International Law/Statehood and personality
The international personality of an entity means that it has rights but as well duties which are exclusive to the personalities or it can bring international claims in order to claim those rights. In the globalized world nowadays, states are not considered the only actors which have legal personality. Nowadays many other actors possess such. However, the right to be bound with international personality starts from the state. As a result we can distinguish between two groups:
- Full International Legal Personality e.g. States
- Limited International Legal Personality
The state is considered the central actor of international law. This is because only states can be party before the International Court of Justice (ICJ), and only state can decide to rise an issue on the behalf of a national against another state. However, the national has no right to oppose such intervention in the case. So once your country decides to get involved in the case, you have no say.
The definition of a State can be found in the Montevideo Convention. In summary state is defined as:
- Having a territory - what matters is that the state has influence on it, it can be disputed (borders can be UNDEFINED);
- Permanent population - there is no minimum population required;
- Formal goverment - even if there is no effective government, the state is still a state e.g. Somalia
- Capacity to engage in international relations - it depends not only on state itself, but on whether other states recognize its capacity to engage in international relations e.g. Kosovo.
Recognition of State
A) Problems - To which entities does the law of self-determination can be applied? In context of the colonial States, the right of self-determination rule was major. However, the Court upholds the principle of territorial integrity of the States. - The recognition of a State is one act, so it cannot be changed
Recognition of Government
A government can be recognized by other states. There are two types of recognition:
- de jure - the government in question is well-established and the entity has all characteristics of sovereignty. If the state is de jure then it has all diplomatic capacities.
- de facto - gives the government sovereignty but the entity is left with certain reservations because it doesn't have 100% recognition.
How do we express recognition?
It is important to question the government if the regime has come to power with unconstitutional methods There are two theories of recognition: 1) Constitutive theory - the act of recognition which establishes the new state and determines the legal personality of the new regime 2) The Declaratory theory - it does not consider the recognition as an important factor. Only the already exsiting circumstances matter, which are the causual variables for making the state a (recognizable)
Recognition has a retroactive effect. State has the full power to decide if it gives a recognition of another actor or not. In general states recognize other entities if they met the conditions of the Montevideo Convention.
In international law an international organizations is seen as an actor that is made up by an agreement between several States as its main members:
- Global Organizations
- Closed Organizations
However, the international personality is to some extent. The international personaliy is defined byt he constitution of each organization. However, the international organization can be established on states if only states allowed that.
The UN: Under Article 104 "such legal capacity may be necessary for the exercise of its functions and fulfilment of its purpose". The UN is thus not granted with international personality but it still enjoys one by another convention. International Court stated that the aim of UN (to promote peace and security) can only be achieved if it has international personality. This claim can be seen in the case of "Reparations for Injuries suffered in the Service of the United Nations" (International Court of Justice, Advisory opinion, 11 april 1949") As it was showed in the case UN has the legal personality because it is affirmed in its tasks, and it is almost viewed as a state and it can raise issues as a state.
Those are not a possessors of personalities, as we already saw tht the state has the powers to raise an international personality of national;s. However, some cases like: Pirates Hijacking Terrorist groups Sabotage Drug Trafficing Acts against diplomats are all considered innternational personality
Locus standi - Refers to demonstrate to the court a sufficient connection with the case in order to participate in it.
Holy See - is one actor that has no permenant population but still enjoys limited international personality and it is permanent observer of the UN.