Week 1: Law of Treaties, reservations, sources, actors
1. ACTORS IN INTERNATIONAL LAW
An actor is a subject of the public international law system. The actor has rights
and duties. In order to answer the question which actors have international legal
personality, we have to make a distinction between state actors and non-state
actors. International legal personality is an acknowledgement (erkenning) that an
entity is capable of possessing and exercising certain rights and duties under
international law. Such entities are considered subjects of international law and
can be referred to as international legal persons. The capacities of an international
legal person may include:
1. The ability to make claims before international and national tribunals in
respect of breaches of international law;
2. Bearing some or all of the obligations under international law;
3. The capacity to make valid international agreements;
4. The enjoyment of some or all privileges and immunities from national
courts.
State actors
States were always considered to be the core (belangrijkste) subjects of the
international law and were considered to have international legal personality. They
are not the exclusive subjects anymore, but they are still the primary subjects of
international law. When is an actor considered as ‘a state’? There is no generally
accepted definition, but there are accepted criteria based on the Montevideo
Convention: ‘The state as a person of international law should possess the
following qualifications: a permanent population, a defined territory, government
and capacity to enter into relations with the other states.’
I. Permanent population: no minimum amount or criteria that is should be
homogenous. The only important thing is that it has to be permanent.
II. Defined territory: not a minimum amount
III. Government: there must be a central government that’s in effective
control of the territory.
IV. Capacity to enter into relations with the other states: the state must be
sovereign and independent, cannot be controlled by another state in its
international relations.
V. Independence
Once a state has acquired the status of a state, it will not lose its state-identity if one
of the four criteria isn’t fulfilled anymore, until the international community
decide otherwise. It is questionable whether these criteria are fully applicable in
every circumstance imaginable. There are numerous of entities that did not fully
meet al the requirements, but which have been awarded the status of state. In
practice, the criteria are used more as guidelines, and the decision to recognize
can be decidedly political.
International law offers two main theories that aim to explain how an existing state
can recognise an entity as a new state:
a. The declaratory theory: recognition of a state is nothing more than a formal
acceptance of fact
a. Dominant theory, but very difficult for states when they are not
recognized on the basis of the Montevideo criteria.
, b. The constitutive theory: the recognition of a state by other states is an
additional requirement for a state to come into existence
States can be created by three prominent ways:
Secession (Afscheiding): Is the creation of a new state through the
separation of a part of the territory and population of an existing state.
Dissolution (Ontbinding): The collapse of the central government can lead to
the new creation of new states.
Unification (Eenwording): The merger of two or more existing states can
lead to the creation of one, new state.
Non-state actors
Whereas the international legal personality of states is original, that of non-state
actors can be considered derivative (afgeleid) in nature. The main non-state
actors are international organizations such as the United Nations. Other non-
state actors, such as non-governmental organizations, individuals or armed groups
may have certain rights under international law, but they do not in general enjoy full
international legal personality.
International organizations
International organizations are created by states to carry out tasks of mutual or
collective interest (wederzijds of collectief belang). The degree of international legal
personality (thus, the specific duties and obligations) depends on the
competences ('powers') of the international organization. The international
legal personality may explicitly be granted in the constituent document of the
organization (the 'founding treaty'). More frequently however, the international
legal personality can be implied or inferred from the constituent powers of the
organization.
Reparation for Injuries
Do the United Nations have legal personality, and can they therefore submit a
claim? Yes they do. Not only the explicit powers (as mentioned in the UN
Charter), but also implied powers. These are the competences and powers as
implied in the object and purpose, as well as the practice of the organization.
Concluded: Legal personality is necessary for the performance of the tasks
entrusted to them and in the realization of the objectives of the UN (‘implied
powers)’.
International organizations were created by states to promote international
cooperation (samenwerking). The League of Nations was the first international
organization to address general political affairs between states. The modern
international law recognizes the international legal personality of states and other
entities.
The constituent (grondvestigingsinstrumenten) of international organizations are
typically treaties, signed and ratified by the organization’s states. These treaties
govern the purpose, structure and competences of international organizations. The
ICJ has made some general points with respect to interpretation of constituent
instruments and the competences of international organizations:
, For example, they determined that international organizations determine
their own competences and thus the competence to decide what their
competences are.
The instruments of international organizations are unique and should be
interpreted accordingly (dienovereenkomstig).
Based on Article 92 UN Charter, the ICJ is the principle judicial organ of the
United Nations and is entitled to interpret the UN Charter, should a request
for an advisory opinion be put to the Court.
The ICJ held that the United Nations not only have the powers as explicitly
expressed in the UN Charter, but also those powers as implied in the object and
purposes, as well as the practice of the organization (implied powers).
1. Do the United Nations have the capacity to bring a claim under international
law for damages that it itself suffered? Yes.
2. Do the United Nations have the capacity to bring a claim under international
law in respect of damage to the victim or persons entitled through the victim?
Yes.
It is generally agreed that international organizations need specific privileges and
immunities in order to perform their work efficiently and to safeguard their
independence. They need to be able to exercise their mandates, without
interference from member and non-member states.
Non-governmental organizations are independent, private organizations
which pursue non-profit making aims.
Multinational corporations
Engage in economic activities in one or more states that their home state (Shell,
Coca Cola, H&M etc.). These corporations do not possess international legal
personality. This means that international norms and law will not be applicable to
them. There are several soft law to fill such gaps. Multinational corporations can be
granted certain rights under Bilateral Investment Treaties (ïnvesteringsverdragen)
which are concluded between states to protect and attract foreign investments.
Individuals
It was not until the end of World War II that individuals came to be regarded as
holders of certain rights and obligations at the international level. The scope of
these rights however, remains limited when compared to states.
2. SOURCES OF INTERNATIONAL LAW
Within the international law system there is no single body to create laws which are
internationally binding upon everyone. There is no central, international legislature
or parliament. Nor there is a system of courts with comprehensive and compulsory
jurisdiction to interpret and apply international law. There is a variety of sources of
public law which provide the procedural legal rules, by way of which substantive
rights and duties come into existence.
The conventions, custom and general principles of law are mostly referred to as
principal sources. The judicial decisions and teaching of publicists are referred as
the subsidiary sources of international law. There can be a further distinction
between the two types of rules:
, Primary rules: Substantive (inhoudelijke) rules that lay down the obligations
of the subjects of international law.
Secondary rules: Procedural rules, they govern how the primary rules come
into existence, how they can be interpreted and how they can be changed.
Article 38(1) ICJ Statute sets out a non-exhaustive list of three sources of public
international law and indicated a difference in primary and subsidiary sources.
Primary sources usually prevail over the subsidiary sources, but note that there is
no clear-cut hierarchy within primary sources or subsidiary sources (lex specialis,
lex generalis). The ordinary rules of priority are applicable, for instance lex specialis
derogate lex generalis. Note that the ICJ only makes decisions for the parties in the
dispute. The ICJ can only apply law, not make law, Article 59 ICJ Statute.
Article 38(1) sub a ICJ: Treaties
Treaties are based on the principles of consent and pacta sunt servanda. This is a
customary (gebruikelijke) rule of international law. It stipulates that every treaty in
force is binding upon the parties to it and must be performed by them in good faith.
Rules governing treaties are codified in the Vienna Convention on the Law of
Treaties. States can only be bound by treaties by consent, because of their
sovereignty. This can occur by signature, exchange of instruments constituting a
treaty or ratification, acceptance or approval. If a state has signed but not yet
ratified or acceded to a treaty, the state is still bound by the object and purpose of
the treaty, Article 18 VCLT. A state is obliged to refrain (onthouden) from acts
which would defeat the object and purpose of a treaty when:
It has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval until it have made its intention
clear not to become a party of the treaty; or
It has expressed its consent to be bound by the treaty.
A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object
and purpose, Article 31 VCLT.
Article 38(1) sub b ICJ: Customary international law
Two requirements must be met in order for a rule of customary international law to
emerge:
- State practice: A sufficient number of states of the international community
must have acted in a particular manner for a certain amount of time
(objective element). Repeated behavior.
o North Sea Continental Shelf-case and the Nicaragua-case
- Opino juris: States must have carried out these acts with the conviction that
these acts have been permitted under international law (subjective
element).
The relationship between treaties and customary international law was set out by
the ICJ in a decision. The legal conception of ‘continental shelf’ was set out in
Article 76 United Nations Convention on the Law of the Sea. The issue at stake
concerned the determination of the continental shelves of the three states. The
states had concluded treaties delimiting their continental shelves close to the coast.
This case was ultimately a dispute about jurisdiction over natural resources.
North Sea Continental Shelf
