LAWS2250 Lecture Notes - Lecture 1: Terra Nullius, 11, Natural Person
Subjects of International law
What is it?
a body of rules established by custom or treaty and recognized by nations as
binding in their relations with one another.
International law is a set of rules that governs the relations between states and other
actors (international organisation)
Language spoken between states
Governs the laws between states
International law traces back to Roman time (jus gentian)
Dating back to 1648 (emergency of sovereign states)
States independent of the Church
Supreme power over the states to the exclusion of others
Law of coordination rather than cooperation, prohibition on intervention
Prohibition of use of force
Rules of prohibition, in the interference of another state
The Law of cooperation is about doing things together that states cannot do alone,
requiring states to do things together, obligation of means and not results, to the best of their
ability (states)-- deploy best effort to achieve an outcome
Domestic law: mere fact for the purpose of international law
oCertain German:
Henkin: ubi societas ibi jus (where there is society, there is law)
The International legal order is very different to domestic legal order
oLack of judicators
oNo centralised legislators
oLack of enforcement
States must have recourse to self-help
oLawful means of self-help
Trade sanctions (adopted by the Security Council )
countermeasure (act that is normally unlawful, but lawful if it
is a response to a prior unlawful act)
Retorsion: unfriendly, acts intrinsically lawful
Structure: IL System
Relevant actors of the legal ordering = Subject (state)
oState is the principal subject
Then question the people, i.e. are they subjects of the international
order
State -->population-->government
Laws are made through treaties, customs= Source
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oLaw of treaty: life and death
oTreaty interpretation
Consequences of a breach of an international law, = State responsibility
Dispute resolution mechanism - peace, or force
ICJ (international court of justice) = principal judicial organ of the UK
oTwo page numbers
oCiting ICJ: cite the number at the top of the page ( the number at the
bottom is the number of the case)
oIf online, cite the case not the report
Who are the relevant actors ?
Subject: Addressee of rights and obligations and have the capacity to exercise those
rights
Page 87
ICJ: reparation case, can hand down contentious cases or advisory opinions
Reparation advisory opinion piece (Reparation case)
oSwedish international
oOn mission in Israel
oHe was killed while working for the UN
oThey wanted compensations
oShould Sweden bring the claim? Because Count berndao was a Swedish
national or could the UN bring a claim for injuries suffered by one of its personnel?
oFor UN, must be a distinct subject
Bring a claim
Conclude a treaty
Make diplomatic representation
The closest international law gets to an authoritative statement on international
personality is the well-known definition articulated by the ICJ in the Reparation for
Injuries opinion: an international person ... is ... capable of possessing international rights
and duties, and ... has capacity to maintain its rights by bringing international claims.
Individuals benefit some from international law
State can do anything : bring a claim, conclude a treaty, make diplomatic
representation
Inter-government organisations: have states as members,
Belligerent: have a degree of legal personality
International humanitarian laws
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NGO (non governmental organisation)- created by domestic laws, limited
participatory rights
Can certain person subject have a claim
Subjects
Subject of international legal order: an entity that can conclude a treaty, bring a
claim, and make diplomatic relations
States are principal subjects of international legal order
States created international legal organisations (secondary subject of international
law)
Other Actors enjoying legal personality: degree of subjectivity may be affected by
nationality
States
What is a State for the purpose of IL?
oMontevideo Convention (Article One): A state is a
1. territory
2. population,
3. Government
4. with the capacity to enter into relations with other states
1. Independent: predominant meaning
2. Sovereignty
oOpinion N1, Arbitration Commission, EC Conference on Yugoslavia
1991: the State is commonly defined as community which consists of a territory and a
population subject to an organised political authority; that such state is characterised by
sovereignty.
What is a territory?
oGeographic unity is not important
oSize is not important
oTerritory must be a natural formation
oTerritory is land mass and maritime territory, above the land mass and
maritime territory there are others maritime zones
The Duchy of Sealand: German nationals who did not want to pay tax in Germany, if you
become a national of another, would lose the German nationality
They created a state and thought they would lose their German Nationality
Claimed it was an independent state
It was entirely artificial, hence not a territory for the purpose of law
A permanent population was also missing
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Document Summary
What is it? a body of rules established by custom or treaty and recognized by nations as binding in their relations with one another. International law is a set of rules that governs the relations between states and other actors (international organisation) International law traces back to roman time (jus gentian) Dating back to 1648 (emergency of sovereign states) Supreme power over the states to the exclusion of others. Law of coordination rather than cooperation, prohibition on intervention. Rules of prohibition, in the interference of another state. Domestic law: mere fact for the purpose of international law. Henkin: ubi societas ibi jus (where there is society, there is law) The international legal order is very different to domestic legal order. Trade sanctions (adopted by the security council ) countermeasure (act that is normally unlawful, but lawful if it is a response to a prior unlawful act) Relevant actors of the legal ordering = subject (state)
