INTERNATIONAL IDENTITY OF SUB-STATES

Introduction

The term International Legal Personality can be defined as being the subject of international law and, thereby, being able to participate in the signing of treaties, contracts, or other agreements at an international level. It can be legally enforced. Through such a recognition, the states/ sub-states/organizations would gain acknowledgment at an international level. The states recognize themselves to be the subjects of international law or accord themselves with international legal personality through statutes and constitutions of the states or international conventions. Rights that come with such recognition include the right to sign treaties, the right to immunity, the right to send and receive legations, and the right to bring international claims to obtain reparation for damages. Those who have been recognized can sue or be sued and can enter into contracts. To be called a State, there needs to be (a) a permanent population (b) a defined territory (c) government, and (d) capacity to enter into relations with the other states. Sub-state can be defined as “A subdivision of a state, nation, country, etc.; a subsidiary state, territory, etc., within a larger political entity, with varying degrees of autonomy depending on the context.” Currently, the Sub-states derive the international personality from that of the state itself, which authorizes them to participate in certain international activities. The sub-states do not have rights that stem from the state sovereignty, but this does not prevent them from being a part of international activities, however, they are subject to serve the best interests of the original subjects. The sub-states need more recognition in international law to promote a better flow of ideas among sub-states according to their needs and resources. To give them some authority and, thereby, to attribute some accountability for their actions, which affects other international actors. However, this needs to be done carefully, and the powers to the substates should be conferred in a limited fashion as too much power in the hands of the sub-states could prove detrimental to the world order and might lead to a lot of chaos. At the same time, too little power would not solve the purpose at all.

Contentions

In the traditional international legal system, only ‘states’ are considered the primary subjects of law, and the other entities are defined and given legal status in terms of states. This legal system helps in creating some level of uniformity in the international legal system, which keeps the complexity of the legal system at a minimum. However, with changing times and the increasing levels of regional integration and economic interdependence, the need to recognize sub-states as well has increased but the same has not been done to date. There are certain sub-states, such as Tokyo, which are equivalent to that of other states which are developing. Through treaties and agreements, these sub-states can further the development of the developing nations by giving them access to resources directly without getting the Centre involved. It will make the international market efficient. Sub-states will have power. They would work hand-in-hand with the central government, thereby increasing the pace of growth and development of the nation.

Furthermore, the recognition of the sub-states as international legal personalities is required as, in general, the central governments take into consideration only the representation and views of the majority in the state rather than the regional or minority interests while signing any international treaty. Enabling a sub-state to be a part of these treaties will ensure that their views are represented and are recognized as 'local governments have the advantage of being closer to civil society groups, companies and the general constituency that are most affected by public policies.' They would take into consideration various regional, economic, and other socio-cultural factors into consideration, however minor they might be in the demographics of a state. “Tensions between the state and its regions can be increased when: the central authorities fail to address, through neglect or intention, the political aims of sub-national units, or when central authorities mistakenly grant subnational units too broad/narrow international jurisdiction.” These tensions can increase substantially and lead to “heightening the potential for separatist tendencies” of the sub-states and thereby threatening the unity of the state which is not desirable at any point of time. Also, under the current legal system, where the sub-states are denied recognition as an international legal personality, they are absolved of any direct liability under international laws. The whole state suffers sanctions and discrediting from the international community even if the sub-state’s actions were not approved or might not even be in the knowledge of the state.

Gaining the recognition as an international legal personality for the sub-states would ensure that there is a decentralization of the powers between the central and sub-state bodies and maintain an equitable power distribution, and there can exist a symbiotic relationship. This move will ensure that no single nation has unlimited power as the USSR had before World War II, where they acted like tyrants and bullies, oppressing the people and creating tensions around the globe. As the USSR back then was one of the largest economies. While talking about the economic gains, M. Farukushin says that “powerful members of the international community began to pose a greater threat to national security and economies than militarily powerful states.”

Despite all this, several problems might affect the international legal system if the sub-states are given an international legal personality separate from that of the states. Researchers, while arguing for the recognition of sub-states in the international legal system, fail to recognize that if the sub-state actors are given a separate legal entity, it would make this legal system too complex. It will create challenges that are not foreseen in theory while considering the allocation of legal status to sub-states. There would be additional difficulty in the case of states which do not follow a federal legal system as in the proposed international legal system, and the sub-states would get more authority in international matters than what they get in the domestic legal system. It would lead to chaos and conflict within the states.

Another complexity that would arise would be the need for too many treaties and agreements among the sub-states. It would require a lot of fresh negotiations, and if the treaties of sub-states within themselves would be different in every instance, it would lead to massive confusion for the government authorities and the people. Another issue that the states might face would be the possibility of growing conflict within the states, which would lead to the sub-states splitting out of the states, thereby being a threat to the unity and integrity of the states.

Thus, even though the theory looks good on paper for the new globalization era, its implementation is quite problematic. The development of a viable international legal system would be an extremely difficult task, if not impossible.

Analysis

Even though it is imperative that sub-states be recognized as legal entities or subjects of international law, we cannot overlook the level of complexity, confusion, and hardships that such a system would bring in. To overcome all the problems associated with the recognition of sub-states as subjects of international law and still give them the required recognition and autonomy, the international law could follow a hybrid approach, whereby the central government representing the state can still control the decisions. It can represent all the sub-states on matters like extradition and border control, that is, decisions that should be the same for the entire state, and different sub-states should not have different rules/laws/treaties for the same. At the same time, the sub-states would be able to represent themselves on matters which are subjective and particular to them. Essentially, this would be like the quasi-federal system followed in India, where the Centre and state have power over specific matters to make laws according to the lists given in the VII Schedule of the Constitution of India. There can be such a list on the international level, thereby giving equitable power to all the states and the sub-states.

Conclusion

The current system does not seem to be working very efficiently and might even prove to be a threat to international peace, where China or the USA might become the new age USSR because of accumulated power in their hands at the Centre and act like bullies. This problem needs to be addressed, and the sub-states need more recognition on the international platforms than they do currently. All these issues could be addressed by the suggested model of following a quasi-federal form of recognition of states and sub-states as subjects of international law. This would not only decentralize the power in the hands of states but also give due recognition to the sub-states and resultantly give them a chance to share their problems and provide viable solutions to each other. Thus, it improves the efficiency of international interactions.

About the authors: Muskaan Gupta is a third-year law student at JGLS working towards becoming a corporate lawyer and is interested in research and writing.

Trinay Vemulapalli is a third-year law student at JGLS looking forward to working with a law firm.

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