PERSONALITY IN INTERNATIONAL LAW – REVISION
What is Personality in International Law?
Entities which bear rights and obligations in International Law
Statehood- What makes a state a state?
- We think it is axiomatic.
- Oppenheim: ‘the formation of a new state is a matter of fact, not law’. Look at effectiveness of the particular entity.
Note, for him the existence of the state was a matter of fact, but whether you became a member of the international
community was a question of law.
- Source of tension: If international law is made by states, suggests states are antecedent to IL. Chicken and egg
scenario. States existing before and now states having to comply with it to become States.
- 1900, - world breaking up – rules start being postulated as to what a state might be. Description to prescription.
o Montevideo Convention (intended as first word) has become main source.
o Attempts at further codification have failed.
o Article 1 says you need:
Permanent population – Vatican City less than 1000, Bristol (which is a city) 500000, so no
minimum or maximum. Don’t have to be nationals, it is up to states. Reasonable degree of
permanence.
A defined territory – Vatican City way smaller than Bristol and yet one is a state and the other isn’t.
So that tells us no maximum km and no minimum. Can it be fragmented? The US is fragmented
(Alaska) – so you don’t need shared border. How clearly defined? North Sea Continental Shelf, the
border does not need to be clearly defined. Note also Israel, no requirement (US Ambassador
Jessop) that territory must be fixed. Not helpful criteria.
Effective government – no type Western Sahara Case – no rule requires a particular pattern of
governance. Could be questioned nowadays given the importance of HR for example and
representative governance. How effective? Generally, needs to have monopoly on use of force.
Problems with puppet states or states in conflict (Syria).
Capacity to enter relations with other states – not useful. Could be argued this is a consequence of
statehood rather than requirement. Does it need to be recognised?
Under this, two views (declaratory and constitutive)
- Declaratory: recognition is not important in a legal sense. State exists because it is effective. Recognition not
important in establishing statehood.
- Constitutive: states are created by recognition by other states. Recognition is most important factor. How much
recognition is enough?
o Does this actually work though? Somaliland has all requirements of Montevideo but not recognised; East
Timor doesn’t but is universally recognised as a State. Suggests importance of recognition.
Why would you want to be a State?
- States can have membership to international community
- States have monopoly over the use of force in their jurisdiction
- States can create the laws to apply in their territory
What is Personality in International Law?
Entities which bear rights and obligations in International Law
Statehood- What makes a state a state?
- We think it is axiomatic.
- Oppenheim: ‘the formation of a new state is a matter of fact, not law’. Look at effectiveness of the particular entity.
Note, for him the existence of the state was a matter of fact, but whether you became a member of the international
community was a question of law.
- Source of tension: If international law is made by states, suggests states are antecedent to IL. Chicken and egg
scenario. States existing before and now states having to comply with it to become States.
- 1900, - world breaking up – rules start being postulated as to what a state might be. Description to prescription.
o Montevideo Convention (intended as first word) has become main source.
o Attempts at further codification have failed.
o Article 1 says you need:
Permanent population – Vatican City less than 1000, Bristol (which is a city) 500000, so no
minimum or maximum. Don’t have to be nationals, it is up to states. Reasonable degree of
permanence.
A defined territory – Vatican City way smaller than Bristol and yet one is a state and the other isn’t.
So that tells us no maximum km and no minimum. Can it be fragmented? The US is fragmented
(Alaska) – so you don’t need shared border. How clearly defined? North Sea Continental Shelf, the
border does not need to be clearly defined. Note also Israel, no requirement (US Ambassador
Jessop) that territory must be fixed. Not helpful criteria.
Effective government – no type Western Sahara Case – no rule requires a particular pattern of
governance. Could be questioned nowadays given the importance of HR for example and
representative governance. How effective? Generally, needs to have monopoly on use of force.
Problems with puppet states or states in conflict (Syria).
Capacity to enter relations with other states – not useful. Could be argued this is a consequence of
statehood rather than requirement. Does it need to be recognised?
Under this, two views (declaratory and constitutive)
- Declaratory: recognition is not important in a legal sense. State exists because it is effective. Recognition not
important in establishing statehood.
- Constitutive: states are created by recognition by other states. Recognition is most important factor. How much
recognition is enough?
o Does this actually work though? Somaliland has all requirements of Montevideo but not recognised; East
Timor doesn’t but is universally recognised as a State. Suggests importance of recognition.
Why would you want to be a State?
- States can have membership to international community
- States have monopoly over the use of force in their jurisdiction
- States can create the laws to apply in their territory
