In the International Legal System; States possess full legal capacity in that they can 

i) Make international agreements

ii) Bring international claims and

iii) Enter into diplomatic relations

International organs, peoples and individuals all participate on the international stage but they will not possess full international legal personality.

The personality of a State begs the question of what is a State? Is Palestine a State?

Article 1 of the Montevideo Convention on the Rights and Duties of States


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A Permanent Population

a. There must be a Permanent Population. The Western Sahara Case: - In the course of argument, Morocco claimed that it had had legal ties with Western Sahara amounting to sovereinty at the time of its colonisation by Spain. The Court rejected the Moroccan claim that its sovereignty over Western Sahara had been recognised by the International Community.

The size of the population is not essential. Hence, even territories like Nauru with a population less than 10,000 qualify for this criterion. However, it is unclear whether the population has to be indigenous in the sense of originating in the territory.

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A Defined Territory

b. It also seems to be essential that for a 'State' to exist, there must be a defined territory. A State must have some definite physical experience that marks it out from its neighbours. A refusal to define the extent of the State precisely is not fatal to Statehood. For example:

Israel has traditionally refused to put maximum limits on her claims  to territory in Palestine and this might be thought to come close to having no defined territory at all. In practice, there is no doubt that Israel is a State.

Brownlie argues that 'there must be reasonably stable policitcal community and this must be in control of a certain area.' Others have argued that Palestine controls no territory, let alone eexercises government power with respect to population, therefore it fails to meet the territorial requirements for Statehood.

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Government

A State must have a practical identity. The Government is primarily responsible for the International rights and duties of the State. This does not mean that the government must be entirely dominant, but it must be capable of controlling the affairs of the State. A civil war may mean that there is no effective government, but the State continues to exist as a subject of international law. However, relating this to Palestine, the UN have voted to recognise Palestine as a 'State'.

Others argue that Palestine exercises no control over any claimed territory, nor does it have the power to legislate or enforce the law. Moreover, only Israel is authorised, under international law, to exercise authority.

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Capacity to enter into Legal Relations

It has been suggested that it denotes 'independence' so that a territory cannot be regarded as a 'State' if it is under the control of another State. Thus - a State will not exist if the territory is under the lawful sovereignty of another State. 

Hong Kong is under the legal authority of China, although it satisfies having a territory, government and a permanent population, it is not regarded as a State.

This criteria is the key one. The formal act of entering into relations with a State is a diplomatic act. But the vital question is whether factual independence, however gained, will give rise to a presumption of legal independence.

What if the factual criteria is established but have been achieved in a manner which is 'unlawful' under international law? In this sense, it may be that the criteria is not enough to establish Statehood in international law.

i.e. Internation law prohibits the use of armed force, therefore if a territory satisfies the factual criteria but violates this principle, it may not qualify as a State. Turkish Republic of Northern Cyprus was born of illegal use of force, and has not been regarded as a State.

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Legal Personality, Statehood, Recognition and Self

However, even if the criteria is not satisfied, they may still acquire statehood. A territory may operate as a State and in some cases, take priority over formal legality.

Lastly, if an entity ceases to possess any of the qualitities of statehood, this does not mean it ceases to be a State under International Law.

Recognition:

Recognition may either be 'de jure' or 'de facto'. The act of recognition itself may take various forms. i.e.

i) A Formal Pronouncement

ii) An official letter to the newly recognised entity.

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Views of recognition

Declaratory Theory

According to this theory, the legal effects of recognition are limited, When an existing State recognises a new State, this is merely an acknowledgment of the pre-existing legal capacity. In Tinoco Arbitration, Great Britain made certain claims against Costa Rica. The government of Costa Rica had not been recognised by GB but Judge Taft, made obiter statements, holding that:

non recognition was evident in that the entity had not yet attained the status in international law.

In general, this theory accords with International Practice. If the entity satisfies the criteria of Statehood, it will be a State or government.

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Constitutive Theory

This theory, however, denies that international personality is conferred by the operation of international law.

The act of recognition is seen as a pre-condition. Therefore:

If Taiwan is not recognised as a State, then it is not a State. Additionally, Eritrea became a State only when it was recognised as a State by the International Community in 1993.

The main strength with this theory is that it highlights the practical point that States are under no obligation to enter into bilateral relations with any other body or entity.

However:

it raises insoluble theoretical and practical problems. Some commentators have attempted to meet these criticisms by supposing that there is a duty to recognise once a state or government has fulfilled the criteria laid down by international law.

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