Subjects of International Law

Question 1

What are subjects of international law?

Answer 1

Subjects are legal persons deemed to have the capacity needed to exercise all the rights, powers and duties required by the legal system. Under international law, these include:

1. states
2. international organisations such as the UN, AU and EU
3. individuals (these rights derive from states)
4. corporations
5. non self-governing territories and national liberation movements

Question 2

What was held in the Reparations for Injuries Suffered Case?

Answer 2

Does the United Nations have the capacity to bring a claim against Israel in its own capacity and on behalf of the actual victim? Yes, the United Nations does have the capacity to bring a claim against Israel in its own capacity and on behalf of the actual victim.

Question 3

What is the definition of statehood?

Answer 3

States are the primary subjects of international law. They are the only subjects of IL that possess the full complement of international legal capacity:

a) can undertake international legal obligations e.g. treaty- making power
b) bring claims for violations of its international legal rights
c) bearing international legal responsibility
d) immunity from jurisdiction of foreign states

Question 4

How does Article 1 of the Montevideo Convention define a state?

Answer 4

The state as a person of international law should possess the following qualifications:

a) a permanent population
b) defined territory
c) a government
d) capacity to enter into relations with other states

Question 5

What was held in the North Sea Shelf Continental Cases?

Answer 5

The borders do not have to be certain, because many borders are contested. Hence, a state can still exist even if its exact borders are contentious.

Question 6

What did the majority hold in the Austro-German Customs Union Case?

Answer 6

The ‘capacity to enter into relations with other states’ is:

the sole right of decision in all matters economic, political, financial or other with the result that the independence is violated, as soon as there is any violation there, either in the economic, political, or any other field, these different aspects of independence being in practice one and indivisible.

Question 7

What is a federation?

Answer 7

When two or more entities associate in a permanent union that has central government organs with authority over both the member states and the citizens of those states. The central authority has complete autonomy over foreign relations. For example, the USA.

Question 8

What is a confederation?

Answer 8

An entity in which a number of states are linked by treaty in a union, with central governmental organs and certain specified powers over its members, but not over the citizens of those members. For example, the former German Confederation.

Question 9

What is a microstate?

Answer 9

Some states are so small that they cannot have sole control over their own affairs. For example:

Vatican City
Republic of San Marino
Principalities of Liechtenstein and Monaco

Question 10

What did the Western Sahara Advisory Opinion hold?

Answer 10

Self-determination is applicable to all non-self-governing territories. This is a right available to all people, and requires a free and genuine expression of the will of the peoples concerned.

Question 11

What is a failed state?

Answer 11

This is a state that cannot fulfill some or all of the basic responsibilities of a sovereign. Characteristics include the disintegration of structures of central government over a territory, and an implosion of power e.g. Somalia, Afghanistan. Failed states create refugee problems, and lack reliable international representation. They also create a power vacuum, that other states seek to fill. How do you hold them liable for human rights violations?

Question 12

What is state recognition?

Answer 12

A legal acknowledgement by one state that another territorial entity qualifies as a state under international law.

Question 13

What are the different forms of state recognition?

Answer 13

i) express and implied
ii) collective
iii) non-recognition
iv) de facto and de jure recognition

Question 14

Elaborate more on i) express and implied recognition

Answer 14

Issuing a formal statement is express, but implied can be inferred from conduct e.g. sending diplomatic representatives etc.

Question 15

Elaborate more on ii) collective recognition

Answer 15

Acceptance to the United Nations, or admitting a new party to a multilateral treaty of a political nature.

Question 16

Elaborate more on iii) non-recognition and the Stimson doctrine

Answer 16

The Stimson declaration can be used to express that recognition of a ‘state’ will not take place. This is often reserved for states that do not comply with self-determination, prohibitions on apartheid and the use of force, as well as the embryonic right to democratic government.

Question 17

Elaborate more on iv) de facto and de jure recognition

Answer 17

This is to confirm the recognition of a rebel government until their recognition is finalised and confirmed. Once recognition is given, it cannot be rescinded. De facto recognition is given before de jure recognition. Once given, de jure cannot be withdrawn, but it can be supplanted by recognition of a de jure successor.

Question 18

What was held in S v Banda?

Answer 18

In this case the court had to decide whether Bophuthatswana qualified as a state under international law or not, which would have been relevant to the accused’s charge of treason which, as you know, can only be committed against a state.

The court considered both the constitutive and the declaratory theories. It came to the conclusion that the declaratory theory was the more acceptable one. It was found to be preferable, because:

• it was objective, and
• it took into account only those four requirements, which are based on well-established rules of international law

The court criticised the constitutive theory for being arbitrarily applied and politically based. It was found to make allowance for political, ideological and economic motives behind the act of recognition. Because it was ridden with so many variables, and was so subjective, it was considered an unsuitable theory to use in the determination of the existence of a legal entity.

Question 19

What is the effect of recognition?

Answer 19

The declaratory theory proposes that a state comes into existence simply by fulfilling the objective criteria of statehood. Recognition then serves only to acknowledge the state’s existence.

Question 20

What role does a change in government have on state recognition?

Answer 20

The type of government is a matter of domestic concern. Hence, changes in government have no effect on a state’s legal personality. Revolution led to the withholding of recognition, however, unless a new regime was prepared and able to carry out its international obligations.

Question 21

What is the status of recognising belligerents and insurgents?

Answer 21

If rebels are recognized, then they can be held accountable for damages they inflict. However, because it constitutes an interference in the existing government’s internal affairs, recognition of a rebel group is unlawful unless three criteria have been met:

a) a government/military organisation must have been established
b) the rebellion must have developed beyond the stage of being a mere revolt
c) the rebel government must control a reasonable portion of the parent state

Question 22

How do municipal courts deal with competing authorities?

Answer 22

When two entities exist in the same territory, one de facto and one de jure, the courts hold that the de facto authority was competent within the limits of the area under its actual control, whereas the de jure government remained competent to deal with all matters arising outside that area.

Question 23

Define sovereign immunity

Answer 23

One state may not exercise power or authority over another. This is a rule of customary international law derived from the principle of sovereign equality.

Question 24

Who represents the state?

Answer 24

Heads of state are the principal representatives of their countries. Notwithstanding municipal law, they have powers to bind their states in international relations.

Question 25

What is immunity ratione personae?

Answer 25

Senior office holders representing their states abroad must be granted immunity from those states. Similarly, organs of government are granted immunity.

Question 26

What is immunity ratione materiae?

Answer 26

Immunity may apply to:

a) commercial contracts
b) employment contracts
c) property
d) delict

Question 27

What was held in Schooner Exchange v McFaddon?

Answer 27

A public armed ship seized in Philadelphia. Such a ship is exempt from the jurisdiction of the sovereign within whose territory she claims the right of hospitality.

Question 28

What was held in I Congreso del Partido?

Answer 28

A Cuban ship in Chile, operated by a Cuban state trading enterprise, which under Cuban law, does not attract sovereign immunity. The Chilean government was overthrown, which was disapproved by Cuba. The ship left Chile and settled in Vietnam, donating the remained of its cargo. The ship was seized in British waters on application by the Chilean owners of the cargo. The Cuban Government successfully pleaded sovereign immunity. The decision to leave Chile was a political one, but it acted as the owner of the ship. It did not need sovereign powers. If immunity were to be granted the moment that any decision taken by the trading state was shown to be politically - not commercially - inspired, then trading by state ship would become near-impossible. The claim of immunity was disallowed.

Question 29

Who are some persons entitled to represent their state?

Answer 29

Official staff include all person employed by the state, such as military, commercial, cultural, technical and clerical staff. The family of the head of the mission is also included.

Question 30

How are diplomatic missions created and terminated?

Answer 30

The person heading the mission must be appointed and accepted by both parties. A letter of credence must be given to the head of the receiving state. A person may be withdrawn by the sending state, or expelled by the receiving state. When a change in monarch occurs, all diplomats must be freshly accredited.

Question 31

What are consuls?

Answer 31

Consuls are officials representing the sending government. They are different to ambassadors. Consuls traditionally manage economic, cultural and social relations e.g. visas, trade ties, wills. Different rules of immunity apply. They are immune from criminal and administrative jurisdiction of the courts of the receiving state for acts which they perform in their official capacity. Personal immunity is often settled by bilateral treaty. If criminal proceedings are brought, they must appear in court to settle the question of personal immunity.

Question 32

How are states represented in international organisations?

Answer 32

Nationals of a state may either be officials in or delegates to an international organisation. Officials are deemed to be servants of the institution in question, and not of their home state. They may not take instructions from their home states. Delegates are deemed to represent their state, and may receive instruction on how to vote.

Question 33

What are some of the immunities available to diplomats?

Answer 33

Immunity exempts diplomats and staff from the jurisdiction of the receiving state’s courts. It does not mean that they are free to ignore the laws of the receiving state.

i) immunity from legal process. Aside from waiver, immunity may be lost in legal suits relating to private immovable property situated in the territory of the receiving state, cases of succession, and any professional or commercial activity exercised by diplomats outside of their official functions.
ii) immunity from arrest or detainment (molestation)
iii) no liability to pay direct taxes to the receiving state
iv) exemption from military service or contribution to social security
v) freedom to communicate for official purposes, and freedom of movement
vi) inviolability of the premises of the diplomatic mission - including bank accounts
vii) immunity from seizure, search or censorship of the diplomatic bag

Question 34

How does one determine whether a mission is political or commercial?

Answer 34

One must look at the nature of the act, not its purpose, to determine whether it was performed in accordance with state official duties, or private personal transactions.

Question 35

What is diplomatic asylum?

Answer 35

Political offenders who seek refuge in diplomatic premises enjoy asylum to the extend that they are assured of safe conduct out of the state in question.