DIP 1_merged (1) PDF - International Society and International Law

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This document discusses the heterogeneity of International society, exploring political, economic, and cultural aspects. It delves into the historical development of International Society and International Law, highlighting key concepts and historical instances of treaties and agreements, and introduces the humanization of international law. It examines the differences between municipal and international law, focusing on the unique challenges and structures of the international system.

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1.INTERNATIONAL SOCIETY AND INTERNATIONAL LAW 1.The heterogeneity of International society (political, economic and cultural). 2. Historical development of International Society and International Law. 3. Humanization of the International law Introduction: Every...

1.INTERNATIONAL SOCIETY AND INTERNATIONAL LAW 1.The heterogeneity of International society (political, economic and cultural). 2. Historical development of International Society and International Law. 3. Humanization of the International law Introduction: Every society, whether it be large or small, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what can not be done, permissible acts, forbidden acts, have all been spelt out within the consciousness of that community. Law is that element which binds the members of the community together in their adherence to recognised values and standards. International Law consists of a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the international society within which it functions. And so it is with what is termed international law, with the important difference that the principal subjects of international law are nation-states, not individual citizens. There are many contrasts between the law within a country (municipal law) and the law that operates outside and between states, international organisations and, in certain cases, individuals. International law itself is divided into conflict of laws (or private international Law as it is sometimes called) and ( international public law, public international law and International Law is the same(usually just termed international law).The former deals with those cases, within particular legal systems, in which foreign elements obtrude, raising questions as to the application of foreign law or the role of foreign courts. Public international law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of the many international institutions. It may be universal or general: 1 - United Nations Treaties and universalitation of the IS in the frame of the IS institutionalization, - and also the heterogeneity of IS: More than 220 States with very important differences: Superpowers: USA, great powers: China, Rusia, India, etc. Differences in terms of populations: China 1.400 millions people, India: 1.200 million people, etc.), in which case the stipulated rules bind all the states (or practically all depending upon the nature of the rule), - or regional ( European Union Law, etc ), whereby a group of states linked geographically or ideologically may recognise special rules applying only to them, 1. THE HETEROGENEITY OF INTERNATIONAL SOCIETY ( IS ) IS: More than 220 States ( Heterogeneity of States ) - Heterogeneity in International Economics ( G7, G20, OECD ). - Heterogeneity in International Politics: Security Council G5 Veto, Nuclear States. - Heterogeneity in terms on population and territory and natural ressources. - Heterogeneity in Human Development ( IHD-UNDP ) - Heterogeneity in different Cultures ( Asia, Arabic World, Africa, etc ). IC: International Community of values: - Protection of Human Rights. - Protection of global Environment. Law and politics in the world community It is the legal quality of international law that is the first question to be posed. Each side to an international dispute will doubtless claim legal justification for its actions and within the international system there is no independent institution able to determine the issue and give a final decision. Virtually everybody who starts reading about international law does so having learned or absorbed something about the principal characteristics of ordinary or domestic law. Such identifying marks would include the existence of a recognised body to legislate or create laws, a hierarchy of courts with compulsory jurisdiction to settle disputes over such laws and an accepted system of enforcing those laws. Without a legislature, judiciary and executive, it would seem that one cannot talk about a legal order. 2 - And international law does not fit this model ( national law). International law has no legislature ( like Governments inside States ). - The General Assembly of the United Nations comprising delegates from all the member states exists, but its resolutions are not legally binding save for certain of the organs of the United Nations for certain purposes. ( Security Council Chapter VII Charter UN )- - There is no system of courts. The International Court of Justice does exist at The Hague but it can only decide cases when both sides ( States ) agree and it cannot ensure that its decisions are complied with. - Above all, there is no executive or governing entity. The Security Council of the United Nations, which was intended to have such a role in a sense, has at times been effectively constrained by the veto power of the five permanent members (USA; USSR, now the Russian Federation; China; France; and the United Kingdom- G5). The idea of coercion as an integral part of any legal order is a vital one that needs looking at in the context of international law. The role of force ( art. 2.4 UN Charter ): There is no unified system of sanctions in international law in the sense that there is in municipal law, but there are circumstances in which the use of force is regarded as justified and legal. Within the United Nations system, sanctions may be imposed by the SecurityCouncil upon the determination of a threat to the peace, breach of the peace or act of aggression. Such sanctions may be economic, for example those proclaimed in 1966 against Rhodesia,or military as in the Korean war in 1950,or indeed both, as in 1990 against Iraq.or in Res. S. Council 1973 ( 2011 ) against Lybia. Coercive action within the framework of the UN is rare because it requires co-ordination amongst the five permanent members of the Security Council and this obviously needs an issue not regarded by any of the great powers as a threat to their vital interests. States may use force in self-defence ( art. 51 UN Charta ), if the object of aggression, and may take action in response to the illegal acts of other states. The current trend in international law is to restrict the use of force as far as possible, The international system The key to the search lies within the unique attributes of the international system in the sense of the network of relationships existing primarily, if not exclusively, between states recognising certain common principles and ways of doing things.While the legal structure within all but the 3 most primitive societies is hierarchical and authority is vertical, the international system is horizontal, consisting of over 190 independent states, all equal in legal theory (in that they all possess the characteristics of sovereignty, 1 STATE 1 VOTE IN GENERAL ASSEMBLY ) and recognising no one in authority over them. The law is above individuals in domestic systems, but international law only exists as between the states. Individuals only have the choice as to whether to obey the law or not. They do not create the law. That is done by specific institutions. In international law, on the other hand, it is the states themselves that create the law and obey or disobey it.This, of course, has profound repercussions as regards the sources of law as well as the means for enforcing accepted legal rules. SOURCES: INTERNATIONAL TREATIES AS THE MAIN SOURCE IN CONTEMPORARY INTERNATIONAL LAW International law, as will be shown is primarily formulated by international agreements, which create rules binding upon the signatories, and customary rules, which are basically state practices recognised by the community at large as laying down patterns of conduct that have to be complied with. Contrary to popular belief, states do observe international law, and violations are comparatively rare. However, such violations (like armed attacks and racial oppression) are well publicized and strike at the heart of the system, the creation and preservation of international peace and justice. The vast majority of the provisions of international law are followed.In the daily routine of international life, large numbers of agreements and customs are complied with. The function of politics It is clear that there can never be a complete separation between law and policy. No matter what theory of law or political philosophy is professed, the inextricable bonds linking law and politics must be recognised. However, when one looks at the international legal scene the situation changes. The arbiters of the world order are, in the last resort, the states and they both make the rules (ignoring for the moment the secondary, if growing, field of international organisations) and interpret and enforce them. 4 2. Historical development of International Society The foundations of international law (or the law of nations) as it is understood today lie firmly in the development of Western culture and political organisation. The growth of European notions of sovereignty and the independent nation-state required an acceptable method whereby inter-state relations could be conducted in accordance with commonly accepted standards of behaviour, and international law filled the gap. But although the law of nations took root and flowered with the sophistication of Renaissance Europe, the seeds of this particular hybrid plant are of far older lineage. They reach far back into history. Early origins While the modern international system can be traced back some 400 years, certain of the basic concepts of international law can be discerned in political relationships thousands of years ago.Around 2100 BC, for instance, a solemn treaty was signed between the rulers of Lagash and Umma, the city-states situated in the area known to historians as Mesopotamia. Itwas inscribed on a stone block and concerned the establishment of a defined boundary to be respected by both sides under pain of alienating a number of Sumerian gods.The next major instance known of an important, binding, international treaty is that concluded over 1,000 years later between Rameses II of Egypt and the king of the Hittites for the establishment of eternal peace and brotherhood. Aftermuch neglect, there is now more consideration of the cultures and standards that evolved, before the birth of Christ, in the Far East, in the Indian and Chinese civilisations. Many of the Hindu rules displayed a growing sense of morality and generosity and the Chinese Empire devoted much thought to harmonious relations between its constituent parts. But the notion of a universal community with its ideal of world order was not in evidence. The era of classical Greece, from about the sixth century BC and onwards for a couple of hundred years, has, one must note, been of overwhelming significance for European thought. Its critical and rational turn of mind, its constant questioning and analysis of man and nature and its love of argument and debate were spread throughout Europe and the Mediterranean world by the Roman Empire which adopted Hellenic culture wholesale, and penetrated Western consciousness with the Renaissance. 5 However, Greek awareness was limited to their own competitive city-states and colonies. Those of different origin were barbarians not deemed worthy of association. The value of Greece in a study of international law lies in the numerous treaties that linked the city-states together in a network of commercial and political associations. No sense of a world community can be traced to Greek ideology in spite of the growth of Greek colonies throughout the Mediterranean area. This was left to the able administrators of the Roman Empire. The Romans had a profound respect for organisation and the law. The law knitted together their empire and constituted a vital source of reference for every inhabitant of the far-flung domain. The early Roman law (the jus civile) applied only to Roman citizens. It was formalistic and hard and reflected the status of a small, unsophisticated society rooted in the soil. It was totally unable to provide a relevant background for an expanding, developing nation. This need was served by the creation and progressive augmentation of the jus gentium. This provided simplified rules to govern the relations between foreigners, and between foreigners and citizens. The instrument through which this particular system evolved was the official known as the Praetor Peregrinus, whose function it was to oversee all legal relationships, including bureaucratic and commercial matters, within the empire. Thus, the jus gentium became the common law of the Roman Empire and was deemed to be of universal application. It is this all-embracing factor which so strongly distinguishes the Roman from the Greek experience, although, of course, there was no question of the acceptance of other nations on a basis of equality and the jus gentium remained a ‘national law’ for the Roman Empire. The founders of modern international law The essence of the new approach to international law can be traced back to the Spanish philosophers of that country’s Golden Age.The leading figure of this school was Francisco Vitoria, Professor of Theology at the University of Salamanca (1480–1546). He maintained that the Indian peoples should be regarded as nations with their own legitimate interests. War against them could only be justified on the grounds of a just cause. International law was founded on the universal law of nature and this meant that non-Europeans must be included within its ambit. However, Vitoria by no means advocated the recognition of the Indian nations as equal to the Christian states of Europe. For him, opposing the work of the missionaries in the territories was a just reason for war, and he adopted a rather extensive view as to the rights of the Spaniards in South America. Vitoria was no liberal and indeed acted on 6 behalf of the Spanish Inquisition, but his lectures did mark a step forward in the right direction.Suárez (1548–1617) was a Jesuit and Professor of Theology who was deeply immersed in medieval culture.He noted that the obligatory character of international law was based upon Natural Law, while its substance derived from the Natural Law rule of carrying out agreements entered into.From a totally different background but equally, if not more, influential was Alberico Gentili (1552–1608).He was born inNorthern Italy and fled to England to avoid persecution, having converted to Protestantism. In 1598 his De Jure Belli was published.It is a comprehensive discussion of the law of war and contains a valuable section on the law of treaties. Gentili, who became a professor at Oxford, has been called the originator of the secular school of thought in international law and he minimised the hitherto significant theological theses. It is, however, Hugo Grotius, a Dutch scholar, who towers over this period and has been celebrated, if a little exaggeratedly, as the father of international law. He was born in 1583 and was the supreme Renaissance man. A scholar of tremendous learning, he mastered history, theology, mathematics and the law.His primaryworkwas the De Jure Belli ac Pacis, written during 1623 and 1624. Grotius finally excised theology from international law and emphasised the irrelevance in such a study of any conception of a divine law. He remarked that the law of nature would be valid even if there were no God not only useful but essential. Grotius conceived of a comprehensive system of international law and his work rapidly became a university textbook. However, in many spheres he followed well-trodden paths. He retained the theological distinction between a just and an unjust war, a notion that was soon to disappear from treatises on international law, but which in some way underpins modern approaches to aggression, self-defence and liberation. One of his most enduring opinions consists in his proclamation of the freedom of the seas. Positivism and naturalism Following Grotius, but by no means divorced from the thought of previous scholars, a split can be detected and two different schools identified. On the one hand there was the ‘naturalist’ school, exemplified by Samuel Pufendorf (1632–94),who attempted to identify international law Completely with the law of nature; and on the other hand there were the exponents of ‘positivism’, who distinguished between international law and Natural Law and emphasised practical problems and current state practices. One of the principal initiators of the positivist school was Richard Zouche (1590–1660), who lived at the same time as Pufendorf, but in England.While completely dismissingNatural Law, he paid scant regard 7 to the traditional doctrines. His concern was with specific situations and his book contains many examples fromthe recent past.He elevated the law of peace above a systematic consideration of the law of war and eschewed theoretical expositions. In similar style Bynkershoek (1673–1743) stressed the importance of modern practice and virtually ignored Natural Law. The positivist approach, like much of modern thought, was derived from the empirical method adopted by the Renaissance. Empiricism as formulated by Locke and Hume denied the existence of innate principles and postulated that ideas were derived from experience. The scientific method of experiment and verification of hypotheses emphasised this approach. From this philosophical attitude, it was a short step to reinterpreting international law not in terms of concepts derived from reason but rather in terms of what actually happened between the competing states. What states actually do was the key, not what states ought to do given basic rules of the law of nature. Agreements and customs recognised by the states were the essence of the law of nations. Positivism developed as the modern nation-state system emerged, after the Peace of Westphalia in 1648, from the religious wars.It coincided, too, with theories of sovereignty such as those propounded by Bodin and Hobbes, which underlined the supreme power of the sovereign and led to notions of the sovereignty of states. Elements of both positivism and naturalism appear in the works of Vattel (1714–67), a Swiss lawyer. His Droit des Gens was based on Natural Law principles yet was practically oriented. He introduced the doctrine of the equality of states into international law, declaring that a small republic was no less a sovereign than the most powerful kingdom, just as a dwarf was as much a man as a giant. The idea of the social contract, that an agreement between individuals pre- dated and justified civil society, emphasised the central role of the individual, and whether such a theory was interpreted pessimistically to demand an absolute sovereign as Hobbes declared, or optimistically to mean a conditional acceptance of authority as Locke maintained, it could not fail to be a revolutionary doctrine. The rights of man constitute the heart of the American and French Revolutions and the essence of modern democratic society. Yet, on the other hand, the doctrine of Natural Law has been employed to preserve the absoluteness of sovereignty and the sanctity of private possessions. 8 The nineteenth century The eighteenth century was a ferment of intellectual ideas and rationalist philosophies that contributed to the evolution of the doctrine of international law. The nineteenth century by contrast was a practical, expansionist and positivist era. The Congress of Vienna, which marked the conclusion of theNapoleonic wars, enshrined the new international order which was to be based upon the European balance of power. International law became Eurocentric. Also saw the coming to independence of Latin America and the forging of a distinctive approach to certain elements of international law by the states of that region, especially with regard to, for example, diplomatic asylum and the treatment of foreign enterprises and nationals. There are many other features that mark the nineteenth century. Democracy and nationalism, both spurred on by the wars of the French revolution and empire, spread throughout the Continent and changed the essence of international relations.No longer the exclusive concern of aristocratic ´elites, foreign policy characterised both the positive and the negative faces of nationalism. Self-determination emerged to threaten the multinational empires of Central and Eastern Europe, while nationalism reached its peak in the unifications of Germany and Italy and began to exhibit features such as expansionism and doctrines of racial superiority. Democracy brought to the individual political influence and a say in government. It also brought home the realities of responsibility, for wars became the concern of all. Conscription was introduced throughout the Continent and large national armies replaced the small professional forces.The Industrial Revolution mechanised Europe, created the economic dichotomy of capital and labour and propelled Western influence throughout the world. All these factors created an enormous increase in the number and variety of both public and private international institutions, and international law grew rapidly to accommodate them. FIRST INTERNATIONAL CO-OPERATION PROCESSES ITU, UPU The development of trade and communications necessitated greater international co-operation as a matter of practical need. In 1815, the Final Act of the Congress of Vienna established the principle of freedom of navigation with regard to international waterways and set up a Central Commission of the Rhine to regulate its use. In 1856 a commission for the Danube was created and a number of other European rivers also became the subject of international agreements and arrangements. In 1865 the International Telegraphic Union was established and in 1874 the Universal Postal Union. - European conferences proliferated and contributed greatly to the development of rules governing the waging of war. - The International Committee 9 of the Red Cross, founded in 1863, helped promote the series of Geneva Conventions beginning in 1864 dealing with the ‘humanisation’ of conflict, and the Hague Conferences of 1899 and 1907 established the Permanent Court of Arbitration and dealt with the treatment of prisoners and the control of warfare. Numerous other conferences, conventions and congresses emphasised the expansion of the rules of international law and the close network of international relations. In addition, the academic study of international lawwithin higher education developed with the appointment of professors of the subject and the appearance of specialist textbooks emphasising the practice of states. Positivist theories dominate this century. The proliferation of the powers of states and the increasing sophistication of municipal legislation gave force to the idea that laws were basically commands issuing from a sovereign person or body. The individual was subordinate to the state, because the latter enshrined the ‘wills’ of all citizens and had evolved into a higherwill, and on the external scene the state was sovereign and supreme. Such philosophies led to disturbing results in the twentieth century and provoked a re-awakening of the law of nature, dormant throughout the nineteenth century The growth of international agreements, customs and regulations induced positivist theorists to tackle this problem of international law and the state; and as a result two schools of thought emerged. The monists claimed that there was one fundamental principle which underlay both national and international law. This was variously posited as ‘right’ or social solidarity or the rule that agreements must be carried out (pacta sunt servanda). The dualists, more numerous and in a more truly positivist frame of mind, emphasised the element of consent. For Triepel, another German theorist, international law and domestic (or municipal) law existed on separate planes, the former governing international relations, the latter relations between individuals and between the individual and the state. International law was based upon agreements between states (and such agreements included, according to Triepel, both treaties and customs) and because it was dictated by the ‘common will’ of the states it could not be unilaterally altered. The nineteenth century also saw the publication of numerous works on international law, which emphasised state practice and the importance of the behaviour of countries to the development of rules of international law. 10 The twentieth century The First World War marked the close of a dynamic and optimistic century. European empires ruled the world and European ideologies reigned supreme, but the 1914–18 Great War undermined the foundations of European civilisation. The most important legacy of the 1919 Peace Treaty from the point of View of international relations was the creation of the League of Nations. the absence of the United States and the Soviet Union for most of its life and remained a basically European organisation. While it did have certain minor successes with regard to the maintenance of international order, it failed when confronted with determined aggressors. Japan invaded China in 1931 and two years later withdrew from the League. Italy attacked Ethiopia, and Germany embarked unhindered upon a series of internal and external aggressions. The Soviet Union, in a final gesture, was expelled from the organisation in 1939 following its invasion of Finland. Nevertheless much useful groundwork was achieved by the League in its short existence and this helped to consolidate the United Nations later on.The Permanent Court of International Justice was set up in 1921 at The Hague and was succeeded in 1946 by the International Court of Justice. The International Labour Organisation was established soon after the end of the FirstWorldWar and still exists today, and many other international institutions were inaugurated or increased their work during this period. Other ideas of international law that first appeared between the wars included the system of mandates, by which colonies of the defeated powers were administered by the Allies for the benefit of their inhabitants rather than being annexed outright, and the attempt was made to provide a form of minority protection guaranteed by the League. This latter creation was not a great success but it paved the way for later concern to secure human rights. After the trauma of the Second World War the League was succeeded in 1945 by the United Nations Organisation, which tried to remedy many of the defects of its predecessor. It established its site at New York, reflecting the realities of the shift of power away from Europe, and determined to become a truly universal institution. The vast increase in the number of international agreements and customs, the strengthening of the system of arbitration and the development of international organisations have established the essence of international law as it exists today. 11 The Third World In the evolution of international affairs since the Second World War one of the most decisive events has been the disintegration of the colonial empires and the birth of scores of new states in the so-called ThirdWorld. The new nations have eagerly embraced the ideas of the sovereignty and equality of states and the principles of non- aggression and non-intervention, in their search for security within the bounds of a commonly accepted legal framework. While this new internationalisation of international law that has occurred in the last fifty years has destroyed its European-based homogeneity, it has emphasised its universalist scope.The composition of, for example, both the International Court of Justice and the Security Council of the United Nations mirrors such developments. Article 9 of the Statute of the International Court of Justice points out that the main forms of civilisation and the principal legal systems of the world must be represented within the Court, and there is an arrangement that of the ten non-permanent seats in the Security Council five should go to Afro-Asian states and two to Latin American states (the others going to Europe and other states). The composition of the International Law Commission has also recently been increased and structured upon geographic lines. The influence of the new states has been felt most of all within the General Assembly, where they constitute a majority of the 192 ( 193 South Sudan ) Member states. The content and scope of the various resolutions and declarations emanating from the Assembly are proof of their impact and contain a record of their fears, hopes and concerns. The Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960, for example, enshrined the right of colonies to obtain their sovereignty with the least possible delay and called for the recognition of the principle of self-determination. This principle, which is discussed elsewhere in this book,is regarded by most authorities as a settled rule of international law although with undetermined borders. Nevertheless, it symbolises the rise of the post-colonial states and the effect they are having upon the development of international law. Their concern for the recognition of the sovereignty of states is complemented by their support of the United Nations and its Charter and supplemented by their desire for ‘economic self-determination’ or the right of permanent sovereignty over natural resources. This expansion of international law into the field of economics was a major development of the twentieth century and is evidenced in myriad ways, for example, by - the creation of the General Agreement on Tariffs and Trade, - the United Nations Conference on Trade and Development, - and the establishment 12 of the International Monetary Fund and World Bank. The interests of the new states of the Third World are often in conflict with those of the industrialised nations, conflict with each other and this is reflected in the different positions. In the medium term, however, it has to be recognised that with the end of the Cold War and the rapid development of Soviet (then Russian) American co-operation, the axis of dispute is turning from East–West to North–South. ( problems North-South in relation with the fight against climate change, human rights in Africa, differences in technology, etc ). This is beginning to manifest itself in a variety of issues ranging from economic law to the law of the sea and human rights, while the impact of modern technology has hardly yet been appreciated. 3. Humanization of the International Law INTRODUCTION The developing concern with human rights is another aspect of this move towards increasing the role of the individual in international law. - The Universal Declaration of Human Rights adopted by the United Nations in 1948 lists a series of political and social rights, although it is only a guideline and not legally binding as such. - The European Convention for the Protection of Human Rights and Fundamental Freedoms signed in 1950 and - the International Covenants on Human Rights of 1966 - - Civil and Political Rights - Social, Economic and Cultural Rights. are of a different nature and binding upon the signatories. In an effort to function satisfactorily various bodies of a supervisory and implementational nature were established. - Within the European Union, individuals and corporations have certain rights of direct appeal to the European Court of Justice against decisions of the various Union institutions. In addition, individuals may appear before certain international tribunals. Charter of Niza ( entered into force 1/12/2009 ) The United Nations system UN Charter 1945 13 There are a number of human rights provisions in the Charter. - Article 1 includes in the purposes of the organisation the promotion and encouragement of respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Article 13(1) notes that the General Assembly shall initiate studies and make recommendations regarding the realisation of human rights for all, - while article 55 provides that theUnited Nations shall promote universal respect for and observance of human rights. Universal Declaration of Human Rights adopted by theUNGeneral Assembly on 10 December 1948 30 articles: Its thirty articles: cover a wide range of rights, - from liberty and security of the person (article 3), - equality before the law (article 7), - effective remedies (article 8), - due process (articles 9 and 10), - prohibitions on torture (article 5) and - arbitrary interference with privacy (article 12) - to rights protecting freedom of movement (article 13), - asylum (article 14), - freedom of expression (article 19), - freedom of conscience and religion (article 18) and - freedom of assembly (article 20). - should also note that included in the Declaration are social and economic rights such as: - the right to work and equal pay (article 23), - the right to social security (article 25) and - the right to education (article 26). Although clearly not a legally enforceable instrument as such, the question arises as to whether the Declaration has subsequently become binding either by way of customor general principles of law, or indeed by virtue of interpretation of the UN Charter itself by subsequent practice. The Declaration has had a marked influence upon the constitutions of many States ( art. 10.2 Spanish Constitution 1978 ). Together with the evolution of individual human rights, the rise of international organisations marks perhaps the key distinguishing feature of modern international law. 14 2. Conceptual Framework and Fundamental Principles of International Law 1 Notion, theories, and functions of International law. 2. Fundamental principles and features of International law 1. Notion, theories, and functions of International law Notion International Law The body of law that governs the legal relations between or among states or nations. Or rights and obligations of other subjects of IL as OI, individual. To qualify as a subject under the traditional definition of international law, a sta te had to be sovereign: It needed a territory, apopulation, a government, and the ability to engage in diplomatic or foreign relations. States within the United Sta tes,provinces, and cantons were not considered subjects of international law, be cause they lacked the legal authority to engagein foreign relations. In addition, i ndividuals did not fall within the definition of subjects that enjoyed rights and o bligationsunder international law. A more contemporary definition expands the traditional notions of international law to confer rights and obligations onintergovernmental international organiz ations and even on individuals. The United Nations, for example, is an interna tionalorganization that has the capacity to engage in treaty relations governed b y and binding under international law with statesand other international organi zations. Individual responsibility under international law is particularly significa nt in the contextof prosecuting war criminaland the development of international Human Rights 1 Theories Debates Idealism ( Wilson/ Realism Morgenthau ) Naturalism influence Theology God/ Positivism ( States real power ) Dualism / Monism ( Kelsen verticalization of system National and IL the same order, but IL in the top of system ). Main division: GENERAL AND SPECIAL IL General International Law Subjects: - States - IO - Individual - Transn. Companies. NGO SOURCES: Customs, Treaties, etc. Special International Law: IHRL, IEcL, IEL, IHL, ICrimL Law of outer Space. ILL ( ILO ), ICultural Law ( UNESCO ). Functions of IL The expanding legal scope of international concern International law since the middle of the last century has been developing in many directions, as the complexities of life in the modern era have multiplied. For, as already emphasised, law reflects the conditions and cultural traditions of the society within which it operates. The community evolves a certain specific set of values – social, economic and political – and this stamps its mark on the legal framework which orders life in that environment. Similarly, international law is a product of its environment. It has developed in accordance with the prevailing notions of international relations and to survive it must be in harmony with the realities of the age. Nevertheless, there is a continuing tension between those rules already established and the constantly evolving forces that seek changes within 2 the system. One of the major problems of international law is to determine when and how to incorporate new standards of behaviour and new realities of life into the already existing framework, so that, on the one hand, the law remains relevant and, on the other, the system itself is not too vigorously disrupted. Changes that occur within the international community can be momentous and reverberate throughout the system. For example, the advent of nuclear arms created a status quo in Europe and a balance of terror throughout the world. It currently constitutes a factor of unease as certain states seek to acquire nuclear technology. Another example is the technological capacity to mine the oceans and the consequent questions as to the nature and beneficiaries of exploitation. The rise of international terrorism has posited new challenges to the system as states and international organisations struggle to deal with this phenomenon while retaining respect for the sovereignty of states and for human rights. There are several instances of how modern developments demand a constant reappraisal of the structure of international law and its rules. The scope of international law today is immense: From the regulation of space expeditions to the question of the division of the ocean floor, And from the protection of human rights to the management of the international financial system, its involvement has spread out from the primary concern with the preservation of peace, to embrace all the interests of contemporary international life. International law has not just expanded horizontally to embrace the new states which have been established since the end of the Second World War; it has extended itself to include individuals, groups and international organisations, both private and public, within its scope. It has also moved into new fields covering such issues as international trade, problems of environmental protection, human rights and outer space exploration. Further, of course, the existence of the Security Council as an executive organ with powers to adopt resolutions in certain circumstances that are binding upon all member states is unique in the history of international relations. Thus, while states remain the primary subjects of international law, they are now joined by other non-state entities, whose importance is likely to grow even further in the future. The growth of regional organisations should also be noted at this stage. Many of these were created for reasons of military security, for example NATO and the opposingWarsaw Pact organisations, others as an expression of regional and cultural identity such as the Organisation of African Unity (now the African Union) and the Organisation of American States. 3 In a class of its own is the European Union which has gone far down the road of economic co-ordination and standardisation and has a range of common institutions serviced by a growing bureaucracy stationed primarily at Brussels. Such regional organisations have added to the developing sophistication of international law by the insertion of ‘regional–international law sub-systems’ within the universal framework and the consequent evolution of rules that bind only member states. The range of topics covered by international law has expanded hand in hand with the upsurge in difficulties faced and the proliferation in the number of participants within the system. It is no longer exclusively concerned with issues relating to the territory or jurisdiction of states narrowly understood, but is beginning to take into account the specialised problems of contemporary society. Many of these have already been referred ( MODERN IL ): - to, such as the vital field of human rights, - the growth of an international economic law covering financial and development matters, - concern with environmental despoliation, - the space exploration effort and - the exploitation of the resources of the oceans and deep seabed. One can mention - also provisions relating to the bureaucracy of international institutions (international administrative law), - international labour standards, - health regulations and communications controls. Many of these trends may be seen as falling within, or rather reflecting, the phenomenon of globalisation, a term which encompasses the inexorable movement to greater interdependence founded upon economic, communications and cultural bases and operating quite independently of national regulation.This in turn stimulates disputes of an almost ideological nature concerning, for example, - the relationship between free trade and environmental protection in the context of IL and Sustainability. To this may be added the pressures of democracy and human rights, both operating to some extent as countervailing influences to the classical emphasis upon the territorial sovereignty and jurisdiction of states ( CLASSIC IL ) 4 The international legal order is a prime example of a simple form of social structure which consists only of the primary rules, because of its lack of a centralised legislature, network of recognised courts with compulsory jurisdiction and organised means of enforcement. Following this train of thought, Hart concludes that the rules of international law do not as yet constitute a ‘system’ but are merely a ‘set of rules’. Of course, future developments may see one particular principle, such as pacta sunt servanda, elevated to the state of a validating norm but in the present situation this has not yet occurred.This approach can be criticised for its over-concentration upon rules to the exclusion of other important elements in a legal system such as principles and policies,and more especially as regards international law, for failing to recognise the sophistication or vitality of the system. In particular, the distinction between a system and a set of rules in the context of international law is a complex issue and one which is difficult to delineate. Many of the ideas and principles of international law today are rooted in the notion of Natural Law and the relevance of ethical standards to the legal order, such as the principles of non-aggression and human rights. 2. Fundamental principles and features of International Law FUNDAMENTAL PRINCIPLES ( Art. 2 UN Charter ): The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles: 1. The Organization is based on the principle of the sovereign equality of all its Members. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 5 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII of the United Nations. FEATURES OF INTERNATIONAL LAW: - And international law does not fit this model ( national law). International law has no legislature ( like Governments inside States ). - The General Assembly of the United Nations comprising delegates from all the member states exists, but its resolutions are not legally binding save for certain of the organs of the United Nations for certain purposes. ( Security Council Chapter VII UN Charter) - There is no system of courts. The International Court of Justice does exist at The Hague but it can only decide cases when both sides ( States ) agree and it cannot ensure that its decisions are complied with. - Above all there is no executive or governing entity. The Security Council of the United Nations, which was intended to have such a role in a sense, has at times been effectively constrained by the veto power of the five permanent members (USA; USSR, now the Russian Federation; China; France; and the United Kingdom). There is no unified system of sanctions ( USE OF FORCE, SC AND ART. 51 ) in international law in the sense that there is in municipal law, but there are circumstances in which the use of force is regarded as justified and legal ( CHAPTER 7 UN CHARTER ). BUT OBLIGATIONS AND DUTIES ARE THE RESULT OF THE CONSENT AMONG STATES ( IUS DISPOSITIVUM ), ALTHOUGH THE RULES OF IUS COGENS ( SLAVERY TRADE, GENOCIDE, ETC. ) ARE IN THE TOP OF THE LEGAL SYSTEM Thus, if there is no identifiable institution either to establish rules, or to clarify them or see that those who break them are punished, how can what is called international law be law? It will, of course, be realised that the basis for this line of argument is the comparison of domestic law with international law, and the assumption of 6 an analogy between the national system and the international order. And this is at the heart of all discussions about the nature of international law. At the turn of the nineteenth century, the English philosopher John Austin elaborated a theory of law based upon the notion of a sovereign issuing a command backed by a sanction or punishment. Since international law did not fit within that definition it was relegated to the category of ‘positive morality’. This concept has been criticised for oversimplifying and even confusing the true nature of law within a society and for overemphasising the role of the sanction within the system by linking it to every rule. This is not the place for a comprehensive summary ofAustin’s theory but the idea of coercion as an integral part of any legal order is a vital one that needs looking at in the context of international law. The role of force There is no unified system of sanctions in international law in the sense that there is in municipal law, but there are circumstances in which the use of force is regarded as justified and legal. Within the United Nations system, sanctions may be imposed by the SecurityCouncil upon the determination of a threat to the peace, breach of the peace or act of aggression. Such sanctions may be economic, for example those proclaimed in 1966 against Rhodesia, or military as in the Korean war in 1950, or indeed both, as in 1990 against Iraq. or in Res. S. Council 1973 ( 2011 ) against Lybia. Coercive action within the framework of the UN is rare because it requires co-ordination amongst the five permanent members of the Security Council and this obviously needs an issue not regarded by any of the great powers as a threat to their vital interests. Korea was an exception and joint action could only be undertaken because of the fortuitous absence of the USSR from the Council as a protest at the seating of the Nationalist Chinese representatives. Apart from such institutional sanctions, one may note the bundle of rights to take violent action known as self-help. This procedure to resort to force to defend certain rights is characteristic of primitive systems of lawwith blood-feuds, but in the domestic legal order such procedures and development of international law methods are now within the exclusive control of the established authority. States may use force in self-defence ( art. 51 UN Charter ), if the object of aggression, and may take action in response to the illegal acts of other states. In such cases the states themselves decide whether to take action and, if so, the extent of their measures, and there is no supreme body to rule on their legality or otherwise, in the absence of an examination by the International Court 7 of Justice, acceptable to both parties, although international law does lay down relevant rules. Accordingly those writers who put the element of force to the forefront of their theories face many difficulties in describing the nature, or rather the legal nature of international law, with its lack of a coherent, recognised and comprehensive framework of sanctions. To see the sanctions of international law in the states’ rights of self-defence and reprisals is to misunderstand the role of sanctions within a system because they are at the disposal of the states, not the system itself.Neither must it be forgotten that the current trend in international law is to restrict the use of force as far as possible. 8 SUBJECTS 3.The subjects of international law (1) 1.International legal personality. 2.State organs, diplomatic relations and International law. 3.State elements. Creation, recognition and extinction. 4.Immunities. 1.International legal personality International legal personality In any legal system, certain entities, whether they be individuals or companies, will be regarded as possessing rights and duties enforceable at law.Thus an individual may prosecute or be prosecuted for assault and a company can sue for breach of contract. They are able to do this because the law recognises them as ‘legal persons’ possessing the capacity to have and to maintain certain rights, and being subject to perform specific duties. The status of a particular entity may well be determinative of certain powers and obligations, while capacity will link together the status of a person with particular rights and duties. Personality in international law necessitates the consideration of the interrelationship between rights and duties afforded under the international system and capacity to enforce claims. 1. Active international legal personality ( individuals before European Human Rights Courts in Strabourg at Council of Europe ) rights to enforce claims by violations of rights In European Convention of fundamental rights, 4/11/1950. Personality is a relative phenomenon varying with the circumstances. One of the distinguishing characteristics of contemporary international law has 1 been the wide range of participants. These include states, international organisations, regional organisations, non- governmental organisations, public companies, private companies and individuals. To these may be added groups engaging in international terrorism. Not all such entities will constitute legal persons, although they may act with some degree of influence upon the international plane. International personality is participation plus some form of community acceptance. The latter element will be dependent upon many different factors, including the type of personality under question. Particular branches of international law here are playing a crucial role. - Human rights law, - the law relating to armed conflicts and - international economic law are especially important in generating and reflecting increased participation and personality in international law. 2.State organs, diplomatic relations and International law STATE ORGANS - Heads of States, PM, Miniters, Ambassadors before States or IIOO, Diplomats, Representant of Governmental organs ( in Spain even representant of CCAA, o Länder in Germany or Austria in case of Federal States. ). Rules regulating the various aspects of diplomatic relations constitute one of the earliest expressions of international law.Whenever in history there the rules of diplomatic law, in short, constitute a self-contained regime, which on the one hand, lays down the receiving state’s The Vienna Convention on Diplomatic Relations, 1961 This treaty, which came into force in 1964,emphasises the functional necessity of diplomatic privileges and immunities for the efficient conduct of international relationsas well as pointing to the character of the diplomatic mission as representing its state.It both codified existing laws and established others.Questions not expressly regulated by the Convention continue to be governed by the rules of customary international law. The International Court has recently emphasised that the Convention continues to apply notwithstanding the existence of a state of armed conflict between the states concerned. There is no right as such under international law to diplomatic relations, 2 and they exist by virtue of mutual consent.If one state does not SENDING STATE AND RECEIVING STATE wish to enter into diplomatic relations, it is not legally compelled so to do. Accordingly, the Convention specifies in article 4 that the sending state must ensure that the consent (or agreement) of the receiving state has been given for the proposed head of its mission, and reasons for any refusal of consent ( EXEQUATUR ) do not have to be given. Similarly, by article 9 the receiving state may at any time declare any member of the diplomatic mission persona non grata without having to explain its decision, and thus obtain the removal of that person.However, the principle of consent as the basis of diplomatic relations may be affected by other rules of international law. For example, the Security Council in resolution 748 (1992), which imposed sanctions upon Libya, decided that ‘all states shall: (a) significantly reduce the number and level of the staff at Libyan diplomatic missions and consular posts and restrict or control the movement within their territory of all such staff who remain... ’. The main functions of a diplomatic mission are specified in article 3 and revolve around the representation and protection of the interests and nationals of the sending state, aswell as the promotion of information and friendly relations. Article 41(1) also emphasises the duty of all persons enjoying privileges and immunities to respect the laws and regulations of the receiving state and the duty not to interfere in the internal affairs of that state. Article 13 provides that the head of the mission is deemed to have taken up his functions in the receiving state upon presentation of credentials. Heads of mission are divided into three classes by article 14, viz. ambassadors or nuncios accredited to heads of state and other heads of mission of equivalent rank; envoys, ministers and internuncios accredited to heads of state; and charg´es d’affaires accredited to ministers of foreign affairs.It is customary for a named individual to be in charge of a diplomatic mission.When, in 1979, Libya designated its embassies as ‘People’s Bureaux’ to be run by revolutionary committees, theUKinsisted upon and obtained the nomination of a named person as the head of the mission. The inviolability of the premises of the mission In order to facilitate the operations of normal diplomatic activities, article 22 of the Convention specifically declares that the premises of the mission are inviolable and that agents of the receiving state are not to enter them 3 without the consent of the mission. This appears to be an absolute rule armed forces constituted a violation of article 22.In addition, the Court emphasised that the Vienna Convention not only prohibits any infringements of the inviolability of the mission by the receiving state itself but also puts the receiving state under an obligation to prevent others, such as armed militia groups, from doing so. The diplomatic bag Article 27 provides that the receiving state shall permit and protect free communication on behalf of the mission for all official purposes. Such official communication is inviolable and may include the use of diplomatic couriers and messages in code and in cipher, although the consent of the receiving state is required for a wireless transmitter. Article 27(3) and (4) deals with the diplomatic bag, and provides that it shall not be opened or detainedand that the packages constituting the diplomatic bag ‘must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use’.The need for a balance in this area is manifest However, in the case of the consular bag, it is noted that if the competent authorities of the receiving or transit state have serious reason to believe that the bag contains something other than official correspondence and documents or articles intended exclusively for official use, they may request that the bag be opened in their presence by an authorised representative of the sending state. Diplomatic immunities – property Under article 22 of the Vienna Convention, the premises of the mission are inviolable and, together with their furnishings and other property thereon and the means of transport, are immune from search, requisition, attachment or execution. By article 23, a general exception from taxation in respect of the mission premises is posited. Diplomatic immunities – personal The person of a diplomatic agent is inviolable under article 29 of the Vienna Convention and he may not be detained or arrested.This principle is the most fundamental rule of diplomatic law and is the oldest established rule of diplomatic law The receiving state is under an obligation to ‘take all appropriate steps’ to prevent any attack on the person, freedom or dignity of diplomatic agents. After a period of kidnappings of diplomats, the UN Convention on the 4 Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents was adopted in 1973. This provides that states parties must make attacks upon such persons a crime in internal law with appropriate penalties and take such measures as may be necessary to establish jurisdiction over these crimes. States parties are obliged Defined in article 1(e) as the head of the mission or a member of the diplomatic staff of to extradite or prosecute offenders ( principle aut dedere aut judicare ).The most blatant example of the breach of the obligation to protect diplomats was the holding of the US diplomats as hostages in Iran in 1979–80, where the International Court held that the inaction of the Iranian government faced with the detention of US diplomatic and consular staff over an extended period constituted a ‘clear and serious violation’ of article. However, in exceptional cases, a diplomat may be arrested or detained on the basis of self-defence or in the interests of protecting human life. Article 30(1) provides for the inviolability of the private residenceof a diplomatic agent, while article 30(2) provides that his papers, correspondence and property are inviolable. As far as criminal jurisdiction is concerned, diplomatic agents enjoy complete immunity from the legal system of the receiving state, although there is no immunity from the jurisdiction of the sending state. This provision noted in article 31(1) reflects the accepted position under customary law. The only remedy the host state has in the face of offences alleged to have been committed by a diplomat is to declare him persona non grata under article 9.Specific problems have arisen with regard to motoring offences. Article 31(1) also specifies that diplomats380 are immune from the civil and administrative jurisdiction of the state in which they are serving, except in three cases:first, where the action relates to private immovable property situated within the host state (unless held for mission purposes); secondly, in litigation relating to succession matters in which the diplomat is involved as a private person (for example as an executor or heir); and, finally, with respect to unofficial professional or commercial activity engaged in by the agent. Privileges Diplomatic agents are generally exempt from the social security provisions in force in the receiving state, from all dues and taxes, personal or real, regional or municipal except for indirect taxes, from personal and public services and from customs duties and inspection. The personal baggage of a diplomat is exempt from inspection unless there are serious grounds for presuming that it contains articles not covered by the specified exemptions in article 36(1). Inspections can only take place in the presence of the diplomat or his authorised representative. 5 Consular privileges and immunities: the Vienna Convention on Consular Relations, 1963 Consuls represent their state in many administrative ways, for instance, by issuing visas and passports and generally promoting the commercial interests of their state. They have a particular role in assisting nationals in distress with regard to, for example, finding lawyers, visiting prisons and contacting local authorities, but they are unable to intervene in the judicial process or internal affairs of the receiving state or give legal advice or investigate a crime.They are based not only in the capitals of receiving states, but also in the more important provincial cities. However, their political functions are few and they are accordingly not permitted the same degree of immunity from jurisdiction as diplomatic agents.Consuls must possess a commission from the sending state and the authorisation (exequatur) of a receiving state.They are entitled to the same exemption from taxes and customs duties as diplomats. Article 31 emphasises that consular premises are inviolable and may not be entered by the authorities of the receiving state without consent. Like diplomatic premises, they must be protected against intrusion or impairment of dignity,and similar immunities exist with regard to archives and documentsand exemptions from taxes.Article 35 provides for freedom of communication, emphasising the inviolability of the official correspondence of the consular post and establishing that the consular bag should be neither opened nor detained. In particular, article 36(1)b provides that if the national so requests, the authorities of the receiving state shall without delay inform the consular post of the sending state of any arrest or detention. The Convention on Special Missions, 1969 In many cases, states will send out special or ad hoc missions to particular countries to deal with some defined issue in addition to relying upon the permanent staffs of the diplomatic and consular missions. In such circumstances, these missions, whether purely technical or politically important, may rely on certain immunities which are basically derived from the Vienna Conventions by analogy with appropriate modifications. By article 8, the sending state must let the host state know of the size and composition of the mission, while according to article 17 the mission must be sited in a place agreed by the states concerned or in the Foreign Ministry of the receiving state. By article 31 members of special missions have no immunity with respect to claims arising from an accident caused by a vehicle, used outside the official functions of the person involved, and by article 27 only such freedom of movement and travel as is necessary for the performance of the functions of the special mission is permitted. 6 The Vienna Convention on the Representation of States in their Relations with International Organisations of a Universal Character, 1975 This treaty applies with respect to the representation of states in anyinternational organisation of a universal character, irrespective of whether or not there are diplomatic relations between the sending and the host states. There are many similarities between this Convention and the 1961 Vienna Convention. By article 30, for example, diplomatic staff enjoy complete immunity from criminal jurisdiction, and immunity from civil and administrative jurisdiction in all cases, save for the same exceptions noted in article 31 of the 1961 Convention. Administrative, technical and service staff are in the same position as under the latter treaty (article 36). The mission premises are inviolable and exempt from taxation by the host state, while its archives, documents and correspondence are equally inviolable. The Convention has received an unenthusiastic welcome, primarily because of the high level of immunities it provides for on the basis of a controversial analogy with diplomatic agents of missions.The range of immunities contrasts with the general situation under existing conventions such as the Convention on the Privileges and Immunities of the United Nations, 1946. The immunities of international organisations As far as customary rules are concerned, the position is far from clear and it is usually dealt with by means of a treaty, providing such immunities to the international institution sited on the territory of the host state as are regarded as functionally necessary for the fulfilment of its objectives. Probably the most important example is the General Convention on the Privileges and Immunities of the United Nations of 1946, which sets out the immunities of the United Nations and its personnel and emphasises the inviolability of its premises, archives and documents. 7 3. State elements. Creation, recognition and extinction. 4 STATE ELEMENTS ‘(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states’. Creation of statehood Recognition In more cases than not the decision whether or not to recognise will depend more upon political considerations than exclusively legal factors. Recognition is a method of accepting certain factual situations and endowing them with legal significance, but this relationship is a complicated one. In the context of the creation of statehood, recognition may be viewed as constitutive or declaratory. CONSTITUTIVE RECOGNITION The former theory maintains that it is only through recognition that a state comes into being under international law, DECLARATORY RECOGNITION whereas the latter approach maintains that once the factual criteria of statehood have been satisfied, a new state exists as an international person, recognition becoming merely a political and not a legal act in this context. There is also an integral relationship between recognition and the criteria for statehood in the sense that the more overwhelming the scale of international recognition is in any given situation, the less may be demanded in terms of the objective demonstration of adherence to the criteria. Conversely, the more sparse international recognition is, the more attention will be focused upon proof of actual adherence to the criteria concerned. 8 RECOGNITION OF STATES CONSTITUTIVE: For the constitutive theorist, the heart of the matter is that fundamentally an unrecognised ‘state’ can have no rights or obligations in international law. DECLARATORY: The opposite stance is adopted by the declaratory approach that emphasises the factual situation and minimises the power of states to confer legal personality. Actual practice leads to a middle position between these two perceptions. The act of recognition by one state of another indicates that the former regards the latter as having conformed with the basic requirements of international law as to the creation of a state. Of course, recognition is highly political and is given in a number of cases for purely political reasons. This point of view was emphasised by the American representative There have been anumber of attempts to adapt the constitutive theory. Lauterpacht maintained, for example, that once the conditions prescribed by international law for statehood have been complied with, there is a duty on the part of existing states to grant recognition. This is because, in the absence of a central authority in international law to assess and accord legal personality, it is the states that have to perform this function on behalf, as it were, of the international community and international law SHAW Critic to Lauterpacht Lauterpacht sawit. However, in so doing it ignores the political aspects and functions of recognition, that is, its use as a method of demonstrating or withholding support from a particular government or ( State )new community. The reality is that in many cases recognition is applied to demonstrate political approval or disapproval Recent practice suggests that ‘other factors’ may, in the light of the particular circumstances, include human rights and other matters. The European Community adopted a Declaration on 16 December 1991 entitled ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ in which a common position on the process of recognition of the new states was adopted. It was noted in particular that recognition required: 1 respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights; 2 guarantees for the rights of ethnic and national groups and minorities 9 in accordance with the commitments subscribed to in the framework of the CSCE; 3 respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement; 4 acceptance of all relevant commitmentswith regard to disarmament and nuclear non-proliferation as well as to security and regional stability; 5 commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning state succession and regional disputes. RECOGNITION OF GOVERNMENTS The recognition of a new government is quite different from the recognition of a new state.. Recognition will only really be relevant where the change in government is unconstitutional. Political considerations have usually played a large role in the decision whether or not to grant recognition Recognition of the government implies recognition of the state, but it does not work the other way. It should be noted that recognition of a government has no relevance to the establishment of new persons in international law. Where it is significant is in the realm of diplomatic relations. If a government is unrecognised, there is no exchange of diplomatic envoys and thus problems can arise as to the enforcement of international rights and obligations. DOCTRINES ON RECOGNITION 1. Although the effective control doctrine is probably accepted as the most reliable guide to recognition of governments, there have been other theories TOBAR DOCTRINE AND WILSON DOCTRINE: Doctrine of legitimacy so-called doctrine of legitimacy. This suggested that governments which came into power by extra-constitutional means should not be recognised, at least until the change had been accepted by the people.This policy was applied particularly by the United States in relation to Central America In American eyes it became transmuted into the Wilson policy of democratic legitimacy. Where the revolution was supported bythe people, it would be recognised. Where it was not, there would be no grant of recognition. ESTRADA´S DOCTRINE A doctrine advocating the exact opposite, the automatic recognition of governments in all circumstances, was put forward by Estrada, the Mexican Secretary of Foreign Relations 10 The problem, of course, was that recognition of a new government that has come to power in a non-constitutional way recognition meant approval, a perception SHAW Critics that was often embarrassing, for example, in the case of regimes violating human rights. De facto and de jure recognition In addition to the fact that there are different entities to be recognised, recognition itself may take different forms. It may be either de facto or de jure. Amore correct way of putting this might be to say that a government (or other entity or situation) may be recognised de facto or de jure. 1. Recognition de facto implies that there is some doubt as to the long-term viability of the government in question. 2. Recognition de jure usually follows where the recognising state accepts that the effective control displayed by the government is permanent and firmly rooted and that there are no legal reasons detracting from this, such as constitutional subservience to a foreign power. De facto recognition involves a hesitant assessment of the situation, an attitude of wait and see, to be succeeded by de jure recognition when the doubts are sufficiently overcome to extend formal acceptance. To take one instance, the United Kingdom recognised the Soviet government de facto in 1921 and de jure in 1924.A slightly different approach is adopted in cases of civil war where the distinction between de jure and de facto recognition is sometimes used to illustrate the variance between legal and factual sovereignty. For example, during the 1936–9 Spanish Civil War, the United Kingdom, while recognising the Republican government as the de jure government, extended de facto recognition to the forces under General Franco as they gradually took over the country. Similarly, the government of the Italian conquering forces in Ethiopia was recognised de facto by the UK in 1936, and de jure two years later.By this method a recognising state could act in accordance with political reality and its own interests Extinction of statehood Extinction of statehood may take place as a consequence of merger, absorption or, historically, annexation. It may also occur as a result of the dismemberment of an existing state.In general, caution needs to be exercised before the dissolution of a state is internationally accepted.While the disappearance, like the existence, of a state is a matter of fact,it is a matter of fact that is legally conditioned in that it is international law that will apportion particular legal consequences to particular factual situations and the appreciation of these facts will take place within a certain legal framework. 11 While it is not unusual for governments to disappear, it is rather rarer for states to become extinct. This will not happen in international law as a result of the illegal use of force, as the Kuwait crisis of August 1990 and the consequent United Nations response clearly demonstrates,nor as a consequence of internal upheavals within a state,but it may occur by consent. Three recent examples may be noted. EXAMPLES EXTINCTION STATEHOOD - On 22 May 1990, North and South Yemen united, or merged, to form one state, the Republic of Yemen,while on 3 October 1990, the two German states reunified as a result of the constitutional accession of the L¨ander of the German Democratic Republic to the Federal Republic of Germany. - The dissolution of Czechoslovakia - on 1 January 1993 and the establishment of the two new states of the Czech Republic and Slovakia constitutes a further example of the dismemberment, or disappearance, of a state. During 1991, the process of disintegration of the Soviet Union gathered force as the Baltic states reasserted their independenceand the other Republics of the USSR stated their intention to become sovereign. - In December of that year, the Commonwealth of Independent States was proclaimed, and it was stated in the Alma Ata Declaration that, with the establishment of the CIS, ‘the Union of Soviet Socialist Republics ceases to exist’ The disappearance ofthe USSR was accompanied by the claim, internationally accepted, of the Russian Federation to be the continuation of that state.While the element of continuity is crucial in the framework of the rules of state succession,it does constitute a complication in the context of extinction of states. 4. Immunities In the previous chapter, the circumstances in which a state may seek to exercise its jurisdiction in relation to civil and criminal matters were considered. In this chapter the reverse side of this phenomenon will be examined, that is those cases in which jurisdiction cannot be exercised as it normally would because of special factors. In other words, the concern is with immunity from jurisdiction and those instances where there exist express exceptions to the usual application of a state’s legal powers. The concept of jurisdiction revolves around the principles of state sovereignty, equality and non-interference. Domestic jurisdiction as a notion attempts to define an area in which the actions of the organs of government and administration are supreme, free from international legal principles and interference. Indeed, most of the grounds for jurisdiction can be related to the requirement under international law to respect the territorial integrity and political independence of other states. Immunity from jurisdiction, whether as regards the state itself or as 12 regards its diplomatic representatives, is grounded in this requirement. Although constituting a derogation from the host state’s jurisdiction, in that, for example, the UK cannot exercise jurisdiction over foreign ambassadors within its territory, it is to be construed nevertheless as an essential part of the recognition of the sovereignty of foreign states, as well as an aspect of the legal equality of all states. Sovereign immunity is closely related to two other legal doctrines, non justiciability and act of state ( acts iure imperii ) Reference has been made earlier to the interaction between the various principles, but it is worth noting here that the concepts of non-justiciability and act of state posit an area of international activity of states that is simply beyond the competence of the domestic tribunal in its assertion of jurisdiction, for example, that the courts would not adjudicate upon the transactions of foreign sovereign states The absolute immunity approach The relatively uncomplicated role of the sovereign and of government in the eighteenth and nineteenth centuries logically gave rise to the concept of absolute immunity, whereby the sovereign was completely immune from foreign jurisdiction in all cases regardless of circumstances. However, the unparalleled growth in the activities of the state, especially with regard to commercial matters, has led to problems and in most countries to a modification of the above rule. The number of governmental agencies and public corporations, nationalised industries and other state organs created a reaction against the concept of absolute immunity, partly because it would enable state enterprises to have an advantage over private companies. Accordingly many states began to adhere to the doctrine of restrictive immunity, under which immunity was available as regards governmental activity, but not where the state was engaging in commercial activity. Governmental acts with regard to which immunity would be granted are termed acts jure imperii, while those relating to private or trade activity are termed acts jure gestionis. The restrictive approach A number of states in fact started adopting the restrictive approach to immunity, permitting the exercise of jurisdiction over non-sovereign acts, at a relatively early stage. The Supreme Court of Austria in 1950, in a comprehensive survey of practice, concluded that in the light of the increased activity of states in the commercial field the classic doctrine of absolute immunity had lost its meaning and was no longer a rule of international law. Sovereign and non-sovereign acts With the acceptance of the restrictive theory, it becomes crucial to analyse the distinction between those acts that will benefit from immunity ( acts iure imperii ) and those that will not ( acts iure gestionis ). 13 This approach is mirrored in article 5 of the UN Convention on Jurisdictional Immunities of States and Their Property, 2004, which notes that: A state enjoys immunity in respect of itself and its property, from the jurisdiction of the courts of another state subject to the provisions of the present Convention. In such circumstances, the way in which the ‘state’ is defined for sovereign immunity purposes becomes important. Article 2(1)b of the Convention declares that ‘state’ means: (i) the state and its various organs of government; (ii) constituent units of a federal state or political subdivisions of the state, which are entitled to perform acts in the exercise of sovereign authority, and are acting in that capacity; (iii) agencies or instrumentalities of the state or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the state; and (iv) representatives of the state acting in that capacity. With the adoption of the restrictive theory of immunity, the appropriate test becomes whether the activity in question is of itself sovereign (jure imperii) or non-sovereign (jure gestionis). The characterisation of an act as jure gestionis or jure imperii will also depend upon the perception of the issue at hand by the Courts. 14 SUBJECTS 4. The subjects of international law (II) 1. International Organizations. 2. Individuals. 3. Transnational corporations. 4. The right of all peoples to self-determination. 5. Special cases. 1. International Organizations International organisations have played a crucial role in the sphere of international personality. Since the nineteenth century a growing number of such organisations have appeared and thus raised the issue of international legal personality. In principle it is now well established that international organisations may indeed possess objective international legal personality. Whether that will be so in any particular instance will depend upon the particular circumstances of that case. Whether an organisation possesses personality in international law will hinge upon its constitutional status, its actual powers and practice. Significant factors in this context will include: - The capacity to enter into relations with states and other organisations and - Conclude treaties with them, - and the Status it has been given under municipal law. Such elements are known in international law as the indicia of personality. There are many types of IO: Universal IO ( UN and specialized Institutions: WTO, IMF, WB Militar Restricted Organisations: NATO Economic restricted Organisations: OECD, OPEC Regional European Organisations: European Union, OSCE, Council of Europe. Latin America: Mercosur, Andean Community, CELAC. Asia: ASEAN, APEC. Africa: African Union, Others: League of Arab States, etc. 1 2. Individuals The question of the status in international law of individuals is closely bound up with the rise in the international protection of human rights. Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms. The object theory in this regard maintains that individuals constitute only the subject-matter of intended legal regulation as such. Only states, and possibly international organisations, are subjects of the law. This has been a theory of limited value. The essence of international law has always been its ultimate concern for the human being and this was clearly manifest in theNatural Law origins of classical international law.The growth of positivist theories, particularly in the nineteenth century, obscured this and emphasised the centrality and even exclusivity of the state in this regard. Nevertheless, modern practice does demonstrate that individuals have become increasingly recognised as participants and subjects of international law. This has occurred primarily but not exclusively through human rights law. The link between the state and the individual for international law purposes has historically been the concept of nationality. This was and remains crucial, particularly in the spheres of jurisdiction and the international protection of the individual by the state. It is often noted that the claim of an individual against a foreign state, for example, becomes subsumed under that of his national state.Each state has the capacity to determine who are to be its nationals and this is to be recognised by other states in so far as it is consistent with international law, although in order for other states to accept this nationality there has to be a genuine connection between the state and the individual in question.Individuals as a general rule lack standing to assert violations of international treaties in the absence of a protest by the state of nationality,although states may agree to confer particular rights on individuals which will be enforceable under international law, independently of municipal law. Under article 304(b) of the Treaty of Versailles, 1919, for example, nationals of the Allied and Associated Powers could bring cases against Germany before the Mixed Arbitral Tribunal in their own names for compensation, while the Treaty of 1907 between five Central American states establishing the Central American Court of Justice provided for individuals to bring cases directly before the Court.This proposition was reiterated in the Danzig Railway Officials caseby the Permanent Court of International Justice, which emphasised that under international law treaties did not as such create direct rights and obligations for private individuals, although particular treaties could provide for the adoption of individual rights and obligations enforceable by the national courts where this was the intention of the contracting parties. Under the provisions concernedwith minority protection in the 1919 2 Peace Treaties, it was possible for individuals to apply directly to an international court in particular instances. Similarly the Tribunal created under theUpper SilesiaConvention of 1922 decided that it was competent to hear cases by the nationals of a state against that state. Since then a wide range of other treaties have provided for individuals to have rights directly and have enabled individuals to have direct access to international courts and tribunals. One may mention as examples: the European Convention on Human Rights, 1950; the European Communities treaties, 1957; the Inter-American Convention on Human Rights, 1969; the Optional Protocol to the International Covenant on Civil and Political Rights, 1966; the International Convention for the Eliminationof All Forms of Racial Discrimination, 1965 and the Convention on the Settlement of Investment Disputes, 1965. However, the question of the legal personality of individuals under international law extends to questions of direct criminal responsibility also. It is now established that international law proscribes certain heinous conduct in a manner that imports direct individual criminal responsibility. 3. Transnational Corporations Another possible candidate for international personality is the transnational or multinational enterprise. Various definitions exist of this important phenomenon in international relations.They in essence constitute private business organisations comprising several legal entities linked together by parent corporations and are distinguished by size and multinational spread. In the years following the Barcelona Traction case,an increasing amount of practice has been evident on the international plane dealingwith such corporations.What has been sought is a set of guidelines governing the major elements of the international conduct of these entities. OECD Guidelines for Multinational Enterprises(1976), the OECD Principles of Corporate Governance, 1998 ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy 3 Draft Norms on Responsibilities for Transnational Corporations and Other Business Enterprises ( Human Rights ). However, progress has been slow and several crucial issues remain to be resolved, including the legal effect, if any, of such guidelines. Thequestion of the international personality of transnational corporations remains an open one. 4. The right of all peoples to self-determination This principle, which traces its origin to the concepts of nationality and democracy as evolved primarily in Europe, first appeared in major form after the First World War. Despite President Wilson’s efforts, it was not included in the League of Nations Covenant and it was clearly not regarded as a legal principle.However, its influence can be detected in the various provisions for minority protection and in the establishment of the mandates system based as it was upon the sacred trust concept. In the ten years before the Second World War, there was relatively little practice regarding self-determination in international law. A number of treaties concluded by the USSR in this period noted the principle,but in the Aaland Islands case it was clearly accepted by both the International Commission of Jurists and the Committee of Rapporteurs dealing with the situation that the principle of self-determination was not a legal rule of international law, but purely a political concept. The Second World War stimulated further consideration of the idea and the principle was included in the UN Charter. Article 1(2) noted as one of the organisation’s purposes the development of friendly relations among nations based upon respect for the principle of equal rights and self-determination, and article 55 reiterated the phraseology. It is disputed whether the reference to the principle in these very general terms was sufficient to entail its recognition as a binding right, but the majority view is against this. Not every statement of a political aim in the Charter can be regarded as automatically creative of legal obligations. On the other hand, its inclusion in the Charter, particularly within the context of the statement of purposes of the UN, provided the opportunity for the subsequent interpretation of the principle both in terms of its legal effect and consequences and with regard to its definition. It is also to be noted that Chapters XI and XII of the Charter deal with non-self-governing and trust territories and may be seen as relevant within the context of the development and definition of the right to self-determination, although the term is not expressly used.Practice since 1945 within the UN, both generally as regards the elucidation and standing of the principle and more particularly as regards its perceived application in specific instances, can be seen as having ultimately established the legal standing of the right in international law. 4 This may be achieved either by treaty or by custom or indeed, more controversially, by virtue of constituting a general principle of law. All these routes are relevant, as will be seen. The UN Charter is amultilateral treaty which can be interpreted by subsequent practice, while the range of state and organisation practice evident within the UN system can lead to the formation of customary law. The amount of material dealing with selfdetermination in the UN testifies to the importance of the concept and some of the more significant of this material will be briefly noted. Resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted in 1960 by eighty-nine votes to none, with nine abstentions, stressed that: all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Inadequacy of political, social, economic or educational preparedness was not to serve as a protest for delaying independence, while attempts aimed at the partial or total disruption of the national unity and territorial integrity of a country were deemed incompatible with the UN Charter. The Colonial Declaration set the terms for the self-determination debate in its emphasis upon the colonial context and its opposition to secession, and has been regarded by some as constituting a binding interpretation of the Charter.The Declaration was reinforced by the establishment of a Special Committee on Decolonisation, which now deals with all dependent territories and has proved extremely active, and by the fact that virtually allUNresolutions dealingwith self-determination expressly refer to it. Indeed, the International Court has specifically referred to the Colonial Declaration as an ‘important stage’ in the development of international lawregarding non-self-governing territories and as the ‘basis for the process of decolonisation’. In 1966, the General Assembly adopted the International Covenants on HumanRights. Both theseCovenants have an identical first article, declaring inter alia that ‘[a]ll peoples have the right to self- determination. By virtue of that right they freely determine their political status’, while states parties to the instruments ‘shall promote the realisation of the right of self-determination and shall respect that right in conformity with the provisions of the Charter of the United Nations’. The Covenants came into force in 1976 and thus constitute binding provisions as between the parties, but in addition they also may be regarded as authoritative interpretations of several human rights provisions in the Charter, including self-determination. The 1970 Declaration on Principles of International 5 Law Concerning Friendly Relations can be regarded as constituting an authoritative interpretation of the seven Charter provisions it expounds. The Declaration states inter alia that ‘by virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all people have the right freely to determine... their political status’ while all states are under the duty to respect this right in accordance with the Charter. The Declaration was specifically intended to act as an elucidation of certain important Charter provisions and was indeed adopted without opposition by the General Assembly.In addition to this general, abstract approach, theUN organs have dealt with self-determination in a series of specific resolutions with regard to particular situations and this practice may be adduced as reinforcing the conclusions that the principle has become a right in international law by virtue of a process of Charter interpretation. Numerous resolutions have been adopted in the General Assembly and also the Security Council. It is also possible that a rule of customary law has been created since practice in the UN system is still state practice, but the identification of the opinio juris element is not easy and will depend upon careful assessment and judgment. Judicial discussion of the principle of self-determination has been relatively rare and centres on the Namibia and Western Sahara advisory opinions by the International Court. In the former case, the Court emphasised that ‘the subsequent development of international law in regard to non-self-governing territories as enshrined in the Charter of the United Nationsmade the principle of self-determination applicable to all ofthem’.TheWesternSahara case reaffirmed this point.This case arose out of the decolonisation of that territory, controlled by Spain as the colonial power but subject to irredentist claims by Morocco and Mauritania. The Court was asked for an opinion with regard to the legal ties between the territory at that time and Morocco and the Mauritanian entity. The Court stressed that the request for an opinion arose out of the consideration by the General Assembly of the decolonisation of Western Sahara and that the right of the people of the territory to self-determination constituted a basic assumption of the questions put to the Court.After analysing the Charter provisions and Assembly resolutions noted above, theCourt concluded that the ties which had existed between the claimants and the territory during the relevant period of the 1880s were not such as to affect the application of resolution 1514 (XV), the Colonial Declaration, in the decolonisation of the territory and in particular the right to self-determination. In other words, it is clear that the Court regarded the principle of self-determination as a legal one in the context of su

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