Subyek Hukum Internasional
Subyek Hukum
Internasional
Rika ratna permata
Negara
The 1933 Montivideo Convention on
Rights and Duties of States, article 1 :
The State as a person of international law
should posses the following qualification:
1.
A permanent population.
2.
Defined territory
3.
Government and
4.
Capacity to enter into relations with other
State.
Defined territory
This is the basis of the central notion of
territorial sovereignty, establishing the
exclusive competence to take the legal
and factual measures within that
territory and prohibiting foreign
governments from excercising
authority in the same area without
consent.
A leading case is Island of Palmas
Island of Palmas Case
Amerika Serikat dan Belanda.
USA mengklaim pulau Palma dengan dasar
penemuan sbg pengganti hak-hak spanyol
berdasarkan perjanjian 1898 yang berisi
pengalihan pulau-pulau milik Philipina ke USA.
Belanda menuntut pengaturan pulau tsb
Fakta bahwa penduduk telah menyerahkan
kedaulatannya kpd pem Belanda, juga tidak
tampak pengaturan oleh Spanyol.
Pengadilan Arbitrase permanen berpendapat
Belanda telah melaksanakan kedaulatan di
wilayah
Population
The Criterian is connected with that of territory
and constitute the physical basis for the existence
of State.
Effective control by government, internally, the
existence of government implies the capacity to
establish and maintain legal order in the sense of
constitutional autonomy. Externally, the ability to
act autonomously on the international level
without being legally dependent on other state
within the international legal order.
The state of Palestine declared in 1988 by
Palestinian organization was not a state, due to
lack of effective control over the claimed territory
Capacity to enter into
relation with other state
There are several examples of dependent
state, which have limited capacity to enter
into international relations. Ex; colonies in
the process becoming independent often
had a limited capacity to enter into
international relations. In practise, the
formal grant of independence was usually
preceded by a period of training, during
the colonial delegated certain international
functions to the colony, in order to give
the local leaders experience of
international relations
Another criterian
Self determintaion and recognition..
These , how ever, are not generally
regarded as constitutive elements for
state and it is agreed that the material
is territorial effectiveness
small state such as Monaco, vatikan,
recognition is important, because
otherwise it might be doubted whether
the territory and population of such
states were large enough to make them
states in the eyesof international law.
Recocnition of states and
governments in international
law
It is a confusing mixture of politics, international
law, national law.
States are are influenced by political than by
legal consideration, but their acts do have legal
consequences.
Recognition is wide of factual situations, in
addition to recognition of states and government.
The basic difference is that the regcognition of
government necessarily has the consequence of
accepting the statehood of the entity which the
regime is governing, while the recognition of
state can be accorded without also accepting that
particular regime is the government of that state.
It means ,Organization will enjoy
legal personality under municipal
laws of its member state, it can
own property, enter into contract.
Ex; the leading judicial authority on
the personality of int organizations
is the advisory opinion given by ICJ
in the reparation for injuries case’
Enjoy priveleges and immunities, may
engage international responsibility and
liability.
Most int org is traditional type,
meaning that they are in essence
based on intergovernmental
cooperation of which retain control of
decision making and finance of the
organization.
NGOs
They are not established by
government or by an agreement
between states and their members are
private citizens or bodies corporate.
Engaged in a broad variety of different
areas, ranging from politics, the legal
and yudicial field, the social and
economic, human rights etc
The role is primarily an informal one.
They have some effect on international
law making in certain areas by adding
expertise and making procedures more
transparent, and stronger effect with
regard to supervision and fact finding
as to the implementation of
internationalforms, most visibly in the
area of human rights
Individuals and companies
In western countries, individuals and
companies have some degree of
international legal personality, but
thepersnality is usally seenas something
limited.
Individuals and companies may
havevariousrights under special treaties, for
instance, but it has never been suggested
that they can imitate the states by accuiring
territory, appointing ambassadors, or
declaring war
Access to in international tribunal in enforce
their rights( ex, that individual nad
companies are exist in international ).
Most int tribunals are not open to
individuals and companies , Art 34 Statute
ICJ, that only states may be parties. But
there are exeptions, thus World bank has
set up an international arbitral tribunal to
hear disputes arising out of investment
betweenStates and national of other states
(ICSID)
Insurgents and national
liberation movements
Insurgents in civil war have long been
recognized in international law as subjects
having certain rights and duties because
they control some territory and might
become the effective new government of the
state.
A new problem related with the national
liberation, such as PLO, SWAPO thus not
controlling the territory, but rather o the int
recognitionogf their political goals of freedom
from colonial domination or allien occupation.
International Organization
Is usually used to describe an organization
set up by agreement between two or more
states. It is different with NGO, which is set
up by individuals or group of individual such
as Amnesty international or greenpeace.
article 104 UN Charter”’ the organizations
shall enjoy the territory of each of its
members such legal capacity as may be
necessary for the exercise of its functions
and the fulfilment of its purpose.’
Internasional
Rika ratna permata
Negara
The 1933 Montivideo Convention on
Rights and Duties of States, article 1 :
The State as a person of international law
should posses the following qualification:
1.
A permanent population.
2.
Defined territory
3.
Government and
4.
Capacity to enter into relations with other
State.
Defined territory
This is the basis of the central notion of
territorial sovereignty, establishing the
exclusive competence to take the legal
and factual measures within that
territory and prohibiting foreign
governments from excercising
authority in the same area without
consent.
A leading case is Island of Palmas
Island of Palmas Case
Amerika Serikat dan Belanda.
USA mengklaim pulau Palma dengan dasar
penemuan sbg pengganti hak-hak spanyol
berdasarkan perjanjian 1898 yang berisi
pengalihan pulau-pulau milik Philipina ke USA.
Belanda menuntut pengaturan pulau tsb
Fakta bahwa penduduk telah menyerahkan
kedaulatannya kpd pem Belanda, juga tidak
tampak pengaturan oleh Spanyol.
Pengadilan Arbitrase permanen berpendapat
Belanda telah melaksanakan kedaulatan di
wilayah
Population
The Criterian is connected with that of territory
and constitute the physical basis for the existence
of State.
Effective control by government, internally, the
existence of government implies the capacity to
establish and maintain legal order in the sense of
constitutional autonomy. Externally, the ability to
act autonomously on the international level
without being legally dependent on other state
within the international legal order.
The state of Palestine declared in 1988 by
Palestinian organization was not a state, due to
lack of effective control over the claimed territory
Capacity to enter into
relation with other state
There are several examples of dependent
state, which have limited capacity to enter
into international relations. Ex; colonies in
the process becoming independent often
had a limited capacity to enter into
international relations. In practise, the
formal grant of independence was usually
preceded by a period of training, during
the colonial delegated certain international
functions to the colony, in order to give
the local leaders experience of
international relations
Another criterian
Self determintaion and recognition..
These , how ever, are not generally
regarded as constitutive elements for
state and it is agreed that the material
is territorial effectiveness
small state such as Monaco, vatikan,
recognition is important, because
otherwise it might be doubted whether
the territory and population of such
states were large enough to make them
states in the eyesof international law.
Recocnition of states and
governments in international
law
It is a confusing mixture of politics, international
law, national law.
States are are influenced by political than by
legal consideration, but their acts do have legal
consequences.
Recognition is wide of factual situations, in
addition to recognition of states and government.
The basic difference is that the regcognition of
government necessarily has the consequence of
accepting the statehood of the entity which the
regime is governing, while the recognition of
state can be accorded without also accepting that
particular regime is the government of that state.
It means ,Organization will enjoy
legal personality under municipal
laws of its member state, it can
own property, enter into contract.
Ex; the leading judicial authority on
the personality of int organizations
is the advisory opinion given by ICJ
in the reparation for injuries case’
Enjoy priveleges and immunities, may
engage international responsibility and
liability.
Most int org is traditional type,
meaning that they are in essence
based on intergovernmental
cooperation of which retain control of
decision making and finance of the
organization.
NGOs
They are not established by
government or by an agreement
between states and their members are
private citizens or bodies corporate.
Engaged in a broad variety of different
areas, ranging from politics, the legal
and yudicial field, the social and
economic, human rights etc
The role is primarily an informal one.
They have some effect on international
law making in certain areas by adding
expertise and making procedures more
transparent, and stronger effect with
regard to supervision and fact finding
as to the implementation of
internationalforms, most visibly in the
area of human rights
Individuals and companies
In western countries, individuals and
companies have some degree of
international legal personality, but
thepersnality is usally seenas something
limited.
Individuals and companies may
havevariousrights under special treaties, for
instance, but it has never been suggested
that they can imitate the states by accuiring
territory, appointing ambassadors, or
declaring war
Access to in international tribunal in enforce
their rights( ex, that individual nad
companies are exist in international ).
Most int tribunals are not open to
individuals and companies , Art 34 Statute
ICJ, that only states may be parties. But
there are exeptions, thus World bank has
set up an international arbitral tribunal to
hear disputes arising out of investment
betweenStates and national of other states
(ICSID)
Insurgents and national
liberation movements
Insurgents in civil war have long been
recognized in international law as subjects
having certain rights and duties because
they control some territory and might
become the effective new government of the
state.
A new problem related with the national
liberation, such as PLO, SWAPO thus not
controlling the territory, but rather o the int
recognitionogf their political goals of freedom
from colonial domination or allien occupation.
International Organization
Is usually used to describe an organization
set up by agreement between two or more
states. It is different with NGO, which is set
up by individuals or group of individual such
as Amnesty international or greenpeace.
article 104 UN Charter”’ the organizations
shall enjoy the territory of each of its
members such legal capacity as may be
necessary for the exercise of its functions
and the fulfilment of its purpose.’