SUBJECTS OF INTERNATIONAL LAW Arie Afriansyah

Concerns….. What is the definition of Subjects of international law? How are the characteristics of international personality? What is the relations between subjects of international law and international personality? Is “state” the only subject of international law?

Subject of International Law is an entity capable of possesing international rights and duties and having the capacity to maintain its rights by bringing international claims. (ICJ, 1949).

What is the meaning of having capacity to maintain its rights? 1.Capacity to make claims in respect of breaches of international law 2.Capacity to make treaties and aggreements valid on international plane 3.The enjoyment of immunities and privileges from national jurisdiction

1.National Law: legal personality, legal person, subject of the law. 2.The concepts of international personality

National Law: legal personality, legal person, subject of the law. Legal personality is primarily an ‘Legal acknowledgement that an entity is capable of exercising certain rights and being subject to certain duties under a particular system of law. Subjects of the law are the persons to whom the law attributes rights and duties. Therefore, the term ‘subject of the law’ is synonymous with the term ‘legal person’.

Characteristic of international personality: An entity has international personality if it has rights and duties under international law. The following are generally accepted as characteristics of international personality: (1) Rights and obligations under international law; (2) Treaty-making capacity; (3) Capacity to make international claims; and (4) The enjoyment of privileges and immunities from national jurisdictions.

These are also known as ‘indicia of international personality’. In practice, it is only States and certain international organizations like the United Nations that have all of these capacities to the fullest degree. “Subjects of international law” are those who possess “international personality”.

Are state the only subject of international law? In the 19th century, States were the only subjects of international law. Oppenheim emphatically stated: “Since the law of nations is based on the common consent of States, and not of individual human beings, States solely and exclusively are subjects of international law”. HOWEVER: In the present day, it is not true.

While States remain the predominant actors in international law, the position has changed. After the Second World War, new actors have emerged on the international plane, such as public international organizations established by States (IGOs), non-governmental organizations (NGOs) created by individuals, multinational corporations and even individual human beings. They are now recognized as possessing some, although limited, international personality.

States as a subject of International law States are the subjects of international law par excellence. It is, therefore, important to have a clear idea of what a State is for the purposes of international law. Professor Oppenheim defines ‘State’ in these terms: “A State is in existence when the people is settled in a country under its own sovereign government.

Criteria of statehood under international law Article 1 of the Montevideo Convention on Rights and Duties of States 1933 provides as follows: The State as a person of international law should posses the following qualifications: 1.A permanent population; 2.A defined territory (stable political community and this must be control of a certain area); 3.Government; and 4.Capacity to enter into relations with other States.

(1) Defined Territory For a State to exist, there must be a defined territory. The control of territory is the essence of a State. This is the basis of the central notion of establishing the ‘territorial sovereignty’, exclusive competence of the State to exercise sovereign authority within that territory. But absolute certainty about a State’s boundaries is not required; many states have out-standing frontier disputes.

(2) Permanent population There must be people linked to a specific territory on a more or less permanent basis and who can be regarded as its inhabitants. Wandering tribes do not qualify to be a State. In the Western Sahara case (1975) ICJ Rep. 12, the territory of the Western Sahara is populated by nomadic tribes who go freely across the the territory is such that they may be regarded as its ‘population’.

(3) Government To be a State there must be a government. The government must be ‘effective’ within the defined territory and exercise control over the permanent population. The mere existence of a government in itself does not suffice, if it does not have ‘effective control’.

(4) Capacity to enter into relations with other States When the Montevideo Convention refers to ‘capacity to enter into relations with other States’, it is referring to “independence” in law from the authority of other States. STATE RECOGNITION????

17 International Organization Marked with the event of ICJ’s Advisory Opinion in the case of “Reparation of Injuries” in 1949 concerning the legal status of the United Nations. By this Advisory Opinion, UN’s specialized agencies also becoming part as subjects of international law. It has limitation by its own treaty of establishment.

18 Holy See Holy See / Vatican becoming the subject of international law due to the historical background. Head of Rome Church used to have powers in the human lives together with the Roman Empire. Its existence until now is to respect its history and its operation in religious matters. There was a Lateran Treaty (11 February 1929) between Italia & Holy See.

19 International Committee of the Red Cross (ICRC) Recognized as subject of international law because of its consistent active roles in protecting victims of war without taking side in the conflict. Legally recognized in the Geneva Conventions 1949 on the Law of War. It has limited scope of operation. Its duty to maintain its impartiality.

20 Individuals Treaty of Peace Versailles in 1919 between Germany and British and France (on the possibility of bringing individuals before the International Tribunal): “a supreme offence against international morality and the sanctity of treaties” - former German Emperor (William II of Hohenzollern) Treaty on Upper Silesia in 1922 between Germany & Poland. Danzig Railway Official’s Case – PCIJ 1928 Charter of Nurenberg International Tribunal & Charter of Tokyo International Tribunal. ICTY; ICTR; and hybrid courts International Criminal Court (ICC) Statute in 2000.

21 Belligerent Entitled to special rights and obligation in the special circumstances of conflict under Law of War. It is based on: rights to self determination, rights to choose economic, political and social systems, and rights to exploit natural resources within its occupied territories. Example: PLO.

Question? Arie Afriansyah