PUBLIC INTERNATIONAL LAW I - Chapter 4 Summary

Hello everyone. Welcome to the public international law course. We will continue our course with chapter four, subjects of international law. In this chapter, we will talk about state as a subject of international law, non-self-governing territories, international organization as subjects of international law, individual as a subject of international law, recognition, and finally, de jure and de facto recognition. Let's start with what the term subjects of international law means. There are some different ways we can look at the definition of this term. One, an incumbent of rights and duties under international law. Two, the holder of procedural privilege of prosecuting a claim before an international tribunal. Three, the possessor of interests for which provision is made by international law. And four, the capacity to conclude treaties with states and international organizations. Now, we can move on to state as a subject of international law. Despite the momentous growth of international law, states are the exclusive subjects of international law. The state is still the main and the most obvious example of an international person. An entity, to be considered a state, must have certain characteristics such as a territory, population, government, and sovereignty. Independence is considered to be a normal characteristic of a state as a subject of international law. States that are subject to the authority of one or more states are known as dependent states. Sometimes the extent of factual dependency of one state upon another is so great that it is no more than a puppet state. In that case, it would not be meeting the requirement of independence, which is necessary for statehood. Then what are non-self-governing territories? There are difficulties in applying the essentials of statehood to non-self-governing territories. Colonies, protectorates, trusteeship, and mandate territories. Capacity to conduct international relations is significant in deciding the international personality of an entity. This refers to independence from the authority of any other state. Such arrangements, to different degrees, limit these territories' power over their foreign relations. Sometimes there is a total exclusion of such territories. As a result, these territories would be devoid of international personality. However, numerous resolutions adopted by the UN General Assembly have emphasized the principle of self-determination. This has helped in enhancing the status of these territories in international law. Let's move on to international organizations as person-subjects of international law. International organizations are established by treaties and their international personality can be ascertained by looking at their constitutions. It is, however, rarely that the constitution of an international organization would provide and clothe it with international personality. Consequently, the question of whether an institution possesses the international personality can be answered by examining the type of functions, powers, privileges, and immunities exercised by it. The most important characteristic of the international personality of an entity is its treaty-making power. The treaty-making power of international governmental organizations is well-entrenched in the United Nations practice. The 1986 Vienna Convention on the Law of Treaties between states and international organizations or between international organizations confirms that governmental organizations have the capacity to enter into treaties. When we look at individual as a subject of international law, we see that there are substantial doctrinal differences over the international personality of an individual. Traditionalists accept states as the only subjects of international law. According to traditionalists, individuals are incumbents of rights and duties at international law in so far as they are objects and not subjects of international law. Others consider the individuals alone as subjects of international law. This view is primarily championed by Hans Kelsen. Similar view was earlier taken by John Westlake, who had remarked that the duties and rights of states are only the duties and rights of men who compose them. Individual has been continuously empowered to a substantial extent and made subject to certain duties. However, merely applying certain rules of international law to individuals or investing them with certain rights and duties does not necessarily mean that individuals are legal persons in international law. In the sphere of substantive law, there are many treaties that have conferred certain rights on individuals and subjected them to some obligations. Now we should talk about the subject of recognition. The international community is not static. It often witnesses territorial changes in the political map of the world. New states are born out of the existing states or old states disappear by merging with other states or splitting into many new states. Revolutions occur and new governments take over. The members of the international community approve or disapprove these changes. It is through recognition that a state expresses its approval of the new state or the new government. Recognition is concerned with the status of the new entity or the government firstly, at the international plane and secondly, within the municipal legal system of the recognizing state. Through recognition, a state manifests its willingness to maintain necessary international intercourse with a new entity or the government. Recognition is a unilateral act of cognitive nature of a recognizing state that creates certain legal consequences. When we look at modes of recognition, international law does not specify any form or manner of granting recognition. However, in the practice of states, recognition may be expressed or implied. Theories of recognition are also important. There are two principal theories about the nature and actual import of recognition. There is the constitutive theory and the declaratory or evidentiary theory. International law does not prescribe or prohibit the grant of collective recognition. States may grant recognition collectively. There also can be conditional recognition. Conditional recognition implies that recognition is granted upon the fulfillment of certain stipulations in addition to the normal requirements by the recognized entity. As a legal concept, conditional recognition has no real significance. Beside these recognition types, there also is the doctrine of non-recognition. The idea behind the doctrine is not to reward a state for its unlawful acts. Our final subject to talk about is de jure and de facto recognition. The countries generally make a distinction between de jure and de facto recognition. Except in the case of nascent states where the recognition of statehood and governmental authorities merge, this distinction between de jure and de facto recognition mainly relates to governments. The de jure or de facto recognition conveys the status of a government which is either de jure or de facto. Under de facto recognition, in the opinion of the recognizing state, the new state or government either lacks stability and permanency or does not possess all the essentials required under international law for its effective participation in international affairs. But in fact, it fulfills these requirements. It may grant recognition to the latter provisionally with all due reservations for the future. In case of de jure recognition, in the opinion of the recognizing state, the new state or government fulfills all the attributes essential for its effective participation in the international community and it may grant the recognition to the latter formally. So, this is the end of our program for chapter four of the Public International Law course. Goodbye and don't forget to watch our next program, chapter five.