Extract
Subjects of international law: a power-based analysis.
ABSTRACT
In this Article, the Author challenges the definition of the term "state" that is commonly accepted in legal scholarship as the basis for assessing whether an entity is a subject of international law. By analyzing a number of cases that do not fit into the "traditional" model--including the Holy See, Napoleon, and the Confederacy--the Author reaches the conclusion that the only essential element of a subject of international law is its sovereignty. An entity is sovereign when it is able effectively to assert that it is not subordinate to another authority: territory and population are therefore not essential attributes of international personality. The Author also explores the close relationship between the status of an entity as a subject of international law and international responsibility. The conclusions and analytical approaches employed in the Article are applicable to the study of entities long considered "lesser" subjects than states, such as intergovernmental organizations, insurgents, or belligerents, and even to the analysis of contemporary terrorist networks such as al-Qaeda. TABLE OF CONTENTS I. INTRODUCTION II. STATE ACTORS? A. Attempting to Define "State". B. Recognition C. Atypical Quasi-State Actors? 1. The Holy See 2. The Boers 3. Czechoslovakia 4. Spain and Turkey 5. The Confederate States of America 6. China and Taiwan 7. Napoleon III. POWERS AS SUBJECTS OF INTERNATIONAL LAW A. Subjects superiorem non recognoscentes B. Intergovernmental Organizations and Other Subjects C. Is There a Real Difference in the Treatment of State and Non-State Actors? D. Effective Authority IV. SHIFTING THE FOCUS TO RESPONSIBILITY V. CONCLUSIONS Non sunt multiplicanda entia praeter necessitatem. Ockham's Razor I. INTRODUCTION The idea that states are the primary subjects of international law stems from the fact that they appear to constitute the most complete type of subject, having a more or less stable authority over a generally well-defined territory and population. Arguably, this cannot be said for entities such as international organizations, which generally lack a territorial basis, or of belligerents, which are not deemed to possess the quality of a stable authority. This Article aims to challenge the idea that since states are the primary subjects of international law, (1) they are qualitatively different from other subjects of international law. If proved, this proposition would entail that non-state actors have, in principle, the same rights and obligations as states under customary international law. (2) The fundamental consequence would be the need to rethink the way in which the international community regards non-state actors. Part II of this Article first addresses the most common definition of "state" under international law. It also identifies a number of borderline cases in which subjects of international law not falling within that definition raise interesting questions as to the propriety of using this definition in deciding whether a certain entity is a subject of international law. These cases, although admittedly few, are assumed to be representative of a larger number of similar instances. Although these instances vary greatly in nature, they all point to the same conclusion. Also, they are gathered from different time periods, because the assumption is that the fundamental rules of international law relating to the personality and identity of subjects have not changed during the past centuries. Part III of this Article then proposes a more general definition of subjects of international law, a definition capable of easing the incongruities raised by the examples discussed in Part II. In particular, it suggests that for an entity to be considered a subject of international law, the entity must be able to assert effectively that it is not subordinate to another authority; in other words, it must have the ability not to recognize any entity as a superior. Such a status--defined as sovereignty (3)--is established through the analysis of that entity's powers within the entity itself and, under certain circumstances, of its relations with other subjects of international law. Part IV of the Article explores the real basis for this definition and puts forward the view that a close link exists between theories of personality under international law, on the one hand, and international responsibility, on the other. Finally, the conclusions in Part V address the potential significance of the application of the findings presented in the previous parts to cases that do not apparently harmonize with the traditional view of international subjects. II. STATE ACTORS? A. Attempting to Define "State" The Restatement (Third) of Foreign Relations explains: "Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations wit...See the full content of this document
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