Multinational Corporations (MNCs)
purposes, between the organization and its
Who is a subject of Int’l Law?
-an entity capable of possessing international
rights and duties and having capacity to protect
its rights by bringing international claims.
-may still assume certain characteristics of int’l
personality but in a special or restricted context
such as that defined by agreement, recognition,
or acquiescence.
-such legal personality applies only to those
involved in the act of agreement, recognition, or
acquiescence.
GENERAL OR OBJECTIVE INT’L
PERSONALITY
- rights and obligations are conferred by general
int’l law and such personality is binding erga
omnes.
PARTICULAR OR SUBJECTIVE INT’L
PERSONALITY
-personality binds only those which give consent
(express or tacit)
-subjects are states and non-states actors
(individuals, int’l organizations, multinational
companies)
DETERMINING IF AN ENTITY IS A
SUBJECT OF INT’L LAW
-has int’l legal personality (must have rights,
powers and duties under int’l law and able to
exercise such)
Traditional View: sovereign States- only subject
of Int’l Law
-rights, powers and duties of different subjects
change accdg to their status and functions.
INTERNATIONAL ORGANIZATIONS
-their status is determined by their constituent
instrument (charter) or by the agreement and
not by general or customary int’l law.
-their personality is derived of the collective will
of the states creating it.
CRITERIA:
*a permanent association of states, with lawful
objects, equipped with organs
* a distinction, in terms of legal powers and
member states
*the existence of legal powers exercisable on
the international plane and not solely within the
national system of one or more state.
LEGAL PERSONALITY
-includes the capacity to enforce one’s own
rights and to compel other subjects to perform
their duties under int’l law.
(1) Bring claims before int’l and national
courts and tribunals to enforce their
rights
(2) Have the ability or power to come into
agreements that are binding underint’l
law
(3) Enjoy immunity from the jurisdiction of
foreign courts
(4) Be subject to obligations under int’l law
-however, not all subjects of int’l law have
the same rights, duties and capacities
-A state can bring a claim against another
state before the ICJ to enforce its rights, an
individual on his own cannot bring a claim
against a State before the ICJ
-States have all the capacities and individuals
have few.
TRADITIONAL SUBJECTS OF INT’L LAW
-individuals are the primary subjects of law in
the national systems
-int’l plane: States
-states and insurgents have been the only
subjects of int’l law
States
-world is organized on the basis of co-
existence of states
-states are the repositories legitimated
authority over peoples and territories
-only in terms of state powers, prerogatives,
jurisdictional limits and law-making
capabilities that territorial limits and
jurisdiction, responsibility for official
Insurgents
-struggle against he state to which they
belong
-destabilizing factor, States are reluctant to
accept them or take them into account,
unless they can show some of the attributes
of sovereignty
-acquire power through force; existence is by
definition provisional: they either prevail and
turn into fully fledged States, or are defeated
and disappear.
MODERN SUBJECTS OF INT’L LAW
-after WWII, several new subjects of Int’l law
have emerged, int’l organizations, national
liberation movements and individuals
-they lack permanent and stable authority
over a territory’ unlike States, all other int’l
subjects have limited legal capacity, they do
not have a full spectrum of rights and
obligations, which also means a limited legal
capacity to act, such as to enforce their
rights.
CREATION OF STATES: CUSTOMARY
RULES
(1)Central structure capable of exercising
effective control over the human population
living in a given territory
(2)Independent territory, with a population
that owes no allegiance to other outside
authorities or governments
CONDITIONS FOR STATEHOOD
-have defined territory
-a permanent population
-an effective government
-capacity to enter into relations with other
states
MONTEVIDEO CONVENTION
-ART1: THE STATE AS A PERSON OF INT’L
LAW SHOULD POSSESS THE FF
QUALIFICATIONS:
-have defined territory
-a permanent population
-an effective government
-capacity to enter into relations with other
states
-OTHER FACTORS: self-determination,
recognition
-RELEVANT FRAMEWORK: TERRITORIAL
EFFECTIVENESS
defined territory
-focuses upon requirement for a particular
territorial base upon which to operate.
permanent population
-existence is naturally required and there is
no specification of a minimum number of
inhabitants
effective government
-emphasis: control exercises over relevant
territory
-degree of control: varies depending on how
a state came to existence.
capacity to enter into relations with
other states
-essence: independence- a formal statement
that the state is subject to no other
sovereignty
--
RECOGNITION
-act by which another state acknowledges
that the political entity recognized possesses
the attributes of statehood
COMPETITING THEORIES:
(1) DECLARATORY THEORY
-An entity is a state once the conditions
of statehood are met regardless of the
attitude of other states towards new
entity.
(2) CONSTITUTIVE THEORY
- only when other states decide that the
fundamental conditions are met and
consequently acknowledge the legal capacity
of the new state, is the new state actually
created.
EFFECTS OF RECOGNITION
*POLITICALLY IMPORTANT
-testifies to the will of recognizing states to
undertake int’l dealings with the new state
*LEGALLY RELEVANT
-shows that recognizing states consider the
conditions of statehood met
-creates estoppels: prevent the recognizing
party from later contesting or denying the
legal personality of the new state.
PREMATURE RECOGNITION
-when conditions for statehood are not met,
it has legal relevance in that it may amount
to unlawful interference with the internal
affairs of a state
DISSOLUTION OF THE USSR
-modern int’l law: states made their
recognition of another state contingent on
add’l requirements relating to modern notions
of human rights and democracy.
 Rights and obligations of the former state
transferred to the other int’l subject that has
replaced the old state is regulated by customary
rules:

A. RULES REGARDING THE SUCCESSION

TO TREATIES (VIENNA CONVENTION
1978)

(1) LOCALIZED TREATIES

-impose rights and obligations with
respect to specific territories
-not affected by mere fact of succession
(attach to the new entity)
-Some states withhold recognition for
reasons of: (2) NON-LOCALIZED TREATIES
-lack of political or ideological affinity -deals differently depending whether
-economic interests they concern a newly independent state
-Consequence being the inability of the or other states
aspiring state and the non-recognizing state
to enter into int’l dealings Newly independent state: the clean slate
principle applies (the successor state is
not bound by the treaties in force for
-the new entity is not totally devoid of legal the territory at the date of succession)—
personality towards the non-recognizing state anti colonialist approach
and general int’l rules will still apply
For other states: principle of continuity-
treaties binding on the predecessor
state are also binding on the successor
state
HUMAN RIGHTS TREATIES: GR: evolved with
respect to successor states is that they must
respect them
-individuals should continue to be protected
even after a change in sovereignty over a
particular territory.

B. RULES REGARDING PROPERTY VIENNA

CONVENTION 1983)

-property is defined by national law at

the time of succession
Art 8: once assets are declared to be
CONTINUITY AND TERMINATION OF THE public, assets will belong to the state on
EXISTENCE OF STATES whose territory the assets are located.
Same with state archives

-revolutionary or extra-constitutional changes in -public debts: Art 40: unless

the government do not have a bearing on the
identity of a state .
-states are bound by int’l acts performed by
previous government.
-changes in the territory of a state may affect its
legal personality.
-state’s merger with another state
-Incorporation by one state of another
with the latter becoming extinct
otherwise agreed, state debt of the
predecessor State passes to the
successor state in an equitable
proportion
MEMBERSHIP IN INT’L
ORGANIZATIONS
Merger: no admission to UN required
(State that merged is automatically a
member of UN if the state it merged into is
also a member)
Break-up: all resulting states must apply,
unless a state can claim to be continuation
of the old state.
Succession: must apply for membership

RECOGNITION OF GOVERNMENTS

New gov’t through normal,

constitutional processes within a state:
no questions regarding the recognition of
that gov’t
-New gov’t is entitled to all the rights and
obligations under int’l law

Entity comes to power through non-

constitutional means: it is not
automatically accorded such rights and
obligations

-the key issue for a state when deciding to

recognize a new govt is whether the new
gov’t is in effective control of its state (de
facto control test)- degree to which the
gov’t controls the people within a state.
-sometimes, in determining whether to
recognize a new gov’t, some states have
taken into account whether the new gov’t is
willing to honor the int’l obligations of the
predecessor.
-state have to refrained from recognizing a
new gov’t if it has come to power through
aggression.
- another factors that has played a role has
been the political nature of the new gov’t

ESTRADA DOCTRINE
-states should not seek to influence the
outcome of an internal power struggle by
granting or withholding recognition
- invoked when states find it politically
difficult to publicly announce whether they
recognize a new gov’t