Public International Law (Subject of IL) 2024 PDF

THE SUBJECT OF INTERNATIONAL LAW 4 TH TOPIC 1 HOW DO WE DETERMINE IF AN ENTITY IS A SUBJECT OF IL? An entity is a subject of IL if it has ‘International personality.’ The following area generally accepted as International personality: Rights and obligations under inter...

THE SUBJECT OF INTERNATIONAL LAW 4 TH TOPIC 1 HOW DO WE DETERMINE IF AN ENTITY IS A SUBJECT OF IL? An entity is a subject of IL if it has ‘International personality.’ The following area generally accepted as International personality: Rights and obligations under international law; Treaty-making capacity; Capacity to make international claims; and The enjoyment of privileges and immunities from national jurisdictions. 2  Subjects Non-State State Actors International Multinational Eg: Malaysia, individual Organisation Companies UK,US 3  THE CONCEPT OF INTERNATIONAL PERSONALITY 1. The enjoyment of rights conferred and the subjection to obligations imposed by IL. 2. Capacity to enter into treaties and agreements valid on the international plane/sphere. 3. Capacity to make claims in respect of breaches of IL; and 4. The enjoyment of privileges and immunities from national jurisdiction 4  REPARATIONS CASE “the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community.” i.e An international person need not possess all the international rights, duties and powers normally possessed by States. 5  1. STATES AS SUBJECTS OF IL According to Oppenheim: “A State proper is in existence, when a people is settled in a territory under its own sovereign government.” 6  CONDITIONS OF STATE 4 conditions must exist; 1. There must be a people who live together as a community in spite of the fact that they may belong to different races or religions. 2. There must be a territory in which the people is settled. Whether it is small or large. 3. There must be a government. 4. There must be a sovereign government- sovereignty means supreme authority- independence. 7 CRITERIA OF STATEHOOD UNDER IL Article 1 of the Montevideo Convention on Rights and Duties of States 1933: “The State as a person of IL should possess the following qualifications; a) A permanent population; b) A defined territory; c) Government; and d) Capacity to enter into relations with other States.” 8  2. INTERNATIONAL ORGANISATIONS UNITED NATIONS Its legal capacity is affirmed in Art 104 of its Charter The Charter also recognises the ‘treaty making power’ of the principal organs of the United Nations. In Reparations case: ‘in the opinion of the Court, the Organisation was intended to exercise and enjoy and is in fact exercising and enjoying functions and rights which can only be explained on the basis of the possession of a large measure of international personality.. Accordingly the Court has come to the conclusion that the Organisation is an international person. That is not the same as saying that it is a state, which it certainly is not..What it does mean is that it is a subject of IL and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims. 9  2. INTERNATIONAL ORGANISATIONS In Reparations case: ‘in the opinion of the Court, the Organisation was intended to exercise and enjoy and is in fact exercising and enjoying functions and rights which can only be explained on the basis of the possession of a large measure of international personality..’ Accordingly the Court has come to the conclusion that the Organisation is an international person. That is not the same as saying that it is a state, which it certainly is not..What it does mean is that it is a subject of IL and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims. 10  CRITERIA FOR THE DETERMINATION OF INTERNATIONAL PERSONALITY: Reparations Case- there are 2 criteria: (1)The intention of member States to establish an organisation having a distinct legal personality detached from that of its members; and (2)The actual exercising and enjoying of functions and rights… 11 3. INDIVIDUALS AS SUBJECTS OF IL Before 20th century individual merely an object of IL not a subject- but later the community has become increasingly aware of the need to safeguard the rights of the individual. Human rights have become a matter of vital concerns to states. 12  LEGAL RESPONSIBILITY OF INDIVIDUALS UNDER IL Individuals who commit certain crimes under IL can be punished in accordance with IL ( Piracy jure gentium, slave-trading, genocide, war crimes and crimes against humanity. Nuremberg Judgment: “Crimes against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provisions of IL be enforced..” 13  WHETHER INDIVIDUALS DERIVE RIGHTS FROM IL OR MERELY DERIVE BENEFIT? Many rules created to protect the rights of individual but it is not necessarily that the rules creates ‘rights’ for the individual. Western view –tends to admit that Individuals have some degree of international personality-but it is more limited than the legal personality of IO. As for ICJ- ONLY sovereign States and no private individuals or corporations have access to the contentious case before the ICJ (Art.34(1)SICJ) 14 4. CORPORATIONS AS SUBJECT OF IL RIGHTS OF CORPORATIONS UNDER IL- As far as International personality is concerned, companies and corporations are treated on the same footing as individuals. In commercial purposes, State deal with companies and corporations all over the world. However it is possible for the contractual relationship between a state and a corporation to be governed by IL. See the case of Texaco v Libya 15  In conclusion, individual or corporations do not yet attain the status of full-fledged subjects of IL although they may have certain rights and obligations under IL. They may enjoy the title of International Personality only to the extent entrusted to them by the States by means of an international treaty. 16 5. INSURGENTS AND BELLIGERENTS Insurgents in a ‘civil war’ have long been recognised in international law as subjects having certain rights and duties. In practice, belligerent and insurgent bodies within a state may enter into legal relations and conclude agreement valid on the international plane with States and other belligerents/insurgents 17 6. NATIONAL LIBERATION MOVEMENTS NLM of ‘people under colonial, alien or racist domination’ having a representative organisation (eg PLO) may be the subject of IL. Most of these movements were hosted in a friendly country from where they conducted military operations against their adversaries. 18  Objective of the NLM- ‘international legitimation based on the principle of self- determination.’ Generally their rights are: The right to self determination The rights and obligations deriving from IHL The capacity to enter into treaties/agreements with States or other entities… 19 STATES AND THE CRITERIA FOR STATEHOOD 20  ARTICLE 1 OF THE MONTEVIDEO CONVENTION ON RIGHTS AND DUTIES OF STATES 1933: “The State as a person of IL should possess the following qualifications; a) A permanent population; b) A defined territory; c) Government; and d) Capacity to enter into relations with other States.” This Article has crystallized into customary international law It is Important to assess whether an entity satisfies the criteria to be a State (i.e to have statehood). 21 1. PERMANENT POPULATION 2. A DEFINED TERRITORY Population size is not a The ICJ has made it criterion for statehood. clear that there is no What important- a core rule of IL whereby the stable population that land frontiers of a State has a firm allegiance to must be fully delimit the State on the basis (Germany v Denmark and of a shared nationality the Netherlands (North Sea Continental Shelf Nomad / Western Sahara cases)(1969) case. 22  3. GOVERNMENT 4. CAPACITY TO ENTER INTO FOREIGN RELATIONS Possesses a sovereign An entity is able to enter into government that is free from treaties, conduct business, external domination exchange diplomats and A country maybe described undertake other activities as ‘failed’ because of its with other countries. inability to provide physical An entity’s capacity to enter security, legitimate political into foreign relations is institutions, economic dependent on its recognition management and social and legitimization by other welfare to its people eg countries. Somalia-yet retain its statehood. 23 THE RELEVANCE OF HUMAN RIGHTS IN THE DETERMINATION OF STATEHOOD A statehood of existing countries cannot be denied unless they disappear or disintegrate. Disintegration of Yugoslavia in the early 1990s-the federal provinces sought their independence- Badinter committee appointed by EU- stipulated that this new entity must respect for the UN Charter, fundamental human rights and democracy as well as guarantee the rights of minority groups- they were obliged to respect the inviolability of existing borders and settle all disputes amicably. Although very controversial, the principle of ‘self- determination’ is significant in the creation of a new state after the world war. 24 WHAT IS THE SIGNIFICANCE OF RECOGNITION IN IL? RECOGNITION is the act of accepting the existence of a state and that the state has the consequent rights and responsibilities within the international community. May occur expressly or by implication. Recognition DECLARATORY THEORY CONSTITUTIVE THEORY 25  DECLARATORY THEORY CONSTITUTIVE THEORY The granting of recognition to A State or government a new State is not a does not exist unless it has constitutive but a declaratory been recognised as such act. by other States. If an entity satisfies the Thus recognition has a requirement of a State constitutive effect –it is objectively, it is a State. necessary condition for the creation of the BETTER VIEW- State practice & State/government arbitral decisions (Tinico concerned. Arbitration) 26  TINOCO ARBITRATION (GREAT BRITAIN V COSTA RICA)(1923)1RIAA369 In 1917, Frederico Tinoco came to power in Costa Rica after a coup d’état. His government concluded certain contracts with British Corp. In 1919, Tinoco was ousted and the new government repudiated the obligations undertaken by the Tinoco government. GB made claims in respect of injuries to its nationals caused by these repudiations. Issue: what are the status of the Tinoco regime in IL in the light of non- recognition of it by other States? Arbitrator held: Tinoco regime was the government of CR because it was clearly in effective control of CR and the fact that it had not been recognised by several States, including GB made no difference. 27  A new State may come into existence by gaining of independence; By disintegration of an existing State; or By merger of 2 or more States. Recognition UK-court request to the foreign office→ may issue of States Executive Certificate (James Sagor & Co Case. British/US recognise state based on Montevideo Convention 1933 See The 1991 Guidelines (European Committee) Government that come into office in a normal and constitutional manner require no recognition in international law. Recognition But if the Government coming into power in a revolutionary/after a coup d’ e’tat/ civil war, this of government must show: (1) that the new regime has in fact effective Government control over most of the State’s territory; (2) that this control seems likely to continue. The effectiveness of the governments is of course a sine qua non (an essential condition). 28  The doctrine that recognition of a government should be based on its de facto existence, rather than on its legitimacy. At first sight, The Estrada doctrine ‘The change of government in a appears to abolish State is an internal matter and the entire system of does not concern international recognition of Govt. In law or other States. practice, it can be implied from the diplomatic relations It is named after Don Genero Estrada, the Mexican Secretary of Foreign Affairs The who in 1930 ordered that Mexican diplomats should issue no declarations Estrada that amounted to a grant of recognition: he felt that this was an doctrine insulting practice and offended against the sovereignty of other nations. HARScopyright2016 29 THE LEGAL EFFECTS OF RECOGNITION IN MUNICIPAL LAW Three major effects: 1. only a recognised State/Govt will be able to sue before the courts of a recognising State; 2. Only a recognised State/Govt may claim impunity from the jurisdiction of the courts of a recognising State; and 3. the legislative, judicial and executive acts of only a recognised State will be accepted as valid in the courts of a recognising State. See: Luther v Sagor HARScopyright2016 30  THE MALAYSIAN PRACTICE Section 3 of the CLA 1956- follow British traditional practice Malaysian courts will rely on a certificate from the Foreign Office to be able to decide whether a State or Government is one recognised by Malaysia. See: Duff Development Co Ltd v Government of Kelantan HARScopyright2016 31 32 33 34 HARScopyright2016 35 36 37 END OF TOPIC HARScopyright2016 38