Topic 2. The institute of international legal personality
The subject of international law
In all legal systems, the subject of law is an entity, which has enforceable rights andduties at the law. It can be a company or an individual and both are defined as “legalperson” by the law.
The subject of international law – it is a separate entity, which due to their capabilities and legal properties can have rights and obligations under international law, to participate in the creation and implementation of its norms. To the subjects of public international law include the state, nation and national liberation movements, statelike formation, international organizations.
In theory of international law subject of international law has special status. Subject of international law is the creators of the objective of international law, the carriers of subjective rights and duties. The basic criterion for enter into international legal relations is international legal personality. This terms is contains in scientific literature and international legal acts. For examples, the declarations of the principles of international law and Chapter of United Nations proclaims, that “each state has the duty to respect the personality of other states”.
Legal personality is the main clause for the entities to function or inother words to allege and enforce a claim.
The terms “legal personality” includes 2 legal characteristic of the subjects:
Legal ability – possibility of the entity to possess the subjective rights and legal duties.
Legal capacity – capability of entity under law to engage in a particular undertaking or transaction or to maintain a particular status or relationship with another.
In the literature, subjects of international law are traditionally divided into primary and secondary subjects of international law. The category of primary subjects of international law includes: the states, national liberation movements. To the secondary subjects of international law relates international intergovernmental organizations, statelike formation.
State as the main subject of international law
Throughout the long history of international law, states were the only actors in international relations. The norms of contemporary international law continue to govern mainly the relationship between states and the relations of states with international organizations and other international institutions. States – the main subjects of international law and basic real participants in international relations, because they need to constantly interact with each other and with international organizations and other subjects of international law.
The state as a person of international law should possess the following qualifications:
a permanent population;
a defined territory;
government;
capacity to enter into relations with the state.
The first qualification is territory where the permanent population live on. However, there is not a necessity of having well- established boundaries as the international Court of Justice said in the North Sea Continental Shelf cases, “ ... there is...no rule that the land frontiers of a state must be fully delimited and defined”.
The control of territory is the essence of a state. This is the basic of the central notion of “territorial sovereignty”, establishing the exclusive competence to take legal and factual measures within that territory prohibiting foreign government from exercising authority in the same area without consent.
Population. There must be some people to establish the existence of a State but there is not a specification of a minimum number of people and again there is not a requirement that all of the people be national of the state
The creation of a “permanent population” is connect with that territory and constitutes the physical basic for the existence of a state.
Who belongs to the “permanent population” of a state to determined by the internal law on nationality, which international law leaves to the discretion of state, except for a number of limited circumstances.
Effective control a government, a State requires a government that functions as a political bodywithin the law of the land. But it is not a condition precedent for recognition as anindependent State.
Effective control by a government over territory and population is the third core element which combines the other two into a state for the purposes of international law. There are two aspects following from this control by a government, one internal, the other external. Internally, it existence of a government a implies the capacity and maintain a legal order in the sense of constitutions autonomy. Externally, it means the ability to act autonomously on the international level without being, legally dependent on other states within in international legal order.
Capacity to enter into relations with other states: the fourth and last qualification is about independency, in other words independence is indicated by the criterion of capacity to enter into relations with other states
An entity is not a state unless it has competence, within its own constitutional system, to conduct international relations with other states, as well as the political, technical, and financial capabilities to do so.
The Montevideo Convention suggests a different perspective in Article 3:
The political existence of the State is independent of recognition by the other States. Even before recognition the State has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other States according to international law.
Although this statement is more directly relevant to the dispute on various theories of the legal effect of recognition, it also implies that the existence of a state does not primarily rest on its relations to other states and its own foreign policy capacity.
There are several examples of dependent states, which have only a limited capacity to enter into international relations and are usually mentioned as a special category. For example, colonies in the process of becoming independent often had a limited capacity to enter into international relations. In practice, the formal grant of independence was usually preceded by a period of training, during which the colonial power delegated certain international functions to the colony, in order to give the local leaders experience of international relations. Protectorates were another example. The basic feature of a protectorate is that it retains control over most of its internal affairs, but agrees to let the protecting state exercise most of its international functions as its agent. However, the exact relationship depends on the terms of the instrument creating the relationship, and no general rules can be laid down. Protectorates were generally a by-product of the colonial period, and most of them have now become independent. Trusteeships and ‘associated territories’ that were placed under the control of the United Nations after the Second World War were also limited in their capacity to conduct foreign relations.