The Law of Statehood: A Contemporary Perspective by Anrinita Guha & Aparajitha Narayanan

The Authors: Anrinita Guha & Aparajitha Narayanan are Law Students Studying at ILS Law College, Pune

The study of a legal system without a clear conception of who or what fall under the ambit of ‘persons’ is a dangerous manoeuvre with a significant multitude of consequences. A subject of international law is an entity possessing international rights and obligations and having the capacity to a) maintain its rights by bringing international claims[i], and b) be responsible for its breaches of obligations by being subjected to such claims. This traditional outlook at the definition however fails to determine whether the relevant capacity which exists has been exercised in case on any existential queries. If either of the indices is absent, then the entity in question may have a controlled and constricting legal personality, that validating factor which indubitably establishes whether a specific entity is a subject of international law. Fortunately, a distinguishing feature of contemporary international law has been the wide range of participants. These popularly include- States, Entities Legally Proximate to States, Entities Recognised as Belligerents, International Administration of Territories Prior to Independence, International Organisations and Individuals. There also exist special types of personality- Public and Private Corporations, Non- Self Governing Peoples and Sui Generis entities. This appraisal comes as a disclaimer against flippant generalisations on the topic of legal personality. Given the occasional vagaries and the undeniable platitudes of the concept of subjects of international law, it has been argued whether the theory has any value. The answer must be in the affirmative. Conversely, facile debates as to what falls under the ambit lend uncertainty to the analysis of international law. It might be assumed, however, that a touchstone is furnished by the state, the entity longest contemplated as a person in international law and, to this day, the entity widely viewed as the most important legal actor.[ii] The fact remains that since 1945 the existence of States has provided the basis of the legal order.[iii] A contradiction in terms, instead, challenges a writer who turns to the State to help clarify the identity of legal persons in the international legal system. The irrefutable truth herein is that international legal sources provide no suitable definition of ‘State.’

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