Scribd
Upload
18 views4 pages

Topic 03 MID INTERLAW

Uploaded by

alfamochza
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
18 views4 pages

Topic 03 MID INTERLAW

Uploaded by

alfamochza
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
You are on page 1/ 4

Topic 03 – The subjects of international law

Legal personality

definition :

“Legal persons” refer to those who possess the capacity to have and maintain certain rights and
being subjects to perform specific duties.

International legal personalities means entities who are endowed with rights and obligations under
public international law (Oxford Reference)

However, it is not an absolute concept

Personality involves the examination of certain concepts within the law such as status, capacity,
competence, as well as the nature and extent of particular rights and duties.

There is a wide range of participants in international law, including: international organisations,


regional organisations, non-governmental organisations, public companies, private companies and
individuals.

However, not all could be considered as legal persons.

International personality is participation plus some form of community acceptance.

Characteristics of international legal personality :

International Legal Persons can:

Make claims before tribunals

Be subject to some or all of the obligations imposed by international law

Have the power to make international agreements

Enjoy some or all of the immunities from the jurisdiction of the national courts of other states

Subjects of international law

Definition and its relations to international legal personality

A subject of international law is a body or entity that is capable of possessing and exercising rights
and duties under international law (Martin Dixon).

Entities that have international legal personality are subjects of international law and have rights and
obligations under international law.

Only subjects of international law can be held responsible for violations of breaches of international
obligations (David Nauta, 2017).
The various subjects

States

Sui generis territorial entities

Special cases

Individuals

International Organizations

State and statehood

criteria

States are by far still the most important subjects in international law.

The creation of statehood can be traced back as far as the Peace of Westphalia in 1648.

However, the most authoritative statement on the criteria of statehood can be found in Montevideo
Convention on the Rights and Duties of States (1933) Article 1:

a permanent population;

a defined territory;

government; and

capacity to enter into relations with other states.

But scope for further debate for each of these benchmarks!

NOTE: geographic size does not matter, Liechtenstain & Monaco are states, California and Antartica
are not

International organization

Gained significant position as a subject of international law after the World War II (1945)  flourished
through several decades as globalization continued to spread

Considered as new actor in international law and international relations

Refer to Advisory Opinion of ICJ in 1949 in the case of “Reparation of Injuries” on the legal status of
the UN.

UN specialized bodies are treated as subjects of international law as well

Rights and duties are restricted to their respective establishment treaties.


individuals

International legal status of individuals

Individuals were under exclusive jurisdiction of the state of which she or he was a national

State’s treatment of individuals before World War II:

Only considered its own citizens: considered as domestic affair

Except for foreigners: subject of international legal concern

State’s treatment of individuals after World War II:

Individual possesses rights and obligations under international law:

State’s treatment of its own citizen: now considered as international legal concern

Development of international law to protect and punish individual (international human rights law
and international criminal law)

The development of individuals as subjects of international law was closely related to the
development of human rights

Individuals in international law

Whether individual is a subject of international law?

Whether individual derives “rights” from international law or merely “benefits”?

Two opposing views

1. Traditional international law:

International law imposes an obligation upon state to protect individual

Strong reluctance to allow individual any status/voice in international law

“according to a well-established principle of international law, the Beamtenabkommen (a treaty


between Poland and Germany) being an international agreement, cannot, as such, create direct
rights and obligations for private individuals.” (PCIJ, ad. op., 1928)

2. Modern international law:

Individual has legal personality in international law based on:

Human rights law:

International law grants individual rights

Individual as a subject of right in international law


International criminal law:

International law imposes obligations on individual

NOTE: A key question is whether individual has any means to enforce its rights; individual has access
to remedy at international level

You might also like