III. Complete the following sentences using the required information from the text above.

1. The individualistic position states a presumption for the individual as an international ___________ in the field of so-called ___________ norms of international law.

2. Being an international person in principle ___________ certain ____________ international rights, duties and capacities analogous to those of states.

3. International personality becomes a ___________ concept: every entity is an international person that according to ___________ principles of _____________ is the addressee of the norms of international law.

4. Problem arises in the context of international human rights law when it is asserted that __________ actually are the holders of international rights without being international __________.

5. Two peculiarities distinguish ______________ in international law from that in _____________ law.

 

IV. Define if the following sentences are true or false. Use the required information from the text above and correct the false statements.

1. International personality denotes the quality of having rights and duties, certain capacities under the law, but that it also includes the competence to create the law.

2.International personality may be associated with law-creation.

3. Only states have universal international personality.

4. Individuals can be international persons without holding international rights.

5. Case law and practice cannot be taken into account in the debate on international personality, but their interpretation is strongly related to differing theoretical positions.

V. Read the text.

THE STATE [12]

International society is constantly changing. New actors appear and disappear. Polities break apart, and new entities are created. Intergovernmental organizations grow in number to deal with emerging transnational Issues. Other nonstate actors proliferate and continue to alter the international landscape. Even so, states remain the preeminent actors in contemporary international relations. As the touchstone for formulating and implementing legal rules, the state enjoys being the entity longest contemplated as a person in international law and is still widely viewed as the most important legal actor. Quite accurately, "the law of nations" today essentially remains the law for the states.

States are organic creatures: they are born, they live, and they die. But states are also anthropomorphic creations. They are founded and fashioned by humans, used by humans for their own social and political purposes, and ended by humans. Modem international law adapts to the progressive existence of states by establishing rules that condition the creation, existence, and death of statehood. This is not to say that international rules deal comprehensively with the origins, existence, or maturity of states, for they do not. It is impractical to set rigid rules that determine the lawfulness of an independent political community's existence. The state, which remains a historical and geopolitical reality, functions more as the creator of law than as a creature of law. On a general level it is possible to determine the rules that govern formal acknowledgment by the international community that an entity qualifies for admission into the interstate society. Most salient among these legal rules are the essential characteristics usually accepted for defining a state—namely, an entity's occupying a clearly defined territory; possessing a permanent population; operating an effective governmental capacity, internally and externally; and having the capacity to engage in international relations, including the ability to fulfill international legal obligations. […]

Recognition

The existence of states provides the basis of the contemporary international legal order. But what should determine the lawful existence of a state or even a government? State practice has devised special rules and procedures for this purpose, albeit governments perform them unilaterally and discretionarily. This process of formally acknowledging the legal existence of a state or government in international relations is called recognition.

In a legal system as individualistic as international law, rights and responsibilities cannot be created for a subject of the law unless that subject has been publicly acknowledged. A state can exist independent of recognition, but some form of recognition is necessary to secure the admission of that polity into the international community. Governments of states have complete discretion in granting recognition as subjects of international law to other entities. They are limited primarily by their interest or willingness to establish direct contact with an independent territorial group that demonstrates signs of permanency. Recognition thus remains an executive act. Recognition attaches certain legal conse­quences to an existing set of facts, as applied to either a state or government that claims to be the lawful representative of a state. The recognition of a state defines its membership in the world community and supports its claim as a separate judicial personality—that is, as an international person. Also important is the fact that recognition carries with it entitlement to the rights and privileges held by states under international law. Recognition assumes that the recognized state is capable and willing to not only claim the benefits of international law but to also abide by its rules. The overarching purpose of recognition, then, is to allow the recognized state to participate in the mutual and reciprocal giving and taking that form the essential conditions of interstate relations.

The act of recognition amounts to a state's becoming accepted into the international community, whether explicitly or implicitly. Recognition is explicit when the government of the recognizing state issues a formal statement. A new state may be recognized implicitly by an established state through the conclusion of a treaty; through the sending or receiving of diplomatic agents; by saluting its flag; or by establishing official relations, such as proffering the intention to treat the entity as an international person. The critical ingredient remains a clear indication of intent to recognize the state or new government; otherwise, the quality of the implicit recognition will be deemed as lacking. […]

Two theories of recognition prevail in modem international law. First, there is the constitutive theory of recognition, which suggests that recognition is a law-creative action. It is the act of recognition that endows a polity with the legal status of statehood and infuses a government with the legal capacity to engage in international diplomatic relations. In the constitutive theory, recognition becomes a formal legal act intended to attach the prescribed legal consequences of statehood on some new polity. It is not supposed to be political in nature or in consequence.²⁹ Second, there is the declaratory theory of recognition, which maintains that statehood or governmental authority exists separately from the act of recognition by some state. The existence of a state is based in fact; it is not dependent on formal acknowledgment by some other government. The declaratory theory asserts that recognition by a government merely acknowledges a factual situation: the existence of a state. The act of recognition does not create the legal existence of that state.

While recognition remains a process essential for international relations, neither theory satisfactorily explains the legal condition of a polity before the moment of formal recognition. Of greater substantive concern is whether standards of recognition are more political than legal. If formal recognition of a state by some government depends on the former polity fulfilling requisite qualifications that define a state—that is, it must have territory with recognized borders, a population, a responsible government, and the qualities of being sovereign and independent—then there should not be any real question over the status of that polity. If an entity fully meets those qualifications, then government officials in other states should deem it acceptable for recognition as a state. Such is not always the case, as political considerations of governments sometimes preempt perceptible reality. During the Cold War, the United States refused to recognize the legitimacy of several communist states, including the Democratic Republic of Germany (until 1973), the People's Republic of China (until 1978), Vietnam (until 1995), and the Democratic Republic of Korea. Many states also refused to recognize the Hanoi-installed government of Kampuchea (Cambodia), which had seized power while Prince Sihanouk's UN-recognized government was in exile. Similarly, the United States refused to recognize the government in Haiti imposed by military coup in 1991 that overthrew the democratically elected government of a former Catholic priest, Henri Aristide.