L6 - subjects to IL Flashcards
(19 cards)
subjects =
subjects of IL = those entities that the law regards as possessing rights and duties enforceable at law
- states
- international organizations
- maybe the individual
domestic: we (humans) and corporations (e.g. Leiden Uni) can enter into contracts and have duties, but not (say) pigs or trees
there are 2 variant of int’l legal personality
- objective = highest/broadest
- qualified = more limited/narrow
two variants of subjects in IL
international legal personality = two variants:
objective personality = subject to a wide range of int’l rights and duties + entitled to be accepted as an int’l person by any other international person with which it is conducting relations (erga omnes)
- highest personality, highest rational duties of any international person
- entitled to be accepted/recognized by any other international person
qualified personality = subject only has legal personality insofar another entity with legal personality accepts it as having legal personality
- only recognized as subject to IL insofar as the entity it is dealing with accepts it as having legal personality
simpler: states have objective personality + most but not all IOs have qualified personality (some also have objective)
- only entities universally recognized as being subject to law are states
states as subjects to IL
state have traditionally been + remain the main and most important subjects of IL
“the orthodox positivist doctrine has been explicit in the affirmation that only states are subjects of international law” (Lauterpacht)
This is no longer true today, and perhaps was not true even in the heyday of classical positivism (cf Vatican before the Lateran Treaty (established it as state in 1929))
remember: states are really important, for long time the only subjects of IL
what is a state?
1933 Montevideo Convention gives the most widely accepted definition of a state:
Art 1:
the state as a person of international law should possess the following qualifications:
a. a permanent population
b. a defined territory
c. government,
d. capacity to enter into relations with the other states
*convention only ratified now by 17 (American) countries, so technically only binding on them, but others consider it as reflecting customary law
(e)? Legitimacy
a state will not be recognized unless it is developed toward statehood in a way consistent with self-determination and ius cogens
legitimacy e.g. an entity born out of an int’l illegal act cannot/will not be recognized despite its fulfilment of the 4 criteria
- aggression: Cyprus
- Apartheid: South African Bantustans/Rhodesia (declared white minority state, bc the racist system (only white educated) only white people could vote) -> no country recognized independence: goes against norm of having majority rule when gaining indpendence
conversely, an entity which is seen as the vehicle of legitimate self-determination will be recognized as state even when it lacks some of the essential elements of statehood
= sometimes int’l community accepts something as a legitimate state even when it does not fully meet all the criteria (e.g. bc they are anti-imperial = bc we realize you are doing it for a good cause)
- DR Congo achieved recognition as state at a time when it had minimal government
- Guinea-Bissau achieved recognition when it was still a Portuguese colony
(today: what matters = being a member of the UN)
state
- permanent population
1933 Montevideo convention
the state as a person of international law should possess the following qualifications:
a. a permanent population
b. a defined territory
c. government,
d. capacity to enter into relations with the other states
permanent population
- underlines ultimate object of a state as an organized community of people
- no threshold requirements (e.g. Vatican City, San Marino)
- not even citizenship requirements (probably)(e.g. Monaco and Qatar, large percentage population is a citizen)
- “permanent”: no “voluntary associations of robbers and pirates” nor “unsettled hordes” / nomadic peoples (Wheaton, 1866)
!permanent is most important
state
- a defined territory
1933 Montevideo convention
the state as a person of international law should possess the following qualifications:
a. a permanent population
b. a defined territory
c. government,
d. capacity to enter into relations with the other states
defined territory
- no particular threshold (e.g. Vatican, Nauru, etc.)
- size doesn’t matter
existence of territorial conflict / boundary dispute does NOT affect statehood as long as there is a stable community within a piece of territory which is undeniably controlled by the government of putative the state
- thus: e.g. India many boundary disputes -> some parts of its territory is undefined, but that does not mean that is challenged that Dehli is India = as long as you have part of a territory that is established as being under gov control you have a state
state
- government
1933 Montevideo convention
the state as a person of international law should possess the following qualifications:
a. a permanent population
b. a defined territory
c. government,
d. capacity to enter into relations with the other states
government
- low bar: doesn’t have to be good, doesn’t have to be democratic
- in the case of entities in the process of achieving self-determination, not even that very low bar has to be cleared (Cf Congo; Guinea-Bissau)
Congo: had little government after decolonization bc Belgium hadn’t allowed for much political participation
Guinea-Bissau was recognized by UN as part of the UN, at the time it only had a colonial gov, it was not independent, but UN says it is good enough
- shows bar is really low
in other words: IL now takes a broader view than the Weberian one (entity that has monopoly on its territory and the legitimate use of violence)
- e.g. DRC no monopoly on the use of violence -> no Weberian state
state
- capacity to enter into relations with the other states
1933 Montevideo convention
the state as a person of international law should possess the following qualifications:
a. a permanent population
b. a defined territory
c. government,
d. capacity to enter into relations with the other states
capacity to enter into relations with the other states
3 views:
- it doesn’t make sense: it is tautological: after all, an entity cannot enter into state-to-state relations unless it is a state
- a view is that this refers to recognition
- it refers to legal capacity: Kingdom of the NL has capacity to enter into such relations whereas Zuid-Holland doesn’t (it has gov, territory, population, but it is not a state even while it meets the other 3 criteria)
- but how do you tell which is the state/province?
how do you recognize a state?
- state recognition
formerly one of the great debates of IL theory:
Constitutive theory of statehood
- recognition by other states is constitutive element of statehood
- e.g. recognition Kosovo helps establish Kosovo as a state
Declaratory theory of statehood
- statehood is a fact, recognition merely acknowledges that fact
- if you recognize Kosovo, you recognize the reality it is a state
- Montevideo Convention takes this view (bc if you are ..,…, you are a state)*d sounds constitutive -> shows it isn’t that determined
Declaratory view is now generally accepted
(debate has lost much interest, realized both really overlap)
BUT in practice, recognition is political as well as legal, with the attendant consequences
-> careful: diplomatic relations and state recognition are not synonymous
- most countries don’t choose to recognize bc of legal requirements, most countries choose to recognize out of self-interest (e.g. Spain doesn’t recognize Kosovo bc of Catalonia, China doesn’t either, Russia doesn’t)(most western countries recognize Kosovo bc it weakens Serbia, which is seen as Russian puppit, so they don’t like it)
- you can have de facto relations without recognition (e.g. in Taipei NL has something that looks like an ambassy, but isn’t called that bc no recognition)
how do you recognize a state
- sample case: Taiwan
The Republic of China government retreated to the island of Taiwan in 1949, in the face of Communist advances
The Communist subsequently proclaimed the People’s Republic of China, while the government on Taiwan continued to maintain its claim to be the government of the whole of China
Today, the ROC (Republic of China, i.e. Taiwan) has diplomatic relations and recognition with 10 states (last year 13)
Neither the PRC nor the ROC will maintain diplomatic relations with any state that recognizes the other
- you can only recognize one
Is the Republic of China/Taiwan a state?
- it has permanent population + territory + government + some capacity to enter into relations with other countries
- but almost no country of size recognizes it
tricky = Taipei gov doesn’t claim to be government of Taiwan, it claims to be government of whole of China -> technically no Taiwan state
so it is not really a state de jure, but most treat it as case de facto
how do you recognize a state?
- Kosovo sample case
Unilaterally declared its independence in 2008 (from Serbia)
ICJ dodged the question of the legality of its independence…
- Serbia claimed it was illegal
- ICJ: nothing in IL says that printing something (newspaper stating independence) is illegal
Today, 101 out of 193 UN members recognize it as a state—so is it a state
states - sui generis cases
sui generis: one of a kind
- it is a weird case
Sovereign Military Order of Malta (SMOM)
Roman Catholic (religious) order of crusaders expelled from Malta by Napoleon 1789 (pope gave them refuge)
today generally recognized as a subject of IL and as sovereign, but not as a state
- today providing humanitarian assistance
- legal pov: only entity that has sovereignty but isn’t a state (because they used to be a state (Crusader kingdom middle east)
they are a subject of IL, but not a state
(not very important but highlights importance history and imagine what world would look like without state sovereigns)
international organisations
Traditionally, international organisations’ status was contested in IL
- originally: seen as total sum of the sovereign states that established them = they were not independent (were extension of the state)
Today, the principle that international organizations have international legal personality is recognized
But not all organizations created through agreements between states are IOs -> how to know?
- if the treaty creating it says so (full powers, full legal personality)
- if it is indispensable to achieves the purposes of the organization as established by its governing document (by inference: if having legal personality is necessary to fulfil the purposes according to the agreement establishing it)
- there is also an “objective theory” of what is an IO and what is not
= controversial theory that there are objective standards as to if an IO has legal personality or not
(not all IOs have legal personality)
-> legal personality of IOs is generally considered derivative (from states), and thus be a qualified personality
- But EU + UN usually seen as having objective legal personality
having int’l legal personality means IOs…
have a legal existence independent of member-states
can sue to enforce their rights + can be sued and be held liable for breaches of int’l obligation
many IOs will also have privileges and immunities, particularly from the host state
- e.g. IO employees exempted from taxes + often diplomatic immunity
IOs can conclude int’l agreements subject to the limitations of the founding treaties
- but limited by founding treaty that outlines the powers of the IO
the individual?
Traditional positivist doctrine stated that whereas states are the only subjects of international law, individuals were the OBJECTS of international law
- i.e. the only subject-matter of intended legal regulation; but had no direct rights and obligations arising from international law (those were mediated through the state)
- exceptions: sovereigns (kings, presidents)(bc they have status of state)
Nowadays, many would recognize individuals (whether as individuals or in groups) as participants and, in some cases, subjects of international law
- human rights
- individual responsibility
- international eco law
- nationality
the individual - human rights
Human rights have been the principal conduits through which individuals have gained some sort of status in IL
Traditionally, individuals’ rights were wholly at the mercy of the state they belonged to; aliens sometimes were protected by specific treaties between their parent state and the other state
changed with WW1
After the WW1, the concept of group rights entered international law; and in some cases individuals could also assert their rights directly to international tribunals if given the permission via treaty
- e.g. minority rights -> could go to int’l body if it was violated
- didn’t really work though, but idea that individuals could claim their rights is important
After the WW2, protection of human rights, whether individually or collectively, became a mainstay of international law
An important development is the growing right for individuals to access international courts
the individual - individual responsibility
Conversely, international law also recognized that individuals could be held liable criminally for international legal obligations, mainly of a criminal nature (war crimes, genocide, etc)
- individual rights came with int’l responsibility (int’l criminal law)
- war crimes, genocide etc.
- e.g. Nuremberg
the individual - international eco law
The growth of international economic law has also meant that individuals as well as private corporations increasingly possess international legal protections for their investments, chattels, contractual rights, etc, in foreign countries
Such rights can be controversial as they are framed in terms of private entities infringing on the sovereignty of states
- traditionally global south countries critcized this, now e.g. US is not accepting it
Investment State Dispute Settlement mechanisms
- very controversial today
the individual - a world on nationality
idea that the right to bring a legal claim against a state for injuries suffered by an individual lies with his own state
- not longer the inevitable rule, but still important
In other words, your citizenship/nationality affects the extent to which you have rights enforceable against a state as an individua
