subject of international law

1. SUBJECT OF INTERNATIONAL LAW
AND
RECOGNITION IN INTERNATIONAL LAW
BEBY SURYANI, SH, MH
FACULTY OF LAW
UNIVERSITY OF MEDAN AREA

2. SUBJECT OF INTERNATIONAL LAW
• According to Martin Dixon, a subject of international law is a body that is capable of
carrying out all rights and obligations to carry out legal acts and will give rise to legal
authority under international law.
• To determine an entity as a subject of international law, it must have the main
international legal capacities to realize its international legal personality. These legal
capacities are:
1. Able to claim its rights before international (and national) courts;
2. Being the subject of some or all of the obligations imposed by IL;
3. Able to make valid and binding international agreements in international law;
4. Enjoying immunity from domestic jurisdiction.

3. • The following are the types of subjects of international law:
A. State
• The state is the most important and primary subject of
international law because the state plays an active role in
agreements between countries. The state as a subject of
international law is a sovereign state. An entity can be said to be
a state if it has a permanent population, territorial area, governing
government, and the ability to establish relations with other
countries.

4. • Article 1 of the 1933 Montevideo Convention states: the state as a nation in
international law should process the following qualifications:
1. A permanent population;
2. A defined territory;
3. Government;
4. Capacity to enter into relations with other states;
• In a Federal state, the bearer of the rights and obligations of subjects of
International Law is the federal government.
• There are times when the federal constitution allows states to become subjects
of International Law (limited).

5. B. The Holy Throne Of The Vatican
• Subject of International Law in the full sense and equal in status to other
countries.
• The Lateran Treaty on February 11, 1929 between Italy and the Holy See, the
contents of which were to return a piece of land in Rome to the Holy See and
allow the establishment of the Vatican State,
• Based on this agreement the State (Holy See) of the Vatican was formed and
recognized as a subject of International Law.
• Currently the Holy See has diplomatic representatives in various countries in the
world whose status is equal to the diplomatic representatives of other countries

6. C. ICRC: International Commision of Red Cross
• The ICRC or International Red Cross is a non-governmental organization whose
members are national red crosses of countries based in Switzerland.
• The ICRC is a subject of international law because of its major role in helping victims
of war and making a major contribution to the formation of the 1949 Geneva
Convention which regulates the laws of war or international humanitarian law.
• The ICRC as a subject of international law has a very limited scope because the
ICRC only operates in the humanitarian field, providing protection for victims of war
both domestically and internationally.

7. D. International Organization
• It is not a new phenomenon in the international community order.
• The establishment of international organizations is essentially driven
by the desire to improve and institutionalize permanent international
cooperation in order to achieve common goals.
• If an international organization has not been able to demonstrate its
independence, such an international organization does not or has
not yet been positioned as a subject of international law.

8. • Only recognized as a subject of International Law after an advisory opinion was
given by the International Court of Justice.
• Case: The UN requested a legal opinion from the International Court of Justice
regarding the murder of Prince Bernadotte of Sweden who acted as a UN
mediator in Israel in 1948.
• Does the UN have the legal capacity to bring a claim for damages against the
responsible de jure or de facto government?
• The International Court of Justice has firmly stated that international
organizations are subjects of International Law and are capable of upholding
international rights and obligations, and also that international organizations
have the capacity to defend their rights by bringing international claims

9. • Qualifications of an international organization that already has
international legal personality according to Ian Browlie: the criteria
of legal personality in organization may be summarized as follows:
1. A permanent association of states, with legal objects, equipped
with organs;
2. A distinction in terms of legal powers and purposes between the
organization and its member states;
3. The existence of legal power exercisable on the international
plane and not solely within the system of one or more states;

10. • Classification of International Organizations According to Theodore A. Coulombis and
James H. Wolfe:
1. International organizations (intergovernmental) with membership in a global scope
with general purposes and objectives. Examples: UN and LBB;
2. International organizations (intergovernmental) with membership in a global scope
with special or specific purposes and objectives. Examples: World Bank, IMF;
3. International organizations (intergovernmental) with regional or area membership and
with general purposes and objectives. Examples: ASEAN, OAU;
4. International organizations (intergovernmental) with regional or area membership but
with specific purposes and objectives. Examples: NAFTA

11. • Factors Causing the End of International Organizations
1. Agreement of member states to end the existence of the international
organization in question;
2. The goals of the organization have been realized or achieved;
3. Member states of the old international organizations then establish a new
international organization with the same or similar principles, aims and objectives
as the old international organization;
4. The withdrawal of member states of an international organization one by one so
that over time the number of member states decreases and the organization's
activities decrease/end;

12. E. Individuals
• In the early period of the growth of International Law, individuals were only
subjects of national law.
• In its development, International Law has given rights and borne obligations
based on International Law directly to individuals.
• Individuals can also be held directly responsible for acts that are alleged to
be violations of the rules of international law
• When there is a prosecution of war criminals before the International Court
of Justice which is specifically established for that purpose by the victorious
allied countries.

13. • In the trials held in Nuremberg and Tokyo, the war criminals were
prosecuted as individuals for acts classified as:
1. crimes against peace;
2. crimes against humanity;
3. violations of the laws of war; and
4. conspiracy to wage war.
• With the Nuremberg and Tokyo trials, a person is considered directly
responsible as an individual for the war crimes he has committed.

14. F. Belligerent
• In the law of war, rebels can acquire the status and rights of
belligerents in certain circumstances.
• The international personality of the parties to a conflict depends
entirely on recognition.
• Initially emerged as a result of domestic problems of a sovereign
country.
• The law that must be enforced in the event of rebellion in a country is
the national law of the country concerned.

15. • Rebel criteria according to Oppenheim-Lauterpacht
1. The existence of a civil war is accompanied by a statement of
hostile relations between the country concerned and the
belligerents
2. Controlling or occupying part of the country's territory;
3. There is respect for the rules of war by the country concerned and
the belligerents;
4. There is a practical need for third parties or countries to determine
their attitude towards the civil war;

16. • Belligerence criteria according to Hurwitz
1. Organized under responsible leadership;
2. Wearing clearly visible identification signs;
3. Carrying weapons openly;
4. Obeying customary methods of warfare

17. G. Multinational Corporations
• It is still a debate whether transnational corporations are subjects of international
law.
• Many legal experts do not include multinational corporations as one of the
subjects of international law.
• Multinational corporations can become international personalities if the
international relations they conduct are regulated by international law.
• In courts, multinational corporations are recognized as subjects of international
law, but the courts do not have jurisdiction over them because jurisdiction is only
for individuals.

18. • The word multinational was first introduced by David E Lilienthal who wrote
about The Multinational Corporation and defined it as a company whose
parent company is in one country but its operations and running the company
under the laws and customs of a different country.
• According to John H. Dunning, a multinational company is a company that
involves foreign investment and has value-added activities in more than one
country.
• Meanwhile, according to Clive Schmithoff given by Tindall, a multinational
company is a combination of different countries connected by shares,
managerial control and contracts and parts of economic units.

19. RECOGNITION IN INTERNATIONAL LAW
• Definition:
A political action of a country to recognize a new country as a subject of
international law that gives rise to certain legal consequences.
• Function:
To provide a proper place to a new country or government as a member
of the international community.
• Importance:
As a guarantee given to a new country that the country is accepted as a
member of the international community.

20. • Article 3, Montevideo Declaration 1933: “The political existence
of a state is independent of its recognition by other states”.
• Problem:
1. Recognition is a political act with legal consequences.
2. Recognition is a problem in international relations, because:
3. It involves legal and political issues;
4. International law does not explicitly regulate;

21. • Consequences:
1. Political consequences: both countries can freely establish
diplomatic relations.
2. Legal consequences:
3. Constitutes evidence of the factual situation;
4. Causes certain legal consequences in diplomatic relations;
5. Strengthens the judicial standing of the recognized country.

22. • Recognition According to Several Experts:
1. J.B. Moore: the meaning of recognition as a guarantee that the new
country is accepted as a member of the international community;
2. Lauterpacht and Chen: granting recognition is a legal obligation;
3. Ian Brownlie: recognition is optional and political;
4. D.J. Haris: a country remains a country, even though it has not been
or is not recognized at all;
5. Podesta Costa: the act of recognition is an optional act;

23. • Forms of Recognition
1. Recognition of New States.
2. Recognition of New Governments.
3. Recognition of Belligerency.
4. Recognition of National Liberation Movements

24. • Two Theories on the Birth of a State:
• Constitutive Theory:
1. A state becomes a subject of international law only
through recognition. (Oppenheim, Lauterpacht, Chen)
2. The basis for the validity of IR, the state as a subject of IR,
cannot be without agreement;
3. If a state/government is not recognized, it cannot have
relations with other states;

25. • Declarative Theory:
• Recognition is merely the acceptance of a new state by other states.
Recognition is not a condition for the birth of a state.
• (D.P. O’Connel, Article 3 of the Montevideo Convention).
*Question:
• What if a newly born state becomes a member of the UN directly?

26. • STATE RECOGNITION (NEW)
Meaning:
1. A statement by a state recognizing another state as a
subject of international law (Mauna);
2. Recognition of the new international community;
3. Complying with obligations in IR;

27. • Is recognition a right of a new state and an obligation of
an existing state?
1. A state has no legal right to be recognised and no legal
duty to recognise.
2. Recognition is a matter of policy whereby a state has
the right to recognise or not recognise a new state.

28. • Recognition as a Political Policy, because:
1. Recognition is an individual policy where countries are free to recognize a country
without having to pay attention to the attitude of other countries.
2. Recognition is a discretionary act, namely a country recognizes another country if it is
considered necessary for its national interests.
• Consequences of recognition:
• The recognizing country and the recognized country have an equal relationship and can
establish all kinds of cooperative relationships to achieve national goals regulated by
international law.

29. • Government Recognition
Meaning:
• A statement from a country that the country is ready and willing to relate to a
newly recognized government as an organ acting for and on behalf of its
country.
• Relationship with State Recognition:
• State recognition also results in recognition of the government of the
recognized country and a willingness to have relations with that government.
• State recognition cannot be withdrawn while recognition of a government
can be withdrawn at any time

30. • Consequences of recognition of the new government:
1. Can establish official (diplomatic) relations with the recognizing state.
2. On behalf of its country, can sue the recognizing state in
international courts.
3. The recognizing state can involve the responsibility of the recognized
state for its international actions.
4. Has the right to own the property of the previous government in the
territory of the recognizing state.

31. • Occurrence of Government Recognition:
Tobar Doctrine (constitutional legitimacy doctrine)
• "a country must try not to recognize a foreign government if the formation of the government is
due to a military coup or rebellion".
Stimson Doctrine
• "a doctrine that refuses to recognize a condition that arises from the use of force or violation of
existing agreements".
Estrada Doctrine
• "refusal of recognition is not only contrary to the sovereignty of a country but also constitutes
interference in the internal affairs of another country. (diplomatic representation is to the state
and not to the government)".

32. • Recognition of Rebels
Grants the belligerent the rights and obligations of an independent state during
the conflict.
• Has the following consequences:
1. Their troops and warships are legitimate entities under the laws of war.
2. The war must be in accordance with the laws of war.
3. Blockades at sea due to the conflict must be respected by neutral states.
4. The belligerent becomes a limited, incomplete and temporary subject of
international law

33. • As a result of the recognition of the belligerent by third
countries, the parent country is freed from responsibility for the
belligerent's actions.
• If the parent country also recognizes the belligerent, other
countries should not hesitate to recognize it.
• This recognition is limited and only for the duration of the war.
• This recognition will also have an impact on neutral countries
for humanitarian reasons.