2 : Subjects of PIL

Question 1

What does int legal personality entail ? (4)

Answer 1

1/ capacity to have rights and duties under IL

2/ capacity to enforce rights and duties

3/ responsibility to account for breaches

4/ capacity to create IL

Question 2

Who has int legal personality (ILP) ? (3)

Answer 2

Int legal personality can be seen as gradual

1/ States have absolute ILP

2/ IOs have functional ILP

3/ debate about degree of ILP of individuals, MNEs, peoples, etc.

Question 3

2 theories about State creation

Answer 3

1/ constitutive theory : State comes into being if recognized by other States ; doesn’t matter if State satisfies material conditions

2/ declaratory theory : State must fulfil objective criteria ; recognition is a mere acceptance by other States of a factual situation

Question 4

Criteria for statehood

Answer 4

Art. 1 Montevideo Convention 1933 (considered as codifying rules of CIL) :

1/ permanent population
2/ defined territory
3/ government
4/ capacity to enter into relations with other States

Question 5

What does ‘permanent population’ criterion entail ?

Answer 5

1/ no lower limit to size of population

2/ distinct from nationality

3/ presence of people on territory & associated with territory is decisive

Question 6

What does ‘defined territory’ criterion entail ?

Answer 6

1/ title to territory

2/ sufficient border consistency

3/ uti possidetis as general principle (see ICJ 1986 case, Burkina-Faso v Mali)

Question 7

What does ‘effective government’ criterion entail ?

Answer 7

1/ coherent political structure which guarantees law and order

2/ gvt must be sufficient to guarantee the rights of foreign States under IL

3/ gvt must be capable of ensuring the preservation of public order

( ! ) Expansion of notion today : right to democracy, to protection of HR ? R2P ?

Question 8

What does ‘capacity to enter into IR’ criterion entail ?

Answer 8

1/ factually, entity can only function as a State if other States agree to enter into IR with it

2/ but debate btwn necessity of recognition (subjective approach) or sufficiency of factual assessment (objective approach)

Question 9

Basic principles governing State relations (8)

Answer 9

1/ sovereign equality 
2/ consent
3/ reciprocity
4/ non-intervention in domestic affairs 
5/ territoriality
6/ equality of voting power in IOs
7/ immunity of heads of State, diplomats, warships
8/ immunity from jurisdiction of foreign courts

Question 10

3 major principles in PIL ?

Answer 10

1/ sovereign equality of States
2/ duty of non-intervention
3/ prohibition of the use of force

Question 11

Peoples as subjects of PIL ?

Answer 11

1/ no definition of peoples but, UNESCO : cultural, ethnic, language, religion & common historical heritage
=> sense of belonging together

2/ examples : former colonial peoples, ethnic minorities (?), indigenous populations (?)

3/ right of self-determination is important here

Question 12

Evolution of the right of self-determination since 1945 ? (2)

Answer 12

1/ decolonization : applies to colonised peoples, includes right to independence

2/ today : applies to all peoples (HR), but uti possidetis so right to exercise SD only within borders of State

=> distinguish btwn right of external / internal SD

Question 13

Dilemma around right of SD & eventual solution

Answer 13

If people is denied its right to internal SD, is it entitled to external SD ?

=> doctrine of remedial secession

Question 14

What non-State actors could be considered as being subjects of PIL ?

Answer 14

1/ IOs
2/ NGOs
3/ Individuals
4/ MNCs
5/ Peoples
6/ Armed opposition groups
7/ Etc

Question 15

What distinguishes the int legal personality of IOs from the one of States ? (2)

Answer 15

1/ Functional legal personality

2/ Int legal personality of IOs is derived = IOs need the consent of States to come into existence

Question 16

What are 3 types of IOs ?

Answer 16

1/ “global organizations” (i.e. every State can become a member)

2/ regional organizations

3/ supranational organizations (i.e. have powers member States no longer possess)

Question 17

3 key characteristics of IOs ?

Answer 17

1/ membership predominantly made up of States

2/ organs that can operate independently from members (i.e. separate int legal personality)

3/ governed by IL

Question 18

What does the principle of speciality entail regarding IOs?

Answer 18

The legal personality of IOs and their powers are limited by the function assigned to the organization

Question 19

Which case established the UN has indirect legal personality ?

Answer 19

AO ‘Reparation for injuries’ (11 April 1949) :

• theory of implied powers (inferred from constitutive document of the IO)
• implied powers = powers necessary to carry out assigned functions

Question 20

SC as case study about implied powers (2)

Answer 20

1/ UNSC has discretion to decide whether actions should be taken in relation to the maintenance/restoration of int peace and security

2/ debates about the UNSC acting as a legislator (e.g. qualification of terrorism as a threat to the peace, establishing of int tribunals)

=> issue of implied powers : is the UNSC exceeding its mandate or are its actions implied in its powers ?

Question 21

What are the rights of individuals in IL ?

Answer 21

1/ rights given by States (also enforced by States), such as diplomatic protection => these are interstate rights & obligations

2/ inherent rights, such as HR ? Such rights can directly be invoked by individuals

3/ rights to reparations for violations of law of armed conflict ? This is still in discussion

Question 22

What are the duties of individuals in IL ?

Answer 22

1/ obligation not to commit int crimes (Nuremberg Judgement, 1946)

2/ other obligations can be formulated by int instruments (UDHR, African Charter on Human and People’s Rights)

Question 23

What rights to MNCs have ?

Answer 23

Some rights under int investment law, such as right to bring claims to an int arbitral tribunal

Question 24

Do MNCs have obligations under IL ?

Answer 24

Have been claims in this direction, but not yet formally binding instruments that establish obligations for MNCs

( ! ) indirect systems of liability for corporations can however be established