Subjects of International Law

Law 111 Public International Law

Atty. GILBERT R. HUFANAProfessor

Subjects of International Law

• A subject of international is (1) an individual, body or entity; (2) recognized or accepted; (3)  as being capable of possessing and exercising; (4) rights and duties; (5) under international law. (Dixon)

• States enjoy the fullest personality in international law

Subjects of International Law

• An entity is a subject of international law if it has “international legal personality”

• Subjects must have rights, powers and duties under international law and they should be able to exercise those rights, powers and duties

• Legal personality also includes the capacity to enforce one’s own rights and to compel other subjects to perform their duties under international law.

Subjects of International Law

1. bring claims before international and national courts and tribunals to enforce their rights;

2. have the ability or power to come into agreements that are binding under international law, for example, treaties:

3. enjoy immunity from the jurisdiction of foreign courts; and

4. be subject to obligations under international law (Dixon).

Object of International Law

• Where there is no direct enforcement of accountability and an intermediate agency is needed, the entity is merely an object not a subject of international law.

• A person or thing in respect of which rights are held and obligations assumed by the subject.

Object of International Law

• while individuals were considered as “objects” of international law: i.e. individuals could only benefit from international law, if they acted through States

Concepts on Subjects

• Traditional concept– Only STATES are considered subjects of

international law

• Contemporary concept– Individuals and international organizations are

also subjects because they have rights & duties under international law (Liang vs. People, GR No. 125865, March 26, 2001)

Subjects of International Law

• States

• International Organizations

• Individuals

States

• A community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which the great body of inhabitants render habitual obedience

• Remain the predominant actor in international law

1992 Bar Question

• The Japanese gov’t confirmed that during WWII, Filipinas were among those conscripted as “comfort women” for Japanese troops in various parts of Asia. The Japanese gov’t has accordingly launched a goodwill campaign and offered the Philippine gov’t substantial assistance for a program that will promote through gov’t and non-gov’t organization women’s rights, child welfare, nutrition and family health care. An executive agreement is about to be forged for that purpose. The agreement includes a clause whereby the Philippine gov’t acknowledges that any liability to the comfort women or their descendants are deemed covered by the reparations agreements signed and implemented after WWII. Julian Iglesias, descendant of a comfort woman, seeks your advise on the validity of the agreement. Advise him.

Answer

• The agreement is VALID. The comfort women and their descendant cannot assert their claims against Japan. As stated in Paris Moore vs. Reagan (453 US 654), the sovereign authority of the state to settle claims of its nationals against foreign countries has been repeatedly recognized.

• This may be made even without the consent of the nationals or even without consultation with them.

States

• Montevideo Convention of 1933 on Rights and Duties of States:– “The state as a person of international law

should possess the following qualifications:• Permanent Population• Defined territory• Government• Sovereignty• Self-determination”

Elements of a State

• People

• Territory

• Government

• Sovereignty

• Self-determination

Population/People

• Inhabitants of the State

• community of persons sufficient in number

• capable of maintaining permanent existence

• racial, cultural of economic interest does not matter

• no minimum population is required

Territory

• Fixed portion of the surface of the earth inhabited by the people of the State

• That over which an entity exercises permanent sovereignty

• Defined even if boundaries have not been fully settled/claimed by another state

• Size is irrelevant

Government

• That by which an independent society makes and carries out rules of action which enables men to live in a social state

• Agency or instrumentality through which the will of the state is formulate, expressed and realized.

• International law does not specify the form of government

• Temporary absence of government does not terminate the existence of a state

Types of Government

• De Jure– One with a rightful title

• De facto– A government of fact, actually exercises

power or control but has NO legal title

Q: Is the Cory government a de facto or de jure government?

The Mandate of the Phil. Gov’t

• Art. II, Sec. 4 – “The prime duty of the Government is to serve and protect the people…”

• Thus, whatever good is done by government – attributed to the State; whatever harm is done by the government – attributed to the government alone, not the state.

Effects of Change in Gov’t

• With respect to rights:– The rights of the predecessor gov’t are inherited in

toto by the successor gov’t

• With respect to obligations:– If the new government was organized by virtue of a

constitutional reform ratified in a plebiscite, obligations are completely assumed by the successor.

– If the new gov’t was established through violence, the successor may lawfully reject the purely personal or political obligations of the predecessor

Sovereignty

• The supreme & uncontrollable power inherent in a State by which the state is governed.

• Independence from outside control

• Capacity to enter into relations with other states – dependent on recognition

Characteristics of Sovereignty

• Permanent

• Exclusivity

• Comprehensiveness

• Absoluteness

• Individuality

• Inalienability

• Imprescriptibility

Question?

• What happens to sovereignty is the acts of authority cannot be exercised by the legitimate authority?

Answer

• Sovereignty not suspended.

• General Rule: – Political laws are suspended

• Subject to revival under jus postliminium that is once the legitimate authority returns political laws are revived

• Laws of Treason – not suspended

– Civil laws• Remain in force except when amended or

superseded by affirmative act of belligerent occupant

Effects of Change in Sovereignty

• Political laws are abrogated– They govern relations b/w the State & the

people

• Non-political laws generally continue in operation– Regulates only private relations– Exception: (1) Change by the new Sovereign

(2) Contrary to the institutions of the new sovereign

Self-determination

• Free to determine their political status as well as their economic, social and cultural development

• All people have the right of self-determination

International Law

• International law developed to regulate states because of:– the emergence of states– state interaction– development of the laws of war

– Purpose for laws of war: it is in the mutual interests of all states to regulate the conduct of war, and in trying to agree on rules that will make it unlikely that war will happen.

Relationship among States

• States are opaque (billiard ball theory – states hit each other one the outside but do not interfere with one another’s internal affairs) and we don’t really look at what’s inside– Thus, international law only regulated relations

between states, and did not regulate the internal affairs of states

• Now, international law is also used to regulate the internal affairs of states

Succession of States

• As to territory – capacities, rights and duties of the predecessor state with respect to that territory terminate and assumed by the successor state

• As to state property – subject to agreement• With respect to treaties – the Vienna Convention

is followed• With respect to public debts – subject to

agreement between states concerned; remains with the predecessor states

Fundamental Rights of States

• Independence – capacity to provide for its own well-being and development free from domination of other states; the right to exercise the functions of a state

• Equality – equality of legal rights irrespective of size or power

• Peaceful co-existence – mutual respect for each other’s territorial integrity and sovereignty, mutual non-aggression, non-interference in each other’s affairs and the principle of equality

Incomplete Subjects

• Protectorates

• Federal States

• Mandated & Trust territories

• Taiwan

• Sovereign Order of Malta

• The Holy See

Protectorates

• Dependent states which have control over their internal affairs but whose external affairs are controlled by another state

• Autonomous states, vassal states, semi-sovereign or dependent states

Federal States

• Union of previously autonomous entities

• Placing full authority in a central organ

• Lodging authority in individual entities

Mandated and Trust territories

• Territories placed by the League of Nations under one or other victorious allies of World War I

• Trusteeship after World War II– Carolines Dependent states which have control over

their internal affairs but whose external affairs are controlled by another state

– Autonomous states, vassal states, semi-sovereign or dependent states

• , Marianas and Marshall Islands – under trusteeship of US

Taiwan

• De jure part of China

• A non-state territory

The Sovereign Order of Malta

• a Roman Catholic lay religious order, traditionally of military, chivalrous, noble nature

• Italian Court of Cassation recognized its international personality

• It has diplomatic relations with over forty states

The Holy See

• Lateran Treaty – recognizes that state of Vatican City and “the sovereignty of the Holy See” in the field of international relations in conformity with its traditions and demands of its mission in the world

• It has no permanent population.

International Organizations

• An international organization is one that created by international agreement or which has membership consisting primary of nations.

• International organizations play increasingly important role in the relationships between nations.

International Organizations

• The United Nations, the most influential among international organizations, was created on June 26, 1945. – to maintain peace and security, to develop

friendly relations among nations, to achieve international cooperation in solving international problems, and to be a center for harmonizing the actions of the nations and attaining their common ends.

International Organizations

• The International Court of Justice is established by the UN Charter as its principal judicial organ.– an integral part of the United Nations Charter,

as specified by Chapter XIV of the United Nations Charter, which established the International Court of Justice

Belligerents

• "one who wages war"• an individual, group, country or other entity which

acts in a hostile manner, such as engaging in combat

• rebel forces, if such rebel forces are recognized as belligerents

• An insurgency is an armed rebellion against a constituted authority (for example, an authority recognized as such by the United Nations) when those taking part in the rebellion are not recognized as belligerents.

Belligerency vs. Insurgency

Belligerency Insurgencya mere initial stage of war. It involves a rebel movement, and is usually not recognized sanctions are governed by municipal law – Revised Penal Code, i.e. rebellion

more serious and widespread and presupposes the existence of war between 2 or more states (1st sense) or actual civil war within a single state (2nd sense)

governed by the rules on international law as the belligerents may be given international personality

Note: Abu Sayaff is not a rebel group it is a mere bandit group.

Requisites of Belligerency [COWS]

• an organized civil government that has control and direction over the armed struggle launched by the rebels;– a “provisional government”

• occupation of a substantial portion of the state’s territory;– more or less permanent occupation– legitimate government must use superior

military force to dislodge the rebels

Requisites of Belligerency [COWS]

• seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the outcome; and– must be so widespread, leaving no doubt as

to the outcome

• willingness on the part of the rebels to observe the rules and customs of war.

Recognition of Belligerency

• formal acknowledgment by a third party of the existence of a state of war between the central government and a portion of that state

• exists when a sizable portion of the territory of a state is under the effective control of an insurgent community which is seeking to establish a separate government and the insurgents are in de facto control of a portion of the territory and population, have a political organization, and are able to maintain such control and conduct themselves according to the laws of war

Individuals

• Example:– an individual has a right of freedom from

torture under international law and States have a duty under international law not to torture individuals or to send them to a country where there is a likelihood of that person being tortured

END OF LECTURESubjects of International Law