Subjects of international law: a power-based analysis.

• Author: Acquaviva, Guido

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

1. 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.

2. STATE ACTORS?

   1. 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 with other such entities." (4) This definition is fundamentally consistent with the one contained in the Montevideo Convention on the Rights and Duties of States, which provides that "[t]he State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States" (5) and is referred to by scholars, especially in the United States, as indicative of customary international law. (6) The aforementioned elements are often defined "requirements" or "essential conditions" for an entity to be regarded as a state under international law. (7)

      This definition is not satisfactory. First, part of the definition requires that the entities with which a state engages in formal relations be states themselves. But because they can only be states if they are able to have relations with other such entities, a vicious circle seems unavoidable. It seems difficult to characterize the capacity to engage in formal relations as an essential element, if only because this would entail the need to pre-define whether the other entities are already states.

      The Comment to the Restatement further cautions that, although the definition is generally accepted, "each of its elements may present significant problems in unusual situations." (8) If a definition is generally accepted, but each of its elements is put into doubt in borderline situations, the solution would be to look for a better definition, not to try to force unusual situations to conform to the legal definition. (9) Uncommon situations test the veracity and reliability of the definition itself, at least if the definition is to serve any practical purpose. (10)

      Also, the definition does not place enough emphasis on the element of "external" sovereignty. The expression "under the control of its own government" in the Restatement may admittedly refer to this requirement, but it is insufficient to identify properly this feature. In fact, federated states may be said to rule a defined territory and population, and some of them are allowed to enter into relations with other subjects--in certain cases even with other subjects of international law. They are not, however, states within the meaning of international law. In the case of federated states, it is their lack of independence with regard to the federal state that prevents them from being considered subjects of international law. This is the case, for example, for the states and territories of the United States, (11) or the republics making up the former Soviet Union until 1991. The latter is especially interesting because, notwithstanding the fact that Byelorussia (now Belarus) and the Ukraine were among the founding members of the United Nations--an organization that is open only to "states" pursuant to a joint reading of articles 3 and 4 of its Charter--none of the republics constituting the U.S.S.R. was a state within the meaning of international law. (12)

      It is therefore difficult to accept the Restatement's definition of a "state" under international law. But it will be assumed that this definition describes what a state in the sense of international law looks like. Throughout this Article, this description of the state will be identified as the "traditional" way to address the problem of statehood in international law--this being the view widely held in the past decades, especially among U.S. scholars.

   2. Recognition

      Before introducing the cases, a short explanation of the phenomenon of recognition is also necessary. "Recognition of governments" denotes the act through which it becomes apparent that a subject of international law is willing to enter into certain relations with another authority. (13) Many states today assert that they do not intend explicitly to recognize governments. (14) "Recognition of states" is the act through which a subject of international law indicates its willingness to enter into inter-state relations with another subject of international law and thus is evidence--but not proof--that the latter has acquired international personality. (15) Recognition may be explicit--through an official statement issued by the recognizing authority--or, more often, implicit--through some other act presupposing recognition that the other entity is a subject of international law. (16)

      There are two fundamental reasons why recognition may not establish the international personality of states and other subjects. First, the principle of the sovereign equality of the subjects of international law would be infringed by the possibility that one or more subjects could deny the existence of another subject by refusing to recognize it.

      Second, it is illogical--and ultimately impractical--to allow an entity to be considered a subject of international law by some subjects but not by others. Since, for example, it is common that a newly created state is not immediately recognized as a state by the...