When
lawyers talk about an entity as a legal person or as a subject of international
law, it means that the subject has the capacity to enter into legal relations
and to have legal rights and duties. Prior to the 19th century,
states were the only legal persons in international law. At that period
international law regarded individual in much the same way as domestic laws
regard animals as non persons, with no legal personality. The position however
has charged in the 20th century. Thence forth international
organizations, individuals, and companies and non-governmental organizations
have came to acquire some degree of international legal personality along with the
obligations and duties that go with it.
States:
States
constitute the principal subjects of international law since international law
is primarily concerned with the rights and duties of states, it is necessary to
have a clear view of when a state is, at least for the purpose of international
law. Even though the state is an abstract concept to which various definitions
have been ascribed, the monte video convention of 1933 gave it the following
characteristics. These represent the most widely accepted criteria of state
hood in international law which states, as legal persons, must possess. These
are
1. A defined territory
2. A
permanent populations
3. A
government
4. Capacity
to enter into independent relations with other states.
The
fourth qualification is what distinguishes a states from other entities-
protectorate colonies and occupied territories- in the international system.
States can sign treaties and can be held responsible for the outcome of such
treaties. They also enjoy certain privileges which other entities do not enjoy.
They are accorded certain rights and duties under international law. These
rights include:
1. The
right to independence and independent action
2. The
right to territorial jurisdiction
3. The
right to equality with other states
4. The
right to defence against external aggression.
The
duties and obligations accompanying these rights include:
1. Non
intervention in the affaris of other states
2. Not
formenting trouble or inciting civil strife or wars in the territory of other
states.
3. Not
resorting to war as an instrument of policy states are obliged to explore all
other avenues available in setting disputes with others.
4. Duty
of carrying out in good faith obligations entered into under treaties with
other states.
Sovereign rights of states:
1. A
state is supposed to service sovereignty within its own specific territory.
States have power exclusively to control its own domestic affairs the was it
sees its fit without outside influence. However, it is necessary to point out
that sovereignty is not absolute. It is subject to and constrained by
international law. A state that passes a law against a particular group,
religion or ethnicity will be guilty of crime against humanity.
2. States
have right to admit or expel foreigners from its territory such expulsion
however must not be arbitrary or dehumanizing.
3. the
privileges and immunities enjoyed by its diplomats outside are fully recognized
and respected. This is done on the basis of reciprocity.
4. states
have side jurisdiction over crimes committed within her territory. If it is a
cross-border crime, the state still has a role to play.
Corresponding duties to
sovereign rights
1. States
has duty not to perform acts of sovereignty, conspiracy or aggression on the
territory of another state.
2. Duty
to abstain from and prevent its agents and subjects from committing acts
constituting a violation of another states independency or territorial
supremacy.
3. The
duty of not interfering in the affairs of another state except when invited.
4. States
have duty to relate with others on the basis of reciprocity consent and mutual
respect.
INTERNATIONAL ORGANIZATION AND INSTITUTIONS
The
concept of international organization is not a new one although the practice of
having a continuous or permanent international organization is a relating new
advance in the conduct of international relations. International organization
have existed since 1815 or even earlier but have gained much diplomatic
prominence and political relevance since the end of the first world war. The
idea that international organizations and corporations have international legal
personality is a very recent one. International organizations are now
recognized as entities having rights, interests duties and obligations in the
international community.
The
term international organization is normally used to describe an organization
set up on agreement between two or more states. It is different from “non
governmental organizations” where governments may have little or no hand at all
in their activities. Treaties setting up international organizations often
provide, as article 104 of the UN charter does, that “the organization shall
enjoy, in the territory of each of its members, such legal capacity as may be
necessary for the exercise of its functions and the fulfillment of its
purpose”.
This
means that the organization enjoy legal personality under the principal laws of
its member states. It can own property, enter into contracts and engage in
several activities and enterprises with in the territories of member states.
When states creates an international organization, they set it up for specific
purpose and such organizations are given regulated powers. For this season,
legal personality must be treated as a relative concept and not an absolute
one.
The
term international organizations tend to bring, quickly to mind, the united
nations, however, there are many more organizations which could be grouped into
general or universal, regional, subregional, continental technical or
specialized types of international organizations. One common feature among
international organizations is that their membership international
organizations is that their membership consists of national governments. There
are also called inter-governmental organizations, IGOS. Some of the
most popular examples are the UN, common wealth, EU, OAS, AU, AL, WHO, IMF,
IBRD, WB, etc.
In recent decades, there has been a
growing number of international organizations whose membership are not states.
These are transnational organizations made up of private organizations and
institutions instead of states. An individual or group of individuals may also
create or form a non-governmental organization. Non governmental organizations
are simply called NGOS- Examples of NGOS include the red
cross, amnesty international, green piece, world wide fund for nature, wwf,
world water council, medicines sans frontiers, MNCS, FIFA, ILO, etc. the list
of NGOS is very long some are local national regional sub-regional
or universal. During the course of the work, more elaborate attention would be
paid to international organizations both IGOs and NGOS.
Though
international organizations are viewed as a modern phenomena in international
relations its origin extend far back in history. The roots of international
organizations lie, in part, in tehri universal concern for the improved
conditions of humanity. This has been expressed in the writings of philosophers
and states men in their attempt to create stable institutional and structures
which could help improved human conditions.
The
first modern example of an organization based on these principals were the
congress of Vienna (1814-1815) which gave birth to the concept of Europe. This
1899 and 1907 peace conferences held in the city of Hague, Netherlands. The
1907 conference was more comprehensive, with 44 nations in attendance. A third
conference was scheduled for 1915 but the plan was aborted by the outbreak of
the first world war. The concept of Europe and the Hague systems are a long
tortuous journey from Westphalia (1648).
At
the end of the first world war, the league of nations was created as a peace
organization with the basic elements of political, social and economic
co-operation at the universal level. However despite the great hopes upon which
the league was founded, its organizational inadequacies and other related
problems could not withstand the traumatic instabilities and uphearals of the
immediate post-war world. With the devastation of the great depression,
American isolationist policy and the rise of militant fascism and Nazism in
Europe, the noble ideals of the league were basied in the rubble of world war
II.
Immediately
after the war, the UN was created, representing what could be best described as
the most advanced mechanism in the developmental stages of universal concern
for the human conditions like the league, the UN was established to maintain
global peace and security. The organization however, has expanded its scope,
becoming increasing involved socio-economic and political and humanitarian
issues of our time. It may be in order to submit that the united nations and
its predecessor represent the coming together of all the root systems of
international organizations.
INDIVIDUALS AND COMPANIES
The
20th century has seen a growing tendency to admit that individuals
and companies have some degree of international personality although the
subject has remained largely controversial. Soviet international lawyers admit
that individuals can be held guilty of crimes against international law (eg.
Crimes against the laws of war) but they are reluctant to accept that
individuals and companies have any real rights under international law. Their
fear is that such rights could undermine the powers of the state over their own
nationals. This perception is common under authoritarian regimes where the
state aims of holding a very tight rein over the lives of its citizens.
In
the western countries scholar and governments are usually more prepared to
admit that individuals and companies have some degree of international legal
personality although the status is usually seen as severely limited. Infact,
the legal personality of individuals and companies is much more limited than
that of international organizations.
Individuals
and companies may have various rights under specific treaties, but they cannot
imitate states or some international organizations in under taking some
activities such as acquiring territory, appointing ambassadors or declaring
war. Many rules of international law exist for the benefit of individuals and
companies but that does not necessary mean that the rules create rights for
individuals and companies any more than the municipal law prohibiting cruelty
against animals confers rights on animals. The rule however may differ in some
places. In the European union, individuals and companies can bring claims
before the court of justice of the EU. Some treaties may provide for different
means of enforcement. In some situations individuals and companies may take their
complaints, not to an international tribunal, but to a political organ of an
international organization. This organ will then investigate the complaint and
take such action as it may consider necessary and feasible against the
offending state of party.
The
controversy over whether the individual or companies could be subject of
international law ahs been wide and varied. Other areas where individuals and
companies could assume international personality is the area of crime. Such
crimes include piracy, slavery, fraud, drug trafficking, international prostitution, racketeering and other crimes
that transcends national boundaries. While the private violates the law of the
sea, the individual, as a slave, is denied his freedom.
In
the event of war and conflict, the war is prosecuted by individuals either as
politicians, generals and commanders or as combatants. In prosecuting a war,
the issue becomes whether an individuals can hold into abstract things, by
hiding under the umbrella of state of perpetuate a crime. The regulation on how
individuals conduct themselves in war and how to treat other individuals
participating in the war makes the individuals a subject of international law.
In prosecuting a war, individuals bear the weapons of war and take responsibility
for what was done in the war, it is therefore probable that certain crimes
could be committed by the individuals which would amount to a violation of
international law vis avis the laws of war and aimed conflict. Such crimes may
include.
1. Crime
against peace: these are policies, actions, decisions and utterances which
could lead to aggression.
2. Crime
against humanity: these may involve genocide, ethnic cleansing, starvation as
war strategy, torture, etc.
3. Other
actions which may constitute a violation of the laws of war.