UNIT 2- Subjects of public international law Flashcards
State subjects:
- states
- International organizations
Non-state Subjects :
- Belligerents
- peoples
- national liberation movements
- Individuals
International Actors :
- State actors
- non-state actors
What is the subjectivity in PIL?
It defines the capacity of an entity to participate in and be governed by international legal rules. It is not uniform but depends on the entity’s role, recognition, and the scope of its rights and obligations within the international legal framework.
What is a subject of Public International law?
1) Regulatory Power - to create international rights and obligations, capacity to create norms. International Convention, treaty, customary law.
2) Heaving rights and obligations - conferred by rules of International law.
3) Holders of rights and obligations
4) International personality - capacity to act in the International community.
5) Able to claim international responsibility - for an unlawful act before international institutions
- Advisory Opinion ICJ of 11th of April 1949, in Reparation for Injuries suffered in services of the United Nations.
- Not all the subjects of the International law have the same level/degree of subjectivity, dont have the same capacity.
State subjects of PIL:
Full capacity, all the elements of the subjectivity.
- Create and receive rules of international law
- possess International rights and duties.
- Possess all the facets of international legal personality without Limitations :
→ Jus Tractatum : The right to conclude international treaties, capacity to create international rules.
→ Jus Communicandi : The Capacity to maintain International Relations with other subjects of International law.
→ Jus legationis, jus representationis : The capacity to send and receive representatives
- International personality
- International responsibility : active or passive
International organisations as subjects of PIL:
- Limited capacity
An International organization is a voluntary association of states created through an international treaty, equipped with its own permanents and independent organs, in charge of managing certain collective interests with the capacity to adopt decisions and express a will that is legally distinct from its members.
- Subject of International legal order
- Have international personality - international subjectivity
- Their subjectivity is derivative, limited or restricted by the states.
- Restricted subjectivity → exercise the powers of functions accorded by the states in a founding treaty.
- Are secondary subjects
- The international legal personality has been conferred on them by the will of the states
- are created by the states
- they have powers that the states have attributed, transferred, delegated, ceded.
An international Organization → United Nations
Voluntary association of States → founding states of the UN
Created through an International Treaty → The charter of San Francisco
Equipped with its own permanents and independent organs → GA, SC, ECOSOC, ICJM TC, S
In Charge of managing certain collective interests → UN : maintain international peace and security
Capacity to adopt decisions → Resolutions of the UN
Express a will that is legally distinct from that of its members.
Belligerents - Warring Parties
- Arise in a context of internal armed conflict, civil war.
- Organized rebel groups that have the control of a state’s territory
- fight against the established power, against the oficial regime
- want to become the new government of the state
- Enjoy a certain degree of International Legal subjectivity
- Some state recognize them, establishes relations
- Holder of rights and obligations : arising under the rules of humanitarian law that apply in an internal armed conflict.
- International responsibility
- If they become the new government of the state, the status of belligerent disappears.
Peoples:
The peoples are non-state subjects of international law and holders of the principle of self-determination.
Characteristics:
- holders of rights and obligations
- possession of international subjectivity and jurisprudence
- right to self determination (ability to choose their own political, economic and social systems) and protection under criminal law
- in accordance with UNGA Resolution 2625
Peoples: Example- Erga Omnes
This term refers to an obligation of all of the international community to respect the self-determination of the peoples. If states do not respect this principle, other states can call the use of this term. For example, in 2019 the ICJ issued an advisory opinion about the legal consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.
“ In accordance with the principles of equal rights and self determination of peoples → All peoples have the right to determine freely, without external interference, their political status and to pursue their economic, social and cultural development and every state has the duty to respect this right.”
National Liberation Movements:
National liberation movements rose as opposition to colonial power because it was based on a population, with self-determination, under colonial domination.
Characteristics:
- allowed to use force against colonial powers
- benefit from the rules of international humanitarian law
- limited international legal personality and subjectivity.
- partial international recognition from some states
- can establish diplomatic relations and representation
- examples: Palestine Liberation Front (PLO), Revolutionary Front for an Independent East Timor (FRETILIN)
Example: PLO
Due to the internal conflict of power between Hamas and Fatah, there have been no recent elections in Palestine. Fatah has control over the West Bank and Hamas over Gaza; internationally, Fatah is recognized as the national liberation movement of Palestine while Hamas is recognized as a terrorist organization, only Iran recognizes Hamas as the official government.
In the case of terrorist organizations, the state is responsible for paying the damages because they host the organization.
- Can establish diplomatic relations
- Diplomatic representation before states
- Observer status in International Organizations
- Conclude international agreements with some states who recognize
- national liberation movements with international recognition : Polisario Front (represent the saharawi people) PLO, Revolutionary front for an Independent east timor.
Individuals:
Individuals, as persons, are holders of rights and obligations but they are not able to engage in international relations as they do not have international subjectivity.
Characteristics:
- limited international subjectivity
- Can Claim International responsibility against state before international institutions, organs for the violation of human Rights
- Claim International responsibility before European of Human rights against a state party to the Convention for violation of their rights.
- active and passive legal international responsibility
- key in protection of human rights
Example of active legal international responsibility:
Individuals can bring claims against a state before international institutions related to human rights. To do so, the individual must exhaust all internal courts before going to an international court. Human rights cases, specifically, are tried on regional institutions. For example, if an individual wants to demand the state of Spain they must first exhaust all internal courts before going to the European Court of Human Rights. The final sentence is binding and Spain must repay the damage accordingly.
