Part 1 The subjects of international law, Ch.2 International persons, Sovereign States as International Persons
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- Sovereignty — Recognition of governments — Recognition of states — Federal states
Sovereign States as International Persons
Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (1920), pp 1–85 Verdross, § 28 Dickinson, The Equality of States in International Law (1920) Sukiennicki, La souverainété des états en droit international moderne (1927) Knubben, Die Subjekte des Völkerrechts (1928), pp 127–90 Kunz, Die Staatenverbindungen (1929), pp 1–61 Wright, Mandates under the League of Nations (1930), pp 267–309 Korte, Grundfragen der völkerrechtlichen Rechtsfähigkeit und Handlungsfähigkeit der Staaten (1934), pp 28–55, 135–186 Kelsen, Principles of International Law (1952), pp 100–14 Von der Heydte, Die Geburtsstunde des souveränen Staates (1952) Gunst, Der Begriff der Souveränität im modernen Völkerrecht (1953) Brierly, Hag R, 23 (1928), iii, pp 503–45 Bruns, ZöR, 1 (1929), pp 31–40 Dupuis, Hag R, 32 (1930), ii, pp 5–165 van Zanten, RI, 3rd series, 11 (1930), pp 494–528 Ross, ibid, 3rd series, 12 (1931), pp 652–68, and 13 (1932), pp 112–30, and in ZöR, 11 (1931), pp 441–64 Kaufmann, Hag R, 55 (1935), v, pp 349–77 — Bilfinger, ibid, 62 (1938), i, pp 155–203 Aufricht, Corn LQ, November 1944 and March 1945 Kelsen, Yale LJ, 53 (1944), pp 207–20 Rousseau, Hag R, 73 (1948), ii, pp 171–249 Marek, Identity and Continuity of States in Public International Law (1954) Waldock, Hag R, 106 (1962), ii, pp 156–71 Arangio-Ruiz, L’Etat dans le sens du droit des gens et la notion du droit international (1975) Crawford, BY, 48 (1976–77), pp 93–182, and The Creation of States in International Law (1979) Lachs, Hag R, 169 (1980), iv, pp 29–41 Feldman, Hag R, 191 (1985), ii, pp 351–84 James, Sovereign Statehood (1986) Henkin, Hag R, 216 (1989), iv, pp 23–35 Hannum, Autonomy, Sovereignty and Self-Determination (1990), pp 14–26. See also the literature cited at § 36, n 1.
An international person is one who possesses legal personality in international law,1 meaning one who is a subject2 of international law so as itself to enjoy rights, duties or powers established in international law, and, generally, the capacity to act on the international plane (p. 120) either directly, or indirectly through another state (as in the case of a protected state). The concept of international person is thus derived from international law. This law is the body of rules legally binding on states and sovereign independent states are the principal (although not the only)3 international persons. They are, moreover, the typical international persons in the sense that it is the rights, duties and powers normally possessed by states which are together regarded as constituting international personality of the fullest kind.
However, ‘the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community’;4 an international person need not possess all the international rights, duties and powers normally possessed by states.5 Some states only possess some of those rights and duties;6 they are therefore only in those limited respects subjects of international law and thus only possess limited international personality. International organisations also possess only international rights and duties appropriate for their particular situation7 and they are similarly only to a limited extent subjects of international law and international persons. Nevertheless, such possessors of limited international personality are real international persons. The possession of international rights and duties may, however, be so limited in extent, or the result of such exceptional circumstances, that while the possessor must be regarded as pro tanto enjoying a degree of international personality, it would be unrealistic to regard it as a member of the international community or as an international person in anything other than a strictly limited sense. Such are, for example, confederations of states8 and insurgents recognised as belligerents in a civil war.9
A state1 proper is in existence when a people is settled in a territory under its own sovereign government. There are therefore four conditions which must obtain for the existence of a state.
References(p. 121) There must, first, be a people. A people is an aggregate of individuals who live together as a community though they may belong to different races or creeds or cultures, or be of different colour.
There must, second, be a territory in which the people is settled,2 although there is ‘no rule that the land frontiers of a State must be fully delimited and defined’;3 they may indeed be disputed. But it matters not whether the country is small4 or large; it may consist, as in the case of city states, of one town only.
References(p. 122) There must, third, be a government — that is, one or more persons who act for the people and govern according to the law of the land.5 A state calls for a community organised as a political unit (polis) as distinguished from, say, a tribe.6 But once a state is established, temporary interruption of the effectiveness of its government, as in a civil war7 or as a result of belligerent occupation, is not inconsistent with the continued existence of the state.
There must, fourth and last, be a sovereign government. Sovereignty is supreme authority, which on the international plane means not legal authority over all other states but rather legal authority which is not in law dependent on any other earthly authority.8 Sovereignty in the strict and narrowest sense of the term implies, therefore, independence all round, within and without the borders of the country.9
References(p. 123) Of these four elements needed before a community may be regarded as a state, some may at times exist only to a diminished extent, or may even be temporarily absent, without the community necessarily ceasing to be a state. Thus the existence of a civil war may affect the continued effective existence of a government, or relations with other states may affect the degree to which sovereignty is retained,10 while the state nevertheless continues to exist. In some extreme cases it may do so in only a very attenuated form.11
A state normally possesses independence, and therefore sovereignty. Yet there are states which are not legally independent. All states which are under the suzerainty or protectorate of another state, or are member states of a federal state, belong to this group. All of them possess supreme authority and independence with regard to part of the functions of a state, whereas with regard to other parts they are under the authority of another state. Hence the doubt whether such partially independent states can be international persons and subjects of international law at all.1
That they cannot be full, perfect, and normal subjects of international law there is no doubt. But it is inaccurate to maintain that they have no international position whatever. Once it is appreciated that it is not so much the possession of sovereignty which determines the possession of international personality but rather the possession of rights, duties and powers in international law, it is apparent that a state which possesses some, but not all, of those rights, duties and powers is nevertheless an international person. In fact such states often enjoy in many respects rights, and fulfil in other points duties, established by international law. They frequently send and receive diplomatic envoys, or at least consuls. References(p. 124) They often conclude commercial or other treaties. Their Heads of State enjoy the privileges which, according to international law, the laws of the different states must grant to the heads of foreign states. These and similar facts establish that these partially independent states are international persons and subjects of international law, although the extent to which they are such is a question of degree depending on the circumstances of particular cases.
The distinction between full sovereign states and partially sovereign states implies that sovereignty is divisible, so that the powers connected with sovereignty need not necessarily be united in one hand. But some writers have maintained that sovereignty is indivisible, a state being either sovereign or not. Although in the century and a half after the term sovereignty1 was introduced into political science by Bodin in his celebrated work De la République (1577) writers, while differing in their definition, were generally agreed that sovereignty was indivisible, in the 18th and 19th centuries attitudes changed. Particularly influenced by the experience of the member states of the German Empire after the Westphalian Peace, and the establishment of the United States of America, Switzerland and Germany as federal states with sovereign powers divided between the federal state and the constituent member states, the need to distinguish between absolute and partial sovereignty became widely (although not universally)2 accepted. The controversy is somewhat theoretical. It is a fact that partially independent states exist, and are accepted as such by the international community in general. It accordingly seems preferable to maintain the practical, though abnormal and possibly illogical, view that sovereignty is divisible.3
References(p. 125) § 37 The problem of sovereignty in the 20th century
The concept of sovereignty was introduced and developed in political theory in the context of the power of the ruler of the state over everything within the state. Sovereignty was, in other words, primarily a matter of internal constitutional power and authority, conceived as the highest, underived power within the state with exclusive competence therein. The 20th century has seen the attempt, particularly through the emergence in some instances of extreme nationalism, to transpose this essentially internal concept of sovereignty on to the international plane. In its extreme forms such a transposition is inimical to the normal functioning and development of international law and organisation. It is also inappropriate. Sovereignty as supreme legal power and authority is inapplicable to the position of states within the international community: no state has supreme legal power and authority over other states in general, nor are states generally subservient to the legal power and authority of other states. Thus the relationship of states on the international plane is characterised by their equality1 and independence2 and, in fact, by their interdependence. Although states are often referred to as ‘sovereign’ states, that is descriptive of their internal constitutional position3 rather than of their legal status on the international plane.
Despite the deficiencies in international law which at present make it an imperfect legal order — deficiencies which are in some respects gradually being overcome4 — the very notion of international law as a body of rules of conduct binding upon states irrespective of their internal law, implies the idea of their subjection to international law.5
A number of states in their constitutions have made express provision for limitations on their national sovereign powers in the interests of international cooperation.6 These provisions are to the effect that certain sovereign rights and powers of the state may be limited in connection with international organisations, References(p. 126) or may be conferred upon or transferred to international organisations. This has particularly become necessary in some states whose constitution provides for certain rights and powers, for example the power to legislate, to be exercised only by organs of the state: by becoming a member of an international organisation which can in some degree be said to be exercising such powers, the state, in the absence of a provision envisaging a transfer of those powers, could be said to be acting unconstitutionally and the resulting exercise of the powers by the organisation could be said to be ineffective within the state. Although constitutional provisions of this kind assume particular importance in connection with membership of an organisation such as the European Economic Community,7 those provisions have in some cases been made independently of such membership. Whether the transfer of such rights and powers is so extensive as to affect the continued existence of the state depends on the circumstances of the individual case, and perhaps in particular on the scope of the rights and powers transferred and on the revocability of the transfer. The most extensive transfer of this kind currently existing is that involved in membership of the European Communities, but the continued international statehood of its member states is not in question.
1 The ICJ has regarded the essential test where a group is claimed to be a legal entity distinct from its members as being whether it was in ‘such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect’: Reparation for Injuries Case, ICJ Rep (1949), at p 178, and Western Sahara Case, ibid (1975), at p 63. As to the enjoyment by a state of certain rights in the law of other states, see § 47. See generally Quadri, Hag R, 113 (1964), iii, pp 373–452; Barberis, Hag R, 179 (1983), i, pp 157–70.
2 This idea of a subject of the law may be contrasted with an object of the law; thus in a municipal system of law there will be many legal rules relating to animals, but since they do not themselves have rights and duties they are objects, not subjects, of the law..
3 See § 7.
4 Reparations for Injuries Case, ICJ Rep (1949), p 178.
5 Ibid, pp 179–80.
7 See § 7.
8 See § 74.
9 See § 49.
1 As to the concept of a state in international law, see generally Kelsen, AJ, 35 (1941), at pp 606–9; and Principles of International Law (1952), pp 205–7, 257–64; Chen, The International Law of Recognition (1951), pp 54–63; Guggenheim, Hag R, 80 (1952), i, pp 80–96; Marek, Identity and Continuity of States in Public International Law (1954), especially pp 161–90; Blix, Hag R, 130 (1970), ii, at pp 632–8; Crawford, The Creation of States in International Law (1979), especially pp 31–76, and BY, 48 (1976–77), pp 93–182.
On the formation of states see also Biscottini, Rivista, 18 (1939), pp 378–406; Mouskhély, RG, 66 (1962), pp 469–85; and Jessup, Birth of Nations (1974).
On the birth of new states, see Hall, § 1; Westlake, i, pp 44–50; Smith, i, pp 233–45; Fauchille, §§ 195–198(3): Off J Special Suppl No 3 (Report of Committee of Jurists on the Aaland Islands question); Masaryk, The Making of a State (Czecho-Slovakia) (1927), pp 443–47; and Kelsen, RI (Paris), 3 (1929), pp 613–41.
As to the Baltic States, see Rutenberg, Die baltischen Staaten und das Völkerrecht (1928); Montfort, Les Nouveaux États de la Baltique (1933); Graham, The Diplomatic Recognition of the Border States, Finland (1935); and § 46, n 4 and 55, n 41ff.
On the question whether Yugoslavia as enlarged after the First World War was a new state, see Kaufmann, i, ZI, 31 (1923–24), pp 211–51. US appellate courts have held that US treaties with Serbia continued to apply to Yugoslavia, but as much on the basis of state succession as of continuity of the same state: see Ivanevic v Artukovic, ILR, 21 (1954), p 66; Artukovic v Rison (1986), ILR, 79, pp 383, 395. See also DC v Public Prosecutor (Netherlands Supreme Court) (1972), ILR, 73, p 38 and see Tomitch, La Formation de l’État Yougoslave (1927).
Several other specific instances involving the creation of new states are considered in the text below on recognition of states and governments, especially §§ 40, 41, 46 and 56; and see §§ 63 and 64. See also § 65, as to the accession to independence of former dependent territories.
Article 1 of the Montevideo Convention on the Rights and Duties of States 1933, sets out the qualifications for international statehood as ‘(a) a permanent population; (b) a defined territory; (c) a government; and (d) a capacity to enter into relations with other States’: LNTS, 165, p 19. The definition given in the text, like that given in the Convention, serves to establish the concept of a state in general terms. See also § 40, as to the criteria adopted by states when according recognition to a new state.
The question whether or not a community constitutes a state often arises in connection with applications for membership of international organisations. These will be determined in accordance with the rules of the organisation.
An entity which is not a state in the true sense may nevertheless be regarded as a state for a particular purpose, or within the meaning of the term ‘state’ as used in a treaty or other document. This is less a matter of acknowledging statehood than of construction or interpretation: see eg § 56, n 32. ‘State’ is not necessarily the same as ‘nation’, although in the context of ‘most favoured Nation’ clauses (see § 669) the ILC equated the two terms: YBILC, 1978, vol II, pt 2, p 18, para (2) of commentary on draft Art 4.
As to the meaning of the word ‘state’ considered historically, see Dowdall, LQR, 34 (1923), pp 98–125. See also Reglade in Etudes Georges Scelle (vol ii, 1950), pp 507–34, and Andrews, LQR, 94 (1978), pp 408–27.
2 In its Advisory Opinion in the Western Sahara case the ICJ concluded that although the emirates and tribes which existed in the area in question at the time of the Spanish colonisation of that area did not have the character of a personality or corporate entity distinct from the several emirates and tribes in question, and thus could not be considered as enjoying some form of sovereignty in Western Sahara, the nomadic peoples of the area did possess some rights relating to the lands through which they migrated, constituting legal ties with the territory of Western Sahara (ICJ Rep (1975), at pp 63–5). See generally on this case § 250, n 5.
As to the Indian tribes of North America, see § 22, n 7.
3 North Sea Continental Shelf Cases, ICJ Rep (1969), at p 33, citing the example of Albania and the Monastery of St Naoum Case (1924), PCIJ, Series B, No 9, at p 10. See also Deutsche Continental Gas-Gesellschaft v Polish State, AD, 5 (1929–30), No 5, as to the existence of a state even though its boundaries have not been legally delimited. See also § 226, n 1. Many states have border disputes with neighbouring states and to that extent have unsettled frontiers. On unsettled frontiers see Bardonnet, Hag R, 153 (1976), v, pp 9–166.
A state may either be part of a larger land area, or be an island. As to certain features of islands as sovereign states, see Crawford, ICLQ, 38 (1989), pp 277–98.
4 Thus Nauru, which became an independent state in 1968, has a population of 8,042 (1983 census) and a territory of 5,263 acres. See § 102 (as to the Vatican City), § 77, n 3 (as to Liechtenstein), § 83, n 2 (as to Andorra), and § 81, n 1 (as to Monaco and San Marino). But a small artificial island is inadequate: Re Duchy of Sealand (1978),ILR, 80, p 683.
On the various problems associated with the admission of very small states to the UN, see Blair, The Ministate Dilemma (1967); Rapoport, AS Proceedings (1968), pp 155–63; Fisher, ibid, pp 164–70; Chappez, AFDI, 17 (1971), pp 541–51; van de Steen, Rev Belge, 7 (1971), 578–618; Rapoport et al, Small States and Territories: Status and Problems (1971); St Girons, RG, 76 (1972), pp 445–74; Mendelson, ICLQ, 21 (1972), pp 609–30; Schwebel, AJ, 67 (1973), pp 108–16; Gunter, AJ, 68 (1974), pp 496–501, and AJ, 71 (1977), pp 110–24; de Smith in International Organisation: Law in Movement (eds Fawcett and Higgins, 1974), pp 64–76; Adam, Ital YBIL, 2 (1976), pp 80–101. In 1969 the Security Council considered the mini-state problem and established a Committee of Experts to study the matter. It was unable to agree upon any recommendations, and submitted only an interim report: UN Doc S/9836 (1970). See UNYB (1969), pp 260–2, and (1970), pp 300–1; Gunter, AJ, 71 (1977), pp 110–24.
As to the participation of small states in the international community generally see also Vellas, RG, 58 (1954); Fleiner, Die Kleinstaaten in den Staatenverbindungen des zwanzigsten Jahrhunderts (1966); Ehrhardt, Der Begriff des Mikrostaats im Völkerrecht und in der internationales Ordnung (1970); Mendelson, ICLQ, 21 (1972), pp 609–30.
5 In its Advisory Opinion in the Western Sahara case, the ICJ said that ‘no rule of international law, in the view of the Court, requires the structure of a State to follow any particular pattern, as is evident from the diversity of the forms of State found in the world today’: ICJ Rep (1975), pp 43–4.
6 See n 2.
7 In the Sambiaggio claim the Umpire rejected the proposition that Venezuela, because it had been subject to frequent revolutions, was in some respects a lesser form of state to which the normal rules of international law should not apply: (1903), RIAA, 10, pp 499, 523–4. See also § 40, n 2.
8 Note the distinction between sovereignty, and ties of allegiance or personal influence: Western Sahara Case, ICJ Rep (1975), p 53. As to the concept of ‘autonomy’ see Hannum and Lillich, AJ, 74 (1980), pp 858–89; Dinstein (ed), Models of Autonomy (1980); Hannum, Autonomy, Sovereignty and Self-Determination (1990); and see § 84, n 2.
The absence of their own sovereign governments will normally prevent territories under trusteeship from being states for purposes of international law generally, although for certain purposes, especially in municipal law, they may sometimes be treated as such (see eg Morgan Guaranty Trust Co v Republic of Palau, AJ, 81 (1987), p 220). See generally § 89ff.
9 ‘Toute nation qui se gouverne elle-même, sous quelque forme que ce soit, sans dépendance d’aucun étranger, est un État souverain’: Vattel, Bk 1, ch 1, § 4. ‘Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State’: per Huber, Island of Palmas Arbitration (1928), RIAA, 2, pp 829, 838. See also §§ 117, 118. The undertaking of obligations under a treaty does not necessarily involve any abandonment of sovereignty, even though it may place restrictions on the exercise by a state of its sovereign rights: see North Atlantic Coast Fisheries Case (1910), RIAA, 11, pp 167, 188; The Wimbledon (1923), PCIJ, Series A, No 1, at p 25. See also § 121, n 10. The PCIJ’s Advisory Opinion in the Austro-German Customs Union Case (1931), Series A/B, No 41, suggests that treaty obligations will amount to a surrender of sovereignty if they are such as to cause a state to lose its independence or modify it by subordinating its will to that of another state or replacing its will by that of the other state: see also § 118, n 2. See also § 40, and § 120 as to restrictions upon independence. See § 7, n 27, § 19, sect (3), and § 37, n 6, as to the limitation of sovereign powers involved in membership of the European Communities.
For a state to agree to discuss with another state certain aspects of its government of part of its territory does not affect its legal independence: see eg the UK-Ireland Agreement of 15 November 1985 relating to Northern Ireland (TS No 62 (1985)), O’Connor, AFDI, 31 (1985), pp 191–203, and Ex parte Molyneaux  1 WLR 331.
The fact that a state’s constitution is embodied in legislation of another state and can only be amended by further legislation by the latter, need not prevent the state being accepted as such if in all matters of substance it has in practice independent control of its affairs. This was the situation as regards Canada, until the enactment of the Canada Act 1982 by the Parliament of the UK. On the patriation of the Canadian Constitution see UKMIL, BY, 53 (1982), pp 348–9; Bruha, ZöV, 43 (1983), pp 585–618; Hood Phillips, ICLQ, 31 (1982), pp 845–8; and see § 22, n 7. Similarly, certain rights of the UK in relation to the government of the states of Australia were only brought to an end by the Australia Act 1986: see Watts, ICLQ, 36 (1987), pp 132–9.
The constitutions of states which were formerly colonies or other forms of dependent territories of another state will often have been enacted by a legislative instrument of the former parent state. Attempts after the attainment of independence to challenge such constitutions in the courts of the former parent state are unlikely to succeed. See Buck v Attorney-General  1 Ch 753 and 765.
10 For consideration of particular features see below, §§ 40 and 45 (recognition of states and governments), §§ 57–8, (continuity of states), and §§ 81–3 (states under protection). See also vol II of this work (7th ed), § 166–72b, as to military occupation.
1 The literature upon sovereignty is extensive. The following authors give a survey of the opinions of the different writers: Hobhouse, Metaphysical Theory of the State (1918); Laski, Studies in the Problem of Sovereignty (1917), Foundations of Sovereignty (1921), A Grammar of Politics (1925), pp 44–88, and The State in Theory and Practice (1935); MacIver, The Modern State (1926), pp 165–290; Heller, Souveränität (1927); Mattern, Concepts of State Sovereignty and International Law (1928); Musacchia, La sovranità e il diritto internazionale (1938); J W Jones, Historical Introduction to the Theory of Law (1940), pp 79–97; Lindsay, The Modern Democratic State (1943), pp 212–28; Friedmann, Legal Theory (1944), pp 138–143, 386–98; van Kleffens, Hag R, 82 (1953), i, pp 1–130; Sauer, Souveränität und Solidarität (1954); McNair in Symbolae Verzijl (1958); Korowicz, Hag R, 102 (1961), i, pp 5–113; Waldock, Hag R, 106 (1962), ii, pp 156–72; Kelsen in Strupp-Schlochauer, Wört (vol III, 1962), p 278ff; Larson and Jenks, Sovereignty within the Law (1965); Salcedo, Soberaniá del estado y derecho internacional (2nd ed, 1976); Hinsley, Sovereignty (2nd ed, 1986), especially pp 158–213; Wildhaber in The Structure and Process of International Law (eds MacDonald and Johnston, 1983), pp 425–52; Anand, Confrontation or Cooperation? International Law and the Developing Countries (1984), pp 72–102. See also works cited in the bibliography to this section, p 119.
Before Bodin, at the end of the Middle Ages, the word souverain was used in France for an authority, political or other, which had no other authority above itself. Thus the highest courts were called Cours Souveraines. Souverain is derived from the late Latin superanus: see further van Kleffens, Hag R, 82 (1953), i, pp 8–12.
For a fuller account of the historical development of the concept of sovereignty, see 8th ed of this vol, §§ 67–9.
2 Thus the indivisibility of sovereignty was defended by Rousseau, Le Contrat social (1762), and Calhoun, A Disquisition on Government (1851).
3 On the divisibility of sovereignty with regard to territory see § 170.
1 See § 107.
2 See § 117.
4 See § 7.
5 Article 14 of the Draft Declaration on Rights and Duties of States, adopted by the ILC in 1949, provides that ‘Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law’: YBILC (1949), pp 286–90. See Fitzmaurice, Annuaire: Livre du Centenaire (1973), pp 249–50. See also §§ 118, 121, 132, as to the concept of ‘domestic jurisdiction’, which in many respects represents the area where the state is truly sovereign.
As to the emphasis sometimes placed by newly independent states on their new-found sovereignty, see p 15.
Earlier editions of this volume reflected the contemporary tendency to suppose that the further development of international law must be conditioned by what was called ‘a surrender of sovereignty’. For writings of this nature, see 8th ed of this vol, p 123, n 5.
6 Eg Art 24(1) of the Basic Law of the Federal Republic of Germany; Art 92 of the Constitution of the Netherlands; Art 11 of the Italian Constitution; Art 20 of the Danish Constitution; Art 25bis of the Belgian Constitution; Art 49bis of the Luxembourg Constitution; Art 93 of the Norwegian Constitution (on which see Hambro, Recueil d’études de droit international en hommage à Paul Guggenheim (1968), pp 557–72; Art 28(2) and (3) of the Greek Constitution. For comment on some of these constitutional provisions see the literature cited in § 19 in respect of the countries concerned.
7 See § 19, n 85ff.