SUBJECT OF INTERNATIONAL LAW

Cekli Setya Pratiwi, SH.,LL.M.

• Apakah definisi dari subyek hukum internasional?

• Bagaimanakah karakteristik dari international personality?

• Apakah hubungan antara subyek hukum internasional dengan international personality?

• Apakah “negara” adalah satu-satunya subyek Hukum Internasional?

• Subject of International Law is an entity capable of possesing international rights and duties and having the capacity to maintain its rights by bringing international claims. (ICJ, 1949).

What is the meaning of having capacity to maintain its rights?

1. Capacity to make claims in respect of breaches of international law

2. Capacity to make treaties and aggreements valid on international plane

3. The enjoyment of immunities and privileges from national jurisdiction

1. National Law: legal personality, legal person, subject of the law.

2. The concepts of international personality

1. National Law: legal personality, legal person, subject of the law.

Legal personality is primarily an ‘Legal acknowledgement that an entity is capable of exercising certain rights and being subject to certain duties under a particular system of law.

Subjects of the law are the persons to whom the law attributes rights and duties. Therefore, the term ‘subject of the law’ is synonymous with the term ‘legal person’.

Characteristic of international personality:

An entity has international personality if it has rights and duties under international law. The following are generally accepted as characteristics of international personality: (1) Rights and obligations under international law;(2) Treaty-making capacity;(3) Capacity to make international claims; and(4) The enjoyment of privileges and immunities from

national jurisdictions.

These are also known as ‘indicia of international personality’. In practice, it is only States and certain international organizations like the United Nations that have all of these capacities to the fullest degree.

“Subjects of international law” are those who possess “international personality”.

Are state the only subject of international law?

In the 19th century, States were the only subjects of international law.

Oppenheim emphatically stated: “Since the law of nations is based on the common consent of States, and not of individual human beings, States solely and exclusively are subjects of international law”. HOWEVER:

In the present day, it is not true.

While States remain the predominant actors in international law, the position has changed.

After the Second World War, new actors have emerged on the international plane, such as public international organizations established by States (IGOs), non-governmental organizations (NGOs) created by individuals, multinational corporations and even individual human beings. They are now recognized as possessing some, although limited, international personality.

4. States as a subject of International law

States are the subjects of international law par excellence.

It is, therefore, important to have a clear idea of what a State is for the purposes of international law.

Professor Oppenheim defines ‘State’ in these terms: “A State is in existence when the people is settled in a country under its own sovereign government.

Four requirements of statehood in Oppenheim’s

Oppenheim’ sense(1)People: who live together as a community in spite of

the fact that they may belong to different races or religions, or of different colours

(2)Country : there must be a country in which the people have settled down.

(3)Government (4)Sovereignty: ‘Sovereignty’ means the supreme

authority above which there is no other higher authority. Sovereignty denotes ‘independence’ all round within and without the boundary of a state.

Criteria of statehood underinternational law

Article 1 of the Montevideo Convention on Rights and Duties of States 1933 provides as follows: The State as a person of international law should posses the following qualifications:

1. A permanent population;2. A defined territory (stable political community

and this must be control of a certain area);3. Government; and4. Capacity to enter into relations with other States.

(1) Defined Territory

For a State to exist, there must be a defined territory. The control of territory is the essence of a State.

This is the basis of the central notion of establishing the ‘territorial sovereignty’, exclusive competence of the State to exercise sovereign authority within that territory.

But absolute certainty about a State’s boundaries is not required; many states have out-standing frontier disputes.

(2) Permanent population

• There must be people linked to a specific territory on a more or less permanent basis and who can be regarded as its inhabitants. Wandering tribes do not qualify to be a State.

• In the Western Sahara case (1975) ICJ Rep. 12, the territory of the Western Sahara is populated by nomadic tribes who go freely across the the territory is such that they may be regarded as its ‘population’.

(3) Government

• To be a State there must be a government. The government must be ‘effective’ within the defined territory and exercise control over the permanent population. The mere existence of a government in itself does not suffice, if it does not have ‘effective control’.

Aaland Island Case

• The main question in this case was the date on which Finland became a state. Finland had been a part of the Russian Empire until the Russian Revolution. The Finnish Parliament declared Finland’s independence on December 4, 1917. But there was opposition within Finland by those who rejected the idea of independence. As a result, violence broke out and for a time the government of the new state was able to maintain order only with the help of the Soviet troops.

• Held: Only in 1918, Finland became a state.

(4) Capacity to enter into relations with other States

• When the Montevideo Convention refers to ‘capacity to enter into relations with other States’, it is referring to “independence” in law from the authority of other States.

• In Austro-German Customs Union case, (1931) PCIJ Reports, Series A/B, No. 41, Austria and Germany, by a Protocol of 1931, reached an agreement on a customs union establishing free trade between the two States.

Judgment of Judge Anzilotti:

“Independence may also be described as sovereignty by which is meant that the state has over it no other authority than that of international law.

• It also follows that the restrictions upon a State’s liberty, whether arising out of ordinary international law or contractual engagements, do not as such in the least affect its independence. As long as these restrictions do not place the State under the legal authority of another State, the former remains an independent State however extensive and burdensome those obligations may be.

Federal States

• A federal State is a union of several sovereignStates. The union is, first, based on aninternational treaty of the member states, andsecondly on a subsequently acceptedconstitution of the federal State.• In the view of Professor Wade, federation pre-supposes a desire for some form of unionamong independent States, which, though theydesire union for some purposes, neverthelesswish to preserve their identity and somemeasure of independence.

A distinctive feature of a federal State isthat in foreign policy it acts as a singlesubject of international law. Thus a federalState is said to be a real State and aninternational person.• On the other hand, the internationalposition of the member states is not soclear.

Units (member states) within a federal State mayor may not be allowed by the federal constitutionsome freedom to conduct their own foreignaffairs.• If, and to the extent that, they are allowed to doso, such units are regarded by international lawas having international personality.• E.g., the Republics of the former USSR were allentitled in law to conduct their own foreign affairsand two of them – Byelorussia and the Ukraine -to a small extent did so.

The Malaysian Practice

• If we read together Articles 74, 76 and theFederal List of the Federal Constitution ofMalaysia, it is crystal clear that the federalParliament and the Federal Executive (theCabinet) have the exclusive power relating to“external affairs”, foreign affairs or internationalrelations. No such power can be exercised bythe component states.• The conclusion then is that in Malaysiainternational personality is vested in the FederalState and the component states possess nointernational personality whatsoever.