State Personality in International Law

International legal personality is not regulated by a general norm and therefore carries a controversial quality. Its determination must be made in light of theory and practice.

Two fundamental criteria have been established for international legal personality:

1. The capacity to possess rights and obligations arising from international law.

2. The ability to directly protect and defend rights arising from international law at the international level. (The existence of a judicial body is not a condition requirement.)

Some jurists argue that international legal personality can be acquired only through recognition. According to this view, a state or organization cannot possess rights of legal personality until recognized by other states. Another opinion contends that personality is not acquired through recognition but automatically under the general rules of international law. This approach accepts that even unrecognized states may be subject to international law. Some authors argue that international legal personality is not a monolithic concept and must be evaluated in different categories. This perspective is particularly applicable to individuals and international organizations.

History

International legal personality is a concept that evolved from a state-centered structure within historical process to encompass a broader range of actors. In ancient Era, treaties between ancient Egyptian Mesopotamian and Roman like civilizations formed the foundation of international relations, while during the Middle Ages this development remained limited under the influence of feudal order and religious authorities. The 1648 Peace of Westphalia solidified the concept of the sovereign state and laid the theoretical foundations of international law through the contributions of thinkers such as Hugo Grotius. In the 19th century, efforts to preserve the interstate order increased following the Congress of Vienna, and the 1864 Geneva Convention established the first international regulations concerning war law. The two world wars of the 20th century led to the emergence of international organizations alongside states on the global stage, and the United Nations established in 1945 institutionalized global legal system. Instruments such as the Universal Declaration of Human Rights and the Europe Human Rights Convention demonstrated that individuals could also participate in international legal processes, while institutions such as the International Penalty Court enabled individuals to be directly adjudicated. Today international law has transformed into a broad structure encompassing not only states but also international organizations individuals multinational corporations and civil society organizations.

Subjects of International Law

Regulatory subjects: States and international intergovernmental organizations.

Objects: Individuals are subjects of international law but not regulatory ones. Individuals cannot directly create international norms but are recognized as subjects of international law by virtue of their existence.

STATES

Types of State Recognition

De Jure Recognition (Legal Recognition): Refers to the formal recognition of a state or government within the full scope of rights and consequences under international law.

For example: Kosovo is recognized de jure by more than 100 country. These countries formally acknowledge Kosovo’s independence and sovereignty. USA the United Kingdom and other France countries have recognized Kosovo de jure and formally accepted its independence.

De Facto Recognition (Factual Recognition): Refers to situations where a state or government is acknowledged as existing in practice but not fully recognized under international law. This form of recognition is temporary and limited in nature.

Example: Kosovo is recognized de facto by some countries. These countries acknowledge Kosovo’s factual existence while maintaining reservations regarding its legal recognition. For instance Serbia does not recognize Kosovo’s independence but accepts its de facto situation.

1933 Montevideo Convention and the Elements of a State

The 1933 Montevideo Convention defines the elements of a state and is currently accepted as part of custom law. The convention has 16 parties but was signed by a total of 19 states including Brazil Peru and the United States which signed with reservations.

"A state as a person of international law should possess the following qualifications:

1. A permanent population,
2. A defined territory,
3. A government,
4. The capacity to enter into relations with other states." (Article 1 of the 1933 Montevideo Convention)

These four elements are accepted as the fundamental criteria for a state to be recognized under international law. The presence of these elements ensures that a state is recognized as an international legal person. Article 1 of the Montevideo Convention is frequently cited in international law because it establishes objective criteria for statehood. However its application in practice may give rise to certain controversies particularly when political factors influence recognition processes.

Although the Convention does not explicitly define the concept of 'active government' it is generally accepted in international law that a functional governmental structure is necessary for statehood. Moreover according to the Montevideo Convention recognition is not one of the constitutive elements of statehood. The concept of state referred to here is based on the modern understanding of the international state following the 1648 Peace of Westphalia.

1. Presence of a Permanent Population

International law does not specify a minimum or maximum population for a state. Nor does it set criteria regarding population density such as number of persons per square kilometer. For example Sealand with a population of only 27 people and an area of 550 square meters and the Vatican with a population of approximately 500 located within the city of Rome Italy can be cited as examples.

However international law does not directly intervene in the nature of a state’s population whether settled or nomadic. For instance Turkey’s granting of Germany to migration does not affect Turkey’s status as a state because migration movements occurring after recognition do not terminate its existence or eliminate its criteria for statehood.

2. Presence of a Defined Territory

According to established views in both domestic and international law a state’s territory consists of land territorial waters and airspace. A state’s land territory includes its mainland and any islands if present. The inclusion of islands within the land territory stems from their classification under international law as 'naturally formed land areas'. Moreover the land territory includes lakes rivers and other inland waters within it. A state’s land territory extends not only to the surface but also below ground. The land territory constitutes the fundamental element of a state; without it possession of maritime and airspace is impossible. Indeed the International Justice Court in its judgment of 18 December 1951 in the United Kingdom-Norway Fisheries Case emphasized the close dependency of maritime boundaries on the land territory. The element that defines the coastal state’s boundary is its land territory.

Having a defined soil territory is a fundamental requirement for statehood. However this element may encounter exceptional circumstances and challenges. Environmental changes and political developments can cause states to face various difficulties regarding territorial integrity. For example rising sea levels place countries such as Netherlands under significant risk. Although the Netherlands has constructed extensive dam systems to prevent rising water levels in its coastal regions these situation may threaten the country’s land territory in the future.

Moreover a state may consist entirely of islands. For example Indonesia is the world’s largest archipelagic state. Japan is another example of a state composed entirely of islands. This does not contradict the principle of possessing a defined territory which is one of the fundamental conditions of statehood. There is no minimum or maximum limit regarding the size of territory. A state such as the Vatican with a very small area is recognized as a sovereign state under international law while Russia is the world’s largest state by area. Similarly Monaco is very small in terms of area but remains a sovereign state.

Some states are completely surrounded by another state without any land connection. San Marino is entirely enclosed by Italy while Lesotho is entirely surrounded by the Republic of South Africa. This does not affect their status as sovereign states. Border disputes do not directly terminate a state’s existence but may affect its international recognition and diplomatic relations. For instance the ongoing border disputes between the Turkish Republic of Northern Cyprus Turkish and the Republic of Cyprus have been a limiting factor in the international recognition of the TRNC.

States may unite through various means to form a single political building. For example modern Germany emerged from the unification of East and West. However this unification occurred not as the creation of a new state but as the accession of East Germany to West Germany. Some states can maintain their existence without direct land connection to their main territory. For example Alaska is a state of the United States but does not have direct land connectivity with the continental United States; however it shares a border with Canada. Such situations do not violate the criteria for statehood. Nevertheless artificial structures or platforms built on the sea cannot acquire state status. For instance Sealand which declared itself an independent state is not recognized as a sovereign state under international law because it fails to meet the four fundamental criteria of the Montevideo Convention particularly those concerning an 'effective government' and 'capacity to enter into relations with other states'.

International law recognizes changes in state boundaries only if they occur through peaceful means. However annexations carried out by the use of force are not accepted as lawful and are declared invalid by the international community. One of the most important examples is Iraq’s attempt in 1990 to annex Kuwait by force. This act was condemned by the United Nations and in 1991 Iraqi forces were expelled from Kuwait following international military intervention.

3. Effective Government

The existence of an organized public authority is one of the fundamental elements of an independent political administration. As noted in the Advisory Opinion of the International Court of Justice of 16 October 1975 on Western Desert prior to Spanish colonization the indigenous communities in the region had begun to develop military political and social organization but did not possess the status of a state or any other international entity under international law. However for a community to attain statehood this organization must reach a level enabling self-governance.

In this context the Advisory Opinion of the International Court of Justice of 11 July 1950 on the Status of South-West Africa revealed that the greatest obstacle preventing communities under the League of Nations mandate system from becoming states was their lack of full capacity for self-government. Divan also emphasized in the same opinion that the mandatory powers under the mandate system were assigned the responsibility of international administration.

An effective government refers to an administrative structure capable of ensuring the functioning of the state. International law does not intervene in the form or nature of government. That is it does not object to whether the government is dictatorial or any other authoritarian form. An effective government must have an administrative mechanism capable of exercising control over a substantial portion of the country. This demonstrates that international law does not interfere in the nature or structure of governance.

Two important principles should be considered in the definition of a state:

1. Uti Possidetis Juris

(Principle of preserving existing boundaries) – States that hold sovereignty must recognize existing boundaries. It was first applied in Latin America and later in Africa during the decolonization process. Subsequently it has been applied beyond decolonization contexts. An example is the International Court of Justice’s ruling on the Burkina Faso-Mali boundary dispute. This principle has also been applied in non-colonial areas such as when Yugoslavia dissolved. Thus it has also been applied in Europe where it has established a stable legal frame for preserving state territorial integrity.

2. Self-determination

(Right to self-determination) – Refers to the right of peoples to freely choose their political status. The principle of self-determination is protected by the United Nations and international treaties ensuring the right of peoples to determine their own future. However this principle may sometimes conflict with principles such as national sovereignty and territorial integrity among states.

4. Capacity to Enter into Relations with Other States

This criterion refers to a state’s ability to play an active role in international relations. A state must have the capacity to perform international functions such as diplomatic relations international agreements treaty-making declaring war or concluding peace. This is an indication of a state’s independence and sovereignty. At the same time a state must demonstrate its sovereignty by establishing external relations with other states.