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Sample translations submitted: 1
English to Mongolian: International law General field: Law/Patents Detailed field: Law (general)
Source text - English 4 The subjects of international law
Introduction
The laws of China, as commonly understood, apply to all persons and legal entities in China; it is often said that these form the subjects of Chinese law. By the same token, the question arises of to whom, or to which entities, international law applies. What, in other words, are the subjects of international law? This is a topic of great controversy, partly because of the relevance of subjects doctrine. Rights and obligations must apply to someone; hence, it is through subjects doctrine that these rights and obligations under international law are allocated.
The main subjects of international law are states, and for centuries states were held to be the only subjects of international law, save perhaps for a few oddities (the Holy See, the Maltese Order) which would be considered subjects for historic reasons and, it seems, because states generally treated them as subjects. This focus on states still applies, and makes for difficult discussions on the legal standing of other entities. It is now generally recognized that entities such as intergovernmental organizations (the UN, the EU, the IMF or the WTO) are to be regarded as subjects of international law – and this was ultimately confirmed by the ICJ in the 1949 Reparation opinion, holding that the UN had to be considered as such. Yet, this was not always the case; early observers were at pains to come to terms with the status of the League of Nations, with some treating the League as an oddity similar to the Holy See.
The global legal order, by now, clearly counts states and international organizations among its subjects, but the question arises of whether other entities are so recognized as well. This is a tricky question, as international law has no formal criteria for admission to ‘subject status’ or, what in practice amounts to much the same, for international legal personality. As we shall see, even with states themselves, the picture is not entirely clear; it is not always clear when and how states come into existence, for the purposes of international law.
As a practical checklist, one may ask oneself whether an entity enjoys direct rights or obligations under international law. If so, it is probably safe to say it ranks as a subject of international law, at least to the extent (and here some circularity sets in) of those same rights or obligations. From this perspective, there is little doubt that individuals are usually seen as subjects of international law (and not as mere objects for international legal regulation), as individuals may enjoy rights directly under international law, in particular in the form of human rights standards, but also under international humanitarian law (the law applicable on and around the battlefield) or under refugee law. It is also increasingly recognized that individuals may owe obligations directly under international law; the
emergence of international criminal law in particular suggests as much. The position of the individual in international law will be discussed in more detail in Chapter 6 below.
But individuals do not always act alone; they also tend to organize themselves in all sorts of political, social or economic groups. Oppressed individuals within a state may come to form a national liberation movement; historically, the Palestine Liberation Organization (PLO) is among the best known. Individuals who share an ethnic or linguistic background may come to be seen – or regard themselves – as minorities, national minorities or as a people or indigenous people. Individuals may band together and form companies; if successful, these companies may operate globally, as is the case with Microsoft or Shell. And individuals may be driven by ideals and band together to rally for a political cause: to promote environmental protection, for instance, or to draw attention to human rights abuses. In those cases, they may form a so-called NGO, with leading examples including Greenpeace and Amnesty International.
All of these clearly play a role in global politics, as the chapter on law-making above has already indicated; one cannot meaningfully think about global affairs without acknowledging the important role played by Amnesty International when it comes to human rights, or think about Iraq without acknowledging the position of the Kurds or think about the global economy without thinking of Microsoft or Shell.5 Yet none of these is unequivocally accepted as a subject of international law. Instead, the very category has become something of a political aspiration, and that should not come as a surprise, for recognition as a subject of international law, or recognition of a group's legal personality, amounts to a certain degree of acceptance of its goals. It is for this reason also that states are very reluctant to recognize that terrorist groups such as Al Qaeda be seen as subjects of the law; being accepted as a subject implies recognition of political legitimacy, for that is precisely what recognition is about. As this passage illustrates, it is well-nigh impossible to discuss subject status without referring to recognition; below we will see that this applies even to the status of states.
For the moment suffice it to say that the checklist test (does an entity possess rights or obligations under international law?) may still be as good as it gets. Following this test, it would seem that minorities can be regarded as subjects, for they have at least the right to be free from discrimination. By the same token peoples are subjects to the extent that they enjoy a right to self-determination; companies are subjects in that their investments tend to be protected under international law and NGOs are increasingly recognized as having a right to speak at international conferences, bring matters to the attention of international tribunals (often, but not exclusively, as a so-called friend of the court, amicus curiae) or even, more broadly, having a right to participate in the making of international law.
An important corollary is that the status of legal subject may be very limited, and that the very exercise of a legal right may constitute subject status while simultaneously being evidence of it. A good example resides in agreements concluded to stop civil conflict or to set up some peace enforcement mechanism. Such an agreement may have to include local warring groups that, normally, will not have any status under international law. Yet, without them, the agreement is
pointless; as a political matter, their participation is needed.
States
States are the main subjects of international law and are generally considered to be sovereign, implying that they need not accept any authority from above or from anyone else unless they choose to do so. Importantly though, sovereignty is not a natural concept, but is, instead, socially constructed. Moreover, sovereignty itself does not signify very much; it does not, in and of itself, give rise to rights or obligations.
States are, in their generally recognized form of today, a relatively recent phenomenon. In the middle ages and after, the dominant form of political organization was the city state, and a little later independent leagues such as the Hansa (a group of trading cities located predominantly around the Baltic Sea) appeared. Yet the state became the dominant form of political organization, largely because it had one big advantage over its competitors; states together could guarantee that their authority would be uninterrupted, whereas the authority of city states, for instance, never covered the countryside surrounding the city. Hence, from a systemic perspective, the state had attractions that its competitors did not.
This is reflected in the criteria that international law posits for statehood. These are often derived from a convention concluded in the 1930s, in Montevideo: the American Convention on Statehood. Article 1 lists four requirements that are often considered to be a good starting point for any discussion of statehood, and often considered as codifying customary international law, even though the circle of parties was limited to the American states, and even though many observers would agree that the Montevideo list is incomplete and outdated. Following the Montevideo Convention, states should have a population, territory, a government and the capacity to enter into relations with other states.
Population
The first requirement listed in the Montevideo Convention is that a state needs to have a population. How the population got there is considered irrelevant, as is the question of how it multiplies itself (this may be of relevance with respect to the Holy See's possible claims to statehood). Likewise, it is considered irrelevant whether the population is large (China, India), or small; even Nauru and Vanuatu, with a few tens of thousands of inhabitants, are considered fully fledged states. The ministates of Europe (Andorra, Monaco, Liechtenstein, San Marino) are also generally considered states; they have all the attributes of statehood, although they sometimes ‘outsource’ some of a state's tasks. Thus, Liechtenstein's defence tasks are handled by Switzerland, but this circumstance alone is not seen to diminish Liechtenstein's statehood, even though it negatively affected Liechtenstein's request to be admitted to the League of Nations in 1920.
Territory
Second, states should have territory; without territory, there can be no state. The idea of a cyberstate then, a state without territory, is difficult to conceive of under the requirements of international law. That is not to say that a territory should be completely fixed; a core territory suffices, even if the boundaries remain disputed – and wisely so, as most states have boundary disputes with their neighbours; this even applies between such peaceful states as the Netherlands and Germany or the Netherlands and Belgium. And some states have boundaries that are so controversial that a requirement of fixed boundaries would be hopelessly unrealistic; Israel may qualify as an example. The only important criterion then is the existence of a core territory; other than that, international law posits no demands on territory, and refrains, for instance, from indicating minimum or maximum sizes. The notion of territory encompasses internal waters and the territorial sea.
Effective government
The criteria of territory and population are, one could say, more or less formal in nature; a state either has them (in whatever quantity) or does not. The two remaining criteria are more substantive, though. Arguably the most important requirement is that in order to qualify for statehood, a state must have an effective government, although the Montevideo Convention itself does not use the adjective ‘effective’. None the less, this follows the logic of arbitrator Huber's opinion in the Island of Palmas arbitration; for Huber, effective government (in this case in connection with title to territory rather than statehood as such) served to allow other states to contact someone if things were going wrong. In other words, if a territory lacks effective government, there is no one to contact or hold responsible should, for instance, one of your citizens get mugged. The underlying idea is that a state can be accepted as such only when it is in a position to guarantee that law and order, in whatever precise form, will be upheld.
That is not to say that international law is very concerned with the precise form of government; as long as law and order can be guaranteed, international law is satisfied. As a logical consequence of the sovereign equality of states, there is no specific form of government prescribed. This is controversial, of course, as it means that nasty dictatorships are treated in the same way as enlightened democracies, and it is no coincidence that on occasion attempts are made to influence the form of government. In the nineteenth century this took the form of making a distinction between civilized and uncivilized states. On this basis the Ottoman Empire and Japan could be kept on the margins of international law. While this appeal to a standard of civilization has largely disappeared, a faint echo can still be heard in article 38 of the ICJ Statute, which accepts ‘general principles of law recognized by civilized nations’ as a source of international law.
More recently, it has been proposed that only liberal democracies be recognized as proper states, sometimes even to the effect of completely excluding non-liberal regimes. This is not without problems though. First, it remains unclear who is to determine whether a regime qualifies as a liberal democracy, and on the basis of what standards. Second, more pragmatically perhaps, some
of the world's major powers might not qualify. Yet, to treat these as second-class subjects is politically awkward. Hence, sometimes a somewhat softer stance is chosen, for instance by suggesting that while the law does not insist on liberal democracy, it nevertheless recognizes an ‘emerging right to democratic governance’.
Capacity to enter into international relations
This was a helpful requirement in the days of colonialism, and the Montevideo Convention, being concluded in the 1930s, could not avoid being a child of its time. The hallmark of colonialism was precisely that while colonized territories may have enjoyed considerable autonomy, they were typically not considered capable of entering into relations with other states without consent from the metropolitan state. Sometimes this basic idea was ignored when politically expedient. Thus, India (a British colony) and the Philippines (a US colony) both enjoyed independent relations prior to independence; India, for instance, was a member of the League of Nations, despite only gaining independence after the League's demise.
Colonialism gave rise to various types of relations between colonizer and colonized, and did so in hugely unreliable terminology. Some territories were nominally independent, but protected by Western powers; such territories would, not untypically, be referred to as protectorates. A lighter form of sovereignty was often described as ‘suzerainty’. Some Western powers had ‘overseas departments’, whereas others would have ‘dominions’. ‘Colony’ would be the generic term, but ‘crown colony’ was not unheard of either. In short, this kind of label often owed much to internal, domestic political or administrative considerations, and did not necessarily say much about the precise legal relationship between colonizer and colonized. The League of Nations added to the confusion by creating mandate territories (administered by Western powers, but subject to the League's authority), a practice that would be continued by the United Nations as trusteeships until the last formally designated trusteeship (Palau, as part of the Pacific Islands) gained independence in 1994.
Nowadays the requirement that a state must have the capacity to enter into international relations is not considered all that relevant, although it provides services with respect to federal states in particular; it makes it clear that while the USA is a state for purposes of international law, its component elements (Texas, Arkansas, Iowa, etc.) are not. Beyond this, Craven has a point when he describes this requirement as ‘a conclusion rather than a starting point’.
Recognition of states (or governments)
The Montevideo Convention not only listed the requirements for statehood but also referred to recognition of statehood, and in doing so drew attention to what is arguably the most complicated, and assuredly the most politicized, aspect of statehood: recognition. Recognition gives rise to quite a bit of confusion, and does so partly because it is unclear what exactly is recognized: a state or a
government? The legality of a government, or its practical existence (recognition de jure or de facto)? Moreover, it remains unclear what the precise legal effects of recognition are.
To start with the latter, at least the Montevideo Convention was consistent in its approach when it embodied the so-called declarative theory of recognition and provided that recognition was of no legal relevance whatsoever. From one perspective, this makes sense; under this declarative theory, the act of recognition should be used merely to specify that in the opinion of other states, entity X meets the requirements of statehood. Thus, an act of recognition can declare that entity X is indeed a state, but given that X meets the requirements, such a declaration is not, strictly speaking, necessary.
The rival theory is the so-called constitutive theory, which posits, in a nutshell, that since the community of states is essentially a political community, membership is dependent on acceptance by the existing members, in much the same way as membership of exclusive country clubs or Manhattan condos may depend on acceptance by existing members. In this view, recognition is vital; even if all four requirements are royally met, an entity that is not recognized will have a hard time existing, as Biafra found out to its dismay. In 1967 it proclaimed independence after a bloody war of secession with Nigeria, only to discover that it did not meet with recognition from more than a handful of states – and within three years after proclaiming independence, Biafra became a part of Nigeria again.
While lawyers tend to prefer the declaratory theory (which aims to strip the law from political elements), there is some reason to believe that in practice, the constitutive theory may be the stronger one, if only because it is next to impossible for a state to survive without recognition. At least in this sense, recognition is often constitutive. Moreover, the one thing that is clear is that recognition is, essentially, a political act; state X decides whether it recognizes entity Y as a state, and may do so for a host of reasons. Obviously, it may do so because it thinks that entity Y meets all requirements of statehood, but it may also do so for different reasons, e.g. because it appreciates the government running entity Y, or because Y has just seceded from X's arch-enemy or because it feels that the people of entity Y are entitled to their own state on the basis of a right to self-determination (this will be discussed elsewhere) or even simply because entity Y is located on top of oil or natural gas reserves and should thus be treated with velvet gloves. In short, while recognition may owe something to the criteria of statehood, it is an illusion to think that states will decide on the basis of legal criteria alone whether or not to recognize. It would be more accurate to say that the legal criteria offer some guidance (and few entities are recognized without scoring at least reasonably well on some of the requirements), but that decisions on whether to recognize or not are eminently political decisions, predominantly guided by political motivations.
As the previous paragraph suggests, matters are complicated by the circumstance that when states engage in recognition, it is not always with a view to recognizing statehood. Often what really matters is not so much statehood, but rather the sort of government that the new state has. The most dramatic example took place after World War II, when Germany was divided in two; the Federal Republic of Germany (FRG, West Germany) and the German Democratic Republic (GDR, East Germany). Communist states were reluctant to recognize the FRG, despite it meeting the requirements of statehood, whereas Western states were highly reluctant to recognize the GDR. The stalemate only
came to an end in 1973.
Recognition of governments can also take place either de jure or de facto, and here it is the intention of the recognizing state that decides. De jure recognition signifies that a government has risen to power in a legitimate way; de facto recognition, on the other hand, signifies that while a government may be in power and thus constitutes a negotiating partner, the recognizing state is not very pleased with the way the government came into power. The classic example relates to British recognition of Nazi authority in Czechoslovakia; the British were pragmatic enough to recognize that the Nazis were in charge, yet still voiced their dissent at the illegitimate way in which they had assumed power.
To a large extent, the value of recognition is symbolic; state X accepts entity Y as one of its equals. In practice, it may not have all that much effect on relations between states, as intergovernmental relations also occur without recognition; many states have treaty relations with entities they are reluctant to recognize. Entering into treaty relations does not constitute implied recognition, and most definitely does not constitute implied recognition when the treaty partners themselves exclude this. It is none the less probably accurate to state that entering into diplomatic relations will constitute implied recognition, as the formalization of diplomatic relations presupposes the sort of political validation that otherwise comes from recognition.
While recognition is, in principle, a unilateral act, which affects bilateral relations, it is nowadays accepted that admission into the UN marks something like collective recognition; a state admitted as a member of the UN is accepted as a legitimate member of the community of states, if only because admission into the UN signifies approval by at least two-thirds of the UN's member states including the five major powers on the Security Council. That said, collective recognition by the UN does not amount to individual recognition by each and every UN member state; the symbolic validation of recognition is considered to be too important to be left to a collective organ.
The legal effects of recognition, as noted, do not so much extend to the level of intergovernmental relations; treaty relations will take place with or without recognition. Rather, recognition and non- recognition first and foremost affect the lives of individuals. Thus if a state has not yet recognized South Sudan (which gained independence in July 2011, and became a UN member a few days later), it may be that South Sudanese passports are not accepted as valid, or that marriages or other administrative acts performed under South Sudanese law are not accepted as valid. It is important to note though that the validity abroad of those acts does not depend only on recognition of the state concerned; during the 1970s, Haiti – recognized by the USA – gained some fame as a place where Americans could acquire a divorce much more quickly than in the USA and without having to specify grounds, only to find out later that such a ‘Haitian divorce’ was not always accepted in the USA.
Perhaps the relevance of recognition can be best illustrated by juxtaposing two recent cases. The first of these concerns South Sudan, which seceded from Sudan in 2011. Before secession South Sudan was a more or less autonomous part of Sudan, but two horrendous civil wars suggested that
there was little love lost between the central government in Khartoum and the people of South Sudan. A referendum about secession took place in early 2011; some 98 per cent of the electorate voted for independence, and independence was declared on 9 July 2011. On 14 July South Sudan was admitted into the UN, and had been recognized already by some eighty individual states. The first of these, importantly, was Sudan, which thereby signified that the secession of South Sudan occurred with Sudanese consent. Recognition by Sudan was quickly followed by that of regional power Egypt and by Germany, at the time president of the UN Security Council. Other major powers (China, the USA, Russia) followed suit, thereby indicating that in the eyes of the global powers, South Sudanese statehood was desirable.
The situation of Kosovo provides a sobering contrast. Kosovo was part of the Socialist Federal Republic of Yugoslavia (SFRY) and, after the latter's break-up, of Serbia. Its population is, however, largely of different ethnicity, which in practice meant the regular occurrence of discrimination and gross human rights violations, including such ethnic cleansing that NATO air forces bombed Serbia to induce it to stop, in 1999. Kosovo was administered for a while by the UN Mission in Kosovo (UNMIK), and declared independence in 2008. Yet general recognition has not been forthcoming; in July 2011 Kosovo is recognized by seventy-six states and by Taiwan, but while these states include the USA, the UK, Germany and France, important major powers are missing; in particular China and Russia have so far not recognized Kosovo as an independent state and nor has Serbia. The recognition of the state being seceded from is of major importance in cases of secession; as the case of South Sudan illustrates, the consent of the ‘parent state’ makes life a lot easier. The circumstance that Kosovo has declared independence is, somehow, of little relevance; the ICJ found, in 2010, that such unilateral declarations of independence are not unlawful under international law, but refrained from going any further.
Kosovo is part of what used to be Yugoslavia, and the break-up of Yugoslavia during the early 1990s has provided international lawyers with lots of material on statehood, recognition and state succession. In particular two developments stand out, both related to the EU. First, in order to assist it in its policy formulation, the EU established the so-called Badinter Commission (named after its chairperson, French lawyer Robert Badinter). This Commission issued a number of highly relevant opinions on issues such as state dissolution, the applicability of the right to self-determination and how this affects the earlier internal boundaries and state succession. These opinions, while not binding strictly speaking, have provided much impetus for the further development of international law. For instance, the Badinter Commission declared that the principle of uti possidetis, holding that earlier internal boundaries in principle continue to exist after independence or dissolution, should be seen as a binding general principle. While it had first been applied in the context of the decolonization of Latin America and later in Africa, the Commission suggested that it should also be applied in Europe.
Second, in late 1991 the EU adopted a set of guidelines of recognition of the new states in Eastern Europe, which can be seen to have added considerably to the requirements for statehood or, at any rate, for legitimate statehood. The EU stipulated that new states should only be recognized if they respected existing boundaries, if they accepted disarmament commitments, guaranteed the rights of
minorities and displayed a commitment to democracy, the rule of law and human rights. The Badinter Commission subsequently applied these guidelines in determining whether the former Yugoslav republics should be recognized. The political relevance of the EU guidelines seems to support the constitutive theory; a state should only be recognized if it meets with political and legal requirements held dear by existing states. And yet the Badinter Commission itself stated unequivocally, some two weeks before the guidelines were issued, that ‘the effects of recognition...are purely declaratory’. What this suggests is not so much that either theory is correct, but rather that recognition is an intensely political affair, and probably combines elements of both theories, in mixtures that vary with the circumstances of the particular case.
Native Mongolian. I was taught English by native teachers.
My profession is a lawyer. As a lawyer for a law firm with international clients, I deal with foreign clients. Having worked as a lawyer since 2019 and as a translator since 2021, I have gained experience in both fields. Because all of my clients are foreigners, I prepare all materials in both English and Mongolian, and do translation work on a daily basis.
As a lawyer and translator, I am able to offer the following services to my clients:
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