International Law Class 4 Subjects States and International

International Law Class 4 Subjects: States and International organizations 1

Class Four • Content: – Personality and statehood under IL – The concept of personality – Subjects of IL: States – International organizations: a form of cooperation btw States under IL – How they work: membership and structure – NGOs – Represented interests – Their subjectivity under IL 2

Concept of Personality • International personality (consequences): 1) Ability to make claims before int’l tribunals to vindicate rights under IL 2) To be subject to some or all the obligations imposed by IL 3) To have the power of make valid IL agreements 4) To enjoy immunity before nat’l courts as IL subjects 3

Requirements for Statehood • (1) Permament population • (2) Defined territory (territorial effectiveness) • (3) A government (organized political authority) • (4) The capacity to enter into relations with other States • (5) Independence - sovreignty 4

Permanent Population • Migration phenomena • No fixed number of inhabitants • There must be some population linked to a specific piece of territory on a more or less permanent basis 5

Defined Territory • Definite physical existence marking out the State clearly from its neighbours • No complete certainty over the extent of territory – Existence of dispute with the neighbours as to the precise demarcation of the frontiers • States under threat or invaded (e. g. , Kuwait, Afghanistan, Bosnia-Herzegovina) 6

Government • Practical political identity • Governs that do not govern the entire territory (e. g. , Croatia and Bosnia-Herzegovina at time of recognition) • Collapsing/collapsed governments (“failed States”) 7

Capacity to Enter Into Int’l Relations / 1 • Not limited to sovereign nations • Essence of such capacity: independence (factual autonomy) • Legal independence (= a State exists if it is not under the lawful sovereign authority of another State) • Status as a State but government placed in the hands of an outside body (e. g. , Kosovo; Bosnia. Herzegovina) 8

Capacity to Enter Into Int’l Relations / 2 • Legal independence / Illegality of the attainment of factual independence • Factual independence + right of selfdetermination = Statehood – E. g. , formal colonial territory • Factual independence obtained through unlawful means – E. g. , breaches to self-determination, use of force, racial discrimination (Cyprus) 9

Recognition • Concept of international recognition • Is r. sufficient to cure a defect in the claim of statehood? – Curative effect of recognition – Effectiveness v. recognition: Bosnia-Herzegovina – Problem of premature recognition vs. intervention in internal affairs • R. useful for subsidiary questions connected with shatehood – E. g. , Russia’s succession in the UN SC seat of USSR 10

Extinction • Practical impossibility of an involuntary loss of statehood • Consequence of: – Merger – Absorption – Annexation – Dismemberment of an existing State • Disintegration/union v. succession (e. g. , USSR; Former Yugoslavia Federation; Yemen; Germany) 11

Forms of Cooperations btw States / 1 • (1) Embassies – Contacts between States on a bilateral and general level • (2) International conferences – Multilateral and specific in character – They are meetings of States’ representatives (= the conference final act must be referred to each participant State) • (3) Concerted activities (protests or collective steps) (e. g. , the G-8) 12

Forms of Cooperation btw States / 2 • (4) Representation – The State organ represents another State – Diplomatic practice of common embassies • (5) Common body – States create a body that acts on behalf of all of them (e. g. , the confederation) – Its acts are referred simultaneously to all the composing States • (6) International organization (= protection of States interests uti universi) 13

What is an Int’l Organization? A voluntary association of IL subjects Created under IL Governed by IL Stable in its nature Possessing an internal legal structure Possessing its own internal bodies Executes specific functions and enjoys powers based on its purposes • Institutional cooperation for more complex tasks • • 14

Non Governative Organizations / 1 • Created and composed by private individuals and entities of different States • Governed by the law of one State (generally the one of their seat) • Not established by an inter-governmental agreement • They enjoy legal personality at the national levels • Advisory status in the UN 15

Non Governative Organizations / 2 • Assistance in drafting and discussing legal texts in IOs • Lobbying actions • Judicial or arbitral proceedings (amici curiae) • International Committee of the Red Cross (ICRC) 16

Constitution of Int’l Organizations / 1 • (1) Constitution by a treaty – A treaty governed by IL – Various names (Charter, Covenant, Articles of association, Convention, Constitution, Statute etc. ) – It can be always modified by the member States (who preserve their constitutive power) – Shows the existence of an IO but it is not sufficient: principle of effectiveness – Yes to reservation but if approved by the IO organ 17

Membership • States (and ministates) • IO can participate to other IO – Transfer of competences to an IO – Problem of third parties to the participated IO • Forms of attenuated participation – Limits to association life and vote – Oberver (UN), cooperator (EU) and associated (for ONG) status 18

Acquisition and Loss of Membership / 1 • Founding members – They do not have to show to meet the requirement to be IO members • Open v. closed IO 19

Acquisition and Loss of Membership / 2 • Accession v. admission – Accession: the State expresses its desire to enter the IO (ad hoc accession clause) – Admission: the member States decide – The new member must accept all duties and rights deriving from the constitutive treaty and all the previous acts of the IO (acquis) • Loss of membership – Dissolution of the State: principle of effectiveness – Expulsion – Suspension (vote / services of the IO) – Withdrawal (only with due prior notice and payment of previous contributions) 20

The Int’l Organization Headquarter • Practice of the headquarter agreements – Inviolability of the IO headquarters – Unless the IO consented or for private acts – Access to the headquarters – Prohibition to interfere in the communications • Immunity from jurisdiction for the IO acts • Tax privileges 21

Immunities • (1) Agents of the member States – – Application of diplomatic laws Immunity but only for the acts relating to their functions Possibility of expulsion Subject to the full jurisdiction of their State • (2) Agents of the organization – – – Non liability for the acts relating to their functions Full immunity from civil and criminal jurisdiction Inviolability of their domicile and of their person Exemption from fiscal obligations Full immunity from jurisdiction of their State 22

Structure / 1 • Provided competences = IOs exercise only the powers conferred by the States in the founding treaty 23