3: The International Community

Question 1

international community

Answer 1

community of subjects of IL

originally an interstate community with intra-national law

emergence of new subjects starting after WWII with recognition of HR

• international recognition of an individual
• creation and multiplication of international organisations and other subjects

Question 2

legal personality of the international community

Answer 2

2 levels

1. capacity to bear rights and obligations in IL
2. capacity to take certain types of action on the international plane (legal powers)
   - legally responsible with respect to the 4 international crimes (passive capacity)
   - make claims in respect of breaches of IL (active capacity)
   - contractual/norm-making capacity (international organisations only make norms within their domains and only if states that created them view them as more than recommendations)

states considered the original basic subject of IL
- legal personality derives from the will of a state, not from their own nature

Question 3

transnational organisations

Answer 3

private business organisations consisting of several legal entities with parent corporations

no standing before an international court (arbitration is not primarily IL)

international public companies
- international legal personality may be involved

Question 4

4 constitutive elements of states

Answer 4

1. defined territory
2. permanent population
3. effective government (factual capacity to submit to its authority all persons subject to its jurisdiction)
   - government organs with real factual capacity to control the land and submit to its authority all persons within its jurisdiction
   - e.g. Somalia as a failed state and obligations from the state in IL are void as terra nulis so it was no longer seen as a sovereign state
4. capacity to enter into relations with other states: condition of independence
   - crucial to statehood
   - degree of actual and formal independence necessary

as soon as a political entity has these 4 elements, it is enough from a legal point of view and becomes a sovereign state/international legal subject

political recognition only as declaratory effects but from a legal point of view, it is necessary to recognise it as a state because it would not be subject to IL and jus cogens or prohibition of force/aggression

sometimes even if a territorial entity does not fulfil all 4 but has grand international recognition, it can overcome this insufficiency
- precedent with Kosovo