International Law 1.4

Legal Personality (under PIL)

Being a “subject” of PIL = having rights and obligations under PIL

Principal subjects of PIL

States

Have FULL legal personality

Actors with limited legal personality

IGOs, individuals, MNCs

Where are the requirements of statehood found?

The Montevideo Convention of 1933

4 requirements of statehood

1. Defined territory

2. Permanent population

3. Government (effective)

4. Capacity to enter into relations with other states

State recognition

Diplomatic act carried out by a state that announces it recognizes an entity as a state

2 types of entities that demand recognition as independent states

1. Former colonies

2. Secessionist states (once they separate from a larger state)

2 theories of state recognition

1. Declarative

2. Constitutive 

Declarative theory of state recognition

State recognition is a diplomatic act that affects the two states involved and not the “statehood” of an entity in international law

Majority view 

Constitutive theory of state recognition

State recognition may “constitute” the statehood of an entity

Minority view 

What does the UN admission process look like (under the UN Charter)?

UNSC recommendation & UNGA approval by 2/3 majority

What are 2 examples of dissolution of a state?

• The Socialist Federal Republic of YUGOSLAVIA into 6 separate independent states

• The 1991 breakup of the USSR into 12 newly-independent states 

9 different ways to acquire territory

1. Annexation & conquest

2. Discovery (of terra nullius)

3. Occupation 

4. Prescription 

5. Cession

6. Lease

7. Accretion & sedimentation

8. Adjudication 

9. Internationalized territory 

What is an essential requirement for a territorial claim

Exercise of effective control

What is “exercise of effective control” based on?

• “Discovery” & “Occupation” of terra nullius

• Acquisition of a title by ‘Prescription”

Leading case for “effective control”

Island of Palmas (US v Netherlands, 1928 Permanent Court of Arbitration)

US claim: based on discovery by Spain and cession to US by Treaty 

Dutch claim: based on effective control since 17th century

4 criteria for “effective control”

1. Apparent display of sovereignty 

2. Need to demonstrate intent to act as a sovereign 

3. Display must be continuous and lasting

4. Must be “peaceful,” public and unoposoed 

What constitutes a display of sovereignty?

Carried out by some form of local administration services and public

5 paths to the creation of new states

1. Decolonization

2. Dismemberment/Dissolution 

3. Merger by incorporation

4. Merger of equals 

5. Secession

What is decolonization?

Old colonies become new ones

Example of merger by incorporation

East and West Germany into today’s Germany

Examples of secession

South Sudan from Sudan

East Timor from Indonesia

What do we look to for the legal effects of state secession?

• The 1978 Convention on State Succession

• Customary Law

What are the rules for state succession for localized treaties?

Continuity principle 

What is the continuity principle?

Treaty continues to apply to new state

What are the rules for state succession for non-localized treaties?

Newly-formed states: clear slate principle 

Other states: 1978 Convention (continuity principle) & Customary Law (clean slate principle)

What is the clean slate principle?

Old treaties are vanished 

What happens to property and archives after state succession?

The rights follow the territory on which the property and archives are located

Thus, the successor can be the legal owner if on their property

What happens to debts after state succession?

Debts of the “old” states are typically apportioned to the successor states “in equitable proportion”

What happens to a state’s IGO membership after a merger of two states?

The new state needs to reapply

They rarely do

What happens to a state’s IGO membership after a dissolution?

All new states must reapply

Just not the Russian Federation

What happens to a state’s IGO membership after a secession?

Newly-seceded state must apply

Examples of important IGOs

UN, NATO, EU, African Union, World bank, FAO, WHO, IMF

IGOs & public international law role

• IGOs can have some degree of legal personality depending on their function

• IGOs can make international law

IGO’s typical governing structure (+ examples)

• Large plenary organ (UN: UNGA)

• Smaller executive body (UN: UNSC)

• Secretariat 

4 things the founding charter of IGOs describe

1. Mandate/objectives of the IGO

2. Obligations of state members

3. Powers of the IGO

4. Internal decision-making procedures

6 principal organizations of the UN

1. UNGA

2. UNSC

3. Secretariat

4. ICJ

5. ECOSOC

6. Trusteeship Council

What is an example of a failed state with an inability to govern?

Lybia, Yemen, Somalia, Haiti

“Uti Possidetis” doctrine

“We keep the borders we have”

Newly formed states keep borders they have when previously the old state