Public International Law Essay PDF

Preview

Summary

Download Public International Law Essay PDF

Description

PUBLIC INTERNATIONAL LAW SUMMARATIVE ESSAY QUESTION ‘Sovereign states are no longer the only legal subjects of international law’. Discuss.

Intro: International law is described as law applicable to relations between states.1 Subjects are bodies/entities recognised as being capable, of possessing and exercising international rights and duties.2 International law traditionally focused on states as exclusive subjects, however, the notion of legal personality is no longer confined to States. Instead, a trend is detectable towards greater diversity of participants, including: individuals, international co-operations and multinational companies.

States: States are the original subjects of international law. Their legal personalities derive from the nature and structure of international law; often referred to as original legal personality. All states enjoy equal degrees of international legal personality. The Montevideo Convention is the accepted formulation of statehood criteria; it states as a person of international law should possess the following; a permanent population, a defined territory, a government and the capacity to enter into relations with other states.3 Attempts have been made to achieve a codified definition of states but none of these were successful; codification could be too politically sensitive. However, the existence of effective control is regarded as important consideration in assessing the emergence of new states as seen in Deutsche Continental Gas-Gesellchaft4: “[a] state does not exist unless it fulfils the conditions of possessing a territory, a people inhabiting that territory, and a public power which is exercised over the people and the territory”.

Regarding legal recognition, according to the constitutive theory, an entity may only become a State by virtue of recognition of other states. This interpretation fits well within the 19th century positivist view of international law as a purely consensual system. In comparison, according to the declaratory theory, the international legal personality of a state is conferred 1 Philip C. Jessop, The Subjects of a Modern Law of Nations, Feb,1947, Vol.45, No.4 2 Dixon, International Law, 7th edn, p116 3 Montevideo Convention Article 1 4 Deutsche Continental Gas-Gesellschaft v. Polish State (1929), Annual Digest, 5 (1929-30) No.5 at p.14-15.

PUBLIC INTERNATIONAL LAW SUMMARATIVE ESSAY QUESTION by rules of international law, and whether or not a state or government is actually recognised by other states, it is still entitled to the rights and subject to the general duties of the system.5

States are entitled to enjoy rights, and are also bound by international duties for example the duty to refrain from the threat or use of force; non-compliance of a state of its duties constitute violation of international law. Personality of other entities is achieved due to it being conferred by state. This is often referred to as derived personality- if ‘flows from the recognition by states that other entities may have some competence in the field of international law’.6 This highlights the legal existence of other entities, whilst legitimate, are dependent on the recognition by states.

International Organisations: International law was originally regarded as only governing the “mutual transactions between sovereign states.”7 However following the expansion of interactional organisations, the subjects of international law has expanded. The definition of ‘international organisations’ has been taken to mean ‘an organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality; international organisations may include as members, in addition to states, other entities’.8 Functions of international organisations transcend national boundaries. The international legal personality of an international organisation is limited to the rights and duties proposed in the treaty that established them, for e.g. the international legal personality of the United Nations is derived from the United Nations Charter.9 The legal capacity of the UN was an issue brought before the ICJ in 1949 in the Reparation for Injuries Case. The court confirmed that personality was essential if the UN was to discharge its functions effectively10. The UN possesses objective legal existence, implying its personality is not dependant on any state for recognition. 5 For example, Tinoco Arbitration (Great Britain v Costa Rica) (1923) 6 Ibid. n2 7 J.Bentham, An Introduction to the Principles of Morals and Legislation (Burns & Hart 1970) p296 8 Article 2(a) Article on the Responsibility of international organisations available at http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_11_2011.pdf

9 1946 Convention on the Privilages and Immunities of the United Nations in 1 U.N.T.S 15. 10 Reparations for Injuries Suffered Advisory Opinion, ICJ, 1949; Certain Expenses, AO, ICJ, 1961

PUBLIC INTERNATIONAL LAW SUMMARATIVE ESSAY QUESTION Another key international organisation is the European Union. The EU’s origins lie in international law,11 it is a unique entity with its own integrated legal order. The legal personality of the EU was said to exist by implication, with it actually ‘exercising and enjoying components which could only be explained by the possession of international personality’12. The Lisbon Treaty introduced the provision of legal personality of the EU into the TEU, establishing: ‘[t]he Union shall have legal personality’13. The Union enjoys legal personality both via implied powers on the basis of an express constitutional provision since the Lisbon Treaty. In its original inception, the EU’s powers were derived from the signatory member states and currently its actions and developments remain heavily dependent on these states. However, this is not to disregard its undeniable presence in the international legal scene. It has moved away from a simple subset of international law to a more independent sui generis entity; particularly after the Van Gend en Loos case14 which highlighted its capacity to act as an international legal subject. MNC’s: Recently there has been considerable increase in globalized business; almost exclusively as a result of the rise of multinational companies. The 2003 UN Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights define the ‘transnational corporation’ as an ‘economic entity operating in more than one country or a cluster of economic entities operating in two or more countries …’. 15

The debate on MNCs is whether they are subjects of international law, if they are ‘capable of possessing international rights and duties, and capacity to maintain rights by bringing international rights’.16 It is accepted that MNCs enjoy certain rights under international law, namely Article 34. of the ECHR which provides: “any person, non-govermental organisation 11 Treaty Establishing the European Coal and Steel Community, 18th April 1951 12 ibid. n16, p179 13 Article 47 TEU 14 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belassingen, 1963, ECR,12 15 Draft Norms para.20 16 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 179.

PUBLIC INTERNATIONAL LAW SUMMARATIVE ESSAY QUESTION or group of individuals’ with the right to make claims of violations of their rights before the ECtHR. Despite this, MNCs haven’t been subject to obligations under international law. They are not subject to the same obligations as states in terms of human rights treaties for example; rendering their status as a subject of international law to a minimum extent.

Individuals: The evolution of the legal personality of individuals became apparent when international law began to impose obligations on individuals separate from those attached to their state. After WWII, the Security Council established two international ad hoc tribunals in an attempt to prosecute for war crimes that were committed during the war. The Nuremberg and Tokyo tribunals confirmed that under certain circumstances, individuals have legal personality and capacity to have rights and obligations directly under international law. The procedure for holding individuals responsible for international crimes was finally made permanent with the establishment of the International Criminal Court (ICC), governed by the Rome Statute which entered into force in 200217. The progressive development in the international legal system in the 20th century and particularly after WWII caused an increase in the importance of humanitarian values. The Charter of the United Nations started this trend in 1945 by calling upon member states to observe human rights and fundamental freedoms for individuals and peoples.18 Furthering U.N. objectives, a number of U.N. states have entered into several universal and regional international agreements for the protection of rights of the individual.19 As well as being enshrined in treaties, the rights of individuals are part of universal customary law and are recognised as part of jus cogens;20 individual rights exist out with the domestic state, concerning the international community.

17 Rome Statute of the International Criminal Court Part 1 Article 1 18 U.N. Charter art.55(c) 19 European Convention for the Protection of Human Rights and Fundamental Freedoms, signed Nov. 4 1950, 213 U.N.T.S. 221, Europ. T.S. No.5 (1950-52)

20 Theador Meron, Human Rights and Humanitarian Norms As Customary Law 48 (1989)

PUBLIC INTERNATIONAL LAW SUMMARATIVE ESSAY QUESTION Conclusion: States remain the original subjects of international law and are the most present subject on the international legal field. However, with the European community becoming more integrated, there is a growth in international corporations, serving an undeniable legal influence in international law. Some IO’s remain more powerful as subjects, e.g. the UN and EU who retain full legal personality to effectively carry out their proposed functions. Globalised business has seen the rise of MNC’s who are influencing national economics however their place in the international legal field is open to debate due to the lack of evident obligations imposed on their actions. Furthermore, more attention is being drawn to humanitarian values and the protection of global peace; as a result, more notice is being taken of the individual and their place in the international legal system.

Bibliography:

Cases: Deutsche Continental Gas-Gesellschaft v. Polish State (1929) Tinoco Arbitration (Great Britain v Costa Rica) (1923)

PUBLIC INTERNATIONAL LAW SUMMARATIVE ESSAY QUESTION Reparations for Injuries Suffered Advisory Opinion, ICJ, 1949; Certain Expenses, AO, ICJ, 1961 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belassingen, 1963, ECR,12

Treaties: Treaty Establishing the European Coal and Steel Community, 18th April 1951 Article 47 TEU Rome Statute of the International Criminal Court Part 1 Article 1 U.N. Charter art.55(c)

Articles: Philip C. Jessop, The Subjects of a Modern Law of Nations, Feb,1947, Vol.45, No.4 Theador Meron, Human Rights and Humanitarian Norms As Customary Law 48 (1989)

Conventions: European Convention for the Protection of Human Rights and Fundamental Freedoms, signed Nov. 4 1950 Montevideo Convention Article 1 Convention on the Privileges and Immunities of the United Nations 1946

Books: Philip C. Jessop, The Subjects of a Modern Law of Nations, Feb,1947, Vol.45, No.4 Dixon, International Law, 7th edn, p116 J.Bentham, An Introduction to the Principles of Morals and Legislation (Burns & Hart 1970) p296...