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Lecture 5

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York University
Political Science
POLS 3652
Awalou O

Lecture 5 The Subjects of International Law  States are the primary subjects of international law o The conception of the state by international law and not by any other approach o The state is the subject of international as individual are the subject of municipal law o States are subjects because they are states o When do states become states and when do they cease to be states? Notions of International Personality  Legal person has the capacity to be vested with rights and obligations  Individuals, companies, and corporate bodies are the primary subjects in municipal systems o States are the solution to contemporary problems  States are the backbone of the international community and possess full legal capacity o Definition is linked to the principal of sovereign equality o Entity with territory, individuals, government, and ability to entertain international relations o The principal of sovereign equality is important but…  States are equal but are in fact different in terms of power Modern Concept of State  The origin of the state can be traced back to the 16 century with the Peace of Westphalia o It ended a war o The Empire used to wage wars in order to establish a universal monarchy o France aligned with Sweden against the German empire o The religious aspect has been used a fuel but the reality is geo-politics o Foreign affairs of France changed and applied the idea of the reason of the state th  He put forward the 16 century idea and he pushed France not only to establish a balance of power in Europe but to strengthen the power of France o There were two poles of power: the Pope and the emperor  The period following 1648 inaugurated a new era with the decline of the church and de facto disintegration of the Empire o Semi-independent entities are not states o Europe was a unity with an ambition to civilize the rest of the world  It was the birth of an international system based on a plurality of independent states o Reshaping of understanding of sovereignty Sovereign State  The term Sovereignty was introduced to Political Science by J. Bodin (1529-1596) o Westphalia did not create states because this idea was put forward before by Bodin o It is an absolute power within a state without limits or restrictions o There is nothing beyond or above the state  Misunderstanding of Bodin because he states that if sovereignty is an absolute power then it is in fact limited by the law of nature o It’s an attribute of the King and of the people  Evolution to a relative conception of sovereignty o The highest authority within the municipal structure but not the absolute power Concept of States  What a state is for the purpose of international law? o The state is a construction  “Imagine a society of four members: an ogre twenty feet high, flesh-eating, preferably human; an Englishman six feet high, speaking no Japanese; a Japanese samurai, a military noble, speaking no English; and a Central African pygmy, early Palaeolithic; and all on an island the size of Malta. This is a parable of what is called international society”. G. Wight  Municipal system has special provisions on the ‘birth’ of a juridical subject o It is when they become holders of rights and duties  However, there is no international legislation laying down detailed rules concerning the creation of state o There is no terrae nullius or land without any ruler o The only way to create a new land is with the disappearance or diminution of an existing state  With the creation of a new state, there is a relationship between factual and legal criteria Definition of State  The state as a person of international law should possess the following qualifications: o Permanent population o Defined territory o Government o International Relations Doctrine of the three elements of statehood  Territory, Population and Government  Formulated by Georg Jellinek (1856-1911) in his General Theory of the State, 1900 o He tried to explain his understanding of a state by using the three elements o The concept of statehood is not rigid because of its flexibility Territory  State territory is a definite portion of the surface of the globe which is subjected to the sovereignty of the state o It is defined by geographical areas separated by borderlines from others areas and united under a common legal system o It includes the air space above the land, the earth beneath, territorial sea and the continental shelf Territory of the State  The territory i
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