Thursday, February 3, 2011

International Law 2008 Q1

 The traditional idea that States are the only subjects of international law seeks revision in the light of contemporary developments international law;

Discuss with specific reference to the international legal personality of either :

(a)     International organization;
(b)    Individuals

Personality is a relative concept where it donates to the ability to act within the system of international law as distinct from national law. It’s primary concerns, are rights and duties of the international legal person under the international law. The main capacity of an international legal person is that the ability to make claims before international tribunals in order to vindicate rights that provided under international law. The international legal person also to be subject to obligations imposed by international law and has the power to make valid international agreements (treaties) binding under the international law. Last but not least such international legal person can either to enjoy some or all immunities provided under the international law, from the jurisdiction of national courts in states.

Thus, when one talk about international legal person being the subjects of international law, the reference is, none other than to the states themselves, as they are the major subjects of international law.  The states have ability to make claims before the international tribunals and before the International Court of Justice. States also subject to the obligation imposed by the international law such as the Human Rights Declarations and crimes against slavery etc. The traditional ideas of subjects to international law is none other than the states it selves as mentioned by Professor Oppenheim. The treaties making capacity of a state is undeniable. States can make treaties binding under the international law, between themselves in regards to trades, economic and extradition of criminals which are within their capacities. When talk about immunities, states have full immunities against the jurisdiction of the national court of other states.

Be that as it may, today in the light of contemporary developments of international law, not only states but other organizations and individuals have emerged due to political climate or economic factors and have respectfully gained recognition and endorsement as international legal personality based on their rights and obligations as much as states in the international plane. Historically and traditionally, there has been little scope for the international personality of individuals, and states have guarded their right to deal with their own nationals with much envy, while honouring the rights of other states to deal with their subjects likewise.

However, second World War had changed the traditional concept that only the states are the only subject of international law. The reason behind it is because of crimes against humanity during the WWII and there was a need to give greater importance to human rights. Hence, individuals accepted as subject of international law. Individuals also regarded as having international personality because international law began to impose personal obligations on individuals separately from those attaching to the state which they represented. Article 1 of UN Charter “to maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggressions. The judgment of Nuremberg International Military Tribunal 1946 provides “crimes against international law are committed by men (individuals), not by entities and only by punishing individuals who commits such crimes can the provisions of international law be enforced.

Who are individuals? Individuals are subject of states. In the Nottebohm Case, the ICJ held in order to determine nationality of a person there must be genuine link between the state and the person. Article 1 of Hague Convention on the Conflict of Nationalities Laws provides that in international law “it is for each state to determine under their own law who their nationals are or who are the subjects of the state. 

The clearest example of the personality of individuals in modern international law is the responsibility that each individual bears for war crimes, crimes against the peace and crimes against humanity (genocide etc.). These are matters for which the individuals responsible personally under international law, irrespective of the laws of his own may be tried according to the law by an international court.  The most established of these is piracy. A pirate is hostis humani generis (an enemy of all mankind) and he may be arrested and tried by any state regardless of his nationality. Under international law piracy is a crime of universal jurisdiction.

The establishment of a permanent international tribunal having the competence to exercise a general jurisdiction over individuals as subjects of international law in respect of serious violation of international criminal law and the exercise of criminal jurisdiction of the International Criminal Court since its establishment in 2002 over individuals of the nationality of state parties to the Statute is a major advance in terms of deterring and punishing individuals charged with the most grievous violations of human rights.

In additional to the imposition of duties and responsibilities on individuals, international law also grants personality in the form of rights. The most obvious is the ever expending law of human rights. Under Article 55 of UN Charter provides inter alia humans rights and fundamental freedoms as well as higher standard of leaving with progress in economic and social developments of individuals and Articles 56 and 62 impose obligations on member states to ensure the achievement of  the purpose set forth in article 55. Indeed, perhaps it is not going too far to suggest that the vitality of human rights provisions international law and the status of some rights as rules of jus cogens have generated an objective personality for individuals in these matters that states cannot derogate from.

Individuals have no excess to International Court or tribunals. What is said is that the individual cannot directly bring and action to  the ICJ or tribunal on his personal capacity however he/she may convince his/her state to bring an action against any other subject of international law. Even if the individual wish to bring an action, say, for mistreatment or torture against a state, it could only bring the said action to ICJ through its own state ie only the state of the individual concerned could bring the action on its behalf. In the case of Mavrommatis Palestine Concession Case, the where here that it is an elementary principle of international law that a state is entitle to protect its subject when injured by acts contrary to international law committed by another state.

Further, generally, individual does not enjoy immunities in international law unlike the states from other national jurisdiction but one can enjoy immunities under special circumstances whereby individuals that represent states as diplomats and those working in diplomatic office according to their rank. Thus, in this sense, one can say the individual does not have full capacity like a state. Last but not least, the individual also does not have treaty making capacities.

Thus, in this modern contemporary development of international law, the traditional view that the states are the only subject of international law can no longer hold waters. Many other organization and individuals are considered as subjects of international law because of their nature of rights and duties and also obligations under the said law which fulfills the criteria under the incidia of personality.

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