Public International Law - Coursework Example

?International Law Introduction International laws are the laws which govern the relations of s and the global community in general. Fiore discusses that the goal of international law is to evaluate and establish international rights and duties which must be fulfilled by all members of the international community1. Its goal is also to establish the legal rules which are applicable to these rights and duties and the legal remedies available to ensure compliance. For this reason, it is therefore important to establish first which the subjects and persons who are to enjoy and lay claim to these rights and duties2. This paper shall discuss the different subjects of international law who are considered to be legal personalities under international law entitled to rights and obligated to comply with essential duties under international laws. Body There are various subjects and objects of international law, and the most common of these are the states. A state, as defined by Article 1 of Montevideo Convention on the Rights and Duties of States, is an entity possessing of the four elements: permanent population, defined territory, government, and the capacity to enter into relations with other states3. In order for a state to be considered as such – and therefore entitled to the rights and burdened with the responsibilities of international law – it must fulfil these requirements of statehood. The first element of statehood is a permanent population. There is no actual minimum numerical requirement for state population, only that it must be permanent; and by permanent, it means that the people must have an intention to occupy a territory permanently4. The population must also be big enough to ensure the smooth implementation of policies and manageable enough for the state to govern. The state must also have a defined territory with its boundaries defined and occupied by its population. This state must also have a government. A government includes executive, legislative, and executive functions which help promote the smooth management of political processes5. Such a state must also be sovereign and independent; in other words, not subject to the whims or control of other states6. Lastly, a state is also one which has the ability to enter into relations with other states. This capacity is based on the existence of the government and of sovereignty and independence. Thereupon, control of an entity by another state or political entity would likely negate independence, and would also negate the capacity to enter into relations with other states7. An entity fulfilling the above elements would be subject to international rights and responsibilities. These states would therefore have the right to self-determination, or the right to be free of any territorial changes which would be against their political mandates8. It also refers to the right to be free of interference in their political and economic activities. This right is based on prohibitions imposed as a means of establishing distance from the practice of colonialism and imperialism which used to dominate human history. A state is therefore subject to various rights and responsibilities. In general, a state would have the competence to carry out acts in the international arena, enter into and make treaties, as well as similar agreements9. These states are also “exclusively competent with respect to their internal affairs-“exclusive” means plenary and not subject to control by other States”10. Crawford also discusses that states cannot be subjected to international processes and activities without their express consent11. They are also considered as entities which stand on equal ground12. These rights and responsibilities govern international relations and violations of these responsibilities would make a state liable and subject to international laws and policies. Non-state entities, like Kosovo, Somalia, and Taiwan, do not enjoy these same rights and are not dealt with as states. For example Taiwan cannot enter into a treaty with another state, representing its interests and desires because it is not recognized as a state under international laws13. The rights and responsibilities which would be placed on these entities would therefore not be the same rights and responsibilities placed on states. Political entities which are not recognized as states are still considered subjects of international laws, but are to be treated as non-state actors with rights and responsibilities not the same as independent states14. They are also subject to the different rules on the protection of human rights and subject to the impositions of the International Criminal Courts for violations of human rights and related laws. Their actions are also subject to the control of their ‘mother state’ or the state which has recognized authority over them15. As subjects of international laws, they are also accorded rights which negate the imposition of human rights violations – from their mother state as well as other political entities. In the case of Kosovo, they are entitled to the protection of international laws against violations of their human rights as was apparent during the Bosnia-Serbian war. Acts of ethnic cleansing against their people are considered war crimes which may be tried under the International Court of Justice16. And states, as well as other political entities perpetuating such war crimes are bound to the rights and responsibilities of international law. Subjects of international law according to a discussion by Stratton are those which are capable of accessing international organizations and courts in order to lay claim to rights afforded by international laws17. These subjects are also capable of establishing the responsibilities established by international laws, and these subjects are also able to enter into agreements and treaties which are recognized under international laws. Finally, subjects of international law can also claim some or all immunities from domestic courts of individuals states18. Aside from states, Stratton discusses that international organizations are also subjects of international law, specifically when these organizations are deemed to be a permanent grouping of states, one with legitimate goals19. They are also subjects of international law as they have specific legal authority and goals from their various member states and as they apply powers in the international arena, not just in the domestic scene20. International organizations include the European Union, the Organization of American States, African Union, Association of Southeast Asian Nations, and similar international organizations. Kohona discusses that international organizations are usually bound by the provisions of international law, as well as the rules and charter upon which their organization is built or founded on21. The legal personality of international organizations is based on conferred treaties or similar constitutive acts. Possessing legal personality implies that these organizations have specific rights, duties, powers, and immunities. They also display legislative, executive, as well as judicial functions22. Although they do not function in the same way as states, these international organizations are endowed with the legal personality sufficient to make them subjects of international laws. As a legal personality, international organizations are subject to international laws and the “legality of its acts is measured against international law to the extent that the latter applies to the relevant organization”23. Organizations also become subject to the legal consequences of its actions, mostly those which are attributed to it as an organization and not those which are attributed to the acts of its members. In effect, the actions of the organization as a whole cannot be individually attributed to the members or third parties24. “Attributability and responsibility are the necessary consequence of the power to produce, by their own acts, legal effects separable of the effects of acts of the members”25. In effect, there is a shift of responsibility from the members to the international organization, especially when the actions are carried out as one organization, not as an individual member state. Corporations are also considered as subjects of international law. These corporations would refer to multinational corporations which usually function and exist in various states in the world, mostly existing for financial gain26. As subjects of international law, corporations often interact with other states and as such they become legally subject to the laws of these countries. As strong and financially capable corporations, they are also likely to negotiate with other states on a higher and more powerful plane. Due to the eagerness of states to draw in investments from corporations, these states often offer favourable conditions to these corporations27. These favourable conditions often translate to minimum tax impositions as well as immunity from legal suits. Some corporations are also usually inextricably bound to their home states and as such their home states have much control over their activities28. Although corporations have not been considered traditionally as subjects of international law, jurists and legal scholars aver that legal issues involving these corporations are best dealt with in the corporations’ home state. Other jurists are however eager to explore the possibility of corporations being independent subjects of international law29. The current rules on corporate social responsibility form part of the legal provisions which help ensure that these corporations fulfil their legal, social, corporate, human rights, as well as environmental responsibilities. Non-governmental organizations (NGOs) are, in a similar vein to international organizations, subjects of international laws and therefore also subject to the responsibilities and rights of international entities. These NGOs include the organizations like the Amnesty International, the Greenpeace, and CARE International, among others. Although they do not have international legal personalities, they are still subjects of international law30. These organizations are involved in various international political activities which often require interactions with the governing authorities of the different states and with international laws and human rights provisions. Conclusion Based on the analysis, there are various legal international personalities which would eventually be subject to the rights and responsibilities of international law. These personalities include primarily, the state, and the non-state actors. Non-state actors include political entities which are vying for full statehood. These entities include territories like Taiwan, Kosovo, and Somalia. These entities do not comply with the full requirements of statehood but are still subject to the rights and responsibilities of international law. Other non-state actors include international organizations, multinational corporations, and non-governmental organizations. These non-state actors are also obligated to fulfil the responsibilities of international law, which include responsibilities which relate to the respect of human rights and compliance with the UN Charter as well as other international treaties and conventions. Finally, corporations are also subject to the rights and responsibilities of international laws. They are bound to respect the domestic laws of the country where they operate in, as well as the laws of their home country. Moreover, they are also required to comply with their corporate social responsibilities, failure to do so make them liable under international and domestic laws. References Aust, A. (2005). Handbook of International Law. London: Cambridge University Press. Cassese, A. (1995). Self-Determination of Peoples: a Legal Reappraisal. London: Cambridge University Press. Crawford, J. (2006). The Creation of States in International Law. Oxford: Clarendon Press. Eggers, A. (2007). When is a State a State? The Case for Recognition of Somaliland. Boston College International and Comparative Law Review, 30(1). Fiore, P. (1918). International Law Codified. New York: Baker, Voorhis and Company, p. 35. Francioni, F. (2000). Of War, Humanity and Justice: International Law after Kosovo. Max Planck UNYB 4: 107 Hafner, G. (2008). The Legal Personality of International Organizations: The Political Context of International Law [online]. Available at: http://www.elevenpub.com/system/uploads/22138/original/9789077596173_voorbeeldhoofdstuk.pdf?1300713257 [accessed 14 January 2012] Kohona, P. (2003). International Organizations. United Nations Treaty [online]. Available at: http://www.treaties.un.org/doc/source/training/regional/.../intorganizations.ppt [accessed 14 January 2012] Montevideo Convention on the Rights and Duties of States, 1935 Murphy, S. (2003). United States Practice in International Law, Volume 1. London: Cambridge University Press. Nowrot, K. (2007). New Approaches to the International Legal Personality of Multinational Corporations: Towards a Rebuttable Presumption of Normative Responsibilities. European Society of International Law [online]. Available at: http://www.esil-sedi.eu/english/pdf/Nowrot.PDF [accessed 14 January 2012] Popovic, T. (2008) International Law and Formation of States: Study of Kosovo Independence [online]. Available at: http://www.tanjapopovic.eu/docs/International%20Law%20and%20Formation%20of%20States%20-%20Study%20of%20Kosovo%20Independence.pdf [accessed 14 January 2012]. Ryngaert, C. (2008). Non-State Actors and International Humanitarian Law. Institute for International Law [online]. Available at: http://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP146e.pdf [accessed 14 January 2012]. Stratton, J. (2009). International law. Legal Information Access Centre [online]. Available at: http://www.legalanswers.sl.nsw.gov.au/hot_topics/pdf/international_69.pdf [accessed 14 January 2012] Yamali, N. (2008). What is meant by state recognition in international law. Ministry of Turkey [online]. Available at: http://www.justice.gov.tr/e-journal/pdf/LW7081.pdf [accessed 14 January 2012] Read More