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Subjects of International Law - Coggle Diagram
Subjects of International Law
Legal Personality
In any legal system, certain entities (individuals/companies) will be regarded as possessing rights and duties enforceable at law
Thus an individual may prosecute / be prosecuted for assault and a company can sue for breach of contract
They can do it because law recognises them as 'legal persons' possessing the capacity to have and to maintain certain rights + being subject to perform specific duties
Personality is relative, denotes ability to act within a system of international law as distinct from municipal law
One should classify the subjects of international law by reference to what they may do, rather that what they're called
Personality:
A relative phenomenon depending on circumstance
Looks to the requirements of the international community at large
Involves examination of certain concepts within the law:
Enjoyment of rights conferred
Capacities to enter into treaties and agreements
Capacities to make claims
Enjoyment of privileges and immunities from national jurisdictions
International personality -> Participation + Community acceptance:
Community acceptance: depends on various factors, including g types of personalities under question
Subject of international law: body / entity recognised or accepted as being capable of exercising international rights and duties
Capacities of an international legal person:
To make claims before international tribunals to vindicate rights given by international law
To be subjected to some / all obligations imposed by international law
To have power to make valid international agreements binding in international law
Enjoy some / all immunities from the jurisdiction of domestic courts of other states
BUT:
Only states and some international organisations have capacities to the fullest degree
Other subjects have some capacities / all capacities in varying degrees
Not an absolute concept:
Most organisations have reduced personalities under international law whereas a "state" is the subject of international law par excellence
If you're a State:
Has legal personality under international law but its not really true for individuals/companies/other subjects of international law
Transnational Corporations
aka multinational enterprises
Includes private organisations comprising of several legal entities linked together by parent corporations and are distinguishable by size and mutinational spend
Not considered as international persons, depends on agreement and recognition of States
Individuals
International law's ultimate concern = human beings
Human rights is No.1 concern to States
Many scholars - advocate the need for greater international law to involved individuals
Norms that establish direct individual responsibility - individuals who commit certain crimes
piracy, slave-trading, genocide, war crimes
Western countries - recognise individuals as having a legal personality - but LIMITED than international organisations
Extremely controversial - some States don't agree on individual personality
Situations where individuals have rights enforceable under international law:
When treaty so specifies
When the individual is an international criminal
Treaties that directly gives rights to individuals:
1919 Peace Treaties
Upper Silesia Convention 1922
ECHR 1950
European Communities Treaties 1957
Inter-American Convention on HUman Rights 1969
International criminal responsibility:
Personalities individuals bear the responsibility of:
war crimes - acts contrary to the law of war
crimes against humanity - genocide
crimes against peace - planning an illegal war
e.g.
Treaty of Versailles 1919 - noted that German government recognised the right of the Allied Associated Powers to bring individuals accused of crimes against the laws and customs of war before military tribunals (Art 228)
Charter annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals 1945 (Nuremberg Charter) provided specifically for individual responsibility for crimes against peace, war crimes, crimes against humanity - Principles of the Charter affirmed in the 1946 General Assembly
States as subjects of International Law
What is a State:
Art 1 Montevideo Convention on Rights and Duties of State 1993 - you must have:
A permanent population
A defined territory
A government.
A capacity to enter into relationships with other States
States are subjects of international law
Oppenheim: A proper State is when people are sttled in a territory under its own sovereign government
4 Conditions:
(1) People who live together as a community despite differences in race + religion
(2) A territory - people are settled, wandering people = not a State
(3) A government
(4) A sovereign government
(1) Permanent population:
No specification of a minimum number
Migration or not, there must be a fixed number of inhabitants
Population must be linked to a specific piece of territory in a permanent basis
Unclear whether population must be indiginous
Its an issue whether islands can be considered as candidates for self-determination because that concept is applied to indegious people gaining liberty from colonial masters
(2) Defined territory:
Must have definite physical existence that marks it out clearly from its neighbours
No necessity for defined and settled boundaries
No necessity to defined extent of State boundaries
As long as there's a consistent band of territory that is controlled by government of the said State
(3) Government:
The executive authorities must be effective in their defined territories and exercise control on the permanent population
An inneffective government does not mean a State will lose its statehood. It will still be an established statehood
e.g. Croatia, Bosnia and Herzegovina:
They are recognised as independent States by the European Community member states, admitted into the UN.
All this took place when both states were faced with a situation where non-governmental forces controlled substantial areas of the territories
(4) Capacity to enter into legal relations:
Denotes 'independence' so that territories cannot be regarded as a State as long as its under control, direct/indirect of another State
A State exists if territory is not under the lawful sovereign authority of another State
States with legal independence have legal capacity to enter relations with other States on their own behalf as a matter of right
(5) Association of States:
States associating themselves with one another
e.g.
The Commonwealth of Nations:
Unlikley it possesses separate international personality
But if it develops distinctive institutions and establishes common policies with the capacity to take binding decisions, it may get international personality
The European Union:
Hard to deny it possesses international personality
International Organisations
International organisations may indeed possess objective international legal personality
Measure of international personality varies according to organisation, its objectives and the terms of its constitution / constituent treaty
Other factors: capacity to enter into relations with States and other organisations and conclude treaties with them; status given under municipal laws
UN possesses international personality and is subject of international law
Legal capacity: Art 104 of its Charter
UN Charter recognises the "treaty making power"
Important and famous advisory opinion: Reparation case
Reparation Case:
Facts: A Swedish national (a UN Truce Negotiator) was assinated in Jerusalem (then in Israeli possession)
What action taken upon UN Truce Negotiator upon his death: requested ICJ to give advisory opinion, UN has capacity to bring an international claim against the de facto govt with a view of obtaining reparation
ICJ confirmed the international personality of UN, can bring international claim but NOT ALL possesses international personality
Categories of Personalities:
Objective Personality:
Entity is subject to wide ranges of international rights and duties
Will be entitled to be accepted as an international person by any other international person which is conducting relations
Qualified Personality:
Binds only consenting subjects & arises more easily
Determination operaties only in personam
Other international organisations only in personam
I.O's enjoying international personalities include:
The European Communities
Organisation of American States
The African Union
Specialised agencies of the UN
NGO's
NGO definitions vary:
For some, "NGO" just describes different types of organisations which are non-gov + multi-national companies, national liberation groups etc
But it also means private non-profit organisations encouraging highter values in the legal scope of their society
At the UN, NGOs are highly involved in activities and performances of their intergovernmental organisations
They advise commissions and committees regularly, work together with UN agencies and implement projects or assist UN institutions and provide relevant infos
Shaw:
Possesses international powers conferred by subjects of IL
Conclusion
Has been argued that some international organisations, will possess an inherent personality directly from the systems and not derivative subjects of international law
Derived subjects - possess only such international powers as conferred exceptionally upon them by the necessary subjects of international law
Personality can be acquired by a combination of treaty provisions and recognition/acquiescence by other international persons
Personalities can also be acquired by virtue of being directly subjected to international duties
No preset rules governing the extent of rights and duties of international persons
Will depend on:
type of entity concerned
claims and expectations of the entity
functions and attitude of the international community