(p. 115) 4 Subjects of International Law
A subject of international law is an entity possessing international rights and obligations and having the capacity (a) to maintain its rights by bringing international claims;2 and (b) to be responsible for its breaches of obligation by being subjected to such claims.3 This definition, though conventional, is unfortunately circular since, while the indicia referred to depend in theory on the existence of a legal person, the main way of determining whether the relevant capacity exists in case of doubt is to inquire whether it is in fact exercised. All that can be said is that an entity of a type recognized by customary law as capable of possessing rights and duties and of bringing and being subjected to international claims is a legal person. If the latter condition is not satisfied, the entity concerned may have legal personality of a very restricted kind, dependent on the agreement or acquiescence of recognized legal persons and opposable on the international plane only to those agreeing or acquiescent. The principal formal contexts in which the question of personality has arisen have been: capacity to make claims in respect of breaches of international law, capacity to make treaties and agreements valid on the international plane, and the enjoyment of privileges and immunities from national jurisdiction. States pre-eminently have these capacities and immunities; indeed the incidents of statehood as developed under customary law have provided the indicia for, and instruments of personality in relation to, other entities.
Apart from states, organizations may have these capacities and immunities if certain conditions are satisfied. The capacity to claim under international law, at least for organizations of a certain type, was established in Reparation for Injuries.4 Waldock’s first report on the law of treaties noted the capacity of international organizations to (p. 116) become parties to international agreements, and this reflected the existing practice.5Since Reparation for Injuries international organizations have joined states as a recognized category of legal persons, and this has facilitated acceptance of quite limited or marginal entities as such (for international organizations see chapter 7).
Thus it is states and organizations which represent the normal types of legal person on the international plane. However, the realities of international relations are not reducible to a simple formula. The ‘normal types’ have congeners which create problems, and various entities which are of neither type can have a certain personality—for example. the International Committee of the Red Cross (ICRC).6 Moreover, abstraction of types of acceptable persons at law falls short of the reality, since recognition and acquiescence may sustain an entity which is in some respects anomalous and yet has a web of legal relations on the international plane.
In spite of the complexities, it is as well to remember the primacy of states as subjects of the law. As Friedmann observes:
The basic reason for this position is…that ‘the world is today organized on the basis of the co-existence of States, and that fundamental changes will take place only through State action, whether affirmative or negative’. The States are the repositories of legitimated authority over peoples and territories. It is only in terms of State powers, prerogatives, jurisdictional limits and law-making capabilities that territorial limits and jurisdiction, responsibility for official actions, and a host of other questions of co-existence between nations can be determined…This basic primacy of the State as a subject of international relations and law would be substantially affected, and eventually superseded, only if national entities, as political and legal systems, were absorbed in a world state.7
This category is by far the most important, but it has its own problems, analysed in chapter 5. For instance, the existence of ‘dependent’ states with certain qualified legalReferences(p. 117) capacities has historically complicated the picture, but, providing the basic conditions for statehood existed, the ‘dependent’ state retained its personality. In some federations (notably those created by a union of states at the international level), the constituent members retain certain residual capacities. In the constitutions of Switzerland8 and Germany,9 component states are permitted to exercise certain state functions, including treaty-making. Normally, the states, even when acting in their own name, do so as agents for the union.10 The US Constitution enables the states of the Union to enter into agreements with other states of the Union or with foreign states with the consent of Congress.11 But this happens rarely if at all, and in most federations, old and new, the federal government’s power to make treaties with foreign states is exclusive.12 The position of the International Court, set out in LaGrand and Avena, is that international obligations under the Vienna Convention on Consular Relations (VCCR) must be fully observed irrespective of constitutional limitations, and, though the means of implementation remain for it to choose, the federal state incurs responsibility for the wrongful acts of its subdivisions.13
(B) Entities Legally Proximate to States
Political settlements have from time to time produced entities, such as the former Free City of Danzig, which, possessing a certain autonomy, territory and population, and some legal capacities on the international plane, are more or less like states. Politically such entities are not states in the normal sense, yet legally the distinction is not very significant. The treaty origin of the entity and the existence of some form of protection by an international organization—the League of Nations in the case of Danzig—matter little if, in the result, the entity has autonomy and a nucleus of the more significant legal capacities, for example the power to make treaties, to maintainReferences(p. 118) order and exercise jurisdiction within the territory, and to have an independent nationality law. The jurisprudence of the Permanent Court recognized that Danzig had international personality proximate to that of a state, except insofar as treaty obligations created special relations in regard to the League and to Poland.14Under Articles 100 to 108 of the Treaty of Versailles, the League of Nations had supervisory functions and Poland had control of the foreign relations of Danzig.15 The result was a protectorate, the legal status and constitution of which were externally supervised. To describe legal entities like Danzig as ‘internationalized territories’16 is not very helpful since the phrase covers a number of distinct entities and situations and elides the question of legal personality.17
The point is that a special status may attach without the creation of a legal person. An area within a state may be given a certain autonomy under treaty without this leading to any degree of separate personality on the international plane: this was the case with the Memel Territory, which had a special status in the period 1924 to 1939 yet remained part of Lithuania.18 Another type of regime, more truly international, involves exclusive administration of a territory by an international organization: this was the regime proposed for Jerusalem by the Trusteeship Council in 1950 but never implemented.19 In such a case no new legal person is established except insofar as an agency of an international organization may have a certain autonomy.
(C) Entities Recognized as Belligerents
In practice, belligerent or insurgent bodies within a state may enter into legal relations and conclude agreements on the international plane with states and other belligerents/ insurgents. Fitzmaurice has attributed treaty-making capacity to ‘para-Statal entities recognized as possessing a definite if limited form of international personality, for example, insurgent communities recognized as having belligerent status—de factoReferences(p. 119) authorities in control of specific territory’.20 This statement is correct as a matter of principle,21 but its application to particular facts requires caution. A belligerent community often represents a political movement aiming at secession: outside the colonial context, states have been reluctant to accord any form of recognition in such cases, including recognition of belligerency.22
In relation to territories marked out by the UN as under a regime of illegal occupation and qualified for rapid transition to independence, an interim transitional regime may be installed under UN supervision.23 Thus the final phase of Namibian independence involved the UN Transition Assistance Group, established by SC Resolution 435 (1978).24
In 1999 the long-drawn-out crisis concerning the illegal Indonesian occupation of East Timor was the subject of decisive action by the Security Council. SC Resolution 1272 (1999) established the UN Transitional Administration in East Timor (UNTAET) with a mandate to prepare East Timor for independence.25 UNTAET had full legislative and executive powers and assumed its role independently of any competing authority. After elections, East Timor (Timor-Leste) became independent in 2002.26
Following the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY), civil war broke out in the disputed, previously self-governing, territory of Kosovo, ending with NATO military intervention.27 The Security Council in Resolution 1244 (1999) put in place the framework for an interim civil administration, further elaborated by regulations of the UN Mission in Kosovo (UNMIK). UNMIK regulation 2001/9 of 15 May 2001 set out a Constitutional Framework for Provisional Self-Government, dividing administrative responsibilities between UN representatives and the Provisional Institutions of Self-Government of Kosovo. Following unsuccessfulReferences(p. 120) negotiations between Serbia and Kosovo regarding final status, on 17 February 2008 a declaration of independence of Kosovo was adopted, giving rise to a request by the General Assembly for an advisory opinion.28
On the one hand, the Court held, ‘[t]he Constitutional Framework derives its binding force from the binding character of resolution 1244 (1999) and thus from international law. In that sense it…possesses an international legal character’.29 On the other hand ‘[t]he Constitutional Framework…took effect as part of the body of law adopted for the administration of Kosovo during the interim phase’,30 and it did not dispose of the territory beyond that phase. SC Resolution 1244 (1999) could not be interpreted as precluding all action aimed at resolving the impasse which the parties beyond question had reached.31 Rather it was a matter for the UN Special Representative or the Security Council to prohibit (or to condemn after the fact) any unilateral declaration of independence. Neither had done so. In the circumstances ‘the authors of that declaration did not act, or intend to act, in the capacity of an institution created by and empowered to act within that legal order but, rather, set out to adopt a measure the significance and effects of which would lie outside that order’.32There was thus no breach of the Constitutional Framework either. Apparently, guarantees of international territorial administration go only so far, as against claims to sovereignty.33 The status of Kosovo remains unresolved.
The conditions under which an organization acquires legal personality on the international plane are examined in chapter 7. The most important person of this type is the United Nations.
Entities, acting with delegated powers from states, may appear to enjoy a separate personality and viability on the international plane.34 By agreement states may create joint agencies with delegated powers of a supervisory, rule-making, and even judicial character. Examples are the administration of a condominium, a standing arbitral tribunal, the International Joint Commission set up under an agreement concerning boundary waters between Canada and the US and the former European CommissionReferences(p. 121) of the Danube.35 As the degree of independence and the legal powers of the particular agency increase it will approximate to an international organization.
There is no general rule that the individuals cannot be ‘subjects of international law’, and in particular contexts individuals have rights inuitu personae which they can vindicate by international action, notably in the field of human rights and investment protection.36 At the same time to classify the individual as a ‘subject’ of the law is unhelpful, since this may seem to imply the existence of capacities which do not exist and does not avoid the task of distinguishing between the individual and other types of subject. Moreover while international human rights law recognizes a variety of rights for individuals (and even corporations), the norms of human rights law are not yet regarded as applying horizontally between individuals, in parallel to or substitution for the applicable national law. To the extent that some human rights instruments include provisions dealing with individual responsibilities as well as rights, international law provides no means for their enforcement. In practical terms, human rights (and other obligations assumed for the benefit of individuals and corporations) arise against the state, which so far has a virtual monopoly of responsibility.37
Reference to states and similar political entities, to organizations, and to individuals does not exhaust the tally of entities active on the international scene. Corporations, whether private or public, often engage in economic activity in one or more states other than the state under the law of which they were incorporated or in which they have their economic seat. The resources available to the individual corporation may be greater than those of the smaller states, and they may have powerful diplomatic backing from their home government. Such corporations can and do make agreements, (p. 122) including concession agreements, with foreign governments.38 In this connection in particular, some have argued that the relations of states and foreign corporations as such should be treated on the international plane and not as an aspect of the normal rules governing the position of aliens and their assets on the territory of a state.39 In principle, however, corporations do not have international legal personality. Thus a concession or contract between a state and a foreign corporation is not governed by the law of treaties.40 The question will be pursued further in chapter 24.
On the other hand conduct of corporations may sometimes be attributed to the state for the purposes of responsibility, and separate state-controlled entities may be able to plead state immunity before foreign courts. It will not always be easy to distinguish corporations which are so closely controlled by governments as to be state agencies for such purposes. The conferral of separate personality under national law is not conclusive of autonomy vis-à-vis the state for purposes of international law.41
Important functions are performed today by bodies which have been grouped under the labels ‘intergovernmental corporations of private law’ or ‘établissements publics internationaux’.42 The point is that states may by treaty create legal persons whose status is regulated by the national law of one of the parties. At the same time, the treaty may contain obligations to create a privileged status under the national law or laws to which the corporation is subjected. The parties by their agreement may accord certain immunities to the institution created and confer on it various powers. Where the independence from the national laws of the parties is marked, the body concerned may simply be a joint agency of the states involved, with delegated powers effective on the international plane and with a privileged position vis-à-vis local law in respect of its activities.43 Where there is, in addition to independence from national law, a considerable quantum of delegated powers and the existence of organs with autonomy in decision and rule-making, the body concerned has the characteristics of an international organization. It is when the institution created by treaty has a viability and special function which render the description ‘joint agency’ inappropriate, and yet has powers and privileges primarily within the national legal systems and jurisdictions of theReferences(p. 123) various parties, that it calls for use of a special category. An example of an intergovernmental enterprise of this kind is Eurofima, a company set up by a treaty involving 14 states in 1955, with the object of improving the resources of railway rolling stock. The treaty established Eurofima as a corporation under Swiss law subject to certain modifications.44 The parties agreed that they would recognize this (Swiss) private law status, as modified by the treaty, within their own legal systems. The corporation is international in function and the 14 participating railway administrations provide the capital. The corporation is also given privileges on the international plane, including exemption from taxation in Switzerland, the state of domicile. However, useful as the category ‘établissements publics internationaux’ may be, it is not an instrument of exact analysis, and does not reflect a distinct species of international legal person. This type of arrangement is the product of a careful interlocking of national and international legal orders on a treaty basis, and the product will vary considerably from case to case.