ULUSLARARASI KAMU HUKUKU I - Deneme Sınavı - 4

An entity, to be considered a state, must have certain characteristics, such as territory, population, government, and sovereignty.

Article 1 of the 1933 Convention on Rights and Duties of States (the Montevideo Convention) provides that “the state as a person of international law should possess the following qualifications: (a) permanent population; (b) defined territory: (c) a government; and (d) capacity to enter into relations with other States.”

In order to have a claim over Statehood, an entity should have the capacity to enter into relations with other states and must be accepted so by others. This requirement is also the most important factor in granting recognition to a new entity. A state cannot fulfil this requirement unless it has independence.

Uti possidetis means “as you possess, as you hold.” The principle vests in either of the belligerents at the end of a war all territory occupied or controlled by them.

A protectorate is always the creation of a treaty. It involves a certain measure of control, and a total or partial loss of sovereignty. In many cases, it has involved the loss of control of foreign relations and the disappearance of the protected state from the community of nations. In spite of common features possessed by protectorates under international law, they had individual legal characteristics resulting from the special conditions under which they were created and from the level of their development.

However, these arrangements cannot be termed as treaties, since the local rulers did not enjoy an international personality necessary to conclude a treaty.

The mandate system was created after the First World War under Article 22 of the Covenant of the League of Nations to deal with the future administration of the overseas possessions of the “Axis” states of Germany and the Ottoman Empire. Three categories of mandates (A, B and C) were devised for those territories “according to the stage of their development” (Art. 22 of the Covenant of the League).

International organizations are established by treaties and their international personality can be ascertained by looking at their constitutions. It is, however, rarely that the constitution of an international organization would provide and clothe it with international personality. Consequently, the question of whether an institution possesses an international personality can be answered by examining the type of functions, powers, privileges and immunities exercised by it.

The first example of an international organization is the Central Commission for Navigation on the Rhine (CCNR), which was created in 1815 by the Congress of Vienna.

The most important characteristic of the international personality of an entity is its treaty-making power.

The treaty-making power of international governmental organizations is well entrenched in the United Nations practice. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations confirms that governmental organizations have the capacity to enter into treaties. However, their international personality is confined to their constituent instruments, resolutions, and decisions, which determine the limits of their personality. Thus, the legal personality of international organizations is now an accepted fact. However, unlike states, they do not enjoy unlimited power. Their personality, in fact, can be brought to an end by amending or terminating the constituent instruments.

Different criteria are applied in the recognition of a state and of a government. Before a new entity is recognized as a state, it should fulfil the essential attributes of Statehood as mentioned in Article 1 of the Montevideo Convention, that is, a permanent population, defined territory, a stable government, and the capacity to conduct its international relations independently.

In contrast to the constitutive theory, the declaratory theory (also called evidentiary theory) considers that a new state or a new government exists independent of recognition. The recognition is merely an evidence of the fact that the government. The state practice widely confirms the evidentiary theory because of the political nature of the act of recognition. If the majority of nations have granted recognition, refusal by a single state or few states would not affect the situation.

Article 1 of the 1933 Convention on Rights and Duties of States (the Montevideo Convention) provides that “the state as a person of international law should possess the following qualifications: (a) permanent population; (b) defined territory: (c) a government; and (d) capacity to enter into relations with other States.”

The term subjects of international law refers to entities endowed with legal personality, capable of exercising certain rights and duties on their own account under the international legal system.

Mini states or micro states are entities like Andorra, Monaco, San Marino and Liechtenstein.

Non-self-governing territories  are colonies, protectorates, trusteeship and mandate territories.

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The 1946 Convention on Privileges and Immunities of the United Nations

The International Criminal Tribunal for the former Yugoslavia was one of the international criminal tribunals that were established to deal with crimes that resulted mainly from internal armed conflicts in 1993.

The Universal Declaration of Human Rights was adopted in 1948.

The Declaratory theory considers that a new state or a new government exists independent of recognition.

The typical legal subject of international law is the state. Ordinarily, international law deals with the rights and duties of states and its rules bind the states. Other entities may also be considered as the subjects of international law to the extent they can enter into legal relations and exercise certain rights on the international plane.