States are the primary and most important subjects of Public International Law. The international legal system has historically been based upon sovereign States, and many fundamental rules of international law govern their rights, duties, responsibilities and relations with one another. A State possesses international legal personality when it has the capacity to hold rights and obligations under international law and to participate in international legal relations.
- Meaning of a State
- International Legal Personality of States
- States as Primary Subjects
- Statehood
- Sovereignty
- Equality of States
- Rights of States
- Duties of States
- State Responsibility
- State Responsibility and Domestic Law
- Recognition of States
- Constitutive Theory
- Declaratory Theory
- Recognition and Statehood
- Territorial Sovereignty
- Jurisdiction of States
- State Immunity
- Diplomatic Relations
- Treaty-Making Capacity
- Participation in International Organisations
- Permanent Neutrality
- Succession of States
- Continuity of States
- Federal States and International Law
- Microstates
- Failed or Fragile States
- Important Cases
- States and Other Subjects of International Law
- States vs International Organisations
- Statehood vs Government
- Statehood vs Recognition
- Common Confusions
- Topic at a Glance
- Quick Revision
- Conclusion
The modern international legal system also recognises international organisations, individuals and certain other entities as subjects of international law. However, their international legal personality is generally more limited and depends upon the nature and extent of the rights and obligations recognised by international law.
Meaning of a State
A State is a territorial and political entity possessing a permanent population, a defined territory, a government and the capacity to enter into relations with other States.
The traditional legal criteria of statehood are reflected in Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933.
According to the traditional formulation, a State possesses:
- a permanent population;
- a defined territory;
- government;
- capacity to enter into relations with other States.
These elements are commonly treated as the basic requirements of statehood.
International Legal Personality of States
International legal personality means the capacity of an entity to possess rights and duties under international law and to participate in the international legal system.
States possess the fullest form of international legal personality.
A State can:
- enter into treaties;
- establish diplomatic relations;
- bring international claims;
- incur international responsibility;
- exercise jurisdiction;
- participate in international organisations;
- enjoy sovereign rights;
- invoke international legal protections.
States as Primary Subjects
States are described as primary subjects because the international legal system was historically constructed around sovereign States.
States are directly governed by numerous rules concerning:
- sovereignty;
- territorial integrity;
- non-intervention;
- use of force;
- diplomatic relations;
- treaty obligations;
- State responsibility;
- jurisdiction;
- peaceful settlement of disputes.
Other international legal persons generally possess more specialised or limited legal personality.
Statehood
Statehood refers to the legal status of an entity as a State under international law.
The traditional criteria are:
1. Permanent Population
A State must have a permanent population.
The population need not have a particular minimum size.
What is important is the existence of a stable community of people connected with the territory.
2. Defined Territory
A State must possess a territory over which it exercises governmental authority.
The existence of a defined territory does not necessarily require that every boundary be completely undisputed.
A territorial dispute does not automatically prevent statehood.
3. Government
A State must have an organised government capable of exercising authority over its territory and population.
Government represents the institutional structure through which State authority is exercised.
4. Capacity to Enter into Relations with Other States
A State must possess the capacity to conduct international relations independently.
This criterion reflects the concept of independence.
It distinguishes a sovereign State from entities whose external relations are controlled by another State.
Sovereignty
Sovereignty is a fundamental characteristic of States under international law.
It refers broadly to the State’s supreme authority within its territory and its independence in external relations.
External sovereignty involves:
- independence;
- freedom from external control;
- capacity to conduct international relations.
Internal sovereignty concerns the State’s authority within its territory.
Equality of States
International law recognises the principle of sovereign equality of States.
States may differ greatly in:
- population;
- territory;
- military strength;
- economic power;
- political influence.
Nevertheless, they possess equal sovereign status as subjects of international law.
Sovereign equality is reflected in the framework of the United Nations.
Rights of States
States possess numerous rights under international law.
Territorial Sovereignty
A State has authority over its territory, subject to international law.
Political Independence
A State has the right to conduct its internal and external affairs without unlawful external interference.
Right of Self-Defence
States possess the inherent right of individual and collective self-defence in accordance with international law.
Treaty-Making Capacity
States have the capacity to enter into international agreements.
Diplomatic Relations
States may establish diplomatic relations with other States.
Participation in International Organisations
States may participate in international organisations according to the relevant constituent instruments.
Right to International Equality
States are entitled to sovereign equality regardless of differences in power or size.
Duties of States
States also have obligations under international law.
Important duties include:
- respecting the sovereignty of other States;
- refraining from unlawful use of force;
- respecting treaty obligations;
- fulfilling international obligations in good faith;
- respecting applicable human rights obligations;
- peacefully settling international disputes;
- refraining from unlawful intervention in the affairs of other States.
State Responsibility
A State may incur international responsibility when conduct attributable to it constitutes a breach of an international obligation.
State responsibility generally involves:
Conduct attributable to the State
Breach of an international obligation
=
International responsibility
The consequences may include:
- cessation of the wrongful conduct;
- assurances or guarantees of non-repetition where appropriate;
- reparation;
- restitution;
- compensation;
- satisfaction.
State Responsibility and Domestic Law
A State cannot generally rely upon its domestic law as a justification for failing to perform an international obligation.
This reflects the distinction between:
Domestic legal validity
and
International legal responsibility
A government may act lawfully under its own domestic law while nevertheless violating an international obligation.
Recognition of States
Recognition concerns the acceptance by an existing State that an entity possesses the status of a State for international purposes.
Recognition may be:
- express;
- implied.
Recognition can have important political and legal consequences.
However, recognition is closely connected with the broader debate between the constitutive and declaratory theories of statehood.
Constitutive Theory
According to the constitutive theory, recognition by existing States is an essential element in giving an entity international legal personality as a State.
Under this approach, recognition has a constitutive effect.
Declaratory Theory
According to the declaratory theory, an entity becomes a State when it satisfies the objective requirements of statehood.
Recognition does not create statehood; it acknowledges an existing legal fact.
The declaratory approach is generally associated with the criteria reflected in the Montevideo Convention.
Recognition and Statehood
Recognition and statehood should not automatically be treated as identical concepts.
An entity may satisfy the traditional requirements of statehood while facing political or diplomatic difficulties in obtaining widespread recognition.
Conversely, recognition by some States does not necessarily resolve every legal question concerning statehood.
Territorial Sovereignty
Territory is one of the essential foundations of statehood.
A State generally exercises authority over:
- land territory;
- internal waters;
- territorial sea, subject to international law;
- airspace above its territory.
The exercise of territorial sovereignty is subject to international obligations.
Jurisdiction of States
States possess jurisdiction under international law.
Jurisdiction may be based on different principles, including:
Territorial Jurisdiction
A State generally has jurisdiction over conduct occurring within its territory.
Nationality Principle
A State may exercise jurisdiction over its nationals in appropriate circumstances.
Protective Principle
A State may exercise jurisdiction over conduct outside its territory that threatens certain fundamental interests of the State, subject to international law.
Universal Jurisdiction
Certain particularly serious international crimes may be subject to jurisdiction on a broader basis under applicable international law.
State Immunity
States may enjoy immunity from the jurisdiction of foreign domestic courts in appropriate circumstances.
The doctrine of State immunity is based upon the sovereign equality and independence of States.
Modern international law generally distinguishes between:
- sovereign or governmental acts;
- commercial or private acts.
The precise scope of immunity depends upon applicable international law and domestic legislation.
Diplomatic Relations
States may establish diplomatic relations with other States.
Diplomatic relations are governed principally by international law, including the law concerning:
- diplomatic missions;
- diplomatic agents;
- privileges and immunities;
- diplomatic communication.
The establishment of diplomatic relations normally depends upon mutual consent.
Treaty-Making Capacity
States possess the legal capacity to conclude treaties.
Treaties may establish obligations concerning:
- peace and security;
- trade;
- human rights;
- environment;
- territorial matters;
- international cooperation.
The capacity to conclude treaties is one of the principal characteristics of international legal personality.
Participation in International Organisations
States may become members of international organisations where the relevant constituent instrument permits membership.
The United Nations is the most prominent example.
Membership provides States with opportunities to:
- participate in international decision-making;
- negotiate international agreements;
- contribute to international institutions;
- raise international disputes;
- participate in international cooperation.
Permanent Neutrality
Some States may possess a status of permanent neutrality under international law.
Permanent neutrality involves obligations concerning participation in armed conflicts and military alliances, subject to the particular legal framework applicable to the State.
Succession of States
State succession concerns the legal consequences arising when one State replaces another in responsibility for the international relations of a territory.
Issues may include:
- treaties;
- State property;
- archives;
- debts;
- nationality;
- membership of international organisations.
State succession is distinct from a mere change of government.
Continuity of States
A change in government does not ordinarily create a new State.
The State continues to exist despite:
- changes in government;
- changes in political leadership;
- constitutional changes;
- changes in political system.
The international legal personality of the State generally continues.
Federal States and International Law
In a federal State, the international legal personality generally belongs to the federal State rather than its constituent units.
The extent to which constituent units can participate independently in international relations depends upon the constitutional structure of the federation.
Microstates
International law does not require a State to possess large territory or population.
Small States may possess the same basic sovereign status as larger States.
The principle of sovereign equality applies regardless of size or power.
Failed or Fragile States
A State may experience serious internal instability without automatically losing its status as a State.
The collapse or weakening of governmental institutions does not necessarily mean that statehood immediately disappears.
The question of statehood must be distinguished from the effectiveness of government at a particular time.
Important Cases
Island of Palmas Arbitration, 1928
The case is important for understanding territorial sovereignty.
The Permanent Court of Arbitration considered competing claims concerning sovereignty over the island and emphasised the significance of the peaceful and continuous display of State authority.
Nottebohm Case, 1955
The ICJ considered questions relating to nationality and the international recognition of a nationality relationship.
The case is particularly important for the concept of the genuine link in the context of diplomatic protection.
Barcelona Traction, 1970
The ICJ discussed obligations owed to the international community as a whole and distinguished between obligations owed to individual States and erga omnes obligations.
The case is important for understanding the broader responsibilities of States within the international legal system.
Nicaragua v. United States, 1986
The ICJ considered fundamental principles concerning:
- sovereignty;
- non-intervention;
- use of force;
- customary international law.
The case strongly illustrates the central role of States as subjects of international law.
Armed Activities on the Territory of the Congo, 2005
The ICJ considered issues concerning:
- sovereignty;
- use of force;
- non-intervention;
- State responsibility.
The case demonstrates the continuing importance of State obligations in contemporary international law.
States and Other Subjects of International Law
States are not the only subjects of international law.
Other entities may possess international legal personality to varying degrees.
| Subject | Nature of Legal Personality |
|---|---|
| States | Primary and fullest legal personality |
| International organisations | Functional and generally limited |
| Individuals | Increasingly recognised rights and obligations |
| Certain special entities | Legal personality depends on applicable international law |
States vs International Organisations
States
Possess general international legal personality.
International Organisations
Generally possess personality based upon their constituent instruments and functions.
Their powers are usually limited by the principle of speciality.
Thus, the legal personality of an international organisation is generally different in scope from that of a sovereign State.
Statehood vs Government
Statehood should not be confused with government.
A State is a continuing international legal entity.
A government is the institution exercising authority on behalf of the State.
A change of government does not normally terminate the State’s international legal personality.
Statehood vs Recognition
Similarly:
Statehood concerns whether an entity qualifies as a State.
Recognition concerns the position taken by existing States toward that entity.
The two concepts are closely related but legally distinct.
Common Confusions
Are States the only subjects of international law?
No.
States are the primary subjects, but international organisations, individuals and certain other entities may possess international legal personality.
Is recognition necessary for statehood?
This depends upon the theoretical approach adopted. The declaratory theory focuses on the objective criteria of statehood, while the constitutive theory gives recognition a more central role.
Does a State need a large population?
No.
International law does not prescribe a minimum population requirement.
Must State boundaries be completely undisputed?
No.
A territorial dispute does not automatically prevent an entity from possessing statehood.
Does a change of government create a new State?
Generally, no.
The State normally continues despite changes in government.
Can a State incur international responsibility for acts of its government?
Yes.
Conduct attributable to State organs can give rise to international responsibility where it breaches an international obligation.
Can domestic law justify breach of international law?
Generally, no.
Domestic law cannot ordinarily be relied upon to excuse the non-performance of an international obligation.
Topic at a Glance
| Point | Position |
|---|---|
| Subject | States as Subjects of International Law |
| Status | Primary subjects |
| Core concept | International legal personality |
| Traditional criteria | Population, territory, government, external capacity |
| Key instrument | Montevideo Convention, 1933 |
| Fundamental principle | Sovereignty |
| Equality | Sovereign equality of States |
| Major rights | Sovereignty, independence, treaty-making, jurisdiction |
| Major duties | Non-intervention, peaceful settlement, treaty compliance, respect for international obligations |
| Responsibility | Arises from internationally wrongful acts |
| Recognition theories | Constitutive and declaratory |
| Important cases | Island of Palmas, Nottebohm, Barcelona Traction, Nicaragua |
| Key distinction | Statehood ≠ recognition ≠ government |
Quick Revision
- States are the primary subjects of International Law.
- International legal personality means the capacity to possess international rights and obligations.
- The traditional criteria of statehood are:
- permanent population;
- defined territory;
- government;
- capacity to enter into relations with other States.
- These criteria are reflected in the Montevideo Convention, 1933.
- Sovereignty is a fundamental characteristic of States.
- States enjoy sovereign equality regardless of differences in size or power.
- States can conclude treaties and establish diplomatic relations.
- States possess jurisdiction over matters recognised by international law.
- States may incur international responsibility for internationally wrongful acts.
- Domestic law cannot ordinarily justify a breach of international law.
- Recognition may be understood through the constitutive and declaratory theories.
- Statehood and recognition are related but distinct concepts.
- A change of government does not ordinarily terminate the identity of a State.
- International organisations and individuals may also possess international legal personality, but generally in a more limited or specialised form.
- Island of Palmas is important for territorial sovereignty.
- Nottebohm is important for nationality and diplomatic protection.
- Barcelona Traction is important for erga omnes obligations.
- Nicaragua v. United States is important for sovereignty, non-intervention and use of force.
- The essential distinction is:
States possess the fullest and most general form of international legal personality.
Conclusion
States occupy the central position in the international legal system and remain the primary subjects of Public International Law. Their international legal personality enables them to possess rights, undertake obligations, conclude treaties, establish diplomatic relations, exercise jurisdiction and incur international responsibility. The traditional requirements of statehood include a permanent population, defined territory, government and capacity to enter into relations with other States. Sovereignty and sovereign equality form fundamental principles governing the position of States. Although international law has increasingly recognised international organisations, individuals and other entities as subjects, their legal personality is generally more limited or functional. The continuing importance of States is reflected in the rules governing sovereignty, territorial integrity, non-intervention, use of force, State responsibility and international cooperation.
