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Pam 27-161-1

CHAPTER 3
SUBJECTS OF INTERNATIONAL LAW

3-1. Introduction. a. As mentioned in chapter 1, inter- ternational law. For example, international organizations,
national law has been thought to apply only to states. The such as the United Nations, have been held to have inter-
notion has been that only states may claim rights under in- national personality. Similarly, it is gradually becoming ac-
ternational law and, consequently, only states are bur- cepted that individuals and corporations may also have
dened with the duties imposed by this jurisprudence. A rights and duties under international law in certain cir-
large body of law has developed dealing with the charac- cumstances.
teristics of states for purposes of international law, the c. Although only states were formerly regarded as pro-
recognition of states and their government by other states, per subjects of international law, for many years groups
and the legal consequences of such recognition or non- recognized as belligerents have been treated as having
recognition. This chapter will survey this body of law. certain rights and duties under international law. On the
b. In recent years, the historical view that only states other hand, insurgents (groups not yet accorded belliger-
have rights and duties under international law has given ent rights with respect to neutrals) have a less sharply
way to a less restrictive view regarding the subjects of in- defined status as "persons" subject to international law. 1
Section I. THE BASIC NATURE OF STATES AND GOVERNMENTS
3-2. Necessary Qualifications for Statehood. a. Public tween sovereign states restricts, to some extent, the exer-
international law has been, and remains, primarily a law cise of the power incidental to sovereignty. Likewise, the
applicable to the conduct of sovereign states in their in- norms of international law tend to restrict the exercise of
terstate relationships. Although there are many definitions the individual state's sovereign power. Such restrictions
of a state, one widely accepted definition stipulates that a on a state's freedom of action do not, however, affect its
state is an entity possessing the following qualifications: status as a sovereign state. As long as a state is not under
(1) a permanent population; (2) a defined territory; (3) a the legal authority of another state, it remains a sovereign
government; and (4) capacity to enter into relations with state, regardless of how extensive or burdensome its in-
other states. 2 ternational legal obligations may be. 6
b. Certain nation states, such as the United States, are c. Although the concept of sovereignty implies a cer-
recognized by all as "states" having full rights and duties tain amount of independence, it is apparent from what
under international law. Likewise, it is clear that a state already has been said that the two terms are not syn-
within a federal system, such as the State of New York, is onymous. A state can be sovereign without being com-
not a "person" for purposes of international law, i.e., it is pletely independent in either a legal or a practical sense.
not a "state" in the international law sense inasmuch as it For analytical purposes, states may be classified as either
does not carry on international relations. 3 The same is independent or dependent. There are, or have been, many
true of municipalities, (e.g., Boston) and territories (e.g., types of dependent states, each largely governed by the
Puerto Rico), neither of which are "states." facts of the particular situation. They may be called vassal
3-3. Sovereignty: The Key to Statehood. a. The basic states, protected states, protectorates, suzerainties, or by
test of statehood and the thrust of the traditional require- other names. These terms do not have precise juristic
ments mentioned above is sovereignty, which may be meaning, and do not necessarily imply that the dependent
defined as legal (as distinguished from actual) self-suffi- state lacks international legal personality. Rather, each de-
ciency. A sovereign state does not rely for its juridical ex-
istence on anything foreign to itself. 4 Subject to its treaties 1. This topic is dealt with extensively in International Law, Volume
and other international legal obligations, it is independent II, DA Pam 27-161-2.
2. Art. 1, Convention on Rights and Duties of States, 49 Stat.
of other states both within its territory and in its interna- 3097, T.S. No. 881, 165 L.N.T.S. 19. For other defmitions, see Restate-
tional. affairs. 5 International organizations, on the other ment (Second) Foreign Relations Law of The United States § 54 (1965)
hand, rely for their existence upon the states that create [hereinafter cited as RESTATEMENa; J. Brierly, The Law of Nations
them. For example, the United Nations and the European 137 (6th ed. 1963) [hereinafter cited as Brier&]; I. Hyde, International
Economic Community came into being by the act of their Law 22-23 (2d rev. ed. 1945); 1. Oppenheim, International Law 118
(8th ed. Lauterpacht 1955) [hereinafter cited as Oppenheim.]
member-states. Their existence can be terminated simply 3. Article 2 of the Convention on Rights and Duties of States, supra
by the member-states withdrawing from them. By con- note 2, expressly provides that ''Vlhe federal state shd constitute a
trast, the existence of a state cannot be terminated by the sole person in the eyes of international law."
action of other states. This lack of reliance upon the will of 4. See Korowicz, Introduction to International Law 274 (1959).
5. Id. See Chief Justice Marshall's statements in The Antelope, 23
other states is the core meaning of the phrase "States are U.S. (10 Wheat.) 66 (1825).
sovereign." 6. See Advisory Opinion on Customs Regime between Germany
b. As a practical matter, every treaty entered into be- and Austria, [I9311 P.C.I.J., ser. NB, No. 41, at 37,4546, 57-58, 77.