INTERNATIONAL LAW WEEK 5

STATE PERSONALITY AND STATE RECOGNITION

STATE PERSONALITY
It is important to know what an international personality is under international law first, before
we head to the subject of state personality. According to Tim Hillier, in his Sourcebook on Public
International law, “International personality means capacity to be a bearer of rights and duties
under international law. Any entity which possesses international personality is an international
person or a subject of international law, as distinct from a mere object of international law…A
subject of international law is considered to be an entity capable of possessing international
rights and duties and endowed with the capacity to take certain types of action on the
international plane. The terms international legal person or legal personality are commonly
used when referring to such entities”
NB: The various subjects of international law or legal personalities do not all have the same
rights.
According to the above source, states are the primary subjects of International law.
It is important to note that since states are the primary subjects of international law or legal
personalities, we have to examine the characteristics or criteria to be recognized as a state
under international law.
The Montevideo Convention on the Rights and Duties of States 1933, which was concluded in
Uruguay on 26th December, 1933 laid out the criteria or characteristics of a state;

Article 1
The state as a person of international law should possess the following qualifications:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with other states.
Article 2
The federal state shall constitute a sole person in the eyes of international law.
We shall therefore examine the characteristics that a state should possess in detail.
Permanent Population and Territory
According to the above source, Tim Hillier states that there is no limit or numerical restriction
as to the number of people in a state. Furthermore, it should be noted that the nationality of
the people within the state doesn’t matter, what matters is the permanence of their stay in
that particular place.
As far as territorial boundaries are concerned, there is no requirement for absolutely settled
borders but only merely some identification of the state with a portion of the earth’s surface.
In the case of German-Polish Mixed Arbitral Tribunal in Deutsche Continental Gas-Gesellschaft v
Polish State (1929) 5 AD 15, court stated that, “In order to say a state exists ... it is enough that
this territory has a sufficient consistency, even though its boundaries have not yet been
accurately delimited, and that the state actually exercises independent public authority over
that territory.
Government
The League of Nations Commission of Jurists in the Aaland Islands Dispute (1920) stated that
Finland did not become a definitely constituted state until a stable political organisation had
been created, and until the public authorities had become strong enough to assert themselves
throughout the territories of the state without the assistance of foreign troops.
According to Brownlie, Principles of International Law, 1990, Oxford: Oxford University Press at
p 73, “The shortest definition of a state for present purposes is perhaps a stable political
community, supporting a legal order, in a certain area. The existence of effective government,
with centralised administrative and legislative organs is the best evidence of a stable political
community.”
Capacity to enter into international relations
This is considered by many writers to be independence and sovereignty in the sense of having
full control over domestic and foreign affairs.
In other words, this means that a state has autonomy over who it deals with and how it deals
with them. For example, in the Anglo German Customs case, Advisory Opinion P.C.I.J Reports,
Series A/B No. 41 (1931), where Judge Anzillotti stated that, “ Independence is really no more
than a normal condition of States according to International law,…it may also be described as
sovereignty…by which it is meant that the state has over it no other authority than that of
international law.” DJ Harris in his book, Cases and Materials on International Law thereafter
interprets this by saying that independence in law from the authority of any other state means
capacity under its national law to conduct relations with other states.
NB: There are a number of situations which are not regarded as derogating from formal
independence;
(a) Constitutional restrictions upon freedom of action Provided no outside state has the
power to alter the constitution, the fact that the state in question is constitutionally
 restricted is not seen as a derogation from formal independence, eg the Constitution of
the Republic of Cyprus binds the Republic permanently to accept the stationing of
foreign (Greek, Turkish and British) military forces on its territory.
(b) Treaty obligations The Wimbledon case confirmed the principle that treaty obligations
do not derogate from formal independence.
(c) The existence of foreign military bases For example, Cyprus, Germany, United Kingdom.
(d) The possession of joint organs for certain purposes For example, Customs Unions. Of
course, it is possible for states to unite totally as Syria and Egypt did in the 1950s to
form the United Arab Republic and as East and West Germany, North and South Yemen
have done more recently – in this case, of course, two states become a single state.
(e) Membership of international organisations Even if the international organisation has
some degree of coercive authority, eg the EEC, the United Nations, this is not seen as
derogating from formal independence.

Self determination
According to William Slomanson in his Fundamental Perspectives on International Law, Page 88,
“Self determination is the inhabitants’ right to choose how they will organize and be governed.
According to the UN Charter, Article 1.2, one of the purposes of the United Nations is to
develop friendly relations among nations based on respect for the principle of equal rights and
self-determination of peoples, and to take other appropriate measures to strengthen universal
peace.
Furthermore, Article 73 of the UN Charter states that;
Members of the United Nations which have or assume responsibilities for the administration of
territories whose peoples have not yet attained a full measure of self-government recognize the
principle that the interests of the inhabitants of these territories are paramount, and accept as
a sacred trust the obligation to promote to the utmost, within the system of international peace
and security established by the present Charter, the well-being of the inhabitants of these
territories, and, to this end:
a. to ensure, with due respect for the culture of the peoples concerned, their political,
economic, social, and educational advancement, their just treatment, and their protection
against abuses;
b. to develop self-government, to take due account of the political aspirations of the peoples,
and to assist them in the progressive development of their free political institutions, according
to the particular circumstances of each territory and its peoples and their varying in stages of
advancement;
These provisions emphasize the principle of self-determination.
An important development in the growth of the principle of Self Determination occurred in
1960 when the UN was bent on decolonizing the many territories controlled by the original
members;
(a) The General Assembly Resolution 1514 (XV) entitled Declaration on the Granting of
Independence to Colonial Countries and Peoples was adopted 89:0 with nine
abstentions (Australia, Belgium, Dominican Republic, France, Portugal, South Africa,
Spain, UK, US), where the General Assembly proclaimed that;
 All peoples have the right to self-determination; by virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development ...
 Inadequacy of political, economic, social or educational preparedness should
never serve as a pretext for delaying independence ...
 Any attempt at the partial or total disruption of the national unity and the
territorial integrity of a country is incompatible with the purposes and principles
of the Charter of the United Nations.
(b) The General Assembly Resolution 1541 (XV) which stated that non self-governing
territories might enjoy several possible outcomes in the quest for self-determination
such as;
 Emergence as a sovereign independent state
 Free association with an independent state
 Integration with an independent state.
Principle IX of that resolution declared that any integration should be the result of the
freely expressed wishes of the territory’s people acting in full knowledge of the change in their
status, their wishes having been expressed through informed and democratic processes,
impartially conducted and based on universal suffrage.
The subsequent Declaration on Principles of International Law Concerning Friendly Relations
and Cooperation Among States in accordance with the Charter of the UN (Resolution 2625
XXV) added that, “The establishment of a sovereign and independent state, the free association
or integration with an independent or the emergence into any other political status freely
determined by a people constitute modes of implementing the right of self determination by
those people..”

INDIVIDUAL
History
Originally, individuals were not accepted as subjects of International Law. According to William
Slomanson in his Fundamental Perspectives on International Law, Page 192, Jeremy Bentham
stated that individuals lacked the required legal personality or legal capacity to incur
responsibility under International law. This perspective remained until World War II. The
existence between of a direct relationship between individual and International law was
denied, especially by scholars in socialist countries. The recognition of individual responsibility
for personal acts under international law would…clash with Marxist principles regarding the
class struggle in international relations. Professor Lung Chu Chen of the New York University
argues that authoritarian regimes deny individual status in International law to conveniently
serve totalitarian purposes of those states.
Evolution
Antonio Cassesse in the Faculty of Political Sciences at the University of Florence, Italy stated
that the scope of the individual’s legal capacity under international law evolved in the
aftermath of World War II. According to him, after the Second World War, international
protection of human beings as such increased to a staggering extent. Individuals were no longer
taken care of at the international level (members of a group, minority or particular group) but
rather as individual human beings.
Such developments occurred especially after the Nazi aggression and atrocities perpetrated.
HOLY SEE AND VATICAN CITY
The Holy See is the name given to the government of the Roman Catholic Church which is led
by the Pope as the Bishop of Rome. Since 1929 it has resided in the Vatican City (according to
www.britannica.com)
Malcolm Shaw in his book on International Law, at page 244, states that after the Italian
conquest of the Papal States, their sovereignty was last. The question therefore arose as to the
status of the Holy See. The 1929 Lateran Treaty recognized the state of the Vatican City and the
sovereignty of the Holy See in the field of international relations as an attribute that pertains to
the very nature of the Holy See in conformity with its traditions and with the demands of its
mission in the world.
According to the same source, it is a party to many international treaties and is a member of
the Universal Postal Union and the International Telecommunications Union. It would appear
that by virtue of recognition and acquiescence in the context of its claims, it does exist as a
state. The Vatican City is closely linked with the Holy See and they are essentially part of the
same construct.
After 1870, the Holy continued to engage in diplomatic relations and enter into international
agreements and concordarts hence its international personality being accepted by several
parties.
In the 11th and 12th Report to the UN Committee on the elimination of Racial Discrimination in
1993, “the Holy See reminded the Committee of its ‘exceptional nature within the community
of nations; as a sovereign subject of international law, it has a mission of an essentially religious
and moral order, universal in scope, which is based on minimal territorial dimensions
guaranteeing a basis of autonomy for the pastoral ministry of the Sovereign Pontiff’.
Crawford in his “Creation of States, p. 230.” has concluded that the Holy See is both an
international legal person in its own right and the government of a state (the Vatican City).
MANDATED AND TRUSTED TERRITORIES
Mandated territories came up as a result of the League of Nations administering over the
formerly acquired territories of the defeated powers of the First World War. They were
inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the
modern world.
According to DJ Harris cases and materials, mandatories were given powers of administration
and responsibilities that varied according to the category of the mandate and were to promote
their development and ultimate independence. In no case was sovereignty transferred to the
mandatory.
These categories according to Tim Hillier’s Source book on Public International law are:
Class A Territories were those parts of the Turkish Empire which were thought to be closest to
independence and were put under the control of Britain or France. Only Iraq achieved
independence under the Mandate system, Palestine (to the extent that it has), Transjordan,
Syria and Lebanon only achieved independence as a result of the Second World War.
Class B Territories comprised peoples ‘especially those of Central Africa, (who) are at such a
stage that the Mandatory must be responsible for the administration of the territory under
conditions which will guarantee freedom of conscience and religion, subject only to the
maintenance of public order and morals, the prohibition of abuses such as the slave trade, the
arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or
military or naval bases and of military training of the natives for other than police purposes and
the defence of the territory, and will also secure equal opportunities for the trade and
commerce of other Members of the League’. Included in the Class B Territories were
Tanganyika, British and French Togoland, the British and French Cameroons, Rwanda. The
territories concerned only gained independence after transfer to the UN Trusteeship system.
Class C Territories included certain territories ‘which, owing to the sparseness of their
population, or their small size, or their remoteness from the centres of civilisation, or their
geographical contiguity to the territory of the Mandatory, and other circumstances, can be best
administered under the laws of the Mandatory as integral portions of its territory, subject to ...
safeguards in the interests of the indigenous population’. Included in the Class C Mandates
were Namibia, Samoa, and New Guinea.
Mandated Territories were replaced by Trust Territories. The trusteeship system is laid out in
the UN Charter which involves a trusteeship agreement between the administrative authority
and UN to promote political, economic and educational advancement of inhabitants and
progressive development towards self-governance or independence. As long they (Mandates
and Trusts) subsisted, there was no international personality.
Increasingly Trust Territories were recognized as having international personality similar to
that of international organization. For instance, Namibia when it was a colony of Germany or
under South African mandate still possessed legal personality.
PROTECTORATES AND PROTECTED STATES
A protectorate is a country that is controlled and protected by another.
A protected state is a state that, although nominally sovereign, is under the protection of
another state. Usually, the protected state allows the protector full control over its external
affairs but retains control over its internal affairs. Examples are the kingdom of Bhutan under
the protection of India and the State of Brunei under British protection. Sometimes it is referred
to as a protectorate.
There are three situations under which protection may be given by a foreign state (According to
Sourcebook on Public International Law) ;
 Protection may be exercised over a territory which did not have international
personality before the protectorate was created. This occurred in the late 19th century
in respect of a number of European states. In such situations the territory in question
will only gain full international personality when it is clear that they are acting
independently of the protecting state. For example, Kuwait became a British
protectorate in 1899 and was gradually given increased control over its own affairs. Its
independence was only formally acknowledged by the UK in 1961, but it is clear that
Kuwait had achieved statehood and international personality before that time
 Protection may be exercised over an already existing state. The arrangement will
usually be covered by agreement between the protecting and the protected state and
such protection does not usually affect the legal personality of the protected state.
 a protective power over a much smaller state without that smaller state losing its
international personality, although the extent of that personality may be limited, eg San
Marino, Monaco.
NATIONAL LIBERATION MOVEMENTS
National Liberation Movements are political organizations dedicated to the pursuit of
political independence from foreign domination, economic independence, social revolution
in an anti-capitalist direction (www.oxfordreference.com )
National Liberation Movements aim to free a certain geographical territory and its
population [nation] from a regime considered as suppressive and / or foreign ruled.
According to Malcolm Shaw’s International Page 245, “The UN trusteeship system
permitted the hearing of individual petitioners and this was extended to all colonial
territories. In 1977, the General Assembly Fourth Committee voted to permit
representatives of certain NLMs from Portugal’s African territories to participate in its work
dealing with such territories.247 The General Assembly endorsed the concept of observer
status for liberation movements recognised by the Organisation of African Unity in
resolution 2918 (XVII). In resolution 3247 (XXIX), the Assembly accepted that NLMs
recognised by the OAU or he Arab League could participate in Assembly sessions, in
conferences arranged under the auspices of the Assembly and in meetings of the UN
specialised agencies and the various Assembly organs.” Such actions show that to a certain
extent, the National Liberation Movements are recognized on the International plane.

INSURGENTS AND BELLIGERENTS

An insurgent is one who participates in an insurrection, or one who opposes the execution
of law by force of arms, or who rises in revolt against constituted authorities (Black’s law
Dictionary).
According to the same source, belligerence is a term used to designate either of two nations
which are actually in a state of war with each other. A nation is said to be belligerent even
when resorting to war in order to withstand or punish an aggressor.
Malcolm Shaw on page 245 states that, “International law has recognised that such
entities may in certain circumstances, primarily dependent upon the de facto
administration of specific territory, enter into valid arrangements. In addition, they will be
bound by the rules of international law with respect to the conduct of hostilities and may in
due course be recognised as governments.”
INTERNATIONAL ORGANISATIONS
International organizations are capable of possessing international personality and being
subjects of International law.
According to Bowett, The Law of International Institutions, 4th edn, 1982, London: Stevens
at p 339, “Whilst ... specific acknowledgement of the possession of international personality
is extremely rare, it is permissible to assume that most organisations created by a
multilateral inter-governmental agreement will, so far as they are endowed with functions
 on the international plane, possess some measure of international personality in addition to
the personality within the system of municipal law of the members ... Possession of
international personality will normally involve, as a consequence, the attribution of power
to make treaties, of privileges and immunities, of power to undertake legal proceedings: it
will also pose a general problem of dissolution, for in the nature of things, the personality of
all such organisations can be brought to an end.”
According to Sourcebook of Public International Law, “As far as international organisations
are concerned the principal questions to be decided are:
(1) the extent to which the organisation can conclude treaties;
(2) the privileges and immunities to which the organisation is entitled;
(3) the capacity of the organisation to bring international claims. It should however be
noted at this point that only states have locus standi in contentious cases before the
International Court of Justice.”

STATE RECOGNITION
One of the important characteristics of a state as seen earlier is the capacity to enter into
international relations with other states. This in turn will raise the question of whether the
other states recognize it as being a state as well. As Tim Hillier in his book, “Sourcebook on
Public International law on page 201 stated, “It has already been seen that an important
requirement of statehood is the capacity to enter into international legal relationships. This
inevitably concerns the attitude of other states and in particular raises the question of
recognition. Do other states recognise the new entity as a state? What are the implications if
they do recognise it? What are the implications if they do not?”
In the study of state recognition, two competing theories attempt to answer the question of
whether recognition is needed to for state to be an international personality. These theories
are Constitutive and Declaratory theory.
Constitutive Theory
The constitutive theory states that for a legal system to certain and final, it requires an organ to
determine it. On the international plane, it means that for a state to be considered as
international personality, it requires other states to recognize it as such. “Underlying the
constitutive theory is the view that every legal system requires some organ to determine with
finality and certainty the subjects of the system. In the present international legal system that
organ can only be the states, acting severally or collectively, and their determination must
have definitive legal effect.1”

1
Tim Hillier, Source on Public International Law, Page 201
Furthermore, the above source states that, “The constitutive theory developed in the 19th
century and was closely allied to a positivist view of international law. According to that view
the obligation to obey international law derives from the consent of individual states. The
creation of a new state would create new legal obligations and existing states would need to
consent to those new obligations. Therefore the acceptance of the new state by existing
states was essential. A further argument prevalent during the late 19th century was based on
the view of international law as existing between ‘civilised nations’. New states could not
automatically become members of the international community, it was recognition which
created their membership.”
Declaratory Theory
The Montevideo Convention which I have discussed earlier laid down the basis of this theory.
Article 3 states that, “The political existence of the state is independent of recognition by
other states. Even before recognition the state has the right to defend its integrity and
independence ... and to organise itself as it sees fit. The exercise of these rights has no other
limitation than the exercise of the rights of other states according to international law”
Article 6 of the same Convention states that, “The recognition of a state merely signifies that
the state which recognises it accepts the personality of the other, with all the rights and
duties determined by international law.”
For the adherents to the declaratory theory the formation of a new state is a matter of fact, not
law. Recognition is a political act by which the recognising state indicates a willingness to
initiate international relations with the recognised state and the question of international
personality is independent of recognition. However, the act of recognition is not totally
without legal significance because it does indicate that the recognising state considers that the
new entity fulfils all the required conditions for becoming an international subject.
The declaratory theory is more widely supported by writers on international law today and it
accords more readily with state practice, as is illustrated by the fact that non-recognised ‘states’
are quite commonly the object of international claims by the very states which are refusing
recognition, for example Arab states have continued to maintain that Israel is bound by
international law although few of them, until recently, have recognised Israel.
NON-RECOGNITION
If a state uses illegal threat or uses force to acquire another territory, then it is the practice that
it shall not be recognized. “The legal regime established by the Covenant of the League of
Nations 1919 and the Kellogg-Briand Pact 1928 was the basis for the development of the
principle that ‘acquisition of territory or special advantages by illegal threat or use of force’
would not create a title capable of recognition by other states. The principle achieved particular
significance as a result of the Japanese invasion of Manchuria in 1931. The US Secretary of
State, Stimson, declared that the illegal invasion would not be recognised as it was contrary to
the Kellogg-Briand Pact which outlawed the use of war as an instrument of national policy.
Thereafter the doctrine of not recognising any situation, treaty or agreement brought about by
non-legal means was often referred to as the Stimson Doctrine. However, state practice before
the Second World War did not seem to support the view that the Stimson Doctrine contained a
binding rule of international law. The Italian conquest of Abyssinia (Ethiopia) was recognised as
was the German take-over of Czechoslovakia. After 1945 the principle was re-examined and the
draft Declaration on the Rights and Duties of States prepared by the ILC emphasised that
territorial acquisitions achieved in a manner inconsistent with international law should not be
recognised by other states. Similarly the Declaration on Principles of International Law 1970
adopted by the UN General Assembly included a provision to the effect that no territorial
acquisition resulting from the threat or use of force shall be recognised as legal. There have
been a number of occasions where the Security Council of the United Nations has called on
states not to accord recognition to situations which have arisen as a result of unlawful acts:
Recognition in such situations would itself be a breach of international law.
RECOGNITION OF GOVERNMENTS
A problematic situation may arise when states deal with a government which has taken power
through unconventional means. According to the above source, “. Although the practice of
states is far from establishing the existence of a legal duty to recognise an entity which has
established the factual characteristics of statehood, with regard to governments the position is
even more difficult. The problem of recognition of governments will arise when a new regime
has taken power:
(a) unconstitutionally;
(b) by violent means; or
(c) with foreign help, in a state whose previous and legitimate government was recognised by
other states.
Recognition in such circumstances may appear an endorsement of the new regime, and the
recognising state may not wish to offer such endorsement or approval….Two approaches can
therefore be identified: an objective approach, whereby recognition will occur if a given set of
facts have occurred, or a subjective test, whereby recognition will depend on whether or not the
new regime is going to act properly in the eyes of the recognising state”
Certain governments have therefore desisted from stating their position on the recognition of
new governments, “One possible resolution of the problem of when to recognise is to avoid
recognition altogether. In 1930, the Mexican Foreign Minister, Señor Estrada, rejected the
whole doctrine of recognition on the ground that ‘it allows foreign governments to pass upon
the legitimacy or illegitimacy of the regime existing in another country, with the result that
situations arise in which the legal qualifications or national status of governments or
authorities are apparently made subject to the opinion of foreigners. Henceforward, the
Mexican government refused to make declarations granting recognition of governments.”

DEFACTO AND DE JURE RECOGNITION

A De jure government is the legal legitimate government of a state and is so recognized by
other states.
In contrast, a De facto government is in actual possession of authority and control of the state.
For example, a government that has been overthrown and has moved to another state will
obtain de jure status if other nations refuse to accept the legitimacy of the revolutionary
government.
According to Tim Hillier in Sourcebook to Public International Law, “Recognition of an entity as
the de facto government can be seen as an interim step taken where there is some doubt as to
the legitimacy of the new government or as to its longterm prospects of survival. For example,
the UK recognised the Soviet government de facto in 1921 and de jure in 1924.”