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The Subject Of International Law

1) The concept of International personality

International person is one who possesses legal personality in international law.

One who is subject of international law enjoy rights, duties / powers established in international law + have the capacity to act on the international plane

Characteristic of international personality

The enjoyment of rights conferred and the subjection to obligation imposed by international law

Capacity to enter into treaties and agreements valid on the international plane Capacity to make claims in respect of breaches of international law The enjoyment of privileges and immunities from national jurisdiction

-clarified by the World Court in Reparation’s case, an international person need not possess all the international rights, duties and powers possessed by States.

Eg : International organization possess only international rights and duties appropriate for their particular situation, they are subjects of IL only to limited extent only

-in the 19th century, states are the only subject of IL, confirmed by Oppenheim (since it is the law of nation and based on the common consent of a state, not individual human being, states solely and exclusively are the subject of IL)

-After WW2, new actor emerged such as public international organization established by states, non governmental organization

2) States as subject of IL

Oppenheim stated four condition for the existence of states

People : there must be people who live together as a community even though they may belong to different races, religion or colours

Territory : in which the people is settled. Wandering people is not a state Government : one or more persons act for the people and govern according to the law of

the land Sovereignty : supreme authority which is not dependant on other authority/independent

Criteria of statehood under IL

Article 1 of the Montevideo Convention on Rights and Duties of States

The state as a person of IL should possess the following qualification

Permanent population

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Defined territory Government Capacity to enter into relations with other states

Defined territory

-the control of territory is the essence of a state

-territorial sovereignty allows a state to exercise sovereignty within that territory without any interference from foreign government without its consent

-this concept is defined by geographical area separated by borderlines from the other state’s territory. So, the delimitation of state boundaries is of crucial importance.

-absolute certainty is not required ( sebab tu banyak frontier dispute)

Permanent population

-wandering tribe do not qualify to be a state

There must be a people linked to a specific territory on a more or less permanent basis and who can be regarded as its inhabitant

Western Sahara’s case

It was noted that the territory of the Western Sahara is populated by a nomadic tribe who go freely across the desert. However, it was held that their link with the territory is such that they may be regarded as its population

Government

-the government must be effective within the defined territory and exercise control over the permanent population.

Aaaland Island case

The main question was the date on which Finland become a state. Finland had been a part of the Russian Empire until the Russian Revolution. The parliament declared Finland’s independence on December 4, 1917. This was recognized by the Soviet Government but there was opposition within Finland which rejected the idea of independence. As a result, violence broke out and for a time, the government of the new state was able to maintain order only with the help of the Soviet troops. The International Committee of Jurist held that the exact date Finland become a state was when the public authorities had become strong enough to assert themselves through the territories of the state without the assistance of foreign troops and that was in May 1918.

Exception : the effective requirement does not apply to an established state. A state does not cease to exist when it is temporarily deprived of an effective government (due to civil war/upheavals)

Somalia and Japan

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Capacity to enter into relations with other states

Montevideo Convention refers ‘capacity to enter into relation’ as independence in law. Judgee Anzilotti in Austro-German Custom Union case delivered his opinion in respect of the meaning of independence : independence may also be described as sovereignty or external sovereignty by which is meant that the state has over it no other authority than that of IL

3) International Organisation

Apart from state, international organisation is a subject of IL since they are the organization of states which are assigned with specific function, they must enjoy some measure of international personality to carry out the function.

International personality of the United Nations

Legal capacity of UN is affirmed in Article 104 of UN Charter – the organization shall enjoy in the territory of each of its member such legal capacity as may be necessary for the exercise of its function and the fulfilment of its purposes

Article 105 – guaranteed privileges and immunities of the UN, its officials and representative

Article 1 (1) of the Convention on the Privileges and Immunities of the UN – The UN shall posses juridical personality and that it shall have the capacity to contract, to acquire and dispose of movable and immovable property and to initiate legal proceeding.

The most important evidence for the determination of the international personality of the UN is the advisory opinion in the Reparation’s case

September 1948 – Court Bernadotte, a Swedish national, was assassinated in Jerusalem which was in Israeli possession. He was the Chief UN Truce Negotiator in the area. In the course of deciding what action to take in respect of his death, the UN GA requested ICJ to give an advisory opinion on whether UN had he capacity to bring an international claim against the responsible government to obtain reparation.

The Court in its opinion : has come to a conclusion that the organization is an international personality. That is not to say that it is a state and posses the same legal personality, rights and duties to that of the states. But it is a subject of international law and capable of possessing international rights and duties and has capacity to maintain its right by bringing international claims.

Criteria for determination of international personality

In the Reparation’s case, the court outlined two criteria

The intention of a states to establish an organization having a distinct legal personality detached from that of its members

Can be inferred from various factors. May also be expressly mentioned in the constituent instrument of the organisation

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Eg : Article 4 (1) of the Rome Statute Establishing the International Criminal Court as having an international legal capacity

The actual exercising and enjoying of functions and rights which can only be explained on the basis of the possession of a large measure of international personality

Rights conferred to international organisation

The treaty making power Privileges and immunities Right to bring international claim The right to protection for its agent acting in their official capacity

4) Individuals and Corporations

Before the twentieth century, the view was that individual was merely an object and not subject of IL. However, since the WW1, the community of nations has become increasingly aware of the need to safeguard individual’s right under the IL. Thus, many scholars provided the thesis that individual should also be regarded as subject of IL

Legal responsibility of individuals under IL

-There are norms which establish direct responsibility of an individual. Individual who commit certain crime under IL should be punished as according to IL. Eg : piracy, slace trading, genocide, war crime and crime against humanity

International law directly impose a legal duty upon individual not to commit such crimes.

-After WW2, international military tribunals were set up at Nuremberg and Tokyo. The judgment of the Nuremberg and Tokyo International Military Tribunal affirmed the criminal responsibility of individual under IL. The often quoted passage : crime against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crime can the provision of IL be enforced.

Rights of individuals under IL

-individual has some degree of international personality but to a very limited extent, much more limited than the legal personality of an international organisation.

-number of rules of IL exist for the benefit of individuals but that does not necessarily means that the rules create ‘right’.

-One way of proving that the rights of individual exist under IL is to show that the treaty conferring the rights gives the individual access to an international court or tribunal to enforce their right.

General rule : the individual have no locus standi or access to international court and tribunal, most international tribunals are not open for individuals.

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Exceptions (individual may be given right to appear before an international tribunal ) : European Convention on Human Rights and Fundamental Freedom – any private individuals who are nationals of state parties can bring an action before the European Court of Human Right against their own government for violations of human right.

Access to the ICJ

Article 34 (1) of the Statute of ICJ provides that – only states shall be the parties in cases before the court.

Individuals o corporations has no locus standi before the court

-if they are victim of international wrongful act of a foreign government, they have to persuade their national state to take up the case and initiate proceeding against the responsible state before the world court.

Factors to be taken to initiate such international claim

There must have been an internationally wrongful act committed by a foreign state against a national or a corporation of the claimant state

Two requirements for the admissibility of an international claim i) Nationality of claims – there must be a linkage of nationality between the victim and

the state making the claimii) Exhaustion of local remedies – the victim must have been exhausted all the effective

local remedies available at the wrongdoer state Jurisdictional requirement : Article 36 of the Statute of ICJ – the court can exercise

jurisdiction only with the consent of both state parties to the dispute

Case : Nottebohm

Corporations

Corporation or companies usually are treated as the same as individuals. Normally, their relationhip with states is governed by the domestic law.

-However, it is possible that a contractual relationship between a corporation and a states be governed by international law.

Eg : Texaco v Libya case

Concession agreement for the extraction of oil might be an internationalised contract subject to rules of international law. But such contract are at the discretion of the host state and they do not confer international legal personality on the foreign companies.

5) Recognition of states and government

May occur either

Express : by formal declaration

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Implied : to be inferred from conduct of recognising state and the new government/states (eg : conclusion of a bilateral treaty)

Recognition of states :

General rule : the legal requirement of the for recognition of a new state are still the Montevideo requirement of statehood

A new state may emerge by way of

Gaining independence of a former colony Disintegration of an existing state Merger of two or more state

Malaysian practise on the recognition of state

By virtue of Section 3 of Civil Law Act 1956, Malaysian practise is based on the traditional British practise

Procedure : Malaysian court will rely on a certificate from the Foreign Office to be able to decide whether a state/government is one recognised by Malaysia.

Village Holdings Sdn Bhd v Her Majesty The Queen in Right of Canada

Counsel of the defendant tendered a certificate under the hand of the Secretary-General, Ministry of Foreign Affairs, Malaysia and read s : This is to certify that Her Majesty the Queen in Right of Canada is a foreign sovereign recognised by His Majesty the Yang Dipertuan Agong of Malaysia.

In this case, the court accepted the certificate and it was proven that the certificate was a conclusive proof that Canada was a sovereign state

Malaysia will still grant recognition to government and the criterion will be the traditional one (whether the government of the state can effectively control the territory concerned)

Recognition of government

Government coming into power normally and constitutionally

Require no recognition in IL (there will be a message of congratulation and a continuation of normal bilateral diplomatic dealings)

Government coming into power abnormally and in a revolutionary manner

Government coming into power after a coup d’etat’/ a revolution/ civil war, the recognition of the government requires great care

Condition under IL for the recognition of such government

The new regime has effective control over most of the state’s territory This control seems likely to continue

The Estrada Doctrine

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By recognising a government coming into force unconstitutionally, there often been a misinterpretation

Eg : If Malaysia recognise a new regime coming into force by way of revolution, Malaysia is said to approve the revolutionary government)

In order to avoid – states have been practising the policy of “never recognising the government” even though they continuously grant recognition to the state – the Estrada Doctrine.

Eg : US had in 1977 given a statement saying that the United States has been avoiding the use of recognition in case of changes of government and to concern themselves with the question of whether they wish to have a diplomatic relations with the new government

Effect of the doctrine – It merely substitutes implied recognition for express recognition, recognition is not announced expressly. But it can be implied from the existence of diplomatic relations or etc

The legal effect of recognition in municipal law

3 major effect of a recognition in municipal law

Only a recognised state or government will be able to sue before the court of a recognising state

Only a recognised state or government may claim immunity from the jurisdiction of the courts of the recognising state

The legislative, judicial and executive act of a recognised state only will be accepted as valid in the court of recognising state

Luther v Sagor

The Soviet Government passed a decree in June 1918 declaring all sawmills and wood-working establishments to be nationalised.

1919 – the plaintiff mill together with its stock of wood was seized due to the decree

1920 – the representative of the Russian commercial delegation in London contracted with the defendant for the sale and delivery of a quantity of timber which included some of the timer seized from the plaintiff.

Plaintiff sought a declaration that the timber was their property an injunction restraining the defendant from dealing with the timber.

Defendant argued that the decree passed in 1918, being the act of a sovereign government was valid to deprive the plaintiff of title to the timber.

The court at firs instance, referred to a letter from the Foreign Office and held that since the United Kingdom Government had not yet recognised the Soviet Government, the decree was not valid. But the defendant appealed and adduced another two letters from the Foreign Office stating that recognition had been made by the UK Govenrment. CH that since recognition had

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been made by the UK Government, the act of the Soviet Government must be treated by the court with all respect to the act of a recognised state.

3 principles derived from this case

A foreign office certificate will be a conclusion proof of whether the British Government recognises a foreign state or government

Recognition once given, is retroactive in effect from the time that the recognised government established itself

British court will not recognised or enforce the law or other official act of an unrecognised government.