HI - Week VII - Subject of International Law - Week VI
Subject of International Law
General Course of Public
International Law – Week VI
What is subject to international
law?
A legal person who has a capacity to enter
into legal relations and to have legal rights
and duties
States
• The right of States :
– Equality the 1970 Declaration on Principles of International
Law :
• all states enjoy sovereign equality. They have equal rights and
duties and are equal members of the international community,
notwithstanding differences of an economic, social, political or other
nature. In particular, sovereign equality includes :
–
–
–
–
States are juridically equal
State enjoys the rights inherent in full sovereignty
State has the duty to respect the personality of other states
The territorial integrity and political independence of the state are
inviolable
– The right to freely choose and develop its political, social, economic
and cultural systems
– Duty to comply fully and in good faith regarding its int’l obligations and
to live in peace with others
States II
– Peaceful co-existence
– Independence the 1949 Draft Declaration
on the Rights and Duties of States prepared
by International Law Commission
• Nicaragua Case 1986 Independence cant be
presumed unless stated in the treaty, the level
of armaments of a sovereign state cant be limited.
It is valid to all states without exception
States - III
• Montevideo Convention on Rights and
Duties of States 1933, art. I :
– A Permanent Population
– A defined Territory
– Government
– Capacity to enter into relations with other
States
• Adopted
by
the
7th
International
Conference of American States
States - IV
• Has been supplemented by – once
independence achieved –
• The principle of Self – determination
• Not in the pursuance of racist policies
Permanent Population
• Determination nationality
• No lower limit
– Nauru 12.000 inhabitants
– The Vatican City
• Mini States
– The Vatican City entertains diplomatic
relations with other states and joined
international organizations
Territory
• No limitation to the size of a State
– Nauru eight square miles
– The Vatican City less than 100 acres
• State boundaries is crucial but absolute
certainty is not required Israel
• State of Palestine declared in 1988
cant be regarded as a state
• Self – determination Western Sahara
Case 1975
Government
• Two aspects :
– Internal the capacity to establish and maintain law
– External independency at international level
• Aaland Island Case stable political
organization had been created
• Does stable political organization apply to the
State that already exist? Somalia
• Failed state or Etats sans Gouvernement
Somalia
– Thurer : “… have totally or partially collapsed…
erupting violence… presence on the world map…”
Government - II
• Three elements of failed states :
– Internal collapse of law and order total or
near breakdown of structures guaranteeing
law and order
– Absence of bodies capable of representing
the State at the International level
– Geographical and territorial aspect :
• Associated with internal and endogenous problems
Government - III
• Failed state : a state that has failed for all
practical purposes lost the ability to
exercise its legal capacity since it can not
commit the State in an effective and
legally binding way concluding
agreement
Capacity to Enter into relations with
other states
• Montevideo 1933 refers to Independence
in law from the authority of any other state
the capacity to conduct the relations
under its municipal law
Recognition
• Distinction :
– Of a state fulfills the criteria of statehood
– Of a government effective control of a state
• Recognition is a willingness to deal with
the new state as a member of the
international community
International Organizations
• Refers to an organization established by
agreement between two or more states
• Article 104 of the UN Charter the
organization shall enjoy in the territory of
each of its members such legal capacity as
may be necessary for the exercise of its
function and the fulfillment of its purposes
International Organizations – II
• Article 43 of the UN Charter empowers
the UN to make certain types of treaties
with member states
• Reparation for injuries case
– The UN had international legal personality
– Implied power to claim the compensation for
the loss of its agents
Individuals
• Treaty of Versailles 1919 jurisdiction of
the Mixed Arbitral Tribunals
• The Polish – German Convention 1922
independent
procedural
status
of
individuals as claimants before an
international agency even as against the
State which they were nationals
Individuals - II
• The Permanent Court of International
Justice, Danzig Railway Officials Case
1925, Poland v. Danzig railway officials
nothing in international law to prevent
individuals from acquiring directly rights
under a treaty provided this is the intention
of the contracting parties
Individuals - III
• Customary
International
Law
obligations of international law bind
individuals directly regardless of the law of
their State and of any contrary order
received from their superior
Individuals - IV
• International Military Tribunal of Nürnberg
and the International Military Tribunal of
Tokyo
• “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 international law be
enforced”
Individuals - V
• To the extent:
– crimes against humanity
– Non human rights :
• La grand case art 36 (1) (a) of the Vienna
Convention on Consular Relations
Insurgents and National Liberation
Movements
• Insurgency full scale war and vaguely to allow
foreign states a certain freedom to deal with
internal war
• National Liberation Movements or Belligerents
– anti government forces which have established a
“government” and a military organization
– Controls a substantial area of the original state’s
territory
– Capable of raising the level of warfare to that which
may exist between States
Insurgents and National Liberation
Movements - II
• Not entitled to exchange diplomatic
representatives or to demand membership
in international organizations
The Holy See and Vatican City
• The Lateran Treaty 1929, signed between
Italy and the sovereignty of the Holy See
in the field of international relations as an
attribute that pertains to the very nature of
the Holy See, in conformity with its
traditions and with the demands of its
mission in the world
The Holy See and Vatican City - II
• Today’s status :
– Has no permanent population apart of
functionaries
– Exists to support the work of the Holy See
– Italy carries out substantial administrative
regarding the city
– Party to international treaties
– Member of the Universal Postal Union and
International Telecommunication Union
The Holy See and Vatican City - III
• Engage diplomatic relations
• Recognition by states
• Accordingly, its personality was accepted
by such partners
General Course of Public
International Law – Week VI
What is subject to international
law?
A legal person who has a capacity to enter
into legal relations and to have legal rights
and duties
States
• The right of States :
– Equality the 1970 Declaration on Principles of International
Law :
• all states enjoy sovereign equality. They have equal rights and
duties and are equal members of the international community,
notwithstanding differences of an economic, social, political or other
nature. In particular, sovereign equality includes :
–
–
–
–
States are juridically equal
State enjoys the rights inherent in full sovereignty
State has the duty to respect the personality of other states
The territorial integrity and political independence of the state are
inviolable
– The right to freely choose and develop its political, social, economic
and cultural systems
– Duty to comply fully and in good faith regarding its int’l obligations and
to live in peace with others
States II
– Peaceful co-existence
– Independence the 1949 Draft Declaration
on the Rights and Duties of States prepared
by International Law Commission
• Nicaragua Case 1986 Independence cant be
presumed unless stated in the treaty, the level
of armaments of a sovereign state cant be limited.
It is valid to all states without exception
States - III
• Montevideo Convention on Rights and
Duties of States 1933, art. I :
– A Permanent Population
– A defined Territory
– Government
– Capacity to enter into relations with other
States
• Adopted
by
the
7th
International
Conference of American States
States - IV
• Has been supplemented by – once
independence achieved –
• The principle of Self – determination
• Not in the pursuance of racist policies
Permanent Population
• Determination nationality
• No lower limit
– Nauru 12.000 inhabitants
– The Vatican City
• Mini States
– The Vatican City entertains diplomatic
relations with other states and joined
international organizations
Territory
• No limitation to the size of a State
– Nauru eight square miles
– The Vatican City less than 100 acres
• State boundaries is crucial but absolute
certainty is not required Israel
• State of Palestine declared in 1988
cant be regarded as a state
• Self – determination Western Sahara
Case 1975
Government
• Two aspects :
– Internal the capacity to establish and maintain law
– External independency at international level
• Aaland Island Case stable political
organization had been created
• Does stable political organization apply to the
State that already exist? Somalia
• Failed state or Etats sans Gouvernement
Somalia
– Thurer : “… have totally or partially collapsed…
erupting violence… presence on the world map…”
Government - II
• Three elements of failed states :
– Internal collapse of law and order total or
near breakdown of structures guaranteeing
law and order
– Absence of bodies capable of representing
the State at the International level
– Geographical and territorial aspect :
• Associated with internal and endogenous problems
Government - III
• Failed state : a state that has failed for all
practical purposes lost the ability to
exercise its legal capacity since it can not
commit the State in an effective and
legally binding way concluding
agreement
Capacity to Enter into relations with
other states
• Montevideo 1933 refers to Independence
in law from the authority of any other state
the capacity to conduct the relations
under its municipal law
Recognition
• Distinction :
– Of a state fulfills the criteria of statehood
– Of a government effective control of a state
• Recognition is a willingness to deal with
the new state as a member of the
international community
International Organizations
• Refers to an organization established by
agreement between two or more states
• Article 104 of the UN Charter the
organization shall enjoy in the territory of
each of its members such legal capacity as
may be necessary for the exercise of its
function and the fulfillment of its purposes
International Organizations – II
• Article 43 of the UN Charter empowers
the UN to make certain types of treaties
with member states
• Reparation for injuries case
– The UN had international legal personality
– Implied power to claim the compensation for
the loss of its agents
Individuals
• Treaty of Versailles 1919 jurisdiction of
the Mixed Arbitral Tribunals
• The Polish – German Convention 1922
independent
procedural
status
of
individuals as claimants before an
international agency even as against the
State which they were nationals
Individuals - II
• The Permanent Court of International
Justice, Danzig Railway Officials Case
1925, Poland v. Danzig railway officials
nothing in international law to prevent
individuals from acquiring directly rights
under a treaty provided this is the intention
of the contracting parties
Individuals - III
• Customary
International
Law
obligations of international law bind
individuals directly regardless of the law of
their State and of any contrary order
received from their superior
Individuals - IV
• International Military Tribunal of Nürnberg
and the International Military Tribunal of
Tokyo
• “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 international law be
enforced”
Individuals - V
• To the extent:
– crimes against humanity
– Non human rights :
• La grand case art 36 (1) (a) of the Vienna
Convention on Consular Relations
Insurgents and National Liberation
Movements
• Insurgency full scale war and vaguely to allow
foreign states a certain freedom to deal with
internal war
• National Liberation Movements or Belligerents
– anti government forces which have established a
“government” and a military organization
– Controls a substantial area of the original state’s
territory
– Capable of raising the level of warfare to that which
may exist between States
Insurgents and National Liberation
Movements - II
• Not entitled to exchange diplomatic
representatives or to demand membership
in international organizations
The Holy See and Vatican City
• The Lateran Treaty 1929, signed between
Italy and the sovereignty of the Holy See
in the field of international relations as an
attribute that pertains to the very nature of
the Holy See, in conformity with its
traditions and with the demands of its
mission in the world
The Holy See and Vatican City - II
• Today’s status :
– Has no permanent population apart of
functionaries
– Exists to support the work of the Holy See
– Italy carries out substantial administrative
regarding the city
– Party to international treaties
– Member of the Universal Postal Union and
International Telecommunication Union
The Holy See and Vatican City - III
• Engage diplomatic relations
• Recognition by states
• Accordingly, its personality was accepted
by such partners