Lecture 6: Subjects of international law

Question 1

What are ‘subjects’ of IL?

Answer 1

Those entities that the law regards as possessing rights and duties enforceable at law

Question 2

Two types of international legal personality

Answer 2

Objective and qualified personality

Question 3

Objective legal personality (erga omnes)

Answer 3

An entity is subject to a wide range of international rights and duties and will be entitled to be accepted as an international person by others with which it is conducting relations

Question 4

Qualified legal personality

Answer 4

An entity only has legal personality insofar another entity with legal personality accepts that is has legal personality

Question 5

What is the main subjects of IL?

Answer 5

States

Question 6

A state as a person of IL should possess the following 4 qualifications + a 5th new qualification

Answer 6

1. A permanent population (no threshold or citizenship required; to exclude transient groups)
2. A defined territory (no size minimum; territorial conflict does not affect statehood if stable community within territory is controlled by government)
3. Government (no requirements for effectiveness or democracy; no requirements for monopoly on the state of violence)
4. Capacity to enter into relations with other states (=recognition by others or legal capacity to hold relations)
5. Legitimacy (developed toward statehood consistently with self-determination and ius cogens) - fulfilling this can over override lacking some of the other criteria

Question 7

State recognition: constitutive vs. declaratory theory of statehood

Answer 7

Constitutive: states gain recognition by other states

Declaratory: statehood is a fact (e.g. fulfilling the criteria) and recognition is just acknowledging this fact

Question 8

Which view of state recognition did the Montevideo Convention side with?

Answer 8

The declarative view, which is generally accepted today, however, recognition remains political as well as legal

Question 9

Is diplomatic relations state recognition?

Answer 9

No, you can roll back diplomatic relations, but not recognition once you have recognized a state once

Question 10

Name 3 cases with controversial state recognition

Answer 10

Taiwan (some recognize as state), Kosovo (some recognize as state), Sovereign Military Order of Malta (recognized as sovereign, but not as a state)

Question 11

Do IOs have international legal personality?

Answer 11

Yes

Question 12

3 ways to know that an agreement/international body is an IO

Answer 12

1. The treaty creating it says so
2. It is indispensable to achieving the purpose of the organization as established by its governing document (=by inference)
3. “Objective theory” of what an IO is, but not generally accepted

Question 13

What kind of legal personality does IOs have?

Answer 13

Qualified personality

Question 14

What kind of legal personality does the EU have?

Answer 14

Debated; EU lawyers claim it represents a new international legal order and is akin to a state, but this is a case of EU exceptionalism

Question 15

Having international legal personality means that IOs can do these 4 things

Answer 15

1. Have legal existence independent of its member-states
2. Can sue to enforce their rights and be sued and held liable for breaches of IL
3. Have privileges and immunities, esp. from host state
4. Conclude international agreements (subject to limitations of the founding treaties)

Question 16

Are individuals subjects of IL?

Answer 16

According to traditional positivist doctrine, individuals are objects, not subjects of IL (no direct rights or obligations, but the subject-matter of regulation)

But nowadays some lawyers would recognize individuals and groups as participants and sometimes subjects of ILs; but most dodge the question and call individuals “participants”

Question 17

What is the principal conduits through which individuals have gained status in IL?

Answer 17

Human rights

Question 18

When did human rights arise in IL?

Answer 18

After WW1, group rights entered IL and in some vases individuals could assert their rights directly to international tribunals

After WW2, protection of human rights (individually and collectively) became a mainstay of IL

Question 19

What is an important development regarding individuals in IL?

Answer 19

Growing right for individuals to access international courts

Question 20

Individual responsibility

Answer 20

IL recognizes that individuals can be held criminally liable for international legal obligations (war crimes, genocide etc.)

Question 21

What has the growth of international economic law meant for IL?

Answer 21

That individuals and private corporations increasingly possess international legal protections for their investments, contractual rights etc., in foreign countries (instead of only being able to complain to their own state)

Question 22

How does citizenship and nationality affect IL?

Answer 22

Your citizenship/nationality affects the extent to which you have rights enforceable against a state as an individual, since the main (but not inevitable) rule is that an individual’s own state has the right to bring a legal claim against another state