iNTERNATIONAL LAW BY - https://www.facebook.com/nurus.sakinatulfikriah.5?fref=ts

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The Subject Of International Law
1) The concept of International personality
International person is one who possesses legal personality in international law.
One who is subject of international law enjoy rights, duties / powers established in international law
+ have the capacity to act on the international plane
Characteristic of international personality
The enjoyment of rights conferred and the subjection to obligation imposed by international
law
Capacity to enter into treaties and agreements valid on the international plane
Capacity to make claims in respect of breaches of international law
The enjoyment of privileges and immunities from national jurisdiction
-clarified by the World Court in Reparation’s case, an international person need not possess all the
international rights, duties and powers possessed by States.
Eg : International organization possess only international rights and duties appropriate for their
particular situation, they are subjects of IL only to limited extent only
-in the 19th
century, states are the only subject of IL, confirmed by Oppenheim (since it is the law of
nation and based on the common consent of a state, not individual human being, states solely and
exclusively are the subject of IL)
-After WW2, new actor emerged such as public international organization established by states, non
governmental organization
2) States as subject of IL
Oppenheim stated four condition for the existence of states
People : there must be people who live together as a community even though they may
belong to different races, religion or colours
Territory : in which the people is settled. Wandering people is not a state
Government : one or more persons act for the people and govern according to the law of
the land
Sovereignty : supreme authority which is not dependant on other authority/independent
Criteria of statehood under IL
Article 1 of the Montevideo Convention on Rights and Duties of States
The state as a person of IL should possess the following qualification
Permanent population

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Defined territory
Government
Capacity to enter into relations with other states
Defined territory
-the control of territory is the essence of a state
-territorial sovereignty allows a state to exercise sovereignty within that territory without any
interference from foreign government without its consent
-this concept is defined by geographical area separated by borderlines from the other state’s
territory. So, the delimitation of state boundaries is of crucial importance.
-absolute certainty is not required ( sebab tu banyak frontier dispute)
Permanent population
-wandering tribe do not qualify to be a state
There must be a people linked to a specific territory on a more or less permanent basis and who can
be regarded as its inhabitant
Western Sahara’s case
It was noted that the territory of the Western Sahara is populated by a nomadic tribe who go freely
across the desert. However, it was held that their link with the territory is such that they may be
regarded as its population
Government
-the government must be effective within the defined territory and exercise control over the
permanent population.
Aaaland Island case
The main question was the date on which Finland become a state. Finland had been a part of the
Russian Empire until the Russian Revolution. The parliament declared Finland’s independence on
December 4, 1917. This was recognized by the Soviet Government but there was opposition within
Finland which rejected the idea of independence. As a result, violence broke out and for a time, the
government of the new state was able to maintain order only with the help of the Soviet troops. The
International Committee of Jurist held that the exact date Finland become a state was when the
public authorities had become strong enough to assert themselves through the territories of the
state without the assistance of foreign troops and that was in May 1918.
Exception : the effective requirement does not apply to an established state. A state does not cease
to exist when it is temporarily deprived of an effective government (due to civil war/upheavals)
Somalia and Japan

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Capacity to enter into relations with other states
Montevideo Convention refers ‘capacity to enter into relation’ as independence in law. Judgee
Anzilotti in Austro-German Custom Union case delivered his opinion in respect of the meaning of
independence : independence may also be described as sovereignty or external sovereignty by
which is meant that the state has over it no other authority than that of IL
3) International Organisation
Apart from state, international organisation is a subject of IL since they are the organization of states
which are assigned with specific function, they must enjoy some measure of international
personality to carry out the function.
International personality of the United Nations
Legal capacity of UN is affirmed in Article 104 of UN Charter – the organization shall enjoy in the
territory of each of its member such legal capacity as may be necessary for the exercise of its
function and the fulfilment of its purposes
Article 105 – guaranteed privileges and immunities of the UN, its officials and representative
Article 1 (1) of the Convention on the Privileges and Immunities of the UN – The UN shall posses
juridical personality and that it shall have the capacity to contract, to acquire and dispose of movable
and immovable property and to initiate legal proceeding.
The most important evidence for the determination of the international personality of the UN is the
advisory opinion in the Reparation’s case
September 1948 – Court Bernadotte, a Swedish national, was assassinated in Jerusalem which was
in Israeli possession. He was the Chief UN Truce Negotiator in the area. In the course of deciding
what action to take in respect of his death, the UN GA requested ICJ to give an advisory opinion on
whether UN had he capacity to bring an international claim against the responsible government to
obtain reparation.
The Court in its opinion : has come to a conclusion that the organization is an international
personality. That is not to say that it is a state and posses the same legal personality, rights and
duties to that of the states. But it is a subject of international law and capable of possessing
international rights and duties and has capacity to maintain its right by bringing international claims.
Criteria for determination of international personality
In the Reparation’s case, the court outlined two criteria
The intention of a states to establish an organization having a distinct legal personality
detached from that of its members
Can be inferred from various factors. May also be expressly mentioned in the constituent
instrument of the organisation

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Eg : Article 4 (1) of the Rome Statute Establishing the International Criminal Court as having
an international legal capacity
The actual exercising and enjoying of functions and rights which can only be explained on
the basis of the possession of a large measure of international personality
Rights conferred to international organisation
The treaty making power
Privileges and immunities
Right to bring international claim
The right to protection for its agent acting in their official capacity
4) Individuals and Corporations
Before the twentieth century, the view was that individual was merely an object and not subject of
IL. However, since the WW1, the community of nations has become increasingly aware of the need
to safeguard individual’s right under the IL. Thus, many scholars provided the thesis that individual
should also be regarded as subject of IL
Legal responsibility of individuals under IL
-There are norms which establish direct responsibility of an individual. Individual who commit
certain crime under IL should be punished as according to IL. Eg : piracy, slace trading, genocide, war
crime and crime against humanity
International law directly impose a legal duty upon individual not to commit such crimes.
-After WW2, international military tribunals were set up at Nuremberg and Tokyo. The judgment of
the Nuremberg and Tokyo International Military Tribunal affirmed the criminal responsibility of
individual under IL. The often quoted passage : crime against international law are committed by
men, not by abstract entities and only by punishing individuals who commit such crime can the
provision of IL be enforced.
Rights of individuals under IL
-individual has some degree of international personality but to a very limited extent, much more
limited than the legal personality of an international organisation.
-number of rules of IL exist for the benefit of individuals but that does not necessarily means that the
rules create ‘right’.
-One way of proving that the rights of individual exist under IL is to show that the treaty conferring
the rights gives the individual access to an international court or tribunal to enforce their right.
General rule : the individual have no locus standi or access to international court and tribunal, most
international tribunals are not open for individuals.

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Exceptions (individual may be given right to appear before an international tribunal ) : European
Convention on Human Rights and Fundamental Freedom – any private individuals who are nationals
of state parties can bring an action before the European Court of Human Right against their own
government for violations of human right.
Access to the ICJ
Article 34 (1) of the Statute of ICJ provides that – only states shall be the parties in cases before the
court.
Individuals o corporations has no locus standi before the court
-if they are victim of international wrongful act of a foreign government, they have to persuade their
national state to take up the case and initiate proceeding against the responsible state before the
world court.
Factors to be taken to initiate such international claim
There must have been an internationally wrongful act committed by a foreign state against a
national or a corporation of the claimant state
Two requirements for the admissibility of an international claim
i) Nationality of claims – there must be a linkage of nationality between the victim and
the state making the claim
ii) Exhaustion of local remedies – the victim must have been exhausted all the effective
local remedies available at the wrongdoer state
Jurisdictional requirement : Article 36 of the Statute of ICJ – the court can exercise
jurisdiction only with the consent of both state parties to the dispute
Case : Nottebohm
Corporations
Corporation or companies usually are treated as the same as individuals. Normally, their relationhip
with states is governed by the domestic law.
-However, it is possible that a contractual relationship between a corporation and a states be
governed by international law.
Eg : Texaco v Libya case
Concession agreement for the extraction of oil might be an internationalised contract subject to
rules of international law. But such contract are at the discretion of the host state and they do not
confer international legal personality on the foreign companies.
5) Recognition of states and government
May occur either
Express : by formal declaration

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Implied : to be inferred from conduct of recognising state and the new government/states (eg :
conclusion of a bilateral treaty)
Recognition of states :
General rule : the legal requirement of the for recognition of a new state are still the Montevideo
requirement of statehood
A new state may emerge by way of
Gaining independence of a former colony
Disintegration of an existing state
Merger of two or more state
Malaysian practise on the recognition of state
By virtue of Section 3 of Civil Law Act 1956, Malaysian practise is based on the traditional British
practise
Procedure : Malaysian court will rely on a certificate from the Foreign Office to be able to decide
whether a state/government is one recognised by Malaysia.
Village Holdings Sdn Bhd v Her Majesty The Queen in Right of Canada
Counsel of the defendant tendered a certificate under the hand of the Secretary-General, Ministry of
Foreign Affairs, Malaysia and read s : This is to certify that Her Majesty the Queen in Right of Canada
is a foreign sovereign recognised by His Majesty the Yang Dipertuan Agong of Malaysia.
In this case, the court accepted the certificate and it was proven that the certificate was a
conclusive proof that Canada was a sovereign state
Malaysia will still grant recognition to government and the criterion will be the traditional one
(whether the government of the state can effectively control the territory concerned)
Recognition of government
Government coming into power normally and constitutionally
Require no recognition in IL (there will be a message of congratulation and a continuation of normal
bilateral diplomatic dealings)
Government coming into power abnormally and in a revolutionary manner
Government coming into power after a coup d’etat’/ a revolution/ civil war, the recognition of the
government requires great care
Condition under IL for the recognition of such government
The new regime has effective control over most of the state’s territory
This control seems likely to continue

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The Estrada Doctrine
By recognising a government coming into force unconstitutionally, there often been a
misinterpretation
Eg : If Malaysia recognise a new regime coming into force by way of revolution, Malaysia is said
to approve the revolutionary government)
In order to avoid – states have been practising the policy of “never recognising the government”
even though they continuously grant recognition to the state – the Estrada Doctrine.
Eg : US had in 1977 given a statement saying that the United States has been avoiding the use of
recognition in case of changes of government and to concern themselves with the question of
whether they wish to have a diplomatic relations with the new government
Effect of the doctrine – It merely substitutes implied recognition for express recognition,
recognition is not announced expressly. But it can be implied from the existence of diplomatic
relations or etc
The legal effect of recognition in municipal law
3 major effect of a recognition in municipal law
Only a recognised state or government will be able to sue before the court of a recognising
state
Only a recognised state or government may claim immunity from the jurisdiction of the
courts of the recognising state
The legislative, judicial and executive act of a recognised state only will be accepted as valid
in the court of recognising state
Luther v Sagor
The Soviet Government passed a decree in June 1918 declaring all sawmills and wood-working
establishments to be nationalised.
1919 – the plaintiff mill together with its stock of wood was seized due to the decree
1920 – the representative of the Russian commercial delegation in London contracted with the
defendant for the sale and delivery of a quantity of timber which included some of the timer
seized from the plaintiff.
Plaintiff sought a declaration that the timber was their property an injunction restraining the
defendant from dealing with the timber.
Defendant argued that the decree passed in 1918, being the act of a sovereign government was
valid to deprive the plaintiff of title to the timber.
The court at firs instance, referred to a letter from the Foreign Office and held that since the
United Kingdom Government had not yet recognised the Soviet Government, the decree was
not valid. But the defendant appealed and adduced another two letters from the Foreign Office

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stating that recognition had been made by the UK Govenrment. CH that since recognition had
been made by the UK Government, the act of the Soviet Government must be treated by the
court with all respect to the act of a recognised state.
3 principles derived from this case
A foreign office certificate will be a conclusion proof of whether the British Government
recognises a foreign state or government
Recognition once given, is retroactive in effect from the time that the recognised
government established itself
British court will not recognised or enforce the law or other official act of an unrecognised
government.